Petra Bárd is Professor of Sustainable Rule of Law at Radboud University in the Netherlands. She also holds a position at the Eötvös Loránd University in Budapest and was previously a lecturer at CEU.
Laurent Pech is Full Professor of Law, Dean of Law and Head of the Sutherland School of Law at University College Dublin in Ireland. He was previously the Jean Monnet Chair of European Public Law at Middlesex University in the UK. They are both Research Affiliates of the CEU DI.
Oliver Garner: You have both criticised the European Commission’s Rule of Law Report mechanism jointly in a study for the European Parliament Think Tank in 2021 Laurent and an expert commentary for the Heinrich Boell Stiftung in 2020, Petra in a RECONNECT project blog also in 2020, and Petra most recently in a Verfassungsblog piece on the 2024 report. Could you summarise for our listeners your main criticisms, and your proposals to address them? How can the recommendations of the reports be channelled into enforcement instruments in the future?
Petra Bárd: Thank you very much for this question. I think this is a very important one, especially because there are so many monitoring exercises on behalf of the European Union when it comes to the rule of law. If I may quote Professor Pech, he calls this a cycle of tool creation that is absolutely unnecessary. The European Union already has all the tools to sufficiently address rule of law backsliding or any rule of law issue, provided these tools were used in a systemic, dissuasive and coordinative manner.
Of course, any enforcement must be preceded by a monitoring exercise, and the most useful one so far seems to be the Commission’s annual Rule of Law Report. This brings us to a somewhat provocative suggestion: to abandon all other monitoring exercises that are of no use, such as the Council’s Rule of Law Dialogue, which is a 30-minute exercise held every three years in a member state. This certainly won’t solve the issue of rule of law backsliding.
When it comes to the actual Annual Rule of Law Report, our first suggestion was to extend rule of law scrutiny to include democracy and fundamental rights due to the interrelatedness of these issues. One example is the lack of access to information or media capture, which affects all voters in making informed choices during elections. So, it’s also a democracy issue. Judicial independence is also a fair trial issue. These rule of law, fundamental rights, and democracy issues are fundamentally interlinked, and you cannot address one without addressing the others as well.
Our next suggestion is the involvement of an expert panel. Ursula von der Leyen famously (or infamously) said during her first term that the European Commission would be a political and geopolitical Commission, which is fine. However, this does a disservice to rule of law scrutiny, as it will always be criticized as being political. Additionally, the most recent report has been heavily criticized by the European Parliament, so it’s not just us saying so. It has been criticized for toning down the language, not clearly addressing the differences between hybrid regimes and democracies, and for recommendations that do not always correspond to the devastating findings of the report.
We also recommend having different benchmarks for different regime types. We need to differentiate between hybrid regimes and democracies. Additionally, we suggest adopting a longitudinal approach. With the fifth report already out, we can now see trends that should be highlighted. The most important recommendation is to channel the negative findings, especially when they point to systemic rule of law problems, into enforcement tools such as Article 7(2) TEU, infringement proceedings, or the various conditionality mechanisms.
Laurent Pech: I obviously agree with Petra, and I will just highlight something Petra has not mentioned, which we didn’t really cover in our study for the European Parliament back then. At the time, recommendations were not included in the country reports. However, I have noticed a tendency to oversell the report’s effectiveness last year and even this year when it comes to actual compliance with the Commission’s recommendations. There is an overall figure of alleged progress in terms of compliance, but there is no factual basis for this. We don’t even have a clear definition of what it means to be in a state of progress or partial progress. So there is a lack of evidence-based analysis to back up this claim. I believe this is connected to political pressure for the European Commission to appear, or at least to ensure that people are convinced, that the resources invested in publishing this annual report are justified.
I think this brings up a broader, practical, pragmatic concern: Does the report’s impact actually justify the opportunity cost? While producing these reports, are we failing to invest resources in enforcement teams within the European Commission? This is a broader consideration. So, the two criticisms I would add are overselling the report for political reasons and the broader issue of opportunity cost—does the reporting mechanism come at the price of marginalizing or reducing resources available for actual enforcement?
OG: It seems the crux of your arguments can be summarised as enough conversation and more action being needed.Petra, you mentioned in your answer democracy and in your the Verfassungsblog piece you propose, including a chapter in the Rule of Law Report focused on civil society’s role in maintaining democratic standards and fostering accountability. However, how could this involvement of civil society be guaranteed in the preparation of the report? Should their role be strengthened considering that national governments currently have the primary authority to coordinate and review the wording of the national chapters?
PB: Thank you for this question. Indeed, the matter of civil society comes up at various instances. First of all, we see a struggle between the European Commission and the European Parliament. The European Parliament is pushing for the inclusion of democracy and fundamental rights in the report. It is also advocating strongly for the inclusion of at least a civil society chapter, given the importance of civil society for both the rule of law and democracy. The Commission now seems more open to this idea. When it comes to the involvement of civil society, there are both procedural and substantive aspects. Procedurally, there could be a civil society chapter due to their importance.
Indeed, 37 NGOs published a report stating that civil society issues are not sufficiently portrayed. They are downplayed, with harassment against them, especially regarding environmental issues or NGOs helping migrants and asylum seekers. There is criminalization of NGOs across the European Union in many member states, and these issues, in their view, are being downplayed. At the same time, NGOs can contribute to the report, but currently, they are not on an equal footing with the governments that are feeding into the report. The suggestion would be to include them on equal footing.
There is evidence of a learning curve. We now know, at least in advance, when the information will be collected by the Commission and when they will meet with civil society experts. But the idea is to truly place them on equal footing with the government. One of our specific suggestions is that, when there is a discrepancy between what the government and civil society organizations are saying, the burden of proof should shift to the government to show why the civil society organizations are wrong. One final matter—when I speak to civil society experts actually contributing to the report, they say this is a very time-consuming and resource-intensive exercise. So we shouldn’t take for granted that they will have the resources to meaningfully contribute to the upcoming report.
LP: I am obviously in agreement with my co-author Petra. I would say that the lack of resources is significant because, at the same time that civil society groups are under pressure, especially in backsliding autocracies, the European Commission is not really helping in terms of enforcement. Furthermore, they are not even providing the resources for these groups to contribute to the report. So the lack of resources, coupled with the lack of enforcement, creates the worst possible scenario. On top of this, we have pending new legislation on NGOs to fight disinformation. However, I would argue that the EU is coming dangerously close to not complying with its own requirements on freedom of association. The current situation is unhealthy, and the timing of the consultation is also quite tight. It requires work mostly in December and January, which is far from ideal. I think NGOs have been asking for a stable calendar and a revision of the submission deadline for a few years now. That might be easier to achieve than addressing the resourcing issue.
There is a broader point, not about resources or timing this time, but about what the Commission is doing with the input from NGOs. I know there is increasing frustration that inconvenient findings from NGOs are nowhere to be seen in the actual country reports. This led, for the first time this winter, to the Romanian Association of Judges officially announcing that they will no longer participate in the stakeholder consultation exercise. I think this will repeat itself if people conclude that this process is not only time-consuming but also has no meaningful impact on the actual outcome.
Again, we’re back to the issue of opportunity cost. Why would I contribute to a report that will whitewash what’s happening in my jurisdiction? Not only am I not getting funded for this, but my time is also wasted. I’m not saying this is happening in every member state, but this is the feedback I’ve gathered from talking to colleagues working in the civil society sector.
OG: Thank you both. Laurent, you make an intriguing reference to the EU potentially not living up to its own standards. It will be really interesting to hear what you have to say on that topic. Reference has already been made to the issue of hybrid autocratic-democratic regimes, such as Hungary. You’ve argued that the Rule of Law Report is a dialogical mechanism and that this dialogue will fail when attempts are made to engage with such hybrid regimes that are not acting in good faith. So, do you both think the point of no return has been reached in trying to have a good faith dialogue with the Hungarian government? Or do you think there’s still a prospect for deliberative mechanisms such as the Rule of Law Report?
LP: This is a very difficult question regarding the point of no return. It’s hard to know exactly, scientifically speaking, when you do reach a point of no return. Arguably, I would say you reach it when elections are structurally unfair, and there is no way for a peaceful transfer of power. In the case of Hungary, I would say this point of no return has been reached to the extent that we’ve been having structurally unfair, rigged elections since 2014. You have OSCE reports documenting all the deliberate and successful attempts to structurally favor the ruling party since Hungary’s descent into authoritarianism. If you look at different indexes, Hungary is no longer labeled a democracy. For example, the V-Dem Democracy Report describes Hungary as an electoral autocracy. Even the European Parliament, for the first time in September 2022, described Hungary as the EU’s first hybrid regime. So I would say, in the case of Hungary, yes, we have reached this point of no return.
Generally speaking, regarding whether it makes sense to dialogue with autocrats, autocratic countries, or backsliding authorities, I would say you can engage in dialogue, but not to the exclusion of enforcement mechanisms. You can pursue both avenues at the same time. What we’ve seen instead is dialogue being prioritized over enforcement, which was a mistake. It was also a mistake to believe that a mechanism that is mostly dialogue-based can work with authorities deliberately engaging in the dismantling of checks and balances. When you rely solely on dialogue to the exclusion of enforcement, you end up in a situation where, by the time you switch to enforcement-based mechanisms, facts on the ground have already changed.
And it’s very difficult to then restore the rule of law, as we are seeing in Poland, for instance. This is why we have always advocated dialogue—yes, why not—but with enforcement mechanisms. Because, yes, as you said in your question, when you have a situation where authorities are backsliding, they’re not going to engage in good faith; they are going to engage with EU institutions in bad faith. We have a vast amount of evidence of this. It may take different forms. Bad faith can include the provision of misleading information to the EU. There is also another dimension of bad faith—something is said in Brussels, but it’s not complied with once back in the country. So you can have fake good faith engagement with authorities in Brussels, and nothing is done in the member state. What we have learned, I would say, is that dialogue on its own does not work with backsliding authorities. This is clear, and there’s no point in even reopening this debate.
PB: I really couldn’t agree more. I think this is a crucial issue—what you’re saying—that dialogue simply doesn’t work with countries that do not speak the same language of constitutional democracy. This is a tough lesson to learn because dialogue and compromise are European virtues. This is how we learned to cooperate after the terrible world wars in Europe. So it’s very difficult to give up and actually recognize that sometimes it doesn’t work. As Laurent said, we shouldn’t abandon dialogue, of course. The European Union institutions and the member states should always remain open to engaging in dialogue. At the same time, they should recognize that later will be too late. For example, if we are dialoguing for too long about judicial independence, as happened in the framework of the so-called rule of law framework vis-à-vis Poland, then it wouldn’t make sense because while we are dialoguing, they are capturing the Constitutional Tribunal, as happened in Poland. And once the new judges occupy the apex court positions, it creates a legal mess because it will be extremely difficult to remove them. And then you also don’t know what to do with all these judgments that the non-judges are passing. So, it will be very difficult to unscramble the eggs. That’s why you really have to act promptly.
And since we are doing this podcast within the framework of the CEU Democracy Institute, let me just mention that the CEU case, which was lost by the Hungarian government, came too late. Even though the Court of Justice of the European Union ruled in favor of academic freedom and found the Hungarian government responsible for violating various Charter rights and international obligations, by the time the judgment was rendered, the case was moot because CEU had already been forced to move out of the country due to the law passed by the Hungarian parliament.
Let me also add a comment about the technique called ‘ruling by cheating.’ Here, I recall Professor Sajó’s book published by Cambridge University Press. The Hungarian government, as well as the Polish government, use many techniques that pretend to be in line with the rule of law, while they are not. These range from blatant lies to more sophisticated methods, such as invoking very legitimate concepts like sovereignty, national security, or constitutional identity. It actually took some time for European institutions and other member states to recognize that what is happening in these hybrid regimes is, in fact, cheating.
It’s difficult because if I talk to a French professor and invoke constitutional identity, it will mean something to them. We have to invest a lot of effort into explaining that in Poland or Hungary, the concept of constitutional identity was just invented to give the government a carte blanche to override European Union law. So it doesn’t really make sense to cooperate for too long with these entities that are engaging in bad faith discussions. But there is a learning curve. Seemingly, by now, the European institutions have a different stance vis-à-vis Hungary, which is now the hybrid regime in the European Union. Now they are saying, ‘We know you’re cheating, and we will just figure out how you are doing that.’ But still, very often, for various political reasons, the European institutions are pretending there is still hope to generate good faith and reach a compromise, especially when it comes to access to documents. Very often, documents are classified, and professors such as Professor Pech have to sue the institutions to disclose these deals or documents because there is still the pretense that dialogue will reach its aim, whereas we know that it won’t.
OG: Thank you both very much. Referring back to the recommendations that Petra and Laurent outlined in your initial response, one of the most intriguing to me was the recommendation to establish an expert panel for monitoring, aimed at enhancing credibility and thoroughness, as you mentioned. What would the selection procedure and criteria be for appointing these experts? Returning to the theme of backsliding in bad faith, if member states were involved, how could the process be insulated against attempts at ‘capture’ by hybrid regimes?
LP: It’s a very good question, and in fact, we’ve been asking ourselves the same thing. However, this is not a new question. The idea of having an expert panel was first discussed by the European Parliament in 2016, which is actually when Petra and I met. We were both commissioned to work on the report for Sophie in ‘t Veld, the MEP leading this exercise. The question was: should we adopt a new tool? It used to be called the DFR Pact for Digital, Rule of Law, and Fundamental Rights.
So, essentially, that has been the European Parliament’s position. As part of the new mechanism devised by the Parliament, Sophie had the idea of pushing for a panel of experts, which was supposed to consist of one national expert selected by each national parliament, plus about 10 experts selected by the European Parliament from a list of experts coming from organizations such as the Council of Europe. With this approach, in a situation where you have, let’s say, one or two EU member states that are no longer democracies, you could potentially end up with one or two compromised or captured experts, but in a broader team of 30 or 35. That should be manageable, so the panel of experts itself would not be captured. However, this proposal was never accepted by the Commission and the Council for different reasons, even though the argument that it would be too difficult to select experts was made by both to justify the rejection of the EP’s proposal.
So I don’t think that’s really the key factor. In fact, there is another option that the European Parliament didn’t want to explore, but which may actually be the best way forward. A long time ago, more than 20 years ago, there used to be an EU network of fundamental rights experts, led by Professor De Schutter. The European Parliament requested this EU network to assess whether member states were complying with the Charter, and the Commission was in charge of setting up the network. The way the Commission did this was by advertising a call for expressions of interest. Essentially, a university could put together a grand proposal, and it would be up to the principal investigator to come up with, let’s say, a team of 27 experts—one per member state. In this way, there was no political selection; it was essentially a contractual, academic selection process. So I wouldn’t be too worried about this, as long as there is no majority of autocratic governments. But if there is a majority, then the EU will have ceased to be what it proclaims to be, and we will have more dramatic issues to worry about than the selection process of the expert panel. This issue also applies to the selection of members of EU bodies themselves.
This has also been an issue that Petra and I raised in the context of the Venice Commission’s membership. Currently, the Venice Commission cannot effectively filter the members selected at the EU member state level, and it has found itself in a very difficult and awkward situation. I’m thinking of at least one example regarding Poland, where one of the members from Poland was actually found not to be a lawfully appointed judge by the European Court of Human Rights.
So you have the Venice Commission, which includes someone who, in my view at least, should certainly be suspended right away based on the findings from the Court of Strasbourg. The rules of procedure have changed, but still, they cannot undertake proper filtering. Alternatively, we could perhaps find inspiration in the way the Court of Justice has been able to filter nominees from member states through a filtering committee, which has actually been in the news in the past few days. So there are ways around this. Therefore, I wouldn’t be too worried about it.
It’s a non-issue because the European Commission and Council are unlikely to change their positions on this matter anytime soon. However, the best way forward might be for the Commission to set aside some funding to at least pay for academic units to get together and set up some sort of transnational network. But do they have any political interest in doing so? Because this network could potentially criticize the Commission itself. So maybe their interest in setting aside funding for this purpose is limited.
OG: Thank you, Laurent. That was actually the direct topic of my next question to you. Because, as we’ve mentioned at the start, you’re both involved in an alternative report on the EU’s own commitment to its rights and principles. Could you summarise your argument as to how ‘the monitor may be monitored’? And if there were a model adopted beyond self-regulation, do you think the EU would claim that this is a threat to its autonomy?
LP: Commission and all EU institutions have already been relying on non-EU sources to assess situations in member states. If you read the Annual Rule of Law Report or, in the context of EU external relations, the EU Annual Report on Democracy and Human Rights Worldwide, you can see that EU institutions—the European Commission, the Council, and the European Parliament—rely on reports from Council of Europe bodies, such as the Venice Commission, OSCE, and UN bodies, among others. In some contexts, they have even agreed to rely on sources such as reports published by academic research centres and NGOs. Most recently, the World Justice Project (which contacted me) has been commissioned by the EU to assess the rule of law situation in member states based on their worldwide work. What is clear is that EU citizens do not mind relying on non-EU sources when it comes to assessing situations in the member states.
Now we’re talking about different issues—what about assessing the EU institutions themselves when it comes to complying with Article 2 TEU values? This is where it gets trickier. Obviously, there is little incentive for EU institutions to essentially pay for external scrutiny. To the European Parliament’s credit, they came up with the idea that we need an EU chapter in the Commission’s Annual Rule of Law Report. Former Dutch MEP Sophie in ‘t Veld came up with this idea in 2022. The Parliament committed to commissioning a study from the Venice Commission. I haven’t checked whether this was done or if there was a request, but the idea was that the Venice Commission would assess the EU’s performance on an annual basis, if I understand correctly.
But I don’t think this was done. In the absence of meaningful progress, a number of us, including Petra from the CEU Rule of Law Clinic, decided this could be an interesting project to pursue. We’re hoping to publish the first report on the EU’s own rule of law performance by the end of this month. This report will be released on an annual basis, although we are working with very limited resources. Like the European Commission itself, we aim to build upon the first edition, refining the scope and methodology of the report each year.
At present, there’s a significant gap in the tools available, as we have an abundance of information on the rule of law situation in EU member states, yet the EU itself is hesitant or unwilling to allow for external scrutiny of its own performance. We’re witnessing increasingly straightforward violations of EU requirements by EU institutions, not only in external contexts but also internally. This is a major gap, and if we have to address it with minimal resources, then so be it. But it’s a shame. It would be beneficial for the Venice Commission to get involved, though their resources are limited too. We also face issues related to membership, as I mentioned earlier.
Nevertheless, I hope this gap is something we can fill soon enough.
PB: I think the suggestion to have an EU chapter underlines the need for an expert panel, because, obviously, the European Commission cannot scrutinize itself, and it wouldn’t look good if it scrutinized the other institutions either. This task could be contracted out to the Fundamental Rights Agency, the Venice Commission, or another Council of Europe panel, for example. However, it would be more appropriate to have an EU-specific panel, especially since the Council of Europe has different standards. The European Union consistently self-identifies as a pioneer in the rule of law, democracy, and fundamental rights, holding itself to different and much higher standards than the Council of Europe, which includes member states far from being fully-fledged democracies based on the rule of law and fundamental rights.
I’ll briefly mention a few issues that could be addressed without delving into the structure of the report or the specific topics we are covering. Consider corruption scandals within the institutions or the inconsistent interpretation of judicial independence. Together with Professor Dimitry Kochenov, we have identified at least eight different interpretations of judicial independence, which undermines the uniform application of European Union law by the Court of Justice of the EU. Or think about the severe and widespread human rights abuses, especially at the external borders of the European Union, which have led to numerous deaths. There’s also the European Union’s failure to accede to the European Convention on Human Rights, leaving us in violation of the Lisbon Treaty since 2009, which obliges the EU to do so. I believe it’s a mistake to turn a blind eye and not address these issues. Addressing them would bolster the legitimacy of both the Annual Rule of Law Report and the EU as a whole by openly confronting these deficiencies and problems that the European institutions need to tackle.
OG: It sounds like a very worthy endeavour, and it would be very interesting to read the results. I’m reminded of Joseph Weiler’s famous argument that those in glass houses should be very careful when throwing stones. On that topic of the EU’s external monitoring, I thought we’d finish with a question that looks to the future and the very hot topic of EU enlargement, as the 2024 5th report is the first to include monitoring of a select number of candidate countries (Albania, Montenegro, North Macedonia and Serbia).
How do you envisage the role of monitoring during enlargement? And, on the other hand, could the assessment of Copenhagen Criteria during the accession process provide fresh impetus and ideas for monitoring of current Member States?
Less optimistically, could the inclusion of candidate countries in the Rule of Law reports undermine its clarity due to the very different standards of assessment compared to Member States? And could this ultimately dilute Rule of Law standard in the EU due to different and lower benchmarks for compliance spilling over into the monitoring system?
LP: If I had to answer first, I would begin by saying that this was unexpected, at least for me, because the idea came from von der Leyen. I believe it was first mentioned in a State of the Union address by President von der Leyen, possibly two years ago. This year was the first edition where non-EU member states were subject to an internal EU monitoring mechanism. Now, you could argue that it does make sense, theoretically speaking, in terms of bridging the gap between the internal and external dimensions.
However, the concrete outcome is that we now have two reports discussing the rule of law situation in EU candidate countries because we still have the EU enlargement reports. If you read the EU enlargement reports, you’ll find very little detail about whether the candidate countries are performing satisfactorily regarding the rule of law. So, to that extent, you could argue, theoretically speaking, that it would make sense for the EU candidate countries to be provided with—or for the European Commission to look more closely at—actual compliance or performance with the rule of law in the context of internal mechanisms. Essentially, instead of having just one or two pages on whether the rule of law is being upheld in a candidate country, you end up with a 40-plus page report.
From my point of view, the main problem is that we end up with two relatively meaningless reports instead of one. When it comes to the rule of law enlargement reports, I have always criticized them for the same defects we have identified in the context of the Annual Rule of Law Report. To a large extent, all the defects of the Annual Enlargement Report have been exported to the internal Annual Rule of Law Report, with not only diplomatic language but also a tendency to mention only convenient developments while omitting inconvenient findings for political or geopolitical reasons.
So, theoretically speaking, I can see some possible advantages to adding the EU candidate countries to the mix. However, in practical terms, I feel we are just ending up with more reports, with very little clarity created by this addition. Let me give you an example. I was updating a textbook chapter on EU external human rights policy recently, so I caught up with the external-facing documents. I realized that, in the context of its annual worldwide democracy and human rights report, the EU was not shy about relying on sources such as the V-Dem Annual Democracy Report. According to the latest V-Dem Annual Report, Serbia is no longer a democracy, but an electoral autocracy. The V-Dem Report is relied upon by the EU in this context, but if you look at how the EU has assessed the situation regarding Serbia in both the Enlargement Report and the Annual Rule of Law Report, the picture is completely disconnected from V-Dem’s findings—they don’t even mention it. So, once again, we see very selective reliance on sources, with the EU cherry-picking the ones they need on a case-by-case basis.
And I suppose it would be too politically painful for the EU to accept V-Dem’s findings because what would that lead to? It would lead to the suspension or at least the freezing of enlargement negotiations. If you read both the Enlargement Report and the more detailed country chapter of the Annual Rule of Law Report, it seems to me that both present a completely disconnected picture when it comes to actual compliance with the rule of law. So I have very strong and mixed feelings about adding EU candidate countries to the Annual Rule of Law Report. It seems to me that we are just producing more reports without addressing the defects identified in both reporting exercises.
PB: Of course, these issues also relate generally to these parallel reports. For example, when it comes to the conditionality regulation within the framework of the European Union, the European Commission also has to issue a report on why it is suspending certain funds. And then, how does this relate to the actual Annual Rule of Law Report? What if there are discrepancies between the reports? If there is a devastating finding in the Annual Rule of Law Report, why does it not automatically trigger a conditionality proceeding? This creates a bit of legal chaos. The same applies to the various conditionality mechanisms. If money is spent in a corrupt way in one basket of EU funds, it’s likely being spent improperly in another basket as well, because the same captured courts will not issue independent judgments in public procurement, regardless of where the money is spent. So that is certainly an issue here.
Then there is another issue: the European Union is trying to play a pioneering role in the rule of law, and now we are talking about states where respect for the European Convention on Human Rights is already an issue, as is the enforcement of judgments from the Strasbourg court. So we certainly see what you could call a dilution or lowering of standards.
I can share a personal story. I just arrived home from Helsinki from the European Criminal Bar Association’s meeting, where Maxim Zak, a Belarusian attorney, received a prize. He was sentenced to 10 years in prison simply for representing clients in criminal cases. Now he’s in confinement and hasn’t been able to speak with his lawyer for 18 months. After that, our panel on Hungarian rule of law problems was somewhat difficult to address because the issues are on a completely different level. I’d rather not mix these situations. Of course, I’m not comparing the Belarusian situation to other countries’ situations, but I want to highlight the fact that EU member states are supposed to set an example, rather than make these dubious comparisons. The Hungarian government has already abused this approach, I believe, when the first or second report came out, saying that, well, the way the Annual Rule of Law Report is structured, there are pros and cons — and, of course, there are pros and cons everywhere.
So, you know, it doesn’t really show the qualitative differences between the member states. For me, the main issue is perhaps not about having member states and non-member states in the report. The main issue is what we have previously addressed: identifying which countries are democracies based on the rule of law and which are not. This leads to a very uncomfortable situation because if a country is not a democracy, regardless of whether it’s an EU or a non-EU country, different standards need to apply.
Some argue that this goes against the equal treatment of member states, but it doesn’t. First, we scrutinize all member states equally to determine whether the state in question is a democracy. Once we find that a country is not a democracy, we must acknowledge that different standards need to be applied. I’ll give you a concrete example, or maybe two. One is the principle of irremovability. Irremovability of judges is a core rule of law principle. However, if you have a hybrid regime with non-judges who were appointed through irregular proceedings, in violation of the rule of law, based solely on their loyalty to the government and no other qualifications, then their removability under certain strict circumstances would be acceptable. In this case, irremovability is not necessarily a virtue.
My other favorite is the digitalization of court judgments, which the Commission is also scrutinizing. Of course, it’s very important in democracies and certainly a plus, but this is not the issue in many member states. The fact that certain judgments are digitalized or not doesn’t address the problem of judicial capture or the fact that these judgments are actually produced by kangaroo courts. You need a completely different lens or different benchmarks to address these issues. I think this should be made clear by the European Commission in these reports.
OG: Thank you both so much for that comprehensive overview of where you see the deficiencies in the current process. I think we’ll all be very interested to see what benchmarks arise in your own report. We will be following that closely on RevDem around the time it’s published with the Rule of Law Clinic.
In collaboration with Karolina Godal.
