Annexes to COM(2022)500 - 2022 Rule of Law Report The rule of law situation in the EU - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)500 - 2022 Rule of Law Report The rule of law situation in the EU. |
|---|---|
| document | COM(2022)500  |
| date | July 13, 2022 |
Another area under public scrutiny in many Member States is the regulation and enforcement of rules on ‘revolving doors’ between public and private functions. Croatia extended the cooling-off period for appointments of officials to management posts in relevant companies from 12 to 18 months. In the Netherlands , the government announced its intentions to introduce stricter post-employment restrictions. In several Member States, rules on revolving doors show gaps or shortcomings. Germany ’s rules on post-employment restrictions and cooling-off periods remain fragmented and inconsistent for different functions. In Sweden , the rules on revolving doors for top executive functions in the Government are overall limited in scope and the government has launched an evaluation of the current framework. In Denmark , there are no rules on revolving doors for ministers. In Czechia , cooling off periods covering civil servants and government members remain limited 62 .
-Asset and interest disclosure
Asset and interest declarations by public officials support public sector transparency and accountability, to promote integrity and prevent corruption. All Member States have some rules in place to ensure that categories of public sector officials are subject to asset and interest disclosure obligations. However, these vary in the scope, transparency and accessibility of disclosed information, as well as in the level and effectiveness of verification and enforcement.
While in some Member States reform efforts are progressing, there are still challenges that need to be addressed. In Portugal , the asset declaration obligations on political and senior public office holders were extended and strengthened. While the body in charge of monitoring and verifications is not yet operational, efforts are ongoing to address this. In Romania , the electronic submission of asset and interest disclosures is mandatory since January 2022, though some challenges exist with regard to the effective verification of the submitted data. In Greece , while asset declarations are filed by a great number of officials, only a limited proportion are verified on their accuracy. In Hungary , concerns remain about the lack of systematic checks and insufficient oversight of asset declarations. In Belgium , the verification and transparency of such declarations remains an issue of concern, as the content of the asset declarations can only be assessed in the course of a criminal investigation. In Austria , members of Parliament are not obliged to disclose assets, interests, debts and liabilities 63 .
-Whistleblower protection
Encouraging and protecting those who disclose wrongdoing plays an essential role in the detection and prevention of corruption, both in the public and the private sector. The transposition of Directive (EU) 2019/1937 on whistleblower protection 64 has triggered a number of Member States to adopt legislation, while many are still in the process of revising existing national legislation or introducing new rules and streamlining the institutional setting for handling whistleblower reports.
Political party financing
Political party financing is an important risk area for corruption and several Member States have adopted or are considering reforms to increase transparency and oversight. In Poland , the rules on political party financing have been revised to increase transparency. In the Netherlands , discussions continue on protecting political parties against foreign interference. In Estonia , draft legislation being prepared would aim to increase the powers of the Political Parties’ Financing Surveillance Committee. In Austria , Parliament is in the process of adopting reforms to address long-standing issues with the current system, including as regards the powers of its Court of Audit. Denmark aims to review and amend the political party financing system, although with no concrete timeline. Challenges exist in other Member States, such as Italy , where the practice of channelling donations to political parties through political foundations poses an obstacle to public accountability because of the absence of a single electronic register 65 .
Investor citizenship and investor residence schemes
Investor citizenship and investor residence schemes create corruption risks and raise concerns about security, money laundering and tax evasion 66 . The Commission considers that the granting of EU citizenship in return for pre-determined payments or investments, without any genuine link to the Member State concerned, undermines the essence of EU citizenship and is in breach of EU law 67 . As a consequence, the Commission called on Member States to repeal investor citizenship schemes and take appropriate measures to address the risks of investor residence schemes 68 . Bulgaria repealed its investor citizenship scheme in March 2022. Cyprus had already stopped receiving new applications under its scheme in November 2020 and it has now also stopped handling applications. Malta suspended its scheme for Russian and Belarusian nationals on 2 March 2022, but continues to operate it for other nationals 69 .
Countering the impact of the pandemic on corruption
The trend of heightened COVID-19 related corruption risks lasts since 2020, with areas at risk continuing to include issuance of COVID-19 vaccination, tests or recovery certificates and the procurement of medical protective equipment. The increased use of accelerated and simplified procurement procedures often resulted in direct awards or non-competitive procurement procedures. To detect and prevent corruption in such procedures, Member States stepped up transparency and monitoring. The responsible authorities in several Member States carried out targeted audits ( Austria , Czechia , Slovenia and Portugal ) or monitoring activities ( Lithuania ). In Belgium , the Court of Audit released a special dashboard to increase transparency with regard to government support measures.
2.3 Media pluralism and media freedom
Independent and free media are the watchdogs of democracy. A free and pluralistic media environment is instrumental to defending the rule of law by holding power and institutions to account. Political or state pressure or control over the media undermines both freedom of speech and expression and the freedom to seek, receive and impart information. Conflict of interests and a highly concentrated market dominated by only a few players might also have the effect of undermining freedom of the media. In the EU, Member States have a positive obligation to guarantee an enabling environment for journalists, protect their safety and promote media pluralism and freedom. Challenges in this area identified by the previous rule of law reports have led to several recent EU initiatives, including a recommendation on the safety of journalists and a package of measures to address abusive lawsuits against public participation.
The Media Pluralism Monitor
The Media Pluralism Monitor assesses the risks to media freedom and pluralism in all Member States, focusing on four areas – basic protection of media freedom, market plurality, political independence and the social inclusiveness of media 70 . The latest results of the Monitor (MPM 2022) reveal that there has been no major change across these areas since 2021 though there has been some variance in specific indicators within those general areas. The indicator relating to the journalistic profession and its protection has registered a slight deterioration. There has been an improvement in the indicator relating to transparency of media ownership following the implementation by several Member States of EU legislation regulating the matter. News media concentration retains its very high risk level across the continent while there has been no progress in terms of political independence, which remains at medium risk. For the first time, the Media Pluralism Monitor has introduced an overall ranking of Member States clustered into five levels of risk, in which Bulgaria, Greece, Hungary, Malta, Poland, Romania and Slovenia are considered to be high risk countries.
Strengthening the independent functioning of media regulators
National media regulators play an important role in upholding media pluralism. To ensure this, they need to be functionally and effectively independent and sufficiently resourced, and exercise their powers impartially and transparently. All Member States have legislation in place setting out the competences and independence of media regulators. The Audiovisual Media Services Directive (AVMSD) 71 revised in 2018 includes a list of requirements – independence from government, impartiality, transparency, accountability, resources, appointment and dismissal and appeal mechanisms – which Member States must ensure with regard to their media authorities. Since the publication of the 2021 Rule of Law Report, Cyprus , Estonia , France , the Netherlands , Slovakia and Slovenia , have followed other Member States and adopted provisions to enhance the independence of media authorities and/or extend the authorities’ competences over new domains. Reforms are pending in other Member States.
In some Member States, despite the formal update of the legal framework, concerns persist about its effectiveness or the functional independence of regulators in practice. Some of these concerns relate to possible undue political influence over the nomination process or the functioning of regulators, others to insufficient resources. In Hungary , where sufficient funding and a detailed legal framework for the establishment and operation of the Media Authority are in place, its functional independence needs to be strengthened. In Slovenia , questions persist on whether the new legal framework would ensure independence from political interference, and fully implementing the extensive competences with the available resources remains a challenge. In Spain , new legislation attributes new competences to the Audiovisual regulator, but concerns on its resources remain. In Romania , concerns about the functioning and budget of the National Audiovisual Council persist, notably in view of the funds required to improve IT systems 72 .
Improvements and obstacles related to the transparency of media ownership
Transparency of media ownership is directly linked to media freedom and pluralism, in particular when ownership results in direct or indirect control of or significant influence over the content provided. Information on ownership allows users to make better informed judgements about the content. European standards 73 encourage Member States to adopt specific measures in this area, which is also provided for under EU legislation 74 . Since the last report, new legislation enhancing the transparency of media ownership or improving public availability of media ownership information has been adopted in Croatia , Cyprus , Estonia , Greece , Poland , Portugal and Spain . Laws to enhance transparency in media ownership are being considered in Bulgaria and Slovakia . Practical measures to enhance transparency have been taken in Lithuania , where a specific Information System of Producers and Disseminators of Public Information was launched.
The implementation of rules is facing particular challenges in some Member States. In Czechia , rules to enhance transparency of beneficial ownership of media outlets enacted in 2021 still require full implementation and concerns persist with regard to the lack of full transparency of ownership and conflict of interests. Challenges remain on transparency of media ownership in the Netherlands and France . In Slovenia , there are still challenges in identifying the ultimate ownership structure of certain media outlets 75 .
Safeguarding media from political pressure and influence
Vulnerabilities and risks to the rule of law increase when media is subject to political pressure and political influence, notably from public authorities and the ruling parties, undermining media independence. Transparent and equitable rules for the allocation of state advertising, and safeguards to prevent the politicisation of public service media, have both been identified as of particular importance. Another way by which political pressure can be exercised is linked to licensing.
-Mitigating risks related to lack of transparency and fairness in the allocation of state advertising
State advertising includes all uses of the budget of the state, at all levels, or of state-controlled companies for the purposes of advertising and campaigns. It is important that allocations are transparent and take place on the basis of fair criteria, to prevent the risk that state advertising is used as a means of political influence and of leveraging funds to favour certain media outlets. While issues remain in several Member States, developments in a few others have sought to address specific concerns about the transparency of state advertising. In Croatia , updated rules covering transparency of state advertising were adopted, with some remaining room for improvement. While not enshrined in legislation, Malta and Cyprus have adopted guidelines, the former establishing standards for the disbursement of government advertising and promotional material, and the latter relating to awareness-raising and advertising campaigns by the government press and information office. In Austria , the Government has announced a reflection process given concerns about high spending on state advertising, the fairness and transparency of its allocation, and political influence in the process 76 .
- Safeguarding the independence of public service media
Rules on the independent governance and editorial independence of public service media are key to preventing political interference in this important media sector. While the funding of public service broadcasting and funding granted to broadcasting organisations for the fulfilment of this public service remains a prerogative of each Member State insofar as such funding does not unduly affect trade and competition in the EU 77 , European standards and guiding principles exist on independence, the regulatory and policy framework, funding, appointments, accountability, management, transparency and openness 78 . All Member States have legislative and institutional systems to regulate public service media and some are looking to strengthen the independence of their public service broadcaster. In Bulgaria , a revision of the law geared at defining in more detail the public service remit and related financing is under consideration. In Romania , a reform of the law on the public broadcasting and radio companies aiming at a more independent and professionalised management is being discussed. In Luxembourg , a draft law to reinforce the independence of public service media has been presented to Parliament. In some Member States, however, existing rules have not sufficiently guaranteed independence. Issues of concern include the risk of politicisation of appointments and dismissals of managers and board members in Czechia , Slovakia and Cyprus , the independence and governance of public service media in Malta , and the practical challenges faced under the existing rules in limiting political influence in Slovenia . In Poland , concerns over the independence of public service media remain, including over safeguards for appointments to executive positions. In Greece , while public service media are regulated by a strong legal framework, there are concerns with regards to potential political influence in the appointment of board members. In Hungary , public service media operates in a complex institutional system amidst concerns about editorial independence 79 .
- Political pressure and influence on the media through licensing restrictions and decisions
While the European Convention on Human Rights expressly states that the right to freedom of expression shall not prevent States from submitting broadcasting and television enterprises to a licensing system, the exercise of this prerogative needs to take account of the plurality of the media landscape and be based on objective and transparent procedures and criteria. In Poland , a proposal for legislative amendments geared at prohibiting broadcasting concessions to operators controlled by persons registered outside the EEA was ultimately vetoed by the President. However, two television stations faced particularly long administrative proceedings for the extension of their licenses by the regulator 80 .
Access to information as a necessary prerequisite for the media, civil society and public trust
The right of access to information held by public authorities is fundamental for journalists to do their work, as well as for civil society and citizens at large. Since the publication of the last Rule of Law report, new legislation came into force in the Netherlands making access to public information broader and swifter. In Finland , steps are being taken to reform the Act on the Openness of Government Activities to extend the constitutionally-guaranteed access to documents. In Spain , legislative work is ongoing to strengthen access to information through a reform of the law on official secrets. In Denmark , political discussions are under way to consider removing some restrictions on the right to access information. In other Member States some practical or legal concerns remain. In Belgium recent legislation introducing new refusal grounds and delays in treating public document requests might affect the right of access to information and public documents. In Lithuania , there are concerns that the authorities’ interpretation of data protection rules has led to restrictions on journalists’ access to information. In Austria , challenges persist in relation to the lack of a comprehensive and enforceable legal framework for access to documents and public information, and draft legislation has not progressed. In Malta , journalists continue to face obstacles when requesting access to information held by public authorities. In Hungary , access to public information continued to be hindered under the ‘state of danger’ 81 .
Threats against the safety of journalists
Journalists continue to face threats and obstacles to their work, including physical attacks reported in several Member States. In 2021, both the Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists and the Mapping Media Freedom Platform identified a significant increase in alerts 82 which also includes an increase in online attacks. Violations have included verbal harassment, legal threats, physical assault, attacks on property, incitement, smear campaigns and censorship. The 2021 Commission Recommendation on the safety of journalists includes measures relating to effective and impartial investigation and prosecution of crimes, independent response and support mechanisms, access to venues and information, safety during demonstrations, training and online safety and digital empowerment.
Some Member States have taken or stepped up existing measures to improve the safety of journalists. In France , legislation recognised the role of journalists in demonstrations and a liaison committee between the Ministry of the Interior and the press now enables permanent dialogue on safety in protests or demonstrations. In the Netherlands , the Government has continued to enhance, fund and develop the ‘PersVeilig’ platform and to promote close cooperation between prosecutors, the police and media stakeholders. In Germany , Länder authorities, the Press Council and other media stakeholders are currently discussing an update the existing principles of conduct for the media and the police to address the safety of journalists during protests. In Greece , threats and physical attacks have been frequently reported and the Government has recently agreed a Memorandum of Understanding on the protection of journalists. In other Member States more determined efforts would be needed to address the situation. In Croatia , the professional environment for journalists is impacted by verbal aggressions against journalists, including by politicians. In Slovenia , a hostile environment, online harassment of and threats against journalists are growing sources of concern. In Slovakia , the adoption of proposed legislation on the protection of journalists has been postponed 83 .
Criminal trials continue in the cases of journalists murdered in the EU. In Malta , an alleged mastermind of the assassination of journalist Daphne Caruana Galizia has been indicted on charges of complicity in murder and criminal association and criminal proceedings are ongoing. The separate report of the public inquiry into the assassination was published in July 2021, finding that the State and its entities had failed to fully protect the journalist from the real and immediate risks, and had failed to act to prevent her assassination. The report established a set of recommendations relating to the rule of law, including the media landscape in the country. In Slovakia , the trial related to the assassination of Jan Kuciak and his fiancee Martina Kusnirova is ongoing, while in the Netherlands , the trial related to the murder of journalist Peter R. de Vries has started. The murder of journalist Giorgios Karaivaz in April 2021 is under investigation by the authorities in Greece .
Legal threats and abusive court proceedings against public participation
Strategic lawsuits against public participation (SLAPPs) are a particular form of harassment used against journalists and rights defenders engaged in public participation on matters of public interest. This phenomenon has been gaining ground in the EU. Effective safeguards are needed to prevent such harassment from silencing journalists and create a chilling effect on media freedom and freedom of expression. Defamation is one of the most common grounds on which SLAPPs are brought against journalists.
In order to address the threat of SLAPPs, some Member States started debating or considering introducing procedural safeguards and/or are in the process of revising their defamation laws. In Lithuania , legislative amendments have been prepared to allow for the early dismissal of such cases, as well as revising the criminal liability for defamation. In Ireland , the Department of Justice initiated a review which led to recommendations looking at a new mechanism against SLAPP allowing for early dismissal. In Malta , the Government has proposed legislative amendments to reform certain procedural aspects of the defamation law. In Italy , while prison sentences for defamation have largely been abolished following a landmark Constitutional Court ruling in 2021, the increasing prevalence of SLAPP cases and the combination of criminal and civil defamation raises concerns. Amendments in Slovakia to reduce the punishment for defamation are still pending. In Croatia , the number of cases of abusive litigation targeting journalists remains high, threatening the existence of smaller, local media outlets and freelance journalists. There continue to be a number of examples of such lawsuits against journalists by politicians or public officials, including judges. In Poland , the news media community continues to be exposed to threats stemming from strategic lawsuits against public participation that appear to target mainly journalists scrutinising Government actions 84 .
2.4 Other institutional issues linked to checks and balances
Institutional checks and balances are integral to the rule of law in a democracy. They provide a system of mutual control, ensuring that the power exercised by one state authority is subject to the scrutiny of others. While the model of checks and balances may vary between Member States according to their legal and constitutional traditions, they all need to be subject to such a system to ensure the respect for the rule of law and democratic norms. Civil society organisations, and independent authorities such as equality bodies, the Ombudsperson and National Human Rights Institutions are an indispensable element in the system of checks and balances in a healthy democracy, and attempts to restrict their operating space can present a threat to the rule of law.
Quality and inclusiveness of the legislative process
Following the trend noted in the 2020 and 2021 Rule of Law Reports, a number of Member States have continued to improve the quality of the legislative process. Improving stakeholder participation, including for civil society organisations, can benefit the quality of legislation as well as the transparency of the process. Bulgaria adopted new rules to improve the law-making process while Spain is undertaking initiatives to increase public participation in policy-making. In Estonia , efforts are focused on the creation of new digital platforms for public participation in the decision-making process. The practice of nationwide public consultations in France was further reinforced and extended to other fields, including the justice system. A draft constitutional revision aiming to introduce a legislative initiative for citizens has been presented in Luxembourg .
In a number of Member States, the lack of a formal framework for the consultation of stakeholders or their insufficient application in practice continue to raise concerns. In Cyprus and Malta , there is no formalised process for public consultations and they play a limited part in policy-making. In Greece , public consultation on draft legislation is often organised too late for input by civil society organisations and the public to have an impact. In Luxembourg and Slovakia , concerns regarding the overall inclusiveness of the legislative process persist. In Latvia , there are some concerns about the limited involvement of civil society organisations at local level. Poland made a commitment under its Recovery and Resilience Plan to adopt measures that would ensure a better and more stable regulatory framework. In Hungary , the lack of public consultation, coupled with an accelerated legislative process, has further weakened the quality of the regulatory environment. In Romania , concerns remain regarding the regular use of Government emergency ordinances as well as the practical realities of public consultations, in particular on the effective follow-up of proposals submitted by the civil society 85 .
Lessons learned from the use of emergency measures and the COVID-19 pandemic
Faced with the challenges brought by the return of the COVID-19 pandemic in autumn and winter 2021, some Member States continued to apply states of emergency, whereas in most Member States such regimes and the related restrictions to fundamental rights were progressively phased out. A number of Member States are now drawing the lessons from this experience and are in some cases updating their legal frameworks to improve preparedness for future crises. In Portugal and Sweden , dedicated structures are looking at how to put in place permanent legal frameworks to govern exceptional circumstances, with similar reflections under way in the Netherlands . In Denmark , the use of the Epidemic Act adopted in February 2021 was reviewed by the Government and subject to a broad consultation of stakeholders. In Czechia , the Ministry of Health conducted an audit of the adoption process of pandemic measures, after several of those measures had been annulled by courts. In France , the Council of State dedicated its 2021 Annual Study to the states of emergency and made proposals to better define and organise them.
The use of emergency powers have also continued outside the context of the COVID-19 pandemic in relation to other crises. Hungary declared another ‘state of danger’ under amended constitutional provisions, following the invasion of Ukraine. Poland introduced a state of emergency on the Polish-Belarusian border, leading to stakeholder concerns as to constitutionality and restriction of fundamental rights. Lithuania also declared a state of emergency in response to the instrumentalisation of migration by Belarus. Restrictions on the work of monitoring bodies and journalists sparked criticism and were gradually lifted.
The role of Constitutional Courts in the system of checks and balances
Constitutional Courts play a key role in the system of checks and balances and have continued to exercise this role in the context of the COVID-19 pandemic. This was the case in France , where the Constitutional Court defined the limits of the executive and legislative powers during the health emergency regime and in Germany , Spain and Italy , where the Constitutional Courts exercised constitutional review on the emergency measures taken to fight the COVID-19 pandemic.
Constitutional Courts also exercised scrutiny in other key areas, such as elections. In Portugal , the Constitutional Court was called to review electoral acts. The new parliamentary term started after this review and the subsequent repetition of the vote. More structural reflections are under way in Cyprus , with the creation of a Constitutional Court still under discussion in Parliament.
In other Member States, some decisions taken by Constitutional Courts have raised concerns as regards the primacy of EU law. In Romania , the Government has made a clear commitment to the principle of primacy of EU law, but concerns remain regarding the challenge to this principle by the Constitutional Court 86 . In Germany , following formal commitments by the German Government clearly recognising the primacy of EU law, the Commission closed the infringement procedure concerning a judgment of the German Constitutional Court. In Poland , the Constitutional Tribunal has expressly challenged the primacy of EU law, and considered certain provisions of the EU Treaties as unconstitutional. This led the Commission to launch an infringement procedure against Poland , which is still ongoing 87 .
National Human Rights Institutions, Ombudspersons, equality bodies and implementation of European Court of Human Rights rulings
National Human Rights Institutions (NHRIs) 88 , Ombudspersons, equality bodies and other independent authorities have continued to play a role in the national system of checks and balances. In some Member States, the status of such authorities has been further strengthened. In Sweden the newly created National Human Rights Institution started work in January 2022. In Portugal , the internal structure of the Office of the Ombudsperson has been reformed in order to better reflect its mandate and in Latvia , the appointment rules for the Ombudsperson were amended. In Belgium , the Federal Human Rights Institute has issued numerous opinions and recommendations during its first years of activity. Ensuring appropriate follow-up to the findings of independent institutions is an important part of a system of effective checks and balances 89 .
However, NHRIs, Ombudspersons and equality bodies need structural guarantees of independence as well as sufficient resources to work effectively, and a number of them continue to face challenges. In Poland , the new Ombudsman, appointed in July 2021, continues to play a key role as a rule of law safeguard, though its capacity to act is constrained by limited resources. In Lithuania , there are concerns that the Office of the Parliamentary Ombudspersons lacks the resources to fulfil its mandate and new draft legislation has been criticised for a possible negative impact on its work. In Hungary , concerns as regards the independence of the Commissioner for Fundamental Rights persist after the integration of the Equal Treatment Authority in the Office of the Commissioner, and, in March 2022, the UN Sub-Committee on Accreditation of the Global Alliance of NHRIs maintained its recommendation that the Hungarian national human rights institution be downgraded to B-status. In Croatia , challenges exist regarding the follow-up to and monitoring of the Ombudsperson’s recommendations, and on access to information. A number of Member States have so far not established a NHRI in line with the UN Paris Principles. While Italy , Malta and Romania have started this process, there are no such plans in Czechia 90 .
The track record of implementing leading judgments of the European Court of Human Rights (ECtHR) is also an important indicator for the functioning of the rule of law in a country. The country chapters therefore for the first time include systematic indicators on the implementation of ECtHR leading judgments by all Member States 91 . While performance varies between Member States, overall around 40% of the leading judgments of the ECtHR relating to EU Member States from the last ten years have not been implemented 92 .
National checks and balances in relation to the use of spyware
In July 2021, Amnesty International and a group of investigative journalists, uncovered that several governments across the world had deployed a particularly intrusive spyware, known as ‘Pegasus’. In the EU, targets included journalists, lawyers, national politicians and MEPs. This subject has gradually gained importance over last year 93 : while linked to national security, there is a need for national checks and balances to ensure safeguards are in place and fundamental rights are respected. In Hungary , investigations have been concluded following allegations related to the use of Pegasus surveillance software against lawyers and journalists, while there are concerns due to the absence of effective judicial supervision as regards the use of secret surveillance measures outside criminal proceedings. In Poland , despite allegations related to the use of Pegasus and equivalent spyware surveillance software, no investigation was launched by the prosecution service. In France , a criminal investigation was opened by the Paris Prosecutor’s Office into alleged use of surveillance spyware targeting in particular journalists. In Spain , the use of Pegasus and equivalent spyware surveillance software was subject to an investigation by the Ombudsperson and judicial proceedings. Although Member States are competent to guarantee their national security, they must apply relevant EU law, including the case-law of the CJEU, when doing so. The rule of law requires that the recourse to such tools by Member States’ security services is subject to sufficient control that it fully respects EU law, including fundamental rights such as the protection of personal data, the safety of journalists and freedom of expression. The use of surveillance means in criminal investigations also have to respect procedural rights, including the rights of defendant. Robust institutional checks and balances are therefore needed to guarantee the functioning, cooperation and mutual control of State organs, so that power is exercised by one state authority under the scrutiny of others.
Civil Society Organisations as essential actors for the rule of law
Civil society organisations and human rights defenders play an essential role as watchdogs against breaches of the rule of law and actively contribute to fostering the rule of law, democracy and fundamental rights on the ground. EU law 94 , complemented by European standards, 95 set out key requirements for ensuring the operation of civil society organisations without unjustified interference. Following the arrival of millions of people to the EU fleeing Russia’s military aggression, civil society has played a key role in their reception in the respective Member States and providing them with essential items and services, including psychological and medical support.
Steps are being taken to improve the situation for civil society organisations in several Member States. In Bulgaria , a Council for Civil Society Development set up with the objective of assisting civil society organisations has become operational. In Romania , while civil society organisations are facing challenges, there are plans to simplify registration procedures for non-governmental organisations. In Sweden , the framework rules on the operation and funding of civil society organisations are being reviewed. In Malta , existing concerns on civil society organisations’ access to funding were addressed. While in the majority of Member States, there is an enabling and supportive environment for civil society and the civil society space continues to be considered as ‘open’ 96 , in some Member States civil society organisations continue to face challenges. These can include burdensome registration procedures, difficulties in accessing funding, restrictive legislation and inadequate protection against attacks and threats, including SLAPP and smear campaigns. In Ireland legal obstacles persist for the funding of civil society and in Germany , the regime for the tax-exempt status of civil society organisations remains a concern, though this could be addressed in forthcoming reforms. In Slovenia , civil society faced challenges as regards negative narratives, while issues linked to funding and limitations on freedom of assembly were addressed. In Czechia , some concerns exist about the access of civil society organisations to public funding while in Slovakia , public subsidies schemes continue to exclude organisations working on issues related to gender equality and LGBTIQ rights. In Cyprus , the Government has taken action to better assist civil society and to improve communication with public authorities. The registration procedures for civil society organisations remain complex in Italy . In Greece , some registration requirements continue to be considered disproportionate, while a review of the existing legislation is pending before the Council of State. In Spain , the Parliament is working on the reform of the Citizen Security Law following concerns raised regarding the law including by civil society. In France , while new laws have been adopted to improve the financial environment for associations, a number of stakeholders raised concerns as regards the impact of the Law on republican principles on the civic space 97 .
In some Member States, systematic restrictions have further aggravated the ability of civil society to operate with a potential chilling effect. In Poland , civic space has further deteriorated and recent draft legislation might have an additional negative impact. In Hungary , independent civil society remains under pressure and organisations representing the LGBTIQ community report being targeted by smear campaigns launched by the Government, while the State’s role in financing civil society raises questions 98 .
3.DEVELOPMENTS AND ACTIONS AT EU LEVEL
3.1 Dialogue and follow-up to the Rule of Law Report
Inter-institutional dialogue
The Council continued the practice of organising its annual rule of law dialogue on the basis of the Rule of Law Report. In September 2021, the Council Presidency organised a horizontal discussion on general rule of law developments in the General Affairs Council. The General Affairs Council also held country-specific discussions, focusing on the relevant developments highlighted in the country chapter of the Rule of Law Report, in November 2021 99 and April 2022 100 . Targeted discussions on rule of law-related topics also took place in the Justice Council, where Ministers exchanged views on the impact of the COVID-19 pandemic on the functioning of courts in December 2021, and discussed the issue of access to a lawyer and the rule of law in March 2022. Member States showed a clear interest to share developments and best practices and to contribute to the prevention of problems in an inclusive and constructive manner.
The European Parliament continued to hold debates on the rule of law. Since July 2021, it has adopted several resolutions on the rule of law and on more specific issues such as media freedom and civil society 101 . The Parliament also adopted a specific resolution on the 2021 Rule of Law Report 102 , welcoming in particular the commitment to include specific recommendations to the Member States. The resolution reiterated recommendations issued previously, notably on the need to identify tools that can be used if shortcomings are not addressed, as well as Parliament’s support for an inter-institutional agreement on an EU Mechanism on Democracy, the Rule of Law and Fundamental Rights. The Commission values the cooperation with the European Parliament and has made clear that inter-institutional cooperation plays a central part in strengthening the EU’s capacity to monitor and uphold the rule of law. The decision to include recommendations in the 2022 report also responds to a call from the European Parliament.
The European Parliament also organised country specific debates, notably in the Democracy, Rule of Law and Fundamental Rights Monitoring Group of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE). The Monitoring Group conducted monitoring missions in Bulgaria, Malta, Slovakia and Slovenia and held discussions on its findings. In addition to a debate on the primacy of EU law, the European Parliament has adopted a resolution calling for more action to be taken to address the rule of law concerns in Poland and Hungary 103 .
The European Economic and Social Committee (EESC), through its Ad hoc group on Fundamental Rights and the Rule of Law 104 , and the Committee of Regions, through its Commission for Citizenship, Governance, Institutional and External Affairs 105 , have also continued to debate the rule of law at EU level. In November 2021, the EESC organised a conference focused on the contribution of civil society to the Rule of Law Mechanism.
Dialogue with authorities and stakeholders in the Member States
The Commission has continued its outreach at national level in the Member States. Bilateral meetings at both political and technical level were held to discuss key reforms as a follow up to the 2021 Report. National Parliaments have a crucial role in upholding the rule of law, both as lawmakers and in holding the executive accountable, and discussions following up on the 2021 Report were an important theme of Commissioners’ visits to national Parliaments 106 .
The network of rule of law contact points provides for an open channel for regular exchange between the Commission and the Member States. The network has continued to meet on a regular basis to prepare the annual Rule of Law Report and is increasingly acting as a forum to exchange best practice and share information on planned or ongoing reforms at national level.
The Commission will continue strengthening the dialogue with stakeholders and authorities in the Member States, also with a focus on the follow-up to the recommendations contained in this report.
Dialogue with and support for civil society at EU level
Civil society remains a key partner for the European Commission in the preparation of the annual Rule of Law Report. In addition to the large number of written contributions received from civil society and the meetings carried out as part of the country visits, the Commission has also organised horizontal meetings with a number of key networks of civil society organisations and other key interlocutors 107 . These networks have made joint recommendations on the process for the rule of law report 108 . Civil society can also play an important role in the follow-up to the report, and the Commission will pursue such follow-up with civil society at national level in cooperation with Commission Representations and the Fundamental Rights Agency.
Through the Citizens Equality Rights and Values programme (CERV), the Commission has stepped up efforts to support civil society organisations, in particular the smaller, local ones facing particular constraints. Out of the available budget of the programme (€1.55 billion) almost a third is reserved specifically for the civil society organisations, with at least 40% of this amount to be allocated to the local and regional civil society organisations. As well as support to specific projects, there is also some provision for grants to support the capacity building of civil society organisations, funding their running costs and development.
The Commission remains committed to consider how to increase involvement of civil society, professional networks and other stakeholders in the rule of law debate at national and EU level. This applies both to the preparation of the report and its follow-up. More generally, and as a follow up of the Conference on the Future of Europe, the Commission will consider ways of broadening the scope of its rule of law work to more directly involve citizens.
3.2 International cooperation
The rule of law is a key guiding principle for the EU action beyond its borders. The rule of law is central to EU action at global level, where working with partners to protect and promote human rights and strengthen democracies around the world is a priority. The EU and its Member States are the biggest global donor of democracy support. The Russian invasion of Ukraine underlines the need to reinforce our actions to promote and defend our values, to lead by example and to work with our international partners, as for example in UN and Council of Europe fora. The Commission and several Member States contributed to the commitments of the Summit for Democracy hosted by the President of the United States to promote democratic values worldwide, and are leading efforts during the Year of Action to implement them.
The EU is a staunch defender of human rights, democracy and the rule of law throughout the world, as demonstrated by the EU Action Plan for Human Rights and Democracy 2020-2024 109 , and in line with the Sustainable Development Goals 110 . In the immediate neighbourhood, key requirements for EU membership set out in the ‘Copenhagen criteria’ include the rule of law, which is essential for candidate countries and potential candidates to realise their European perspective, and the revised enlargement methodology, placing the rule of law at the very heart of the accession process. The EU will continue to pursue a coherent approach in its cooperation with candidates and potential candidates and countries across the neighbourhood as well as in all its external action, at bilateral, regional and multilateral level. The EU addresses rule of law issues regularly in human rights dialogues with partner countries and at multilateral level, in particular the United Nations.
Upholding the rule of law at global level includes strengthening cooperation on rule of law issues with international and regional organisations 111 . The rule of law, democracy and human rights remain the key priorities for the cooperation between the EU and the Council of Europe 112 . In this context, the EU has renewed its commitment to protect and promote an independent civil society, while also protecting human rights defenders and free media. EU’s commitment to respect, protect and fulfil human rights, democracy and the rule of law consistently and coherently in all areas of its external action and to support the UN human rights system as a cornerstone of its external action is also a key guiding principle for the EU participation in the UN fora. International organisations, notably key bodies of the Council of Europe 113 , remain important partners in the preparation of the Report, and upholding the rule of law in Europe, with which the Commission will continue to cooperate closely.
The Commission aims to further strengthen this key element in its rule of law work, building on its close relations with the Council of Europe and other international bodies.
3.3 EU action to uphold the rule of law
The annual Rule of Law Report is a preventive mechanism, aimed at improving the rule of law situation across the EU, raising awareness of challenges and facilitating solutions early on to prevent deterioration. It complements a number of other mechanisms and instruments at EU level, each with their own purpose. This section includes an overview of relevant actions and mechanisms.
The case-law of the Court of Justice of the European Union (CJEU) on the rule of law continued to consolidate. The CJEU ruled on a number of requests for preliminary rulings brought by national courts. In a judgment of 6 October 2021 114 , the CJEU clarified the three types of situations in which a national court of last instance can refrain from submitting a request for a preliminary ruling to the CJEU where a question concerning the interpretation of EU law is raised before it 115 . In another case, the CJEU ruled that EU law precludes a national supreme court from declaring a request for a preliminary ruling unlawful on grounds that the questions referred are not relevant or necessary 116 . The CJEU also declared that, by virtue of the primacy of EU law, national courts should not be prevented, by a risk of disciplinary sanctions, from disapplying decisions of a Constitutional Court which are contrary to EU law 117 .
The CJEU has continued to examine infringement cases brought before it by the Commission. When CJEU interim measures have not been complied with, the Commission has requested the CJEU to impose financial penalties 118 . The Commission has continued to exercise its role as guardian of the EU treaties by launching infringement procedures where relevant to address specific breaches of the rule of law 119 .
The procedure for upholding the common values of the EU set out in Article 7 TEU continues in the Council as regards Poland and Hungary . This procedure allows the Council to determine the existence of a clear risk of a serious breach of the Union’s values and follow up on such risks. The Council held hearings for Poland in February 2022, and for Hungary in May 2022 as well as a general state of play on both Member States in December 2021 120 .
Respect for the rule of law remains a fundamental precondition for the proper management of EU funds. The General Conditionality Regulation 121 is intended to protect the sound financial management of the Union budget and the financial interests of the Union from breaches of the principles of the rule of law. The Commission has been monitoring the situation in all Member States since the General Conditionality Regulation became applicable on 1 January 2021 and has adopted guidelines on its application 122 . In its judgements of 16 February 2022, the CJEU 123 confirmed the conformity of the regulation with the EU Treaties. In April 2022, the Commission launched for the first time the formal procedure under the General Conditionality Regulation with regard to Hungary 124 .
A related framework for the protection of several EU funds is the Common Provisions Regulation (CPR) 125 , which entered into force on 1 July 2021. It requires Member States to put in place, as part of the ‘horizontal enabling conditions’, effective mechanisms to ensure compliance of the programmes supported by the Funds and their implementation with the rights and principles enshrined in the Charter of Fundamental Rights, including the right to an effective remedy and to a fair trial by an independent and impartial tribunal previously established by law. Member States have to ensure that the horizontal enabling condition is fulfilled when preparing a programme and that it remains fulfilled throughout the programming period.
A number of rule of law-related issues – notably as regards the effectiveness of justice systems, the fight against corruption and the quality and inclusiveness of the law-making process - are also part of the European Semester to the extent that those aspects are of macroeconomic relevance and have an impact on the business environment, investment, economic growth and jobs. In order to address a number of relevant country specific recommendations under the Semester by concrete rule of law reforms and investments, the Commission discussed and agreed with several Member States concrete milestones in the framework of the national recovery plans under the Recovery and Resilience Facility (RRF), which were subsequently formally approved by the Council.
In the 2022 European Semester Spring Package, the Commission has proposed to the Council further recommendations to two Member States related to the rule of law 126 . The Commission is also providing technical support to Member States, notably through the Technical Support Instrument, to improve efficiency, quality and independence of public administration and justice systems.The Commission continues to promote judicial reform through the annual EU Justice Scoreboard 127 . The 2022 EU Justice Scoreboard for the first time includes survey data on how companies perceive the effectiveness of investment protection in the different Member States 128 . The results suggest that administrative conduct, stability and quality of the law-making process, as well as effectiveness of courts and property protection, are key factors of comparable significance for confidence in investment protection. The European Semester and the Justice Scoreboard are complementary to the Rule of Law Report and both feed into the report where relevant.
Media freedom and media pluralism has become an important area of action at EU level. The 2020 European Democracy Action Plan and Media and Audiovisual Action Plan announced a series of initiatives to support and safeguard media freedom and pluralism. The Commission presented in September 2021 a Recommendation to Member States on the safety of journalists 129 . In April 2022, the Commission adopted a package of measures to protect journalists and civil society organisations against abusive litigation (SLAPP) 130 . The Commission is also preparing a European Media Freedom Act.
4.CONCLUSIONS AND NEXT STEPS
The rule of law is fundamental to a stable, resilient, fair and democratic political, economic and social environment across the EU. It is essential to a well-functioning Single Market and to the Union as a whole. It is also a reflection of Europeans’ aspirations and values, enshrined in Article 2 of the Treaty. The Commission is committed to protect and promote the rule of law, as guarantor of the EU Treaties and of the primacy of EU law. A vibrant, forward-looking EU transitioning to a greener, more digital and more socially just society needs to continue being built on firm foundations. The Russian invasion of Ukraine is a reminder of the pressure on our cherished EU values. Protecting our citizens and their rights needs a determined and consistent defence of the rule of law across the EU.
The annual Rule of Law Report is an important part of efforts to promote and safeguard the rule of law in the EU, both at the national and European level. Relying on a continued engagement and cooperation with Member States, this year’s Report shows that important rule of law reforms have continued to take place in many Member States to address challenges identified in previous editions. However, important concerns remain in some Member States.
With this third edition, the Rule of Law report and the ensuing cycle of discussions with the Member States, including national parliaments, the European Parliament, and the Council is a well-established exercise. In line with the preventive nature of the report, the recommendations included for the first time this year seek to support Member States in their reforms. In some instances, recommendations guide Member States to take measures to address particular concerns raised in the Report.
The Commission has prepared this report based on continued dialogue with the Member States, while fully preserving political responsibility for its assessment and the recommendations issued. The next edition will follow-up on the developments and assess the implementation of the recommendations.
At the start of a new annual cycle of dialogue on the rule of law, the Commission invites the Council and the European Parliament to continue holding general and country-specific debates on the basis of this report, also using the opportunity of the recommendations to look further at concrete implementation. The Commission also welcomes further debate at national level, involving national parliaments, civil society and other key actors, but also at European level, with increased citizen’s engagement. The Commission invites Member States to effectively take up the challenges identified in the Report and stands ready to assist Member States in the efforts to implement the Report’s recommendations.
(1) “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” (Treaty on European Union, Article 2).
(2) Eurobarometer 508 on Values and identities of EU citizens (2021) shows that 82% of Europeans are supporting these principles.
(3) 2021 State of the Union address.
(4) 2022 EU Justice Scoreboard.
(5) Commission Recommendation on ensuring the protection, safety and empowerment of journalists and other media professionals in the European Union, C(2021) 6650, 16.9.2021; proposal for a Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation), COM(2022)177, 27.4.2022; and Commission Recommendation protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”), C(2022)2428, 27.4.2022. The Commission is also implementing the Media and Audiovisual Action Plan, increasing EU funding support to media freedom and pluralism projects.
(6) In 2022 the Commission will propose measures to strengthen the role and independence of equality bodies.
(7) Regulation (EU, Euratom) 2020/2092 of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ L 433I, 22.12.2020, p. 1.
(8) Publication scheduled in December 2022.
(9) The country chapters are available here .
(10) The recommendations are referenced in footnotes throughout this Report, listed in the Annex and also included in the individual country chapters.
(11) The methodology was updated following discussions with Member States, notably to better specify the use of sources for the assessment and take into account the inclusion of recommendations in the Report. The methodology is available here .
(12) The recommendations are without prejudice to any proceedings the Commission may initiate under other legal instruments, such as infringement procedures or the General Conditionality Regulation.
(13) Where relevant, established Commission positions under these processes relating to the Member State in question are set out before the recommendations.
(14) The sources of the annual Rule of Law Report include in particular written input received from Member States, written contributions received during the targeted stakeholder consultation and information produced by international organisations or received from national authorities and stakeholders during country visits. The sources inform the Commission’s assessment and do not, as such, represent the Commission position.
(15) 2022 Rule of law report - input from Member States .
(16) Information on the country visits can be found in the country chapters. During these country visits, the Commission discussed with Member States’ national authorities, including judicial and independent authorities, law enforcement, as well as stakeholders, such as journalists’ associations and civil society.
(17) The consultation was carried out between December 2021 and January 2022. 2022 Rule of law report - targeted stakeholder consultation .
(18) 2022 Rule of law report - Council of Europe contribution .
(19) Charter of Fundamental Rights of the EU .
(20) CJEU judgment of 24 June 2019, Commission v. Poland, C-619/18, ECLI:EU:C:2019:531 paras. 44 and 58.
(21)
A reference to the key judgments since the last report can be found in section 4.
(22) Figures 50 and 52, 2022 EU Justice Scoreboard.
(23) The CJEU has recognised that a Council for the Judiciary can constitute a safeguard for judicial independence provided that such body is sufficiently independent from the executive and legislative powers and from the body to which it is submitting an opinion. See e.g. judgment of 2 March 2021, AB and Others (Appointment of judges to the Supreme Court – Actions), C-824/18, paras. 123-125, and case-law cited.
(24) See in particular Recommendation CM/Rec(2010)12 of the Council of Europe.
(25) Recommendations concern BG, IE, ES, IT, CY, LU, PT, SK, SE.
(26) Recommendations concern HU.
(27) See Court of Justice of the European Union, judgment of 2 March 2021, AB and Others (Appointment of judges to the Supreme Court – Actions), C-824/18, paras.117, 119, 123 and case law cited. Participation of independent bodies, such as councils for the judiciary, in the process of judicial appointment process may, in principle, be such as to contribute to making that process more objective, provided that such a body is itself sufficiently independent of the legislature and the executive (See judgments of 15 July 2021, Commission v Poland, C-791/19, paras. 98-108; of 20 April 2021, Repubblika and Il-Prim Ministru, C-896/19, para. 66; of 2 March 2021, AB and Others (Appointment of judges to the Supreme Court – Actions), C-824/18, paras. 66, 124 and 125; and of 19 November 2019, AK et al, joined cases C-585/18, C-624/18 and C-625/18, paras. 137 and 138).
(28) Recommendations concern EL, CY, MT, AT.
(29) Recommendations concern BG, LV, LT, HU.
(30) Recommendations concern CZ, ES, AT, SK. A relevant milestone is included in the BG RRP.
(31) Recommendations concern PL.
(32) The Court has recalled this principle most recently in cases referring to the disciplinary chamber of the Polish Supreme Court (Judgment of 15 July 2021, European Commission v Republic of Poland, C-791/19.) and the Romanian Judicial Inspection (Judgment of 18 May 2021, Asociaţia 'Forumul Judecătorilor din România' and Others v Inspecţia Judiciară and Others, joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19).
(33) CJEU Judgment of 25 July 2018, LM, C-216/18 PPU, para. 67.
(34) A number of legislative changes were adopted in June 2022.
(35) Recommendations concern HR, PT, RO, SI, SK. As regards PL, the disciplinary regime for judges has been the subject of infringement proceedings. A relevant milestone is included in the national RRP.
(36) Recommendations concern BE, DK, DE, FR, MT.
(37) Recommendations concern FR, IT, NL, FI.
(38) Recommendations concern IE, LT, LU.
(39) Published annually by Transparency International: https://www.transparency.org/en/cpi/2021
(40) As last year, six Member States (Denmark, Finland, Sweden, Netherlands, Luxembourg and Germany) score 80/100 or above on the index, and a further five (Austria, Estonia, Ireland, Belgium and France) score above 72/100.
(41) Special Eurobarometer 523 on Corruption (2022) & Flash Eurobarometer 507 on Businesses’ attitudes towards corruption in the EU (2022). The Eurobarometer data on business attitudes towards corruption as is updated every second year. The Eurobarometer data on corruption perception and experience of citizens and businesses as reported last year is updated every second year. The previous data sets are the Special Eurobarometer 502 (2020) and the Flash Eurobarometer 482 (2019).
(42) The United Nations Convention against Corruption (UNCAC) obliges States Parties, in accordance with the fundamental principles of their legal systems, to develop and implement or maintain effective, coordinated anticorruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability. All Member States and the EU are parties to the Convention.
(43) See also The Kuala Lumpur Statement on Anti-Corruption Strategies .
(44) As mentioned in last year’s report, clear and measurable objectives, adequate resources, dedicated support and monitoring of implementation, regular evaluations and well-defined responsibilities for specialised institutions, as well as a strong involvement of relevant stakeholders, are important elements for such strategies to be effectively implemented and lead to tangible results (COM(2021) 700 final, p. 11).
(45) Recommendations concern LV, LT, PT, SI, FI.
(46) Primarily the Council of Europe’s Criminal Law Convention on Corruption and its Civil Law Convention on Corruption; the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions; and the United Nations Convention Against Corruption.
(47) EU legislation with an important impact on facilitating the fight against corruption includes rules on the criminalisation of corruption, asset freezing and confiscation, protection of the EU financial interests, standards to protect whistleblowers, revised rules against money laundering, notably by setting up beneficial ownership registries of companies, and further steps to help the exchange of financial information and to speed up financial investigations.
(48) Recommendations concern FI, SE.
(49) Recommendations concern BG.
(50) Recommendations concern CY, IT, FR, LU, RO, SI, SK.
(51) In the context of the RRP.
(52) Recommendations concern CZ, ES, MT. A milestone on reducing backlogs and length of proceedings is also included in the HR RRP.
(53) Recommendations concern PL.
(54) As noted in the 2020 Rule of Law Report, the lack of uniform, up to date and consolidated statistics across all Member States makes it difficult to track the comparative success of the investigation and prosecution of corruption offences. The assessment is based on the data provided by Member States.
(55) Recommendations concern BG, EL, HU.
(56) Council of Europe, Recommendation Rec(2000)10 on Codes of conduct for public officials.
(57) Recommendations concern BG, EE, IE, SK.
(58) Recommendations concern BE, CZ, NL.
(59)
OECD (2021) Lobbying in the 21st century.
(60) OECD (2010), Recommendation of the Council on Principles for Transparency and Integrity in Lobbying; Council of Europe standards on lobbying transparency, Recommendation CM/Rec(2017)2.
(61) Recommendations concern BE, DK, DE, EE, IE, ES, FR, HR, IT, LV, LU, HU, NL, PL, RO, SK. Relevant milestones are also included in the RRP for CZ.
(62) Recommendations concern BE, DK, DE, IE, NL, SE.
(63) Recommendations concern CZ, IE, EL, CY, HU, PL, AT, PT, SK. Relevant milestones are also included in the HR RRP.
(64) Directive (EU) 2019/1937 of the European Parliament and of the Council on the protection of persons who report breaches of Union law (OJ L 305, 26.11.2019, p. 17).
(65) Recommendations concern DK, IT, AT.
(66) Commission report on ‘Investor Citizenship and Residence Schemes in the EU’ adopted on 23 January 2019, COM(2019) 12 final.
(67) The Commission launched infringement procedures regarding the schemes operated by Cyprus and Malta.
(68) Recommendation in the context of the Russian invasion of Ukraine in relation to CBI and RBI schemes adopted on 28 March 2022, C(2022) 2028. Residence by investment schemes are in use in a total of 19 Member States: Bulgaria, Czechia, Estonia, Ireland, Greece, Spain, France, Croatia, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania and Slovakia.
(69) The Commission has continued infringement proceedings against Malta.
(70) The Media Pluralism Monitor is an important source for the Commission’s Rule of Law Reports. It is a scientific and holistic tool that documents the health of media frameworks, detailing threats to media pluralism and freedom in Member States and some candidate countries. It is co-financed by the EU and has been implemented, in an independent manner and on a regular basis, by the Centre for Media Pluralism and Media Freedom, since 2013-14. The Commission has also used other sources, such as Reporters Without Borders’ World Press Freedom Index and the Council of Europe’s Platform to promote the protection of journalism and safety of journalists, as referenced in the country chapters.
(71) Directive (EU) 2018/1808 of 14 November 2018.
(72) Recommendations concern ES, HU.
(73) Recommendation CM/Rec(2018)11 of the Committee of Ministers to member States on media pluralism and transparency of media ownership.
(74) Directive (EU) 2010/13/EU of 10 March 2010, Article 5(2), as amended by Directive (EU) 2018/1808 of 14 November 2018. General (non-sectoral) obligations of transparency of beneficial ownership also exist in the Anti-Money Laundering Directives (Directive (EU) 2018/843 of 30 May 2018 and Directive (EU) 2015/849 of 20 May 2015).
(75) Recommendations concern CZ, FR.
(76) Recommendations concern BG, HR, HU, AT.
(77) Protocol (No 29) on the system of public broadcasting in the Member States, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union.
(78) Council of Europe Recommendation CM/Rec(2012)1 on public service media governance .
(79) Recommendations concern CZ, CY, HU, MT, PL, RO, SI, SK.
(80) Recommendations concern PL. An infringement procedure is ongoing regarding HU.
(81) Recommendations concern BE, DK, DE, EE, ES, LT, LU, MT, AT, FI.
(82) The Council of Europe’s Platform shows a 42% increase in alerts while the MMF Platform registered a 72% increase in alerts in EU Member States between 2020 and 2021, with a sizeable percentage of the 2021 alerts related to online harassment and attacks during COVID-related protests.
(83) Recommendations concern EL, HR, SI, SK.
(84) Recommendations concern IE, HR, IT.
(85) Recommendations concern EE, CY, LV, LU, PT, RO.
(86) In two judgments, the CJEU ruled that national courts should not be prevented by a risk of disciplinary sanctions from disapplying decisions of the Constitutional Court which are contrary to EU law (Judgment of the Court of Justice of 21 December 2021, Euro Box Promotion e.a., in joined cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19) and that EU law precludes any national rule or practice that would give rise to disciplinary liability for national judges’ failure to comply with such decisions (Judgment of the Court of Justice of 22 February 2022, RS, in cases C-430/21, para. 87). Importantly, the Romanian High Court of Cassation and Justice issued several judgments setting aside the case-law of the Constitutional Court on the composition of judges’ panels to give effect to the judgment of the CJEU of 21 December 2021, thus giving precedence to the principle of primacy of EU law.
(87) Commission press release IP/21/7070, of 22 December 2021. See below, Section 3.2.
(88) The UN Paris Principles, endorsed by the UN General Assembly in 1993 (Resolution A/RES/48/134), set out the main criteria that NHRIs are required to meet. NHRIs are periodically accredited before the Subcommittee on Accreditation of the Global Alliance of National Human Rights Institutions.
(89) Recommendations concern HR, NL, PL.
(90) Recommendations concern CZ, IT, LT, MT, PL, RO, SI.
(91) The adoption of necessary execution measures for a judgment by the ECtHR is supervised by the Committee of Ministers of the Council of Europe.
(92) European Implementation Network and Democracy Reporting International, Justice Delayed and Justice Denied: Non-Implementation of European Courts Judgments and the Rule of Law.
(93) The European Parliament established a specific investigative committee (‘PEGA’) to address the use of the ‘Pegasus’ surveillance spyware and other similar technologies in the EU.
(94) Judgment of 18 June 2020, Commission v Hungary, C-78/18, EU:C:2020:476, paragraphs 112 and 113.
(95) See in particular Recommendation Rec(2007)14 of the Committee of Ministers of the Council of Europe on the legal status of non-governmental organisations in Europe.
(96) According to the rating given by CIVICUS (non-governmental organisation). Ratings are on a five-category scale defined as: open, narrowed, obstructed, repressed and closed. Compared to 2021, two Member States have been downgraded on the scale from open to narrowed and one from narrowed to ‘obstructed’.
(97) Recommendations concern DE, IE, EL, SE.
(98) Recommendations concern HU, PL.
(99) The discussion focused on key developments in Croatia, Italy, Cyprus, Latvia and Lithuania.
(100) The discussion focused on key developments in Luxembourg, Hungary, Malta, the Netherlands and Austria.
(101) European Parliament resolution of 10 March 2022 on the rule of law and the consequences of the CJEU ruling, P9_TA(2022)0074; European Parliament resolution of 8 March 2022 on the shrinking space for civil society in Europe, P9_TA(2022)0056; of 16 December 2021 on fundamental rights and the rule of law in Slovenia, in particular the delayed nomination of EPPO prosecutors, P9_TA(2021)0512; of 15 December 2021 on the impact of organised crime on own resources of the EU and on the misuse of EU funds with a particular focus on shared management from an auditing and control perspective, P9_TA(2021)0501; 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, P9_TA(2021)0451.
(102) European Parliament resolution of 19 May 2022 on the Commission’s 2021 Rule of Law Report (P9_TA(2022)0212).
(103) European Parliament resolution of 5 May 2022 on ongoing hearings under Article 7(1) TEU regarding Poland and Hungary, P9_TA(2022)0204; The European Parliament has adopted three resolutions in total on the rule of law in Poland and Hungary since 20 July 2021: resolution of 21 October 2021 on the rule of law crisis in Poland and the primacy of EU law, P9_TA(2021)0439; of 16 September 2021 on media freedom and further deterioration of the rule of law in Poland, P9_TA(2021)0395; of 8 July 2021 on breaches of EU law and of the rights of LGBTIQ citizens in Hungary as a result of the legal changes adopted by the Hungarian Parliament, P9_TA(2021)0362.
(104) The ad hoc group on Fundamental Rights and the Rule of Law (FRRL) is a horizontal body within the EESC tasked to provide a forum for European civil society organisations to meet and share their assessment on the state of fundamental rights, democracy and rule of law in the Member States.
(105) The remit of the CIVEX Commission includes Constitutional Affairs, and Governance, better Law-Making, Subsidiarity and Proportionality.
(106) Annual Report 2021 on the application of the principles of subsidiarity and proportionality and on relations with national parliaments.
(107) Human Rights and Democracy Network, the Fundamental Rights Agency, the European Network for National Human Rights Institutions and Civil Society Europe.
(108) Civil society recommendations: how the Commission can improve the credibility, inclusiveness and impact of the Rule of Law Report, European Partnership for Democracy .
(109) EU Action Plan for Human Rights and Democracy 2020-2024 .
(110) Sustainable Development Goals .
(111) Such as the United Nations, the Council of Europe, the Organisation for Economic Cooperation and Development (OECD) and the Organisation for Security and Cooperation in Europe (OSCE).
(112) Council conclusions on EU priorities for cooperation with the Council of Europe 2020-2022 .
(113) The Venice Commission, the Group of States against Corruption (GRECO), the Parliamentary Assembly of the Council of Europe (PACE), the European Court of Human Rights (ECtHR).
(114) Judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi, C-561/19, ECLI:EU:C:2021:799.
(115) The Court had set out three situations in which national courts or tribunals of last instance are not obliged to make a reference for a preliminary ruling in Cilfit (Judgment of 6 October 1982, Cilfit and Others, 283/81, ECLI:EU:C:1982:335): (i) the question is irrelevant for the resolution of the dispute; (ii) the provision of EU law in question has already been interpreted by the Court; and (iii) the correct interpretation of EU law is so obvious as to leave no scope for any reasonable doubt. By contrast, if the question concerning the interpretation of EU law does not involve any of those situations, the court or tribunal of last instance must bring the matter before the Court.
(116) Judgment of 23 November 2021, IS, C-564/19, ECLI:EU:C:2021:949.
(117) Judgment of 21 December 2021, Euro Box Promotion e.a., in joined cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19.
(118) On 27 October 2021, the Court of Justice imposed €1 million as a daily penalty payment on Poland for as long as the interim measures order of 14 July 2021, regarding notably the functioning if the disciplinary chamber of the Polish Supreme Court, had not been fully complied with.
(119) Notably, on 22 December 2021, the Commission decided to launch an infringement procedure against Poland because of serious concerns with respect to the Polish Constitutional Tribunal and its recent case law challenging the supremacy of EU law.
(120) Proceedings under Article 7 TEU were brought by the Commission against Poland in 2017 and by the European Parliament against Hungary in 2018.
(121) Regulation 2020/2092 of 16 December 2020, OJ L 433I, 22.12.2020, p. 1.
(122) C(2022) 1382 final. Guidelines on the application of the general regime of conditionality regulation.
(123) See cases C-156/21 and C-157/21. On 16 February 2022, the CJEU rendered its judgements and dismissed the actions lodged by Poland and Hungary for the annulment of the General Conditionality Regulation.
(124) On 27 April 2022, the Commission launched for the first time the step of the procedure established under Article 6(1) of the General Conditionality Regulation.
(125) Regulation (EU) 2021/1060 of 24 June 2021.
(126) 2022 European Semester: Spring package .
(127) The 2022 EU Justice Scoreboard was published on 19 May 2022: EU Justice Scoreboard .
(128) Figures 54 and 55, 2022 EU Justice Scoreboard.
(129) Commission Recommendation on ensuring the protection, safety and empowerment of journalists and other media professionals in the European Union, C(2021) 6650 final, 16.9.2021.
(130) Proposal for a Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation), COM(2022)177 final, 27.4.2022 and Commission Recommendation protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”, C(2022)2428, 27.4.2022.