The European Commission’s fourth annual report on the rule of law situation in the EU was released in July, following the earlier release of Liberties’ own shadow rule of law report.

Liberties and its members have reviewed the Commission’s report and produced the gap analysis to highlight areas where national-level organizations highlight ongoing problems that could and should have been addressed by the Commission in its analysis.

This is a timely exercise, as the EU General Affairs Council continues conducting country-specific discussions, today focusing on three countries included in Liberties’ report: Germany, Estonia and Ireland.

Gaps in the Commission’s report

The analysis sets forth a number of areas where critical gaps exist in the Commission’s reporting. A primary gap is the lack of contextual and in-depth analysis provided by the Commission’s report. The Commission seems reluctant to engage in an analytical reporting as to how, in certain countries, the deterioration of rule of law standards is the product of deliberate efforts by the governments in power to weaken safeguards to pursue their agendas, evade democratic scrutiny, or maintain their grip on power.

A second shortcoming of the Commission’s report is the lack of intersectional analysis – the failure to provide for an analysis of how each section is linked to the other. For example, gaps in procedural safeguards within the justice system mostly impact migration and prisoner cases, in particular in Ireland, Belgium and Italy.

Another major gap missing from the Commission’s report is the inclusion of further considerations about how systemic human rights violations impact on the rule of law environment. As Liberties’ report once again illustrated, backsliding on human rights standards continues to be a stain on the rule of law record of many member states. A blatant example includes the systemic violations of rights of people who migrate, which was reported by Liberties’ members in Estonia, Germany and Ireland, among others.

There are other things the Commission could do that would dramatically improve the annual reporting cycle, among them: there should be better engagement with civil society organizations, including the establishment of a structured and planned-ahead process for national rule of law dialogues; and the country-specific recommendations continue to lack articulation and detail, and do not seem targeted enough to the concerns identified and the relevant national legislative and political context.

Food for thought

The Liberties gap analysis also provides food for thought for EU policymakers as they reflect on improving and expanding the annual rule of law dialogue, against the background of an ongoing evaluation of the exercise by the member states.

The gap analysis also sets forth important steps that should be taken to make the monitoring and reporting exercise more transparent and participatory for non-state actors, in particular:

• to allow for input/feedback on the consultation questionnaire;
• to create a space for targeted consultations for the purpose of the formulation of country-specific recommendations;
• to ensure a structured engagement with national civil society actors as regards the country reports’ follow-up and the implementation of recommendations, in order to gather critical feedback and recommendations on the way forward.

Liberties believes these efforts are necessary to strengthen the credibility of the annual rule of law dialogue, improve its impact on the ground and maintain the engagement of civil society organizations in the process.

Read the full gap analysis report here.