Tuesday

20th Oct 2020

Opinion

The EU Commission rule-of-law report: wrong in so many ways

  • Hungarian justice minister Judit Varga. 'We now see rule of law for what it is: a tool to advance a political agenda' (Photo: Hungarian government)

The European Commission published its first rule of law report last week. Unfortunately, what we got is the wrong report, in the wrong place, at the wrong time. It cannot serve as a basis for any further discussion on rule of law in the European Union.

The report is based on an arbitrary scope. The notion that there exists a generally accepted definition of rule of law that may serve as the basis of a comprehensive review remains the subject of serious debate.

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But that is not the primary problem because the commission does not even follow any benchmark documents. In some cases it reduces and in other cases it extends the scope of the concept.

Media pluralism, for example – as opposed to media freedom – is clearly not a rule of law issue.

The same applies to "transparent allocation of state advertising" or "public information campaigns" where – contrary to the commission's position – no well-established European standards may be identified.

On the other hand, protection of the rights of ethnic and national minorities or the national frameworks addressing anti-Semitism are notably absent.

Corruption appears in the report, but the text remains silent on money-laundering where systemic institutional failures have been exposed recently in some member states.

The report on Belgium mentions the so-called Comité P, an external body with authority for police oversight.

However, the report fails to mention that the Chovanec case, where a Slovak national died because of police brutality, has been investigated by Comité P for two years now without any tangible results.

Interestingly, the commission does not consider this to be a rule of law related issue.

Such tendentious interpretation of the rule of law results in a focus on a few pre-determined member states, namely Hungary and Poland.

The commission claims that it evaluates all member sates based on uniform and objective criteria. Even if this was indeed the Commission's aim, which is doubtful considering recent statements by commission vice president Věra Jourová and commissioner Didier Reynders, the report is a manifest failure in this regard.

For example, the commission questions the independence of the Hungarian prosecutor's office, even though the prosecutor general is not subordinate to any other organ or official and may not be instructed.

In Belgium, Denmark, Luxembourg and the Netherlands, the prosecutor's office may be instructed by the ministry of justice, even in individual cases.

In Finland, the prosecutor general may be dismissed or suspended by the government. Apparently, however, this is not a cause for concern for the commission.

Hungary and Belgium were subjects of the same number of reports on the Council of Europe's platform to promote the protection of journalism in the period of 2019-2020. The commission's interpretation? In Hungary there is a "systemic obstruction" of independent media, while in Belgium, intimidation is "relatively rare".

Since the commission does not have the resources or the expertise to maintain its own monitoring system, its report is based mostly on external sources. Its reliability and objectivity, therefore, depend on the selection and quality of these sources, the selection of which, unfortunately, is non-transparent and biased.

During the course of this year, Hungary has provided the commission with detailed analyses to assist the preparation of the report.

The commission essentially disregarded our contribution.

Open Society Foundation sources

On the other hand, it refers extensively and repeatedly to certain civil society organisations (CSO) – in the case of Hungary, 14 sources from 12 CSOs to be exact. Of these, 13 sources come from 11 CSOs that have recently received financial support from the Open Society Foundations.

The result is a host of circular references.

The very same CSOs are the preferred sources of reference of the commission's previous communications and sources of reference in reports by other international organisations that are also used as sources for the rule of law report.

In fact, the report has been written by these CSOs, even the parts that seemingly come from other sources.

The report does not define the indicators to be monitored under the specific issues, nor does it clarify how the commission synthesised the findings.

Was there a weight attached to each source; if yes, how were these calculated?

Did the commission filter circular references? How did contradictory findings influence the outcome? How did the commission verify the neutrality and reliability of the comments obtained?

The report also comes at a very unfortunate time, as tensions over the budget and coronavirus recovery package negotiations run high.

It plays into the hands of those who never genuinely supported European recovery and reconstruction and puts at risk the possibility for quick and effective action by reopening questions already settled in the July European Council conclusions.

What did the commission achieve by the publication of its first rule-of-law report? It certainly did not strengthen mutual trust or a sense of community.

But it clarifies the picture. We now see rule of law for what it is: a tool to advance a political agenda.

Author bio

Judit Varga is Hungary's minister of justice.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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