The rule of law report published by the EU Commission is the outcome of the second annual audit of EU countries’ democratic records, which the Commission committed to carry out starting from 2020.

At the time the first such report was released last year, Liberties, which had long advocated for a regular and transparent audit of this kind, pointed out how, while the initiative had to be welcomed as a groundbreaking step forward for the EU, there were risks of it becoming a mere box-ticking exercise. Rights and democracy groups joined Liberties’ calls and similar criticism was echoed by the European Parliament.

The timid improvements made in this second edition of the Commission’s rule of law report are far from sufficient to dispel those concerns.

Elephants are still in the room

Over the past year, building on a successful first pilot reporting, Liberties invested in further mobilising its member and partner organisations across the EU to engage and come up with a joint shadow reporting reflecting the state of rule of law in the EU viewed by civil liberties organisations. Liberties’ report, which we sent in to the EU Commission to feed into its 2021 rule of law audit, pointed to a number of alarming trends attracting quite a lot of attention.

On a positive note, the EU Commission’s report does reflect some of the key concerns raised by Liberties and its members. These include weak checks and balances, and in particular challenges affecting the independence and efficiency of courts and a widespread use of emergency powers, which have created a fertile ground for corruption especially during the COVID-19 crisis, as well as rising pressure on media actors and on civil society. The EU Commission made an effort to deepen its assessment on certain key issues including as regards threats and attacks to watchdogs such as journalists and civil society actors, including through gag lawsuits, known as SLAPPs.

However, the Commission’s report falls short of giving an accurate account of the broader picture.

On the one hand, the Commission’s audit's restricted scope yet again prevented it from grasping the scale of systemic human rights violations happening within its borders and their impact on democracy and the rule of law. As Liberties report shows, striking examples of widespread human rights violations in the EU include a steep regression in equality for women and LGBTQI persons, structural racism including racial profiling and police brutality, disproportionate restrictions on the right to peaceful assembly including the use of force against and abusive prosecutions of campaigners and protesters, as well as widespread violations of the rights of migrants including violent pushbacks and ill-treatment. While some of these developments are, albeit timidly, reflected in certain country reports, the EU Commission has overlooked many of these human rights abuses by public authorities and had missed the opportunity to reflect how governments’ failure to prevent, investigate and sanctions such violations affect the rule of law.

On the other hand, the EU Commission’s report has again shied away from exposing authoritarian patterns of systematic, combined and deliberate attacks aimed at weakening the rule of law, democracy and human rights infrastructure. The report is slightly more explicit than last year on how attacks to the judiciary, the media and civil society can create fertile grounds for impunity and corruption and affect the rule of law infrastructure. However, this has not translated into a critical and contextualized analysis of country developments aimed at exposing the way in which governments in the EU, and in particular Hungary and Poland, are carrying forward such calculated strategy, including through the use of the pandemic as a pretext to intensify their efforts to further weaken checks and balances.

Expanding the scope of the audit to better reflect the interconnection between rule of law, democracy and respect for human rights would greatly benefit the credibility and impact of the Commission’s efforts. But this must be done in combination with exposing, without censorship, developments questioning certain governments’ genuine attachment to the rule of law.

The allies-in-waiting

Rights and democracy groups play a key role in gathering evidence-based information that feeds into the Commission’s assessment. They also help to improve the audit process and increase its impact on the ground.

The need for the EU Commission to make the process leading to the adoption of its rule of law reports more transparent and inclusive was a point Liberties has been insisting on. Rights and democracy groups have not hesitated to invest their time and resources to make it work – and hopefully some concrete support for their efforts will be soon channelled by the EU through the new Citizens, Equality, Rights and Values Fund. However, the Commission has so far made very little effort to facilitate their participation in the rule of law audit and meaningfully build on their contributions.

Once again, the public consultation was too short, too limited in scope and far from user-friendly. The EU Commission’s proactive attempts to engage with civil society actors beyond the public consultation, in particular to discuss specific country situations, were a welcome step. But they were rather scattered and inconsistent. The methodology used to design the consultation and to draw up the country reports remains rather untransparent and was not made the object of a proper evaluation from stakeholders. Civil society actors remain cut out of any follow-up discussion on the report’s findings at both technical and political level.

If the Commission wants its rule of law reports to be fully informed assessments that can help achieving real progress on the ground, it must step up its efforts to ensure the meaningful participation of independent watchdogs like rights and democracy groups throughout the whole process.

Barking dog without teeth

Once again, the EU Commission did not include any recommendations to EU governments on how to address identified shortcomings, nor did it provide any indications on the concrete actions it intends to take towards those that keep on deliberately undermining rule of law and democracy in their countries. The report limits itself to describe existing tools to protect the rule of law at EU level, but without tying in its findings to the use of any of them. As we explained here, these include values-based infringement proceedings, the rule of law framework and the newly adopted rule of law conditionality mechanism.

The EU Commission would counter-argue that the rule of law audit was never meant to serve as an enforcement mechanism but as a preventive tool primarily intended as an early warning system and a hook to foster a constructive debate on rule of law issues among EU institutions and governments.

However, the disconnection between the EU Commission’s rule of law reports and the use of sanctioning tools leaves one wondering what the real value added of this exercise is, compared to other periodic audits and reviews carried out by regional and international actors. The deterioration of rule of law across the EU, including in the context of the COVID-19 pandemic, and the extreme backsliding in authoritarian-ruled Hungary and Poland, are an urgent call to use the EU Commission’s annual rule of law audit to its full potential. Indeed, it is not the information about the state of our democracies which is missing, but rather a critical assessment of the direction the EU wants its member states to go, and concrete action to drive them that way.