Judicial independence is a concern in some EU countries, says Brussels

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Judicial independence and media freedom in some EU countries continue to cause concern in Brussels, according to a new report.

Both issues were highlighted in a European Commission dossier on respect for rule of law across the 27-member bloc.

Rule of law is the idea that everyone is accountable to the laws of a country but also covers the foundations of a democratic society, such as a judiciary that is independent of the government and freedom of the media.

While the European Commission acknowledged that "many positive developments" have taken place since the previous report was published last September, it also presents a worrying picture of Europe's democratic health, particularly regarding certain countries, like Poland and Hungary, that have long been under scrutiny for a series of controversial legal reforms.

Lack of funding for anti-corruption investigations, growing political interference in the media sector, intimidation and threats against journalists, physical and verbal attacks against civil society organisations and legal challenges against the primacy of EU law are some of the main concerns raised by the European Commission.

The report's publication follows a ruling by the Polish Constitutional Court that spread fears of a "Polexit" and the murder of Dutch investigative journalist Peter De Vries.

"The second edition [of the report] shows that member states can make progress to address rule of law matters," said Věra Jourová, the European Commission's vice president for values and transparency.

"Yet this has been uneven and there are causes for serious concern in a number of member states, especially when it comes to the independence of the judiciary.

"Moreover, two journalists were murdered over the past months – this is not acceptable," she added, in reference to De Vries and Giorgos Karaivaz, a Greek crime reporter who was shot dead outside his home in early April.

The country-by-country analysis is the result of hundreds of meetings and consultations between EU officials and state authorities, civil organisations and professional associations whose work on the ground focuses on rule of law matters.

The report covers four pillars: the justice system, the anti-corruption framework, media pluralism and other issues related to checks and balances.

Judicial independence and media pluralism

The question of judicial independence is a recurrent topic throughout the report. The European Commission is worried about recent reforms and changes in certain member states that have increased political influence inside the justice system, an intrusion that undermines the separation of powers.

Poland is the most prominent case. In the European Commission's view, reforms carried out since 2015 have put the Polish judiciary under the political control of the ruling party, Law and Justice (PiS), an assessment that the Polish government rejects. This has led to a protracted conflict between Warsaw and Brussels, resulting in the European Commission activating the Article 7 procedure -- which could see Poland denied its EU voting rights -- in 2017. The process is currently stalled.

"There are risks as regards the effectiveness of the fight against high-level corruption, including a risk of undue influence on corruption prosecutions for political purposes," the reports notes about Poland.

The judicial situation in countries like Bulgaria, Croatia, Slovenia and Malta is also subject to marked criticism.

The European Commission calls on some countries, like Denmark, Sweden, Belgium, the Netherlands, to boost the resources and funding of the justice system. In Italy, the executive requests reforms to tackle the backlogs of cases and the slow bureaucracy.

Challenges to the justice system are also identified in Spain, where parliament and government have failed to agree on a renewal of the Council of the Judiciary, overdue since 2018. The Commission wants at least half the Council's members to be elected by their peers instead of by lawmakers in order to avoid making the legal system "vulnerable to politicisation".

The situation in Hungary is also a cause for concern, including the appointment of members of the high courts, the regulation of lobbying activities and the fight against corruption.

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"Shortcomings persist as regards political party financing, lobbying and ‘revolving doors’. Risks of clientelism, favouritism and nepotism in high-level public administration, as well as risks arising from the link between businesses and political actors remain unaddressed," the reports says.

The European Commission is also raising the alarm about persistent attacks, threats and intimidations against journalists, many of whom have been assaulted and insulted covering anti-lockdown and anti-vaccine demonstrations. These attacks, the European Commission notes, manifest both online and offline and are detected in most member states, such as France, Belgium, Italy, Germany, Austria, Sweden, Latvia, Hungary and Poland.

"Online harassment of and threats against journalists are a growing source of concern, and several lawsuits against journalists with intimidating effects have been reported," the reports notes about Slovenia, a country where "media freedom and pluralism has been deteriorating".

Growing hostility towards civil society organisations, such as advocates of women's rights and LGBT+ rights, is reported in some countries, including Portugal, Hungary and Poland. Financial and bureaucratic obstacles for NGOs is observed in Greece, Slovakia, Ireland and Spain.

What can the European Commission do to guarantee the rule of law?

The European Commission hopes the rule of law report continues the dialogue among EU countries that began last year with the first edition's publication. The goal is to collectively address the shortcomings and failures and strengthen the rule of law across the bloc.

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European Commission officials have indicated that governments are increasingly at ease with the exercise, which is seen as politically sensitive. In order to avoid accusations of name-shaming, Brussels designed the report as a country-by-country analysis and made sure to highlight negative aspects in every national chapter. However, some member states, like Poland, Hungary and Slovenia, are the target of much intense, worrisome criticism.

The European Commission is considered the guardian of the EU treaties, a title that places great responsibility on the executive when a member state is accused of democratic backsliding and breaches of fundamental rights.

However, despite the expectations, the EuropeanCommission has a limited set of tools to respond to this kind of infractions, particularly when the situation requires an immediate solution to prevent further legal deterioration. Today, the executive has four main instruments to handle rule of law crises:

• Infringement procedure: the Commission investigates potential violations of EU law and notifies member states of its findings. If the country doesn't rectify its illegal conduct, the Commission launches an infringement procedure: first by sending a letter of formal notice and then, if the violation persists, a reasoned opinion asking the country to comply with EU law. The question is eventually brought before the European Court of Justice, which could impose penalties.

• Rule of law framework: the Commission enters an official dialogue with a country where emerging threats to the rule of law have been detected. The Commission issues assessments and recommendations in a bid to control the situation from spiralling. If the conflict continues to worsens, the Commission could activate Article 7.

• Article 7: considered the nuclear option, Article 7 can be triggered by either the Commission, the European Parliament or one-third of member states. The accused country is asked to clarify the breach of EU law before heads of state and government in the European Council. The Council can eventually vote to suspend the voting rights of the accused country, effectively depriving it from participating in EU policy-making. Article 7 is currently activated in the cases of Hungary and Poland, but both countries are blocking the necessary unanimous vote against the other.

• Rule of law conditionality mechanism: the newest addition in the toolbox, this system links EU funds with rule of law compliance. Using the mechanism, the Commission can recommend cutting or freezing EU payments to a member state suspected of breaching EU law. After that, the Council will have one month to vote on the Commission's recommendations, which could be approved by a qualified majority.