Submission to the European Commission in the framework of the stakeholder consultation for the Rule of Law Report
HRDN Working Group on EU Internal Human Rights Policy
4 May 2020
In the framework of the stakeholder consultation, we, the Human Rights and Democracy Network’s working group engaged on EU internal human rights policy (HRDN WG), hereby jointly submit a number of overarching points for consideration with regard to the upcoming Rule of Law Report. This submission adds to the individual contributions regarding the collection of data per EU country by a number of our members and/or their national members and affiliate organisations across the EU.
We welcome the European Commission’s commitment in its ‘Blueprint for Action’ to consolidate its capacity to protect and promote the rule of law within the European Union (EU) and prevent its violations. Indeed, the collection of accurate monitoring data from all EU member states is an important step that needs to be undertaken at EU level to create a level playing field for EU action.
This monitoring report carries the potential of establishing common ground on the respect by member states of the principles enshrined in Article 2 of the Treaty on European Union (TEU), particularly the rule of law, and setting the direction for interinstitutional cooperation, policy orientation, standard setting and enforcement action by all three EU institutions. The establishment of clear premises for this exercise is essential to ensure its effectiveness and fulfil the promise set in the EU treaties: “The Union’s aim is to promote peace, its values and the well-being of its peoples.” (Article 3.1 TEU)
- Learn from and partner with existing international and regional mechanisms and ensure a human rights-based approach
At the outset, it is important to recall how crucial it is for the EU to ensure complementarity of its action with that of existing international, regional and national mechanisms. While it was indeed high time for the EU to step up engagement on rule of law issues, this can only be successful if it builds on the extensive work of the Council of Europe (CoE), the United Nations (UN) and other key actors. The EU’s work on the rule of law should be carefully positioned to take account of international and regional standards and mechanisms and should be geared towards their mutual reinforcement, in the interests of the most effective and coherent strategies to protect the rule of law in EU Member states.
It is encouraging that the ‘Blueprint for Action’ includes specific reference to strengthening cooperation with the CoE (in particular with its European Commission for Democracy through Law, or “Venice Commission”, and the CoE Group of States against Corruption). The EU should also partner with the UN to build on their experience in ensuring a human rights-based approach in data collection processes and analyses, based on the fundamental principles of transparency, participation, inclusion, accountability and non-discrimination, and making use of human rights indicators. The EU Fundamental Rights Agency should also be a key partner throughout this process. This mechanism needs to be strongly anchored in the existing framework of international obligations, standards and commitments of member states, who are all members of the CoE and the UN, to ensure a synergetic approach to their protection and implementation.
- Consider the first annual rule of law report as a pilot and plan a mid-term evaluation
This initiative was announced by the Commission in July 2019, less than a year ago, to fill an existing gap and address the need for a more systematic and detailed monitoring on the state of the rule of law in EU member states which current instruments did not provide. Although data relating to the justice systems in member states is already available at EU level (e.g. the EU Justice Scoreboard), there is no comprehensive analysis of the EU justice systems and other aspects of the rule of law. Media pluralism or quality of law making, including public participation, have never been systematically documented or recorded, state by state, by the EU institutions. Where there has been a monitoring of EU countries anti-corruption efforts, this has not been systematically followed up by EU institutions. Collecting, decrypting and presenting this data represents a major challenge for the Commission, which often relies in its monitoring on information received from stakeholders at both the national (MS) and EU level, an effort which the current consultation aims at systematising and rendering more structured.
It also requires a rigorous methodology to allow comparisons across states and time, selection of sources on an equal footing across all member states and from the widest possible range of stakeholders – avoiding duplication of already existing work by institutions at international, regional and national level, national human rights institutions, networks of justice practitioners, civil society organizations and academia, to produce an EU ‘corpus’ that fits with the specific means of action and ambition of the EU. It is crucial to ensure a process that allows for a meaningful involvement and participation of stakeholders. The EU Fundamental Rights Agency and National Human Rights Institutions (NHRIs) are particularly well-placed to closely work with the Commission to support the collection of information from non-state actors.
At present, there is no publicly available guidance, apart from the set of questions submitted to governmental and non-governmental stakeholders to indicate the adopted methodology, as to how the Commission intends to ensure a balance between contributions received from different stakeholders, how the quality of the data will be assessed (validation), how it will be measured (including tracking over time) or to what end. This creates challenges both for the Commission in analysing the contributions and writing the report, and for the stakeholders, including member states and civil society, in submitting the relevant information.
We fully support the Commission’s intention to take into account and analyse emergency measures taken in 2020 in the context of the COVID-19 pandemic. This does, however, add to the complexity of the exercise as the true impact of these measures are wide-ranging and will not yet be fully documented. It requires additional thinking on how the findings of this report will feed into current and future efforts for COVID-19 recovery across the EU.
In the face of these challenges and uncertainties, we strongly recommend that this year’s report be considered as a pilot that will be evaluated through a transparent and critical mid-term review, including with civil society and other experts, to ensure that there is enough capacity and clarity of methodology and purpose on all sides to produce an accurate picture of the situation as well as meaningful impetus to EU action, in line with Articles 2 and 3 TEU.
- Ensure sufficient quantitative and qualitative data from non-governmental sources
The challenging rule of law reviews of Hungary and Poland demonstrate the critical role played by non-governmental sources to ensure accurate and independent assessment of governments’ actions. Currently, however, civil society across the EU often lacks sufficient resources to provide the impartial and expert data that is needed to balance governments’ views. The next EU budget cycle foresees dedicated funding for civil society watchdogs on the rule of law at national level, but is limited in regard to scope and size.
This new reporting mechanism must go hand in hand with adequate EU investment in capacity building of civil society to monitor the rule of law in member states. In addition, partnership with civil society is needed both in the further design of the process and for its implementation and evaluation further down the line. This could build on the experience of consultations for EEAS human rights dialogues and the NEAR enlargement report, and could include bi-annual meetings of Commissioners Reynders and Jourova with HRDN and cooperation with the EESC Group on Fundamental Rights and Rule of Law. Further, the planned country-visits to EU member states should include engagement with non-governmental sources, including civil society groups, human rights defenders, judges and journalists.
- Consider restrictions imposed by states upon civil society and protect non-state actors
Beyond material and human resources, the issue of protection of independent sources to avoid censorship (direct or self-inflicted) and reprisals against individual and collective voices that would be willing to engage in the exercise, is a real concern that needs to be factored in and addressed.
We recommend that limitations of civic participation, attacks against and stigmatisation of civil society groups and human rights defenders feature as an issue in its own right in the reporting. The Commission must set up protection mechanism for independent sources before and after the reporting. The option on ‘publication and privacy settings’ in the consultation is appreciated, but more support to HRDs and CSOs is needed, including a mechanism to prevent, monitor and address reprisals and intimidation in EU member states. To this end, the Commission should draft guidelines to protect HRDs inside the EU, in consultation with the Fundamental Rights Agency, and also to ensure that the EU is consistent in applying standards and safeguards to protect human rights defenders internally (in EU member states) as it does externally (in foreign policy).
- Develop a wider plan of action on Article 2 TEU
The report should be seen as but one piece in a wider set of policy, monitoring, and enforcement processes relating to Article 2 TEU. In order to maximise impact and make the best use of resources, a clear strategy should be developed to spell out and ensure clear interconnection between the rule of law, democracy and human rights, between the existing and future mechanisms and tools, and between the institutions. This requires deliberate, structured and long-term cooperation to this end among the institutions and with other experts, including from civil society.
While the report needs to set parameters to ensure clarity and avoid dissipating efforts by spreading them too thinly over too wide a range of issues, it should capture substantive characteristics of the rule of law, beyond formal and procedural rules, and avoid too narrow an interpretation of the rule of law. A wide range of human rights are internationally recognised as forming part and parcel of the rule of law, including the right to equality before the law, the right to a fair trial, the right to liberty, and security of person, the right to freedom of expression and opinion, the right to peaceful assembly and association and the right to participate in public affairs. It is indeed important to promote dialogue on the rule of law at different levels and this report, if done right, will be an invaluable resource. Serious rule of law challenges in recent years, however, have shown that dialogue alone is not enough and strong action, backed by firm political will, is required to fully live up to the promise of Article 2 TEU. In order to truly effect change, the report should provide the basis for and directly lead to both legal and political action, including through infringement proceedings, the rule of law framework, the triggering of Article 7 TEU and unequivocal public political action. Country specific recommendations, building upon those already made by CoE and UN bodies, are crucial for the purposes of achieving progress on the national level and holding member states to account for their respect of EU principles in subsequent reports and through intermediary action (between reviews). The implementation of such recommendations should be closely monitored, similarly to the European Semester process, and effective means of enforcement should be clearly set out and vigorously implemented in case of non-compliance.
The report needs a destiny to look forward to as well as clear operational lines, to enable and measure subsequent action by the EU institutions to truly protect and promote rule of law, democracy and human rights across the EU.
 Communication “Strengthening the rule of law within the Union – A blueprint for action”, European Commission, 17 July 2019.
 See UN Human Rights (OHCHR), “Human rights indicators, A guide to measurement and implementation”, 2012.
 The role of NHRIs, as well as the European Network (ENNHRI) goes beyond this as is documented here.
 Throughout the mandate of First Vice-President Timmermans, such regular meetings with the HRDN WG were organised to discuss current fundamental rights and rule of law challenges.
 See “Statement from the Human Rights and Democracy Network’s Working Group on EU Internal Human Rights Policy on the European Commission’s proposal for a Rights and Values Programme within the Multiannual Financial Framework 2021-2027″, September 2018.
 For more on how the EU can support civil society, see “Civil society on the frontline: 5 points for EU action 2019-2024“.
 See e.g. the Venice Commission’s Rule of Law Checklist and the ICJ’s Tunis Declaration on Reinforcing the Rule of Law and Human Rights, 2019.