'Undrinkable Cocktails' and a Soft Bartender: A Review of the First EU Rule of Law Report

​The European Commission released its first-ever EU Rule of Law Report. Liberties welcomes the Report but warns that such reports must not just be a box-ticking exercise.

The Report published by the European Commission is the first release of the annual audit of EU countries’ democratic records which the Commission committed to carry out starting from 2020.

This is a ground-breaking step forward for the Commission.

It is a significant change in its attitude towards the EU’s stated commitment to uphold basic European values set out in Article 2 of the EU Treaty. These values include respect for democratic standards, the rule of law and human rights: important tools which make our societies free and full of opportunities to live fulfilling lives.

The Report focuses on how EU governments are performing in some important areas:

  • Justice, which provides a forum where we can give our side of the story and have someone impartial take a fair decision when things go wrong in life;
  • The fight against corruption, which prevents politicians from taking decisions that put their own friends and family first instead of us;
  • Media freedom, that makes sure we have journalists that can report freely so that we can keep track of what our governments are doing;
  • Checks and balances, including enabling watchdogs like rights and democracy groups to make our governments pay attention to our opinions.

Not only about “undrinkable cocktails”

The Report is a useful look into the state of democracy across the EU and a reminder that our liberties are something we can never take for granted.

It reflects earlier findings on the sustained attacks on democracy and civil liberties carried out for many years by the authoritarian governments in power in Hungary and Poland. These have created what the EU Commissioner for Values and Transparency Věra Jourová referred to at the presentation of the report as “undrinkable cocktails” for EU democratic standards.

It also exposes other EU countries where combined and systemic threats make the situation look very serious, in particular Bulgaria, Romania and Slovenia.

But an in-depth read of the country reports reveals worrying trends across the EU, including in countries with strong democratic traditions such as Belgium, Cyprus, Greece, Ireland, Italy, Malta and Spain. The most widespread concerns include:

  • Serious obstacles hindering media freedom and independence in many EU countries, including political influence on the media, lack of pluralism in the media landscape and a surge in attacks and abusive lawsuits against journalists;
  • Increasing attempts by many EU governments to hamper people engaging in civic activism and public participation, through, among others, restrictions on access to funding for civil society actors and smear campaigns against civil society activists and organisations;
  • Inadequate efforts to fight against government corruption, in particular cases exposing high level public and political figures;
  • Insufficient fairness and efficiency of justice, also due to political influence over the courts and excessively long proceedings.

The Report also raises preliminary concerns that the response to the COVID-19 pandemic has been accompanied in many countries across the EU by a substantial weakening of democratic checks and balances and the widespread use of emergency and accelerated lawmaking.

The Report’s findings match the concerns emerging from the submission Liberties sent in to the Commission to feed the preparation of the its Rule of Law report. It also resonates with the evidence compiled in a joint Liberties and Greenpeace European Unit report about the disproportionate restrictions on people’s freedoms imposed by EU governments during the COVID-19 pandemic.

A ground-breaking exercise, but with some lacunas

Liberties has long advocated for a regular and transparent exercise of this kind as one way to help the EU to step in at an early stage before threats to democracy become harder to reverse, such as in Hungary and Poland.

The Report is one first, good step in this direction. It has an important symbolic value as it marks the European Commission’s acknowledgement that the EU is not immune to authoritarians trying to subvert democratic principles and freedoms from within. It also shows that the Commission has finally come to terms with the important role it has to play in systematically monitoring respect for these principles and freedoms by EU governments, and in coming out to the public with its assessment.

However, there is a lot of room for improvement.

First, the scope of the Commission’s audit remains too restrictive. Remarkably, it does not look into human rights abuses by public authorities and their failure to prevent such violations. Excessive surveillance, data breaches, police abuse, racial segregation and ill-treatment of migrants at EU’s external borders are some of the most striking examples of human rights breaches happening across the EU. Rule of law, democracy and human rights are interlinked and mutually reinforcing: a democracy based on the rule of law can only be realised where human rights are fully protected. If the Commission is serious about the rule of law, it should also reflect worrying patters of human rights breaches in its assessment.

Secondly, the process leading to the adoption of the reports has to be made more transparent and inclusive. While the European Commission did encourage stakeholders, including rights and democracy groups, to feed its report, the public consultation was too short and too limited in scope and not enough space was given to civil society actors to engage with the Commission on its country assessments. Certainly, this was no easy exercise and the pandemic outbreak complicated things further. But rushing it through was no good solution, either.

Thirdly, and crucially, the Report lacks clear recommendations to EU governments on how to address identified shortcomings. Or, where dialogue is clearly not an option any longer, like with authoritarian regimes in Hungary and Poland, clear indications on the action the Commission intends to take. A report with no recommendations and follow-up attached to it will not stop populist authoritarians from deliberately undermining democracy in their countries – and will not prevent others to go down the same road.

What happens next is even more important

The Commission’s Report has already sparked heated reactions by some of the EU governments being called out. The Hungarian minister of justice tweeted that the Commission’s audit falls short of being impartial, objective and non-political. This comes after the prime minister’s latest blow demanding the sacking of Commission’s Vice-President Jourová over recent statements on Hungary’s state of democracy, and the announcement that Hungary is joining forces with the Polish government to set up their own ‘rule of law monitoring institute’. Slovenia also came out in support of Hungary’s positions.

But pulling out a report just to sit on its findings is not enough to deal with strongmen like Viktor Orbán. Nor is it sufficient to prompt other EU leaders with authoritarian tendencies to refrain from weakening democratic norms and freedoms over their political aims. Or to prevent problems from emerging in other countries.

EU Commissioner for Justice Didier Reynders said during the presentation that the Rule of Law Report is meant to increase joint awareness over existing challenges and open a debate with and among EU countries. But trying and find compromises will only make authoritarianism gain strength inside the EU and will eventually undermine the EU as a group of democratic nations. Here are some suggestions on what the Commission and its fellow EU institutions should do to reverse this trend:

  1. Act tough and speak with one voice against governments attacking democracy and freedoms. Political sanctions must be applied when governments deliberately threaten democracy and freedoms. An interinstitutional agreement as proposed by the European Parliament can help to make this happen.
  2. Stop the money flow. The Commission must remain firm on the urgency to get its proposal to make EU funding conditional upon the respect of the rule of law adopted. Until the proposal becomes law, it should suspend disbursement of funds, including COVID-19 recovery funds, on the basis of rules on sincere cooperation and legal spending, while making sure that end beneficiaries can benefit from alternative funding channels.
  3. Make a better use of EU law. The Commission should take countries to the EU court more frequently when they break EU rules that help safeguard media independence, allow association to function freely or stop corruption. It should also come up with new EU rules to oblige states to protect media actors and rights groups from abusive lawsuits (known as SLAPPs).
  4. Show no tolerance for authoritarian regimes. EU institutions should have a serious discussion on how to ensure stricter adherence to Article 2 values by EU political parties and their national member parties, building on existing requirements for EU political parties’ registration and funding. Inaction over the long-due expulsion of Orbán’s Fidesz from the European People’s Party (EPP) family should have thought them something.
  5. Give real help to grow support for democracy and freedoms. The EU should make sure that organisations that help make democracy work properly have enough money. For example, independent journalists and rights and democracy groups. This should be a priority for the future Rights and Values Programme.