In the end of September, the European Commission presented the first report evaluating the rule of law situation in all of the EU’s member states. The report found shortcomings in all member states, but in some, the situation is truly alarming.
The European Commission evaluated four areas in all states: judicial independence, media freedom, anti-corruption measures, and institutional structure. The report was composed based on dialogue with governments, stakeholders and the non-profit sector. The report does not introduce any direct sanctions. However, it could play a significant role in the fall negotiations on a mechanism meant to limit (or stop altogether) the flow of European funds into countries where the money is systematically misused.
In this article, you will find out more about the issues the Commission found in all of the EU, the way rule of law issues ought to be dealt with, and what we can expect in the future.
In the context of the report, institutional structure refers to the balance of power between different branches of the states, the system of checks and balances.
Problems on the European level
When joining the EU, all member states had to comply with rule of law requirements. Many states also promised to keep working on specific areas upon accession. However, the current situation shows that in some states, the rule of law level is much worse now than at the time of their accession. I can for example clearly see that in its current state, Hungary would not be allowed to join the Union at all.
In the report, the European Commission expressed concerns over four countries that have been found to have major problems with rule of law. These are Poland, Bulgaria, Hungary, and Slovakia. The report was created partly due to repeated complaints by Hungary and Poland stating that the Commission unfairly focused on only them in rule of law debates.
The main point of criticism for Poland was the controversial judicial reform introduced by the government party Law and Justice. One of the laws that were part of the package bans judges from questioning the independence of other judges, threatening them with fines or even dismissal. The report also condemned the discrimination of sexual minorities in some Polish municipalities which declared themselves “LGBT-free zones”. These zones are not in any way binding, but LGBTQ+ people simply cannot have good lives in towns that claim not to have any LGBT citizens. The zones are also used as grounds for banning pride parades and other LGBTQ+ events.
Slovakia was criticised for its lackadaisical approach to combating corruption; a problem illustrated in real time by the monstrous Cattleman Case. Slovak farmers have described shocking cases of land-grabbing and corruption related to the EU’s agricultural subsidies, with an almost incredible system of bribery. Read more about the situation in Slovakia. The safety of journalists also became a major topic following the murder of journalist Ján Kuciak, who wrote about agricultural subsidy fraud. There is evidence that journalists are subject to illegal surveillance and that the police neglects investigating threats against them. Slovakia also has a problem with unclear ownership of media companies and the influence of oligarch structures on politicians.
Hungary’s main issue is limited media pluralism as two years ago, the government merged the majority of Hungarian media, forming a state-supported cartel, while the remaining independent media have to struggle for survival without any financial support. Other concerns mentioned in the report are the reforms of the judiciary, which strengthened the government’s hold over it, the links between politicians and some state companies, and a huge pressure on non-profit organizations.
The list of very problematic countries also includes Malta, because of corruption scandals and a murder of a journalist, and Romania, due to concerns about the independence of the judiciary.
With seven serious issues, Czechia is not the worst of the member states, but the report is critical in several major areas. The Czech Republic is still waiting for a law on whistleblower protection. The European Commission also expressed concerns about a controversial amendment that would increase the government’s influence in the selection of the Prosecutor General and chief prosecutors. 64% Czechs think that high-level corruption cases are not prosecuted sufficiently. The European Commission’s report agrees with this assessment, expressing a suspicion that the investigation of high-level corruption cases is systematically neglected.
Problems and blind spots
The report is not perfect. Its main problem is vagueness and an unwillingness to name problems openly.For example, the chapter on the Czech Republic fails to mention Andrej Babiš, his scandals, and his subsidy fraud, even though the report is focused on conflict of interests and warns of misuse of European funds. It only states that an investigation of a major case is currently ongoing at the national level (the subsidy fraud investigation connected to the Stork’s Nest farm). At least the Hungarian chapter contains the name of Prime Minister Viktor Orbán and his party, Fidesz, several times – but in this case, looking the other way would be simply impossible.
It is also a shame that we are only getting a complex overview at this point, even though we have known about the deteriorating situation in Hungary and Poland for several years. Both these countries have rejected the report’s findings and questioned its concept, methodology, and resources.
The European Commission was also reluctant to make specific recommendations for individual states in the report. They might come up in the autumn when the Commissioners are planning to discuss the report’s findings with national parliaments and authorities.
Solution: Funds only for states that respect rule of law
The Rule of Law Report showed a major problem: the European Commission’s inability to enforce rule of law principles. There is currently a system in place that allows the EU to impose sanctions on a state that violates rule of law principles, but it is guided by the unanimity rule. That means that if any one state blocks the sanctions, nothing will happen. That is unacceptable.
Courts may offer a partial solution. The European Commission has initiated proceedings against Hungary and Poland for rule of law violations several times and so far, it has always won the cases. Nevertheless, the courts can deal with individual cases, but Europe needs a systemic solution.
In the July negotiations on the EU’s seven-year budget and recovery fund, which amounted to 1.82 billion EUR, a record high, the European Commission introduced a proposal for making access to European funds conditional on good rule of law. However, this conditionality was blocked by Hungary and Poland – the two countries stated that if the condition passed, they would block the entire budget agreement, which also needs unanimity. Once again, unanimity has proven to be a mechanism that weakens the EU.
At a time when the EU seems unable to get it together, we can look for inspiration to Norway, which took a much stricter stance on rule of law infringements. Norway is not an EU member state, but it contributes to the EU through the Norway Grants, in exchange for access to the single market. Rather than indirectly support the Law and Order’s reforms, the Norwegians froze their funding for Poland. They also barred all Polish municipalities that declared themselves LGBT-free zones from accessing any of their grants. So far, Norway has withheld what amounts to 165 million EUR in grants.
It is obvious at this point that the next multi-annual budget will contain some sort of rule of law conditionality. While the European Parliament has been calling for a stricter version of what was agreed in July, the German presidency has come with a compromise proposal. The exact rules are still subject to negotiation, but the main question is: Will Europe find a functional solution, or will we end up with a mechanism devoid of substance that will never be used in practice?
- Country Chapter on the rule of law situation in Czechia
- 2020 Rule of Law Report
- Country Chapter Abstracts
 2020 Special Eurobarometer survey on corruption