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First ever "EU Rule of Law Report" - expert comment

Hungary and Poland have proposed a joint ‘Institute for Comparative Rule of Law’ as a counter to criticism from other EU member states that the two governments are acting in ways that are incompatible with EU fundamental values.

Dr Andi Hoxhaj of Warwick Law explains the issue:-

"On 30 September 2020 the European Commission presented its first ever EU Rule of Law Report. It covers all 27 EU member states and sets out both positive and negative developments in regard to their commitments to upholding the rule of law, EU democratic values and fundamental rights.

"The Report has received mixed reviews from the 27 EU member states and experts alike – some claiming that the Report did not cover all the violations by some of EU member states to the rule of law, whereas some member states such as Hungary and Poland were angered by the Report and in response are floating the idea to set up a joint ‘Institute for Comparative Rule of Law’ against what they have described as a ‘suppression of opinions by liberal ideology’.

"When reading the EU Rule of Law Report it quickly becomes apparent that there is a vast difference in standards and practices among the 27 EU member states when it comes to 1) judicial independence; 2) media freedoms; 3) anti-corruption measures; and 4) the system of checks and balances to hold the government accountable.

"The Commission has avoided ranking the member countries’ performance but my assessment of the Rule of Law Report shows that states can broadly be split into five categories:

1) The populist/semi-autocrats: Hungary and Poland – both are locked in long disputes with EU over what critics describe as ‘democratic backsliding’ over their judicial reforms that impedes independence, and the EU has triggered Article 7 proceedings against both states. Furthermore, the European Court of Justice in October ruled against Hungary in the case Commission v Hungary (Higher education) (C-66/18) finding that the reform in higher education was incompatible with EU law and breached the right of academic freedom, closely linked with the rule of law.

2) Struggling members: Croatia, Malta, Romania, Slovakia and Luxembourg – The Rule of law Reports on these states suggested that there is a long-standing issue with their judiciary and law enforcement capabilities to combat corruption as their track record of securing convictions in high-level corruption cases is lacking.

3) Challenging cases: Spain, Italy and Greece – overall, the rule of law was intact, but there were key issues that contribute against the proper functioning of the rule of law. For example, in Spain the new legislation on public security allegedly restricts freedom of information and expression. In Greece, civil society groups working in the migration areas were restricted to operate. In Italy the excessive length of criminal proceedings and statutes of limitation are impeding its anti-corruption efforts.

4) The lowest performer: Bulgaria – according to the EU Rule of Law report Bulgaria performed poorly in comparison to rest of the member states due to alleged state capture.

5) Best of the rest – no surprise, the Nordic countries were referred as the best performing states on the rule of law. Their strong tradition of transparency in government and well-established framework to support media pluralism was attributed as a model for other member states to learn in improving the state of rule of law.

"The main takeaway so far is that the Rule of Law Report offers a good insight and overview of the so called ‘democratic backsliders’ such as Hungary and Poland – there are no surprises there why they want to challenge this report.

"However, the Report can serve not only to name and shame member states, but should be viewed as an opportunity for member states to reflect on their state of rule of law and learn from those best performing countries that are in line with the acceptable rule of law standard found in the Copenhagen criteria.

"Therefore, member states should not dismiss the Report just because its recommendations to improve the rule of law are not legally binding. The goal should be to make use of the Report to have an open dialogue with member states and members of the civil society to shift the culture of upholding the rule of law uniformly across the EU."

29 October 2020

  • Dr. Hoxhaj's research interests are in the area of European Union law and policy, governance, the rule of law and social theory of law. He has a special interest and expertise in studying anti-corruption law and policy, civil society, European integration, Western Balkans and regulatory law and policy. His work was cited in the select committee report ‘The UK and the future of the Western Balkans’ published by the United Kingdom Parliament in 2018.
  • In 2018, Dr Hoxhaj was awarded the prestigious ‘British Academy Rising Star Engagement Award’ funding his project ‘The UK—Western Balkans post-Brexit’.
  • Dr Hoxhaj is the author of ‘The EU Anti-Corruption Report: A Reflexive Governance Approach’ published with Routledge in 2020.

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