The European Commission published last week the third EU-wide Report on the Rule of Law showing as in previous reports positive developments in some member states and serious concerns in other countries.
The first report was published in September 2020 and the second one in July 2021. The aim of the reports is to add a preventive tool to the EU toolbox of treaty-based mechanisms to safeguard the rule of law and to stimulate an open debate on the rule of law culture across the EU. The annual reports should help member states examine problems and learn from best practice in other countries.
The rule of law report includes a Communication looking at the situation in the EU as a whole and dedicated country chapters on each member state. This year’s report contains for the first-time specific recommendations addressed to each member state.
The recommendations are not binding and intended to encourage member states to take forward reforms and help them identify where improvements are needed. In drawing up the recommendations, the Commission writes that it has paid close attention to keeping them focused and anchored in European law and standards, while also respecting the specificity of national legal systems.
As previously reported, Belgium must for example do more to provide its justice sector with enough staff and resources. The Commission cited an audit by Belgium’s Supreme Judicial Council on the negative impact of the COVID-19 crisis on the staffing of courts of first instance and public prosecutor’s offices.
Systemic problems in some member states
The concept ‘rule of law’ includes principles such as legality, implying a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibiting the arbitrary exercise of executive power; effective judicial protection by independent and impartial courts, effective judicial review including respect for fundamental rights; separation of powers; and equality before the law.
“Rule of law remains a bedrock of democracy,” said Vera Jourova, Vice-President for Values and Transparency. “Russia's war in Ukraine is another reminder of the importance of our work to uphold and promote rule of law in the EU and beyond.”
“For the first time, the report looks into public service media,” she added. “More safeguards are needed to ensure that the independence of public service media is protected, that public funding is adequate and not used to put political pressure on those media.
Commissioner for Justice, Didier Reynders, underlined, in face of Russia’s military aggression against Ukraine, that protecting and promoting the rule of law is more important than ever. “The EU will only remain credible if we uphold the rule of law at home and if we continue to reinforce the rule of law culture."
The new report shows that rule of law reforms have continued to take place in many member states to address challenges identified in the previous two reports. At the same time, structural or systemic concerns remain in some member states and it is not clear if overall the rule of law in the EU has improved since the launch of the reports.
The report mentions in particular the persistent problems in Poland and Hungary. In Poland, serious concerns about the independence of the national council for the judiciary remain unaddressed, even though these have been raised in a number of rulings of the European Court of Justice and of the European Court of Human Rights.
In Hungary, the National Judicial Council continues to face challenges in counter-balancing the powers of the National Office for the Judiciary President as regards the management of the courts and the recommendation to strengthen judicial independence. The concerns in both countries have also been expressed in the context of the Article 7(1) on suspending voting rights in the Council.
As with previous reports, this report examines developments in four key areas for the rule of law: justice systems, the anti-corruption framework, media pluralism and freedom, and other institutional issues linked to checks and balances.
The report highlights among others the key role of the Ombudsperson, the National Human Rights Institutions, equality bodies and other independent bodies in providing checks and balances, defending the right to good administration and fair treatment. As in previous reports, the important role of the supreme audit institutions in the system of checks and balances is not mentioned.
Concerns about spyware
Following the disclosure last year by a consortium of investigative journalists about the use of intrusive spyware, such as ‘Pegasus’, a special paragraph in the report is devoted to this topic. In the EU, journalists, lawyers, national politicians and MEPs were targeted in some countries. The report mentions Hungary, Poland, France and Spain but there may be more countries.
The European Parliament established earlier this year a committee of inquiry to investigate alleged breaches of EU law in the use by the member states of Pegasus and other surveillance software. For its work, the committee will depend on the cooperation of the EU member states and the European Commission.
The NSO Group which developed and sold Pegasus to EU member states claims that its software is intended for use only by government intelligence and police to fight against organised crime and terrorism and that it is not responsible for any misuse by its clients for other purposes.
Asked by The Brussels Times, if the Commission will call on the member states concerned to cooperate with the committee, a senior official replied that it cannot interfere in the committee’ work. There are voices in the committee who favor an outright ban on the use of spyware in the EU. The commission refers to national security and seems to recommend that the rules should be tightened and enforced.
“The rule of law requires that the recourse to such tools by Member States’ security services is subject to sufficient control that it fully respects EU law, including fundamental rights such as the protection of personal data, the safety of journalists and freedom of expression. The use of surveillance means in criminal investigations also have to respect procedural rights, including the rights of defendant.”
The work of the committee has both internal and external dimensions. At a hearing last week, Dutch MEP Jeroen Lenaers (EPP), chair of the committee, announced that it will travel to Israel to meet the NSO Group, Israeli export authorization authorities and Palestinian human rights activists that have been targeted by the spyware.
M. Apelblat
The Brussels Times
