2023 Rule of Law Report: Civil society across Europe voices concerns and recommendations

Author: Cvetanka Aleksandroska, volonteer at EPI

The European Union’s (EU) Rule of Law Report is the basis of the European Rule of Law Mechanism, which is a preventive tool that aims to promote the rule of law and prevent challenges from emerging or deepening. The report, published for the first time in September 2020, monitors rule of law developments in Member States annually and it is comprised of a broader report covering the general rule of law situation in the EU, as well as separate chapters for each Member State. It covers 4 pillars: justice, anti-corruption, media pluralism, and checks and balances. In addition to being aimed at strengthening the rule of law in the EU, the report is meant to prompt inter-institutional EU cooperation as well as dialogue with national parliaments, civil society, and other stakeholders on the rule of law. Thus, interest groups such as non-governmental organizations (NGOs) and civil society organizations (CSOs), are in addition to being part of the target readership of the report, also asked to provide their contributions by feeding the assessment of the Commission with accurate information on the rule of law developments taking place in the Member States.

On February 22, a joint civil society statement on the 2023 Rule of Law Report was published. Once again, the central concern is that the report does not adequately reflect the strong connection between the rule of law, democracy, and human rights. The first and main recommendation is thus for the Commission to broaden the scope of the report to ensure a comprehensive approach to all values comprised in Article 2 of the Treaty on European Union and more effectively detect attempts to undermine them. This inherent link and dependence between the core values of the EU, as well as the importance of the explicit recognition of that link, was emphasized in the 2022 civil society statement as well. The core values are undeniably related because advancements in one field spur advancements in other fields, and vice-versa. Legal procedures are necessary for democracy to function, they must be introduced through a democratic process, and they must uphold human dignity. The European Civic Forum’s 2021 report, which evaluated the involvement of civil society in the Rule of Law Mechanism dialogue, emphasized the same point. The first recommendation in that report stressed the need for better integration and links between the Rule of Law Report and other policies that intersect with, and affect the rule of law in practice, such as the EU Democracy Action Plan, the Strategy to strengthen the application of the Charter of Fundamental Rights, the EU Anti-racism Action Plan, the LGBTIQ Equality Strategy, and the European Pillar of Social Rights Action Plan linked to the European Semester.

Besides this concern that persists in the statements throughout the past few years, European CSOs through this year’s statement also urged the Commission to focus on improving the visibility and awareness of the report by moving the publishing date from July to September and extending the timeline for stakeholder consultations; enhancing the specificity of the recommendations for the Member States comprised in the report by further clarifying their nature and measurability; and introducing a system for qualitatively measuring their implementation. The statement also emphasizes the worrisome tendency of contesting the authority of the Court of Justice of the EU and the European Court of Human Rights in the Member States and failing to implement their rulings, which the Commission has not yet sufficiently addressed. Hence, civil society urges the Commission to be willing to fine any Member State until its national laws are fully in linelaw andEU law and to ie better the EU and Council of Europe rule of law and human rights protection systems in order to ensure that EU Member States fully respect the Convention for the Protection of Human Rights and Fundamental Freedoms.

Furthermore, the civil society statement reiterates that freedom of expression and media freedom are the backbone of democracy and the rule of law and recommends for the 2023 report more effectively address issues such as the use of abusive lawsuits to silence journalists (strategic lawsuits against public participation, SAPPs) by including concrete recommendations to counter this type of intimidation. Another recommendation is to strengthen the participation of civil society and media organizations in the Rule of Law Mechanism dialogue by making the reporting process more accessible and transparent by placing such organizations at the centre of country visits along with local authorities. Increasing efforts to highlight the value-added of civil society actors as watchdogs of democratic principles, continuing support for the civil society sector, and ensuring that civic space is addressed appropriately in EU legislation are further ways to tackle the shrinking civic space. The final recommendation is to take into account the effects of the Russian war in Ukraine on the rule of law in the EU, particularly in relation to the situation of Ukrainian refugees in EU Member States who continue to face difficulties with regard to the state of regulations passed into law to facilitate their long-term stay, their access to public services and the justice system, as well as in relation to the measures taken against Russians or individuals and businesses with ties to Russia, whose rights must be upheld in order to safeguard the rule of law for everybody.

Thus, the challenges facing the rule of law in the EU are both recent and older, as are the concerns and recommendations expressed by civil society groups throughout Europe. The inadequate reflection of the deep connection between the core Article 2 values in the report, the inadequate tackling of the non-implementation of court decisions, and the concerns about the continuous shrinking of civic space are issues that have persisted throughout the past few years and are now compounded by the changing geopolitical landscape. For the Rule of Law Mechanism to reach its full potential as a comprehensive and effective tool, and to adequately frame the complete rule of law picture, it is essential that all pertinent stakeholders participate in the consultation process and the developing of the country-specific recommendations.