Report on the Commission’s 2023 Rule of Law report

MOTION FOR A EUROPEAN PARLIAMENT RESOLUTION

report on the Commission’s 2023 Rule of Law report

(2023/2113(INI))

The European Parliament,

– having regard to the Treaty on European Union (TEU), in particular Articles 2, 3(1), 3(3), second subparagraph, 4(3) and Articles 5, 6, 7, 11, 19 and 49 thereof,

– having regard to the Treaty on the Functioning of the European Union, and in particular to the articles thereof relating to respect for, and the protection and promotion of, democracy, the rule of law and fundamental rights in the Union, including Articles 70, 258, 259, 260, 263, 265 and 267,

– having regard to the Charter of Fundamental Rights of the European Union,

– having regard to the case-law of the Court of Justice of the European Union,

– having regard to the Commission communication of 5 July 2023 on the 2023 Rule of Law Report – the rule of law situation in the European Union (COM(2023)0800),

– having regard to Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget (the Rule of Law Conditionality Regulation),

– having regard to Regulation (EU) 2021/692 of the European Parliament and of the Council of 28 April 2021 establishing the Citizens, Equality, Rights and Values programme and repealing Regulation (EU) No 1381/2013 of the European Parliament and of the Council and Council Regulation (EU) No 390/2014,

– having regard to the Universal Declaration of Human Rights,

– having regard to the UN instruments on the protection of human rights and fundamental freedoms, and the recommendations and reports of the UN Universal Periodic Review, as well as the case-law of the UN treaty bodies and the special procedures of the Human Rights Council,

– having regard to the recommendations and reports of the Office for Democratic Institutions and Human Rights, the High Commissioner on National Minorities, the Representative on Freedom of the Media and other bodies of the Organization for Security and Co-operation in Europe (OSCE),

– having regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Social Charter, the case-law of the European Court of Human Rights and the European Committee of Social Rights, and the conventions, recommendations, resolutions, opinions and reports of the Parliamentary Assembly, the Committee of Ministers, the Human Rights Commissioner, the European Commission Against Racism and Intolerance, the Steering Committee on Anti-Discrimination, Diversity and Inclusion, the Venice Commission and other bodies of the Council of Europe,

– having regard to the Memorandum of Understanding between the Council of Europe and the European Union of 23 May 2007 and the Council conclusions of 8 July 2020 on EU priorities for cooperation with the Council of Europe 2020-2022,

– having regard to the Commission’s reasoned proposal of 20 December 2017 for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law (COM(2017)0835), issued in accordance with Article 7(1) TEU,

– having regard to the reports of the European Union Agency for Fundamental Rights (FRA) of 19 July 2022 entitled ‘Europe’s civil society: still under pressure’, of 8 June 2022 entitled ‘Fundamental Rights Report 2022’, of 19 August 2022 entitled ‘Protecting civic space in the EU’ and of 3 November 2022 entitled ‘Antisemitism – Overview of antisemitic incidents recorded in the European Union 2011-2021’, and its other reports, data and tools, in particular the European Union Fundamental Rights Information System (EFRIS),

– having regard to its resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights,

– having regard to its resolution of 1 March 2018 on the Commission’s decision to activate Article 7(1) TEU as regards the situation in Poland,

– having regard to its resolution of 19 April 2018 on the need to establish a European Values Instrument to support civil society organisations which promote fundamental values within the European Union at local and national level,

– having regard to its resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) TEU, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded,

– having regard to its resolution of 14 November 2018 on the need for a comprehensive EU mechanism for the protection of democracy, the rule of law and fundamental rights,

– having regard to its resolution of 7 October 2020 on the establishment of an EU Mechanism on Democracy, the Rule of Law and Fundamental Rights,

– having regard to its resolution of 13 November 2020 on the impact of COVID-19 measures on democracy, the rule of law and fundamental rights,

– having regard to its resolution of 10 June 2021 on the rule of law situation in the European Union and the application of the Conditionality Regulation (EU, Euratom) 2020/2092,

– having regard to its resolution of 24 June 2021 on the Commission’s 2020 Rule of Law Report,

– having regard to its resolution of 8 July 2021 on the creation of guidelines for the application of the general regime of conditionality for the protection of the Union budget,

– having regard to its resolution of 11 November 2021 on strengthening democracy and media freedom and pluralism in the EU: the undue use of actions under civil and criminal law to silence journalists, NGOs and civil society,

– having regard to its resolution of 15 December 2021 on the evaluation of preventive measures for avoiding corruption, irregular spending and misuse of EU and national funds in case of emergency funds and crisis-related spending areas,

– having regard to its resolution of 8 March 2022 on the shrinking space for civil society in Europe,

– having regard to its resolution of 10 March 2022 on the rule of law and the consequences of the ECJ ruling,

– having regard to its resolution of 19 May 2022 on the Commission’s 2021 Rule of Law Report,

– having regard to its resolution of 9 June 2022 on the rule of law and the potential approval of the Polish national recovery plan (RRF),

– having regard to its resolution of 15 September 2022 on the proposal for a Council decision determining, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded,

– having regard to its resolution of 15 September 2022 on the situation of fundamental rights in the European Union in 2020 and 2021,

– having regard to its resolution of 20 October 2022 on the rule of law in Malta, five years after the assassination of Daphne Caruana Galizia,

– having regard to its resolution of 20 October 2022 on growing hate crimes against LGBTIQ people across Europe in light of the recent homophobic murder in Slovakia,

– having regard to its resolution of 10 November 2022 on racial justice, non-discrimination and anti-racism in the EU,

– having regard to its resolution of 24 November 2022 on the assessment of Hungary’s compliance with the rule of law conditions under the Conditionality Regulation and state of play of the Hungarian RRP,

– having regard to its resolution of 30 March 2023 on the 2022 Rule of Law Report – the rule of law situation in the European Union,

– having regard to its PEGA Inquiry Committee report and the PEGA resolution and recommendations,

– Having regard to the feedback reports, mission reports, written questions and answers of its Democracy, Rule of Law and Fundamental Rights Monitoring Group (DRFMG),

– having regard to Rule 54 of its Rules of Procedure,

– having regard to the opinion of the Committee on Legal Affairs,

– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A9-0000/2023),

Justice systems

1. Reiterates that an independent judiciary is the backbone of the rule of law, as it is a precondition for an effective remedy when rights and freedoms are withheld or violated; underlines that an independent and effective judiciary is vital for the implementation of EU law, given that the Commission relies on the national judicial authorities to enforce EU law; expresses its concern that this ‘presumption of compliance’ becomes the ‘pretence of compliance’ when the Commission ignores national judicial authorities’ shortcomings; notes with concern that while some judicial systems may be robust on paper, in some cases they are not immune to state capture, political interference or nepotism; is aware of the fact that this is difficult to detect by simply assessing the formal structures; therefore urges the Commission to conduct a more qualitative analysis, including contextual elements;

2. Notes that the Commission finds wide disparities between EU Member States in terms of judicial independence and safeguards; notes that the report mentions a number of positive initiatives and ongoing developments concerning the Councils of the Judiciary, notably in Luxembourg, the Netherlands, Portugal, Italy, Sweden, Finland and Hungary; highlights, however, that an independent assessment shows that of the four ‘super milestones’ related to the independence of the judiciary in Hungary only one can be considered fully implemented; notes that the Commission finds that concerns on the Councils for the Judiciary still have to be addressed in Poland, Slovakia, Bulgaria, Spain and Cyprus; notes with concern that disciplinary proceedings may be used as a means to curtail judicial independence, as is the case in Poland and Bulgaria; notes that the Commission has, finally, referred Poland to the Court of Justice of the European Union (CJEU) for violations of EU law by its Constitutional Tribunal;

3. Notes that the Commission finds that whereas certain Member States, including Finland, Austria, Slovenia, Cyprus, Sweden and Hungary, have taken or announced initiatives to improve judicial appointment processes and high courts’ functioning, challenges persist in appointing high-level judges in Malta, Greece, Lithuania, Latvia, and Ireland; highlights that serious concerns persist in Poland regarding previously appointed Supreme Court judges, including its First President, and regarding the continuous non-implementation of a CJEU preliminary ruling on a judicial appointment to the Chamber of Extraordinary Control; notes that the Commission finds that in Slovakia the crime of abuse of law introduced for judges as regards their judicial decisions continues to raise concerns, as it has a negative psychological impact on judges and is burdensome for the investigatory authorities;

Corruption

4. Reiterates that corruption is a serious threat to the rule of law and severely undermines trust in democracy and equality before the law; calls on the Member States to do much more to eradicate corruption;

5. Regrets that, despite all Member States having anti-corruption strategies in place, perceptions of corruption vary greatly across the EU, with Denmark, Finland, Sweden and the Netherlands ranking among the least corrupt, while the perceived levels of corruption in Bulgaria, Malta, Hungary, Greece and Slovenia are worrying; notes as well with concern that the Commission finds that some Member States, such as Bulgaria, Malta, Hungary, Greece and Slovenia, have yet to establish a solid track record in the investigation and prosecution of high-level corruption cases that lead to final convictions that have a deterrent effect;

6. Underlines that Member State government and EU officials should set an example by refraining from any corrupt practices and that there should be no government or political interference in corruption investigations; points out that EU officials as well may be involved in corruption, as demonstrated by ‘Qatargate’, therefore reiterates its demand for the annual report to also cover the EU institutions;

7. Condemns the fact that Malta continues to operate its Citizenship by Investment (CBI) scheme, which is a major risk for corruption and other crimes, especially in light of the steps taken by several other Member States to ensure that investor citizenship schemes are abolished; reaffirms its position that the Commission should use its prerogative to propose legislation and initiate an EU legislative ban on all CBI Schemes in the EU;

8. Considers that membership of the European Public Prosecutor’s Office (EPPO) should be a precondition for receiving EU funds; reiterates its call for an expansion of the mandate of EPPO;

9. Notes that corruption may involve national authorities, including judicial and police authorities, who are the very authorities who are supposed to be combating it; considers that EU bodies, such as Europol, could play an important role in investigating corruption and securing evidence, but that the requirement for national approval of Europol involvement is an obstacle; calls for the reinforcement of the Europol mandate to enable it to investigate corruption cases of the kind described above;

Independent authorities

10. Highlights that checks and balances can only function when ombudspersons, national human rights institutions, audit offices, equality bodies and all other independent authorities are able to function and have sufficiently broad mandates, independence, and adequate funding;

11. Notes that the Commission finds the situation varies greatly among the Member States, with some developments in the right direction in Cyprus, Slovakia, Luxembourg, Portugal, Slovenia and Poland, with challenges remaining in Lithuania, Hungary and Croatia, with still no national human rights institution established at all in Italy, Czechia, Malta and Romania, with delays in appointments in various independent authorities in Bulgaria, Spain and Austria, and with Poland putting the effective functioning of the Supreme Audit Office at risk; notes with great concern the recent developments in Greece, where independent authorities such as the Hellenic Authority for Communication Security and Privacy (ADAE) and the Greek Data Protection Authority have been under increasing pressure due to their work concerning the illegitimate use of spyware, with the ADAE’s Board Members having been replaced hurriedly recently by the Greek Parliament, apparently because of ADAE’s imminent decision to impose a fine on the Greek intelligence agency;

Media pluralism and media freedom

12. Highlights that without media pluralism and media freedom, democratic life and the rule of law cannot survive;

13. Underlines the importance of transparency of media ownership; notes that the Commission finds that since the 2022 Rule of Law report new legislation increasing the transparency of media ownership or improving public availability of media ownership information has been adopted in Greece, Luxembourg, Sweden and that such legislation has been strengthened in Cyprus, while in Bulgaria, Czechia and France change remains pending; notes as well that the Commission finds that media regulators are protected by insufficient safeguards against undue political influence and that the authorities lack resources, particularly in Hungary, Slovenia, Poland, Greece and Romania;

14. Stresses the importance of the editorial independence of public service media and the duty of all Member States to respect this;

15. Calls on the Council and the Commission to provide adequate funding for independent and European-wide quality journalism at national, regional and local levels;

Protection of journalists

16. Recalls that independent journalism is a vital element of the democratic rule of law as part of the essential checks and balances and an element of public scrutiny; expresses its concerns at the deliberate attempts of several governments to silence journalists who are exposing wrongdoing;

17. Regrets the worrying trends in the safety of journalists in several Member States; notes that the Council of Europe’s Platform to promote the protection of journalism and safety of journalists has registered more than 1 600 threat alerts since 2015; regrets the intimidation of journalist during election campaigns, such as recently happened in the election in Slovakia;

18. Regrets that despite concerns raised by various international organisations, Malta’s proposed anti-SLAPP provisions are not sufficient to protect the work of journalists; calls on the Greek government to address the serious challenges identified by the Media Freedom Rapid Response (MFRR), an alliance that tracks, monitors and reacts to violations of press and media freedom, in particular related to arbitrary surveillance, impunity or crimes against journalists, strategic lawsuits against public participation (SLAPPs), media independence and pluralism; notes with great concern the recent detention of a reporter by the French authorities, apparently for the purpose of uncovering her sources, as well as the illegal wiretapping of a Dutch journalist working for ‘De Correspondent’;

19. Calls for the EU institutions to reach a swift agreement on an ambitious anti-SLAPP directive; calls on the Commission to explore the possibility of further legislation to cover all SLAPP cases;

20. Strongly condemns the lack of serious investigation into the murder of Giorgos Karaivaz; notes that the two alleged killers were arrested more than two years after the murder on the basis of evidence that appears to have been available to the police the entire time; considers that the mastermind behind the murder has still not been identified; notes that Karaivaz – like Daphne Caruana Galizia and Ján Kuciak – was investigating corruption and crime, and may have made enemies in high places, including in political circles; points out that the suspected mastermind of the murder of Daphne Caruana Galizia has still not been tried, nor have all the cases of corruption and crime she was investigating been adequately addressed by the authorities;

21. Condemns the illegal surveillance of journalists, in particular by means of spyware; is dismayed at the Commission's refusal to implement all the recommendations of the Pegasus Special Inquiry Committee and considers it a failure to act; points out that in none of the many hundreds of cases of abuse of spyware against journalists, activists, politicians, lawyers and other political targets, has justice been served; concludes therefore that, contrary to the Commission's assumption, many national authorities are neither willing nor able to address the matter, leaving the victims without effective remedy and democracy unprotected; is deeply concerned at the chilling effect of the impunity of spyware abuse on journalists and their sources;

22. Stresses that the impact of the illegitimate use of spyware is much more pronounced in Member States where the authorities that would usually be tasked with investigating, providing redress to persons targeted and ensuring accountability, are captured by the state and where a rule of law crisis exists and the independence of the judiciary is endangered, such that the national authorities cannot be relied upon; calls therefore on the Commission to put in place dedicated country-specific monitoring and recommendations related to Member States’ unlawful use of spyware in the rule of law report, assessing the responsiveness of state institutions to provide redress to targeted persons;

Transparency and access to information

23. Regrets the continuous difficulties that many citizens, journalists and parliamentarians in many Member States face in obtaining information and access to documents; underlines that too often public authorities are deliberately frustrating access to information and documents, such as by disproportionately delaying decisions or giving only artificial access by only making information partially available;

Civil society space

24. Acknowledges the crucial role civil society and a healthy civic space play in upholding and protecting the rule of law, and reiterates its call for a separate chapter to be dedicated to the condition of civil society in Member States; notes that the Commission finds that Malta, Ireland, Bulgaria, Lithuania and Germany have announced or initiated efforts to improve the framework for civil society, and finds that civil society faces particular challenges in Cyprus, Greece, Spain, Italy and France, and continued serious systemic restrictions in Hungary and Poland; calls on all Member States to accept civil society organisations (CSOs) as important stakeholders in democratic life and to create an enabling environment for civil society;

25. Calls on the Commission to further invest, through dedicated funding, in building capacity for CSOs to monitor and report on the rule of law situation in the Member States, and to ensure adequate protection to CSOs engaging in this process;

The protection of minorities

26. Notes that democratic and rule of law backsliding and the undermining of minority rights often go hand in hand, once more underlining the need for a comprehensive approach to monitoring democracy, rule of law and fundamental rights (DRF) in the future reports; regrets the lack of progress on protecting minorities across the EU; condemns hate speech, including by government or political officials, against minority groups;

27. Calls on the EU Member States to make the protection of LGBTIQ+ rights a real and cross-cutting priority across all policy fields; calls on the Commission to use all means available to ensure that LGBTIQ rights are respected throughout the EU, including the use of infringement procedures against Member States; calls on Member States to take into account the Council of Europe’s Steering Committee on Anti-Discrimination, Diversity and Inclusion’s 12 recommendations to combat hate crimes against LGBTIQ+ people as well as the recommendations of the European Commission against Racism and Intolerance; notes the recent Romanian draft law, aiming to comply with the CJEU’s 2018 Coman ruling, as well as the criticism that the draft law implements that ruling only very narrowly and that it does not guarantee equal rights for same-sex couples;

28. Reaffirms that women’s rights are human rights and that nothing can justify a regression in women’s rights and autonomy; condemns in particular the attack on the sexual and reproductive health and rights of women and girls taking place in several Member States; believes that the right to safe and legal abortion should be anchored in the Charter of Fundamental Rights;

29. Calls on the Commission to include a specific new pillar on the protection of minorities in the next report, mapping all forms of xenophobia, racism, antisemitism, islamophobia, anti-gypsyism, and LGBTIQ-phobia across all Member States;

30. Expresses its disappointment at the Commission’s slowness to address non-compliance with fundamental rights laws and case law by Member States; rejects the Commission’s interpretation that the refusal of national authorities to comply with Court of Justice of the European Union (CJEU) and European Court of Human Rights (ECHR) rulings in fundamental rights cases are to be considered ‘individual cases’ and not to be addressed by infringement procedures; urges the Commission, as the guardian of the Treaties, to meet its responsibility for the enforcement of EU human rights law, and not to rely on ‘private enforcement’;

Cross-cutting conclusions on the state of democracy, the rule of law and fundamental rights across the EU

31. Expresses its deep concern, in light of the above, that democracy, the rule of law and fundamental rights across the EU are being eroded; highlights that whereas the state of affairs presented by the Commission’s rule of law report reveals many worrying developments, the situation looks even more concerning when taking other independent reports and sources are taken into account; underlines that even if some Member States are exemplary in protecting and promoting democracy, the rule of law and fundamental rights, in an interdependent, open European Union, the erosion of those values in other Member States compromises and undermines the EU institutions and the situation in the EU as a whole;

Enforcement of EU law

32. Notes that the proper enforcement of all EU law is the very precondition for a union based on the rule of law; condemns the sometimes open and unashamed non-compliance of several Member States with EU law in various fields, such as asylum, implementation of sanctions, and human rights law; underlines that this risks making the EU a lawless zone, where some Member States feel more equal than others and citizens’ EU rights and freedoms are not evenly protected;

33. Reminds the Commission that it is first and foremost the guardian of the Treaties; underlines that issuing a report is not enough to reinforce our union based on the rule of law but that the report should lead to concrete enforcement action, especially where the recommendations are not fully complied with;

34. Strongly regrets the fact that the Commission is not taking stronger action to enforce EU law; calls therefore on the Commission to step up the number of new infringement procedures and to push forward existing infringement procedures with more audacity and urgency; calls on the Commission not to use ‘dialogue’ with Member States or the ‘pilot’ procedure as an open-ended means to avoid launching actual infringement procedures; calls on the Commission to revise its policy – which has no basis in the Treaties – not to use infringement actions for ‘individual’ cases, as this policy has led to serious deprivation of rights for citizens across the EU, especially where their own governments are refusing to comply with EU law or CJEU judgments, as most of these cases are not individual but address strategic and fundamental issues;

35. Notes the persistent problem of the incomplete implementation of European Court of Human Rights (ECtHR) judgments, noting the recent decisions of the Council of Europe’s Committee of Ministers[1]; welcomes the inclusion of the systemic indicators on the implementation of ECtHR leading judgments in the rule of law report since its 2022 edition; calls on the Commission, however, to set up a scoreboard dedicated to monitoring the implementation of each and every CJEU and ECHR judgment relating to democracy, the rule of law and fundamental rights, and to fully integrate it into the annual rule of law report; calls on the Member States to implement pending judgments without delay, and calls on the Commission to assess the consequences for the compliance with EU law and to take infringement action where needed;

The rule of law report as a tool

36. Recognises that the rule of law report has become a benchmark for the EU institutions’ work on rule of law issues in the EU and in specific Member States;

37. Acknowledges that the Commission's rule of law report has become more comprehensive since its inception in 2020; regrets, however, that the 2023 edition of the report was not significantly expanded by adding a comprehensive new pillar; reiterates its position that the report should cover the full scope of the values of Article 2 TEU, as these cannot be seen in isolation; calls on the Commission to expand the scope of the report next year;

38. Is concerned that the Commission, in its effort to be factual and even-handed, sometimes ends up being too diplomatic and imprecise when identifying rule of law problems in Member States; regrets that the use of euphemistic language and the artificially equal number of conclusions and recommendations per Member State conceals the very real differences between Member States; believes that the assessment of the fulfilment of the recommendations should be more precise and qualitative, not relying only on legislative changes but also on real and independent evidence of their implementation in practice; notes the sometimes stark differences between the summaries of country chapters and the in-depth content of the chapters themselves, suggesting an editorial intervention;

39. Reaffirms that many of these challenges could be overcome by involving an independent panel of experts in the drafting of the report, as they would be less bound by diplomatic considerations; calls on the Commission to reconsider its position on this point and to explore all possibilities to involve independent experts in subsequent editions of the rule of law report;

40. Affirms that the annual rule of law report is not an end in itself, as monitoring the situation is not enough but should rather lead to specific enforcement action on the identified shortcomings;

Interinstitutional cooperation and procedures on rule of law

41. Takes note of the Council’s ongoing evaluation of its rule of law dialogue and the Council’s stated position that it will consider further possible interinstitutional cooperation in that context; calls on the Council to make its rule of law dialogue more inclusive, by inviting other institutions and stakeholders to its sessions, in particular Council of Europe bodies such as the Venice Commission, as well as representatives of the European Parliament;

42. Regrets that the Commission and the Council have so far rejected Parliament's offer to enter into an interinstitutional agreement on the rule of law; reaffirms its willingness to resume talks on this agreement;

43. Calls on the other institutions, in the meantime, to at least explore further cooperation in the context of the proposed interinstitutional pilot on democracy, rule of law and fundamental rights, which would help build trust between the institutions in a practical way, in particular by sharing monitoring, dialogue and meeting practices;

44. Condemns the total lack of progress in the ongoing Article 7(1) TEU procedures; urges the Council to address all new developments affecting the rule of law, democracy and fundamental rights; reiterates its call on the Council to address recommendations in the framework of this procedure, underlining that any further delaying of such action would amount to a breach of the rule of law principle by the Council itself; insists that Parliament’s role and competences be respected;

45. Calls on the Commission to include, strictly monitor and safeguard the DRF conditions in all budgetary instruments and processes; calls on the Commission in this regard not to unblock any cohesion funds for Hungary unless all enabling conditions have been fully met and the judiciary in that Member State can be considered fully independent on paper and in practice; calls on the Commission and the Council to apply the Rule of Law Conditionality Regulation further and without delay where needed, and not to lift the measures adopted in the case of Hungary until all the milestones have been effectively fulfilled; calls on the Commission to rigorously verify that the rule of law related milestones in the various Member State recovery and resilience plans are fulfilled as a condition for disbursing funding when Member States make payment requests; calls on the Commission to assign the primary responsibility for the application of these conditions to the Commissioners responsible for the rule of law;

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46. Instructs its President to forward this resolution to the Council and the Commission.