2022 Rule of Law Report - Questions and Answers

Met dank overgenomen van Europese Commissie (EC) i, gepubliceerd op woensdag 13 juli 2022.

What is the Rule of Law Report?

The annual Rule of Law Report is a preventive tool and part of the annual European Rule of Law Mechanism. It complements other mechanisms and instruments at EU level, the so-called ‘EU Rule of Law Toolbox', each with their own purpose. The aim of the report is to look at both positive and negative rule of law developments across the EU, as well as the specific situation in each Member State. The rule of law benefits everyone in the EU, as it guarantees fundamental rights and values, ensures the application of EU law, and supports an investment-friendly business environment. It is one of the fundamental values upon which the EU is built.

The aim of the report is to promote and safeguard the rule of law in the EU and each of its Member States. Learning from each other's experience better equips Member States to finding the best way forward and to preventing challenges to the rule of law from emerging or deepening. The report covers 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 2022 report presents an overview of the rule of law situation in Member States and significant developments at the EU level since July 2021. It consists of a general report and 27 country chapters, and for the first time also includes concrete recommendations to the Member States.

This year's report comes in the context of the Russian invasion of Ukraine, which only further showcased the importance of upholding democratic values, human rights and the rule of law.

What is new in the 2022 Rule of Law Report?

The 2022 report for the first time includes specific recommendations to Member States, as announced by President von der Leyen in the 2021 State of the Union address. The objective of the recommendations is to support Member States in their efforts to take forward ongoing or planned reforms, to encourage positive developments, and to help them identify where improvements or follow-up to recent changes or reforms may be needed.

In the country-specific reports, the Commission has continued to deepen its assessments and follow-up on the challenges and developments identified in the previous two reports. For example, the Commission has collected more information on the framework for civil society organisations, through a targeted stakeholder consultation and a systematic involvement of stakeholders in the country visits.

The report also covers, for the first time, some new topics that have emerged as relevant for ensuring the rule of law, such as public service media, the use of spyware and an overview of the implementation of judgments of the European Court of Human Rights. The addition of these topics also corresponds to requests by the European Parliament and stakeholders.

Why add the recommendations? How were they developed?

The inclusion of concrete, country-specific, recommendations was first announced by President von der Leyen in the 2021 State of the Union address.

In line with the preventive nature of the report, and based on the continuous dialogue with Member States, the objective of these new recommendations is to: (i) support Member States in their efforts to take forward reforms; (ii) encourage positive developments; and (iii) identify where improvements or a follow-up on reforms may be needed, also with a view to addressing systemic challenges in certain cases. The recommendations stem directly from the analysis included in country chapters and aim to guide Member States to take appropriate measures to address concerns raised. The recommendations do not prejudge in any way any proceedings the Commission may initiate under other legal instruments, such as infringement procedures or the Conditionality Regulation.

In preparing the recommendations included in this report, the following principles have been observed:

  • All Member States are subject to country-specific recommendations in full respect of the principles of equal treatment and proportionality.
  • The recommendations in the report are based on an in-depth assessment in the country chapters, and the application of objective criteria grounded in EU law or European and international standards.
  • The recommendations are proportionate to the identified challenges. They also encourage the pursuit of positive reform efforts.
  • The recommendations are sufficiently specific to allow Member States to give a concrete and actionable follow-up, while taking the national competences, legal systems, and institutional context into account as relevant.
  • In preparing the recommendations, the Commission has paid close attention to consistency and synergies with other processes, such as the European Semester, the Conditionality Regulation and the national Recovery and Resilience Plans.
  • Subsequent editions of the Rule of Law Report will cover the follow-up to the recommendations.

How will the Commission follow up on the recommendations?

The Commission invites Member States to address the challenges identified in the report and stands ready to assist Member States in the efforts to implement the recommendations. Next year's report will cover the follow-up on the developments and assess the implementation of the recommendations. As the new annual cycle of dialogue on the rule of law will now start, the Commission invites the Council and the European Parliament to continue organising general and country-specific debates on the basis of this report. This will also provide the opportunity to look further at concrete implementation of the recommendations.

How did the Commission prepare the 2022 Rule of Law Report?

The 2022 edition is the result of an inclusive process with Member States and stakeholders, and follows the same methodology as the previous reports, updated following discussions with Member States.

In November 2021, Member States were consulted on the questionnaire used to collect input for the third report. Between December 2021 and January 2022, the Commission received written input from Member States and over 250 written contributions from stakeholders about specific developments in Member States, as well as at the EU-level.

Between February and April 2022, over 500 country visits took place online across all 27 Member States, and the Commission discussed rule of law developments with nearly 700 national authorities, including judicial authorities, law enforcement, as well as other stakeholders, such as journalists' associations and civil society organisations. Member States were given the opportunity to provide factual updates on their country chapters ahead of the adoption of the third Rule of Law Report.

The Rule of Law Network, which was set up in 2020, continued providing a channel of communication between the Commission and the Member States.

How has the Commission assessed the developments related to the rule of law in the 27 Member States?

The assessments contained in the 27 country chapters were prepared in line with the methodology discussed with Member States. The work is based on a variety of sources, and is again focused on four main pillars: the justice system, the anti-corruption framework, media pluralism, and other institutional checks and balances. For each pillar, the methodology recalled the EU law provisions relevant for the assessment. It also refers to opinions and recommendations from the Council of Europe, which provided useful guidance.

The country chapters rely on a qualitative assessment carried out by the Commission, focusing on a synthesis of significant developments since the adoption of the last report. The assessment covers both challenges and positive developments, including good practices. In each country chapter, the analysis focuses in particular on topics where there have been significant developments, or where important challenges have been identified in the previous report and persist during the reporting period.

The country-specific chapters do not purport to give an exhaustive description of the rule of law situation in Member States but focus on the most significant developments.

The specific recommendations tailored to each Member State stem directly from the assessments included in the country-specific chapters.

What is the value added of the Rule of Law Report?

Throughout the past year, the rule of law has been a prominent theme on the European agenda, with the 2021 Rule of Law Report bringing a major contribution to informing the political as well as the technical debate at both EU and national level. The annual Rule of Law Report is indeed central to our efforts to have a practical impact on promotion and safeguarding of the rule of law in the EU.

The findings of the Rule of Law reports have brought a major contribution to informing the debates on the rule of law at both EU and national level. On its basis, the General Affairs Council meetings, for example, held constructive discussions and successfully exchanged best practices.

The European Parliament has also played an increasingly important role in debating the rule of law, a trend which has continued over the past years. In this regard, the European Parliament has provided the Commission with several recommendations on how to develop the reports further. The decision to include recommendations in the 2022 report also responds to a call from the European Parliament.

In the same vein, following the publication of the 2021 Rule of Law Report, the Commission visited most national Parliaments to present and discuss the methodology and the country-specific findings of the 2021 Rule of Law Report.

Which stakeholders were consulted on this report?

The Commission carried out a targeted stakeholder consultation, which provided general and country-specific contributions from a variety of EU agencies, European networks, national, European civil society organisations and professional associations and international and European actors. These included: the Fundamental Rights Agency, the European Network of Councils for the Judiciary (ENCJ), the European Network of National Human Rights Institutions (ENNHRI), the Council of Bars and Law Societies of Europe (CCBE), the Council of Europe, and the Organisation for Economic Co-operation and Development (OECD) as well as national and international civil society and journalists' organisations.

The report also builds on a series of studies and reports, such as the Media Pluralism Monitor, Eurobarometer, or EU Justice Scoreboard.

How will the Commission support Member States in addressing challenges?

Several instruments and funding opportunities are already in place to support structural reforms through technical assistance and the funding of projects. For example, since 2017, the Commission has had a dedicated programme (Technical Support Instrument) for technical support for rule of law reforms in Member States. The support can take the form of expert- and fact-finding missions on the ground, sharing relevant best practices, diagnostic analyses, and the development and implementation of targeted solutions.

Moreover, the recommendations are meant to guide Member States to take measures to address particular concerns raised in the Report. The Commission stands ready to assist Member States in implementing them.

Other Commission programmes, such as those for Justice and Citizens, Equality, Rights and Values, also help Member States address challenges, including through calls for proposals open for civil society and other stakeholders.

The Commission has ensured that the Recovery and Resilience Facility is used to drive reforms necessary to address recommendations under the European Semester. The Member States' Recovery and Resilience Plans include important reform priorities, such as improving the business environment through effective public administration and justice systems.

What is the Rule of Law Mechanism?

The European Rule of Law Mechanism provides a process for an annual dialogue between the European Parliament, the Council and the Commission, as well as with Member States, national parliaments, civil society and other stakeholders. The Rule of Law Report is the foundation of this process.

The Rule of Law Report, and the preparatory work with Member States, is an annual exercise of the Mechanism, and serves as a basis for discussions in the EU to prevent problems from emerging or deepening and identify and share best practices. Identifying challenges as soon as possible with mutual support from the Commission, other Member States, and stakeholders, including the Council of Europe and the Venice Commission, helps Member States safeguard and uphold the rule of law.

The European Rule of Law Mechanism is part of broader EU efforts to promote and defend its fundamental values. This work is also carried out through the European Democracy Action Plan, the renewed Strategy for the Implementation of the Charter of Fundamental Rights, as well as targeted strategies to help build a Union of Equality.

How does the Annual Rule of Law Report relate to other procedures?

The annual Rule of Law Report is a preventive mechanism, aimed at improving the rule of law situation across the EU, raising awareness of challenges and facilitating solutions early on to prevent deterioration. It complements a number of other mechanisms and instruments at EU level, each with their own purpose.

When preparing the recommendations, the Commission has paid close attention to consistency and synergies with other processes, such as the European Semester, the General Conditionality Regulation and the national Recovery and Resilience Plans.

  • Article 7 of the Treaty on European Union (TEU)

The Article 7 TEU procedure remains an exceptional response instrument for the EU to act where there is a clear risk of a serious breach, or the existence of a serious and persistent breach, of the values of Article 2 TEU, including the rule of law.

  • Infringement procedures

Infringement procedures have a specific aim, namely to ensure the correct application of EU law by Member States. Under the Treaties, the Commission may take legal action against a Member State that fails to implement EU law by launching an infringement procedure and ultimately referring the matter to the Court of Justice.

  • Rule of law conditionality mechanism

The general regime of conditionality is a budgetary instrument designed to remedy adverse effects of breaches of the principles of the rule of law on the financial interests of the Union.

The Commission may take into account the Rule of Law Report, as well as other sources from other institutions (for instance, the European Anti-Fraud Office, the European Public Prosecutor's Office, and the European Court of Auditors), when identifying and assessing breaches of the principles of the rule of law that affect the financial interests of the EU.

  • Recovery and Resilience Facility

The Commission has ensured that the Recovery and Resilience Facility is used to drive Member States' reforms of the judiciary, anti-corruption frameworks, public administration and digitalisation of their justice systems to strengthen their investment climates.

  • The Cooperation and Verification Mechanism

When they joined the EU on 1 January 2007, Romania and Bulgaria still had progress to make in the fields of judicial reform, corruption and (for Bulgaria) organised crime. The Commission set up the Cooperation and Verification Mechanism (CVM) as a transitional measure to assist the two countries to remedy these shortcomings.

The scope of the new Rule of Law Mechanism is broader than the CVM, as it covers not only judicial reform and the fight against corruption, but also media freedom and pluralism as well as institutional checks and balances. The Communication on Strengthening the Rule of Law states that once the CVM ends, monitoring should continue under horizontal instruments. As such, the Rule of Law Mechanism provides the framework for taking these issues forward in the future.

  • The EU Justice Scoreboard

The EU Justice Scoreboard presents comparative data on the functioning of national justice systems. It is one of the sources of information which informs the Rule of Law Report, the Rule of Law Conditionality Mechanism, and the European Semester.