2020 RULE OF LAW REPORT - QUESTIONS AND ANSWERS - Main contents

Source: European Commission (EC) i, published on Wednesday, September 30 2020.

What is the rule of law?

The rule of law is enshrined in Article 2 of the Treaty on European Union as one of the common values for all Member States. Under the rule of law, all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts. The 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. These principles have been recognised by the European Court of Justice - with recent case law of particular importance - and the European Court of Human Rights. In addition, the Council of Europe has developed standards and issued opinions and recommendations that provide well-established guidance to promote and uphold the rule of law.

What is the new Rule of Law Report?

The Rule of Law Report is a new preventive tool and part of the new annual European Rule of Law Mechanism. The aim of the report is to look at key developments across the EU - positive and negative - as well as the specific situation in each Member State. The aim of the report is to identify possible problems in relation to the rule of law as early as possible, as well as best practices. It is not a sanctioning mechanism. Areas covered by the report include: justice systems, the anti-corruption framework, media pluralism and freedom, and other institutional issues linked to checks and balances. The Rule of Law Report consists of a general report and 27 country chapters presenting the Member State-specific assessment.

What is the Rule of Law Mechanism?

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

A core objective of the European Rule of Law Mechanism is to stimulate inter-institutional cooperation and encourage all EU institutions to contribute in accordance with their respective institutional roles. This aim reflects a long-standing interest from both the European Parliament and the Council. The Commission also invites national parliaments and national authorities to discuss the report, and encourages other stakeholders at the national and EU level to be involved.

The Rule of Law Report and the preparatory work with Member States takes place annually as part of the Mechanism, and will serve as a basis for discussions in the EU as well as to prevent problems from emerging or deepening further. Identifying challenges as soon as possible and with mutual support from the Commission, other Member States, and stakeholders including the Council of Europe and the Venice Commission, could help Member States find solutions to safeguard and protect the rule of law.

The European Rule of Law Mechanism is one element of a broader endeavour at the EU level to strengthen the values of democracy, equality, and respect for human rights. It will be complemented by a set of upcoming initiatives, including the European Democracy Action Plan, a renewed Strategy for the Implementation of the Charter of Fundamental Rights, and targeted strategies to address the needs of the most vulnerable in our societies to promote a society in which pluralism, non-discrimination, justice, solidarity and equality prevail.

How did the Commission prepare the 2020 Rule of Law Report?

The report is the result of close collaboration with all 27 Member States as well as with stakeholders, and was prepared in line with the scope and methodology discussed with Member States. The report is the result of months of consultations with Member States, both at the political level in the Council and through political and technical bilateral meetings, from a variety of sources.

All Member States participated in the process of preparing the report. First, national rule of law contact points have been established to help set up the Rule of Law Network and the methodology for preparing the Commission's assessment and report. The Rule of Law Network acts as continued channel of communication between the Commission and the Member States. In preparation of the report, the Network met twice and was consulted on the questionnaire and methodology.

Secondly, Member States began providing written contributions in early May and joined dedicated virtual country visits between May and July. During these country visits, the Commission discussed rule of law developments with Member States' national authorities, including judicial authorities, law enforcement, as well as other stakeholders, such as journalists' associations and civil society. Prior to the adoption of this report, Member States were also given the opportunity to provide factual updates on their country chapters.

How does the 2020 Rule of Law Report assess the developments related to the rule of law in the 27 Member States?

The assessment contained in the 27 country chapters was prepared in line with the scope and methodology discussed with Member States, and relies on a variety of sources. The work 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 provide useful guidance.

The country chapters rely on a qualitative assessment carried out by the Commission, focusing on a synthesis of significant developments since January 2019 introduced by a brief factual description of the legal and institutional framework relevant for each pillar. The assessment presents both challenges and positive aspects, including good practices. The Commission has ensured a coherent and equivalent approach by applying the same methodology and examining the same topics in all Member States, while remaining proportionate to the situation and developments.

The country chapters do not purport to give an exhaustive description of the rule of law situation in Member States but to present significant developments.

Who was consulted on this report?

A targeted stakeholder consultation was carried out, providing valuable 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 include the Fundamental Rights Agency, the European Network of Councils for the Judiciary (ENCJ), the European Network of the Presidents of Supreme Courts of the EU, the European Network of National Human Rights Institutions (ENNHRI), the Council of Bars and Law Societies of Europe (CCBE), the Council of Europe, the Organisation for Security and Co-operation in Europe (OSCE), and the Organisation for Economic Co-operation and Development (OECD,) as well as national and international civil society and journalists' organisations.

Throughout the process, the Commission received input from all Member States and from more than 200 stakeholders. More than 300 virtual meetings took place, including with the Member States, stakeholders, and civil society.

The report also builds on a series of studies and reports, such as the Media Pluralism Monitor.

Where does the new European Rule of Law Mechanism fit into the EU's existing rule of law toolbox?

The European Rule of Law Mechanism will become a core element of the rule of law toolbox of the EU. This annual process will help prevent rule of law problems from emerging or deepening, and through the establishment of an annual cycle of reporting and dialogue, it will contribute to promoting a robust political and legal rule of law culture throughout the EU.

The European Rule of Law Mechanism reinforces and complements other EU instruments that encourage Member States to implement structural reforms in the areas covered by its scope, including the EU Justice Scoreboard and the European Semester. Planned investments in the efficiency and quality of justice systems which benefit the business environment can also be facilitated by NextGenerationEU programmes and the Recovery and Resilience Facility. The assessments provided in the annual Rule of Law Report would also be a reference point for these instruments.

The European Rule of Law Mechanism is separate from the other response instruments in the EU's rule of law toolbox such as infringement procedures, the Rule of Law Framework and the procedure according to Article 7 TEU. While the European Rule of Law Mechanism is meant as a preventative tool, these procedures will continue to provide an effective and proportionate response to challenges to the rule of law where necessary.

What is the relation with other procedures?

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

The Article 7 TEU procedure and the European Rule of Law Mechanism are two distinct instruments with different objectives and scope.

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.

The European Rule of Law Mechanism is a preventive tool aiming at regular monitoring and providing an overview of significant rule of law developments in all Member States and in the European Union. It is not strictly meant for monitoring compliance with EU law.

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Infringement procedures

Infringement procedures have a specific aim, namely to ensure the correct application of EU law. The European Rule of Law Mechanism is a preventive tool, which sets out positive developments and challenges, to prevent potential problems from arising or deepening in a cooperative manner, benefiting from other Member States experience and best practices. It is not strictly meant for monitoring compliance with EU law.

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The proposal of a budget conditionality in relation to the rule of law (Multiannual Financial Framework / rule of law conditionality)?

The proposed budget conditionality procedure and the European Rule of Law Mechanism are two distinct instruments with different objectives and scope.

The proposed budget conditionality in relation to the rule of law is a financial instrument to protect the EU budget. The aim is to protect the EU budget in situations where the Union's financial interest might be at risk due to generalised deficiencies of the rule of law in a Member State. The proposal is under discussion in the European Parliament and the Council. The European Rule of Law Mechanism is a preventive tool, which sets out positive developments and challenges, to prevent potential problems from arising or deepening in a cooperative manner, benefiting from other Member States experience and best practices. It is not strictly meant for monitoring compliance with EU law.

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The Cooperation and Verification Mechanism (CVM) - does the new Rule of Law Mechanism replace the CVM for Bulgaria and Romania?

Since their accession to the EU in 2007, reforms in Bulgaria and Romania in areas including justice and anti-corruption have been followed by the Commission through the Cooperation and Verification Mechanism (CVM). 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 (COM (2019) 343) states that once the CVM ends, monitoring should continue under horizontal instruments. The Rule of Law Mechanism provides the framework for taking these issues forward in the future.

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The EU Justice Scoreboard?

The EU Justice Scoreboard presents comparative data on the functioning of national justice systems and is one of the sources of information for the Rule of Law Report.

Does the 2020 Rule of Law Report make recommendations to the Member States?

No. The new European Rule of Law Mechanism is based on a process of cooperation on the rule of law involving all the Member States and EU institutions.

The report aims at stimulating a constructive debate at EU and national level and at encouraging all Member States to examine how challenges can be addressed, how they can learn from each other's experiences and how the rule of law can be further strengthened in line with national traditions and national specificities.

How will the Commission support Member States in addressing challenges?

Several instruments and funding opportunities already exist to support structural reforms through technical assistance and funding of projects. Since 2017, the Commission has had a dedicated programme for technical support to reforms in Member States that covers rule of law reforms. The support provided can take the form of expert and fact-finding missions on the ground, sharing relevant best practices, diagnostic analyses, and developing and implementing targeted solutions to address the situation. Other Commission programmes such as those for Justice and Citizens, Equality, Rights and Values, and Internal Security Fund (Police), also contribute, including through calls for proposals open for civil society and other stakeholders. A series of projects also support media pluralism and media freedom. In particular, the Commission proposed that the next Creative Europe programme includes, for the first time, a dedicated envelope to support media pluralism.

Judicial and anti-corruption reforms can have an important impact on the business environment, as already often highlighted in European Semester reports, and should therefore be carefully considered by Member States when preparing their national Recovery and Resilience Plans.

How does the Rule of Law Report look into COVID-19 rule of law-related developments?

The coronavirus pandemic has raised important rule of law questions still present in the European debate. All Member States have taken take exceptional measures to protect public health, and most have declared some form of public emergency, or granted special emergency powers, under constitutional provisions or public health protection laws. Changing or suspending customary national checks and balances can pose particular challenges for the rule of law. The Commission has underlined that responses to the crisis must respect our fundamental principles and values as set out in the Treaties. In addition, they must be limited to what is necessary and proportionate, limited in time and subject to oversight by national parliaments and courts.

From mid-March, the Commission has been monitoring measures in the Member States which have had an impact on the rule of law, democracy and fundamental rights. Whereas the pandemic is still ongoing and emergency regimes or emergency measures are still in place in a number of Member States, the 2020 Rule of Law Report already points to some of the issues that have arisen in the national debates and the legal and political response to the crisis.

Why is the rule of law situation in the Member States important for the EU?

The rule of law is enshrined in Article 2 of the Treaty on European Union (TEU) as one of the common values for all Member States. While Member States have different national identities, legal systems and traditions, the core meaning of the rule of law is the same across the EU. Respect for the rule of law is essential to ensure equality before the law and for citizens and businesses to trust public institutions; its key principles are supported by citizens in all Member States. Recent case law of the European Court of Justice is also of particular importance in this respect.

Threats to the rule of law challenge the legal, political and economic basis of the EU. Deficiencies in one Member State impact other Member States and the EU as a whole. Ensuring respect for the rule of law is a primary responsibility of each Member State, but the Union has a shared stake and a role to play in resolving rule of law issues wherever they appear. Respect for the rule of law is also at the core of the functioning of the internal market, of cooperation in the justice area based on mutual trust and recognition, and of the protection of the financial interests of the Union.

For further information

2020 Rule of Law Report - Press release

2020 Rule of Law Report - the rule of law of law situation in the European Union