Liberties has published our comprehensive gap analysis, highlighting the EU Commission’s rule of law report’s discrepancies. Our goal with this follow-up report is to propose recommendations on how the Commission can improve its Annual Rule of Law Cycle (ARoLC) and effectively curb democratic backsliding.
While the Commission’s fifth report has made notable improvements, such as the addition of enlargement countries, our analysis concludes that the reporting cycle fails to have a meaningful impact beyond documenting the rule of law violations within the Union.
The incoming Commissioner for Democracy, Justice and the Rule of Law will likely be confirmed following a hearing next month. As we enter this new chapter, Liberties urges the next Commissioner to heed the findings of our gap analysis and use the rule of law tools already at their disposal. This is a critical step to ensure that the Commission’s recommendations are not ignored.
The gap analysis builds on findings from Liberties’ in-depth shadow rule of law report by 37 NGOs covering 19 countries published earlier this year. Following consultation with our network members and partner organisations, it highlights notable omissions and methodological weaknesses in the Commission’s report.
A monitoring exercise rather than an enforcement tool
According to Liberties’ analysis, one of the main issues detected is the gap between the report’s purported function and the reality on the ground. The Commission presents the rule of law report as a successful mechanism to tackle rule of law violations by Member State governments. However, in practical terms, the rule of law report has limited value beyond a monitoring exercise.
The Commission claims that Member States followed up on 68% of recommendations in the 2023 report. However, a closer look reveals that only 19% of recommendations were significantly progressed or fully implemented, while in the case of 50% of recommendations, Member States did the bare minimum such as announcing or initiating measures. Beyond the page, the report has not proven to be an effective tool to counteract rule of law breaches.
Most Member States don’t take the recommendations seriously
The lack of progress in implementing the proposed reforms is a Europe-wide problem. Notorious rule-breakers get most of the heat for failing to tackle the Commission’s recommendations, but our analysis shows that most Member States showed little initiative in addressing their rule of law violations.
While it's no surprise that countries with authoritarian governments such as Hungary and Slovakia ignored the Commission’s rule of law recommendations, Member States regarded as the mainstay of EU values also dragged their feet. For example, our gap analysis notes that Germany, France, Austria and Spain made no genuine attempt to address the Commission’s concerns.
When strong democracies pay lip service to the report without taking its findings seriously, this undermines the ARoLC’s purpose and risks normalising rule of law violations. Worryingly, it refutes the Commission’s assertion that the report prevents democratic decline and threatens its credibility. Even if democracy is less threatened in these countries, their bad example encourages troublemakers to disregard the report as political theatre. Furthermore, if only certain countries are reprimanded, this lends credence to Euroskeptic populists such as Viktor Orbán who complain that certain Member States are unfairly singled out.
The incoming Commission should integrate the report with the rule of law toolbox
As a standalone measure, the rule of law report lacks teeth to tackle rule of law backsliding meaningfully. Luckily for the new Commissioner, the rule of law toolbox has all the necessary instruments to make the report fit for purpose. Additionally, the role’s mandate to make meaningful progress was updated by European Commission President Ursula von der Leyen in a recently published mission letter to EU Commissioner-designate for Democracy, Justice and the Rule of Law, Michael McGrath.
Liberties gap analysis calls on the incoming Commissioner to integrate the rule of law report with existing rule of law tools, such as infringement proceedings and the conditionality mechanism. Linking Member States’ progress in implementing the recommendations with enforcement mechanisms creates the much-needed urgency for governments to take the report seriously. Additionally, when assessing Member States’ progress, the Commission should evaluate the reforms' effectiveness, pace, and impact.
Entering its sixth year, the beleaguered rule of law report risks being written off as a box-ticking exercise. The next Commissioner must do better to strengthen Europe’s increasingly fragile democracy and ensure civil society remains invested in the ARoLC. Our gap analysis shows the way forward.
