A leading European civil liberties network has said that the European Commission's exhaustive annual audit is largely positive across democratic standards and ultimately ineffective because it is not tied to any enforcement mechanism.
The annual rule of law reports were launched five years ago and are presented by the Commission as a key weapon in its arsenal against corruption and democratic backsliding across the Union, including attacks on independent media and the judiciary.
But Liberties pointed to a number of “significant shortcomings” in the EU-wide network of civil rights organizations and said “swift and decisive action” is now necessary if the commission is to uphold the rule of law in the bloc.
“The Commission's annual rulemaking is certainly useful for detecting violations – it's useful as a monitoring exercise,” said Victor Kasai, a legal expert at Liberties. “It has country-specific recommendations; That's great.”
However, the “nuclear option” Article 7 process without a direct link to sanctions mechanisms, such as the recent law making EU funding conditional on democratic standards, is “absolutely useless as an enforcement tool”, Kazai said.
Released in July, this year's report – particularly critical of declining media freedom in Italy — is said to have been delayed by Ursula van der Leyen, who sought Rome's support for re-election as the bloc's executive head.
The commission insisted that the release was not delayed as part of any attempt to gain support from Georgia Meloni's government. Van der Leyen was successful and was then elected for a second term in July.
In its 'interim review' shared with the Guardian ahead of publication, Liberties said that while it welcomed the commission's “commitment to prioritize the rule of law”, its “successful rhetoric” was unfair on the scale of the problem.
A second commission with van der Leyen set to take office by the end of the year, Liberties said, “significant progress is urgently needed” in the administration's strategy to tackle democratic backsliding in many member states.
The EU's administration paints a “too rosy picture” of the actual progress and impact of its recommendations, Liberties alleged, with the Commission's 2024 report saying that 68% of its 2023 legislation had been implemented by member states.
In fact, the group said, many of these reforms have already been announced by capitals, or are said to be underway, but incomplete and not yet evaluated, meaning that it would be true to say that only 19% of the 2023 recommendations have been implemented.
Implementation is a big problem in some countries, where the rule of law has collapsed, such as Bulgaria, Hungary, Malta, Poland and Romania, where EU recommendations were “completely or partially ignored” by 2023, Liberties said.
It added that some mature democracies “refuse or make only minimal efforts to comply”. “Austria, France and Germany should really implement the commission's recommendations,” Kazai said. “It is true that they do not inspire others [not to].”
In addition, he said, “the Commission tends to see progress where there is none, or when it is simply not measured”.
Liberties said that to be truly effective, the Commission's report needs to be fully incorporated into the EU's legal toolkit, prompting swift enforcement action because of insufficient implementation of the Commission's recommendations.
There are some signs that the commission is heeding the criticism, Kasai said, noting the close ties between the new justice commissioner's working letter report and enforcement mechanisms. But Kasai said more is needed.
“The rule of law is being systematically undermined by some governments and the next commission should do better,” he said. “It has been 14 years since the rule of law crisis began. We cannot wait – what happened in Hungary cannot happen in Slovakia.”
