COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2020 Rule of Law Report The rule of law situation in the European Union
Date: 2020-09-30
Institutions: European Commission, Secretariat-General
Subjects: EU Member State, administrative transparency, coronavirus disease, corruption, democracy, epidemic, independence of the judiciary, infringement of EU law, political rights, rule of law

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 30.9.2020  COM(2020) 580 final  COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2020 Rule of Law Report         The rule of law situation in the European Union {SWD(2020) 300-326}  
 
 
The rule of law helps protect people from the rule of the powerful. 
It is the guarantor of our most basic of every day rights and freedoms. 
It allows us to give our opinion and be informed by a free press. 

President von der Leyen, State of the Union Address 2020 

1.  Introduction 

The  European  Union  is  based  on  a  set  of  shared  values,  including  fundamental  rights, 
democracy, and the rule of law.1 These are the bedrock of our societies and common identity. 
No  democracy  can  thrive  without  independent  courts  guaranteeing  the  protection  of 
fundamental  rights  and  civil  liberties,  nor  without  an  active  civil  society,  and  a  free  and 
pluralistic  media.  Globally,  the  EU  is  recognised  as  having  very  high  standards  in  these 
areas.2 Nevertheless, these high standards are not always equally applied, improvements can 
be  made,  and  there  is  always  a  risk  of  a  backwards  step.  Standing  up  for  our  fundamental 
values is a shared responsibility of all EU institutions and all Member States, and all should 
play their part.  

What is the rule of law? 3 

The  rule  of  law  is  enshrined  in  Article  2  of  the  Treaty  on  European  Union  as  one  of  the 
common values for all  Member States. Under the rule of law, all public powers always act 
within  the  constraints  set  out  by  law,  in  accordance  with  the  values  of  democracy  and 
fundamental  rights,  and  under  the  control  of  independent  and  impartial  courts.  The  rule  of 
law includes principles such as legality, implying a transparent, accountable, democratic and 
pluralistic  process  for  enacting  laws;  legal  certainty;  prohibiting  the  arbitrary  exercise  of 
executive power; effective judicial protection by independent and impartial courts, effective 
judicial review including respect for fundamental rights; separation of powers; and equality 
before the law. These principles have been recognised by the European Court of Justice and 
the  European  Court  of  Human  Rights.  In  addition,  the  Council  of  Europe  has  developed 
standards and issued opinions and recommendations which provide well-established guidance 
to promote and uphold the rule of law.    

The rule of law is a well-established principle. While Member States have different national 
identities, legal systems and traditions, the core meaning of the rule of law is the same across 
the  EU.  Respect  for  the  rule  of  law  is  essential  for  citizens  and  business  to  trust  public 
institutions, and its key principles are supported by citizens in all Member States.4 The rule of 
law  has  a  direct  impact  on  the  life  of  every  citizen.  It  is  a  precondition  for  ensuring  equal 

1   Article 2 of the Treaty on European Union. 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. 

2    World Justice Project  – Rule of Law index; World Economic Forum  – The global competitiveness report; 
Transparency  International  –  Corruption  perceptions  index;  Reporters  Without  Borders  –  World  press 
freedom index.   

3   See  COM(2019)  163  “Further  strengthening  the  rule  of  law  in  the  Union:  state  of  play  and  possible  next 
steps”, and COM(2019) 343 “Strengthening the rule of law within the Union: a blueprint for action”. Recent 
case law of the European Court of Justice is also of particular importance.  

4   Special Eurobarometer 489 – rule of law. 

1 

 
 
 
 
                                                           
treatment  before  the  law  and  for  the  defence  of  EU  citizens’  rights.  It  is  essential  to  the 
implementation of EU laws and policies, and central to a Union of equality, opportunity and 
social  fairness.  The  particular  circumstances  of  2020  have  brought  additional  challenges  to 
citizens’  rights,  and  some  restrictions  on  our  freedoms,  such  as  freedom  of  movement, 
freedom  of  assembly  or  freedom  to  conduct  a  business,  had  to  be  applied  to  address  the 
COVID-19 pandemic. Effective national checks and balances upholding respect for the rule 
of  law  are  key  to  ensuring  that  any  such  restrictions  on  our  rights  are  limited  to  what  is 
necessary and proportionate, limited in time and subject to oversight by national parliaments 
and courts.  

Strengthening the rule of law: a priority for an effective functioning of the Union 

The EU is based on the rule of law. Threats to the rule of law challenge its legal, political and 
economic basis. Deficiencies in one Member State impact other Member States and the EU 
as a whole. Ensuring respect for the rule of law is a primary responsibility of each Member 
State,  but  the  Union  has  a  shared  stake  and  a  role  to  play  in  resolving  rule  of  law  issues 
wherever they appear. Respect for the rule of law is also at the core of the functioning of the 
internal market, of the cooperation in the justice area based on mutual trust and recognition, 
and  of  the  protection  of  the  financial  interests  of  the  Union  as  recently  underlined  by  the 
European Council.5 If the EU is to succeed in the task of a sustainable and resilient recovery, 
it is critical that its tools and instruments can work in an environment grounded in the rule of 
law.  

The  rule  of  law  is  also  an  important  theme  for  the  EU  beyond  its  borders.  The  EU  will 
continue to  pursue a strong  and  coherent  approach between its internal  rule of law policies 
and how the rule of law is embedded in the work with accession and neighbourhood countries 
as well as in all its external action, at bilateral, regional and multilateral level.  

Guided by the universal values and principles embedded in the UN Charter and international 
law, the EU is a staunch defender of human rights, democracy and the rule of law throughout 
the  world  as  demonstrated  by  the  new  EU  Action  Plan  for  Human  Rights  and  Democracy 
2020-2024,6 and in line with the Sustainable Development Goals.7 Upholding the rule of law 
at global level includes strengthening cooperation on rule of law issues with international and 
regional  organisations,  such  as  the  United  Nations,  the  Council  of  Europe  and  the 
Organisation for Security and Cooperation in Europe. 

In the last decade, the EU has developed and tested a number of instruments to help enforce 
the  rule  of  law.8  Further  debates  at  EU  and  national  level  on  how  to  strengthen  the  EU’s 
ability  to  address  such  situations  were  triggered  by  severe  rule  of  law  challenges  in  some 
Member States.  In its  Communication of July 2019, the Commission  proposed that  the EU 
and its Member States should increase efforts to promote a robust political and legal culture 
supporting the rule of law, and should develop instruments preventing rule of law problems 
from emerging or deepening.9 

5   Conclusions of European Council of 17-21 July 2020: “The Union's financial interests shall be protected in 
accordance with the general principles embedded in the Union Treaties, in particular the values of Article 2 
TEU [Treaty on European Union]. The European Council underlines the importance of the protection of the 
Union's  financial  interests.  The  European  Council  underlines  the  importance  of  the  respect  of  the  rule  of 
law.” 

6   JOIN(2020) 5 final 
7   https://www.un.org/sustainabledevelopment/  
8   Rule of law toolbox at EU level. https://ec.europa.eu/info/sites/info/files/rule_of_law_factsheet_1.pdf.  
9   See the Commission communications cited in footnote 3. 

2 

 
 
                                                           
The European Rule of Law Mechanism  

The  Political  Guidelines  of  President  von  der  Leyen  set  out  the  intention  to  establish  an 
additional and comprehensive rule of law mechanism as a key building block in the common 
commitment of the EU and the Member States to reinforce the rule of law. The mechanism is 
designed as a yearly cycle to promote the rule of law and to prevent problems from emerging 
or deepening. It focuses on improving understanding and awareness of issues and significant 
developments in areas with a direct bearing on the respect for the rule of law – justice system, 
anti-corruption framework, media pluralism and freedom, and other institutional issues linked 
to checks and balances. Identifying the challenges will help Member States to find solutions 
that protect the rule of law, with cooperation and mutual support from the Commission, other 
Member States, and stakeholders such as the Venice Commission.  

The approach is based on close dialogue with national authorities and stakeholders, bringing 
transparency  and  covering  all  Member  States  on  an  objective  and  impartial  basis.  This  is 
brought together each year in a rule of law report, including Member State-by-Member State 
assessment  in  27  country  chapters.  This  rule  of  law  mechanism  further  reinforces  and 
complements  other  EU  instruments  that  encourage  Member  States  to  implement  structural 
reforms  in  the  areas  covered  by  its  scope,  including  the  EU  Justice  Scoreboard10  and  the 
European  Semester11,  and  now  the  Next  Generation  EU  instrument.  The  assessments 
provided  in  the  annual  report  would  be  a  reference  point  for  these  instruments.  Other 
elements  in  the  EU’s  rule  of  law  toolbox  will  continue  to  provide  an  effective  and 
proportionate response to challenges to the rule of law where necessary.12 

As well  as deepening  common understanding through dialogue, the rule  of law mechanism 
will  frame  the  Commission’s  support  to  Member  States  and  national  stakeholders  in 
addressing  rule  of  law  challenges.  Several  instruments  and  funding  help  support  structural 
reforms  through  technical  assistance  and  funding  of  projects  in  the  field  of  public 
administration,  justice,  anti-corruption  and  media  pluralism.  Specific  and  direct  grants  for 
civil society and networks (such as judicial, journalists) are also available for projects with a 
European  dimension.  Reforms  would  also  benefit  from  expertise  from  recognised 
international  bodies,  in  particular  the  Council  of  Europe,  as  well  as  from  exchanges  with 
practitioners from other Member States.   

Deepening the EU’s work on the rule of law needs close and continuous cooperation between 
EU institutions and Member States. A core objective of the European rule of law mechanism 
is to stimulate inter-institutional cooperation and encourage all EU institutions to contribute 
in  accordance  with  their  respective  institutional  roles.  This  is  central  to  a  European  rule  of 
law mechanism and reflects a long-standing interest both from the European Parliament13 and 

10   The EU Justice Scoreboard is an annual comparative information tool aiming to assist the EU and Member 
States  improving  the  effectiveness  of  their  national  justice  systems  by  providing  objective,  reliable  and 
comparable  data  on  a  number  of  indicators  relevant  for  the  assessment  of  the  efficiency,  quality  and 
independence of justice systems in all Member States. 

11   Issues related to the rule of law are considered in the European Semester to the extent that these issues have 

an impact on the business environment, investment, economic growth and jobs. 

12   The  European  rule  of  law  mechanism  should  be  distinguished  from  other  instruments  such  as  the  Article 

7(1) TEU procedures or infringement procedures.  

13    Resolution  of  25  October  2016  with  recommendations  to  the  Commission  on  the  establishment  of  an  EU 
mechanism on democracy, the rule of law and fundamental rights; Resolution of 14 November 2018 on the 
need for a comprehensive EU mechanism for the protection of democracy, the rule of law and fundamental 
rights.  

3 

 
 
                                                           
the  Council.14  Its  common  and  objective  basis,  looking  at  all  Member  States  equally,  is 
designed  with  this  aim.  The  Commission  looks  forward  to  supporting  the  work  now  under 
way  in  both  institutions,  including  looking  at  following  up  on  the  European  Parliament 
resolution  currently  under  preparation.15  The  European  rule  of  law  mechanism  will  help  to 
streamline  discussions  on  the  rule  of  law  at  EU  level  and  strengthen  inter-institutional 
cooperation, allowing for an annual rhythm in the work of the European Parliament and the 
Council  and  a  structured  and  targeted  follow-up,  as  well  as  cooperation  with  national 
parliaments.  

The rule of law mechanism is one element of a broader endeavour at EU level to strengthen 
the  values  of  democracy,  equality,  and  respect  for  human  rights,  including  the  rights  of 
persons  belonging  to  minorities.  It  will  be  complemented  by  a  set  of  upcoming  initiatives 
including the European Democracy Action Plan, the renewed Strategy for the Implementation 
of the Charter of Fundamental Rights, and targeted strategies to address the needs of the most 
vulnerable  in  our  societies  to  promote  a  society  in  which  pluralism,  non-discrimination, 
justice, solidarity and equality prevail.  
The first Rule of Law Report16 

Through this report, including its 27 country chapters presenting the Member State-specific 
assessments, the aim of the Commission is to set out first key elements of the situation in the 
Member States, on which the new cycle of the rule of law mechanism and future reports will 
be able to build.  

The assessment contained in the 27 country chapters, which are an integral part of this rule of 
law report, has been prepared in line with the scope and methodology discussed with Member 
States.17  The  work  focused  on  four  main  pillars:  the  justice  system,  the  anti-corruption 
framework, media pluralism, and other institutional checks and balances. For each pillar, the 
methodology  recalled  the  EU  law  provisions  relevant  for  the  assessment.  It  also  refers  to 
opinions and recommendations from the Council of Europe, which provide useful guidance. 
These four areas were identified in the preparatory process as key interdependent pillars for 
ensuring  the  rule  of  law.  Effective  justice  systems  and  robust  institutional  checks  and 
balances are at the heart of the respect for the rule of law in our democracies. However, laws 
and strong institutions are not enough. The rule of law requires an enabling ecosystem based 
on  respect  for  judicial  independence,  effective  anti-corruption  policies,  free  and  pluralistic 
media,  a  transparent  and  high-quality  public  administration,  and  a  free  and  active  civil 
society. Preventive policies and grassroots campaigns raise citizens’ awareness and maintain 
respect  for the  rule of law high on the agenda.  Investigative journalists, independent  media 
and the scrutiny of civil society are vital to keeping decision-makers accountable.  

The report is the result of close collaboration with Member States, both at political level in 
the Council and through political and technical bilateral meetings, and relies on a variety of 
sources.  This  methodology  will  become  part  of  the  annual  process  for  the  rule  of  law 
mechanism.  A  network  of  national  rule  of  law  contact  points  has  been  established  to  help 
setting  up  the  mechanism  and  its  methodology,  and  to  act  as  an  ongoing  channel  of 

14   The  Presidency  conclusions  of  the  General  Affairs  Council  in  November  2019  underlined  that  the 
law  dialogue. 

the  annual  Council  rule  of 

Commission’s  reports  could  serve  as  a  basis  for 
https://www.consilium.europa.eu/media/41394/st14173-en19.pdf.   

15   The  establishment  of  an  EU  Mechanism  on  Democracy,  the  Rule  of  Law  and  Fundamental  Rights 

(2020/2072(INL)). 

16   https://ec.europa.eu/info/publications/2020-rule-law-report-communication-and-country-chapters_en  
17   https://ec.europa.eu/info/files/2020-rule-law-report-methodology_en 

4 

 
 
                                                           
communication.  The  network  has  met  two  times.  All  Member  States  participated  in  the 
process  of  preparing  the  report,  providing  written  contributions  in  early  May18  and  joining 
dedicated  virtual  country  visits  held  in  May  until  July.19  During  these  country  visits,  the 
Commission  discussed  rule  of  law  developments  with  Member  States’  national  authorities, 
including  judicial  and  independent  authorities,  law  enforcement,  as  well  as  other 
stakeholders, such as journalists’ associations and civil society. Prior to the adoption of this 
report,  Member  States  have  been  given  the  opportunity  to  provide  factual  updates  on  their 
country chapter. 

A  targeted  stakeholder  consultation  was  also  carried  out,  providing  valuable  horizontal  and 
country-specific  contributions  from  a  variety  of  EU  agencies,  European  networks,  national 
and European civil society organisations and professional associations and international and 
European actors.20 These include the Fundamental Rights Agency, the European Network of 
Councils for the Judiciary, the European Network of the Presidents of Supreme Courts of the 
EU, the European Network of National Human Rights Institutions (ENNHRI), the Council of 
Bars  and  Law  Societies  of  Europe  (CCBE),  the  Council  of  Europe,  the  Organisation  for 
Security  and  Co-operation  in  Europe  (OSCE),  and  the  Organisation  for  Economic  Co-
operation  and Development  (OECD), as  well as  national  and international  civil  society and 
journalists’ organisations.   

The  country  chapters  rely  on  a  qualitative  assessment  carried  out  by  the  Commission, 
focusing on a synthesis of significant developments since January 2019 introduced by a brief 
factual  description  of  the  legal  and  institutional  framework  relevant  for  each  pillar.  The 
assessment  presents  both  challenges  and  positive  aspects,  including  good  practices.  The 
Commission  has  ensured  a  coherent  and  equivalent  approach  by  applying  the  same 
methodology  and  examining  the  same  topics  in  all  Member  States,  while  remaining 
proportionate to the situation and developments. The country chapters do not purport to give 
an  exhaustive  description  of  all  relevant  elements  of  the  rule  of  law  situation  in  Member 
States  but  to  present  significant  developments.21  Based  on  this  first  experience  and  on  the 
evolution of the situation in Member States, other relevant aspects can be included or further 
developed in future years.  

The assessment also refers to EU law requirements, including the rulings from the European 
Court  of  Justice.  In  addition,  the  recommendations  and  opinions  of  the  Council  of  Europe 
provide  a  useful  framework  of  reference  for  standards  and  best  practices.  The  Council  of 
Europe  further  contributed  to  the  assessment  in  the  country  chapters  by  providing  an 
overview of its recent opinions and reports concerning EU Member States.22  

The assessment in the rule of law report draws on this process of dialogue, consultation and 
expert input. It offers a solid and well-documented basis for discussion with and further work 
of the European Parliament and the Council. The European rule of law mechanism is set to 
evolve  and  continue  to  improve  through  inter-institutional  discussions  and  dialogue  with 
Member States, as a collective learning exercise and as a trigger for EU support.  

18   https://ec.europa.eu/info/publications/2020-rule-law-report-input-member-states_en 
19   More detailed information on the country visits can be found in the country chapters.  
20   https://ec.europa.eu/info/publications/2020-rule-law-report-targeted-stakeholder-consultation_en 
21    Examples  of  elements  which  have  not  been  systematically  examined  this  year  concern  accountability 
mechanisms  for law enforcement,  the role and independence of public  service  media,  as  well as  measures 
taken to ensure that public authorities effectively implement the law and to prevent abuse of administrative 
powers.  

22   https://ec.europa.eu/info/files/2020-rule-law-report-stakeholder-contribution-council-europe_en 

5 

 
 
                                                           
The COVID-19 pandemic: a stress test for rule of law resilience 

Beyond  the  immediate  health  and  economic  impact,  the  COVID-19  crisis  created  a  wide 
variety of challenges for society,  and more specifically  for public  administrations and legal 
and constitutional systems. The crisis has proven to be a real-life stress test for the resilience 
of national systems in times of crisis. All Member States have taken exceptional measures in 
order  to  protect  public  health,  and  most  have  declared  some  form  of  public  emergency,  or 
granted special emergency powers, under constitutional provisions or public health protection 
laws.  Changing  or  suspending  customary  national  checks  and  balances  can  pose  particular 
challenges for the rule of law, and these developments became a major issue of public debate 
in  certain  Member  States.  As  a  result,  the  Commission  has  been  closely  monitoring  the 
application  of  emergency  measures  and  this  is  reflected  in  the  country  chapters,  where 
appropriate.   

The  Commission  has  underlined  that  responses  to  the  crisis  must  respect  our  fundamental 
principles and values as set out in the Treaties. Key tests for the emergency measures have 
included whether measures were limited in time, whether safeguards were in place to ensure 
that  measures  were  strictly  necessary  and  proportionate,  and  whether  parliamentary  and 
judiciary oversight as well as media and civil society scrutiny could be maintained.23 As the 
most acute phase of the crisis has eased, another key issue has been the way in which these 
powers have been scaled down or phased out.  With the pandemic still ongoing, emergency 
regimes  or  emergency  measures  are  still  in  place  in  a  number  of  Member  States.  It  will 
therefore be necessary for the Commission  to  continue its monitoring.  The situation is  also 
being examined by international organisations,24 and the European Parliament has requested 
the  Venice  Commission  for  an  opinion  on  the  measures  taken  in  Member  States  and  their 
impact on democracy, the rule of law and fundamental rights.25 

Reactions  to  the  crisis  showed  overall  strong  resilience  of  the  national  systems.  In  many 
Member States, courts have scrutinised emergency measures and political  and legal debates 
took  place  on  whether  the  emergency  regimes  applied  were  justified  and  proportionate, 
whether  decisions  were  lawful,  and  whether  the  right  procedures  and  instruments  had  been 
used.  The  ongoing  monitoring  of  the  Commission  and  national  debates  already  point  to  a 
number of findings and reflections which can further feed the national debates and improve 
the legal and political response. 

A first reflection would be on the rule of law culture and on the level of trust in the checks 
and  balances  in  Member  States.  This  concerns  in  particular  the  interplay  between  national 
institutions and their sincere cooperation, the role of parliamentary scrutiny and opportunities 
to  maintain  consultation  and  transparency  rules  for  citizens.  The  COVID-19  pandemic  has 
highlighted the importance of  ensuring that urgent  and effective decision-making necessary 
for the protection of public health does not mean by-passing established checks and balances 

23   The  Council  of  Europe  provided  a  useful  guidance  on  the  criteria  to  consider.  These  include  whether  the 
laws  and  emergency  regimes  were  adopted  in  line  with  the  applicable  procedures,  whether  a  state  of 
emergency  and  the  emergency  measures  are  all  strictly  limited  in  time,  a  narrow  definition  of  emergency 
powers, whether the “easing” of checks and balances is limited and proportionate, and on the indispensable 
parliamentary  control  of  executive  action.  https://rm.coe.int/sg-inf-2020-11-respecting-democracy-rule-of-
law-and-human-rights-in-th/16809e1f40  and  https://www.venice.coe.int/webforms/documents/?pdf=CDL-
PI(2020)005rev-e. 

24   See for example the Council of Europe’s Venice Commission “respect for democracy, human rights and the 

rule of law during states of emergency – reflections”, 26 May 2020, CDL-PI(2020)005rev. 

25   www.venice.coe.int/webforms/events/?id=2967   

6 

 
 
                                                           
– including Parliaments – in particular when measures affect the fundamental freedoms and 
rights of the population as a whole.  

A  second  reflection  would  be  on  the  implications  for  the  work  of  media  and  civil  society 
when exercising democratic scrutiny. When emergency powers lower institutional checks on 
the decision makers, the scrutiny of public decisions by media and civil society becomes all 
the more important. However, in certain Member States, media and civil society have been 
facing  new  obstacles.  Such  situations  have,  among  others,  contributed  to  spreading 
disinformation  and  lowering  trust  in  public  authorities,  which  are  damaging  to  the  rule  of 
law.26 

A third reflection is  on the resilience of the justice system. Access  to  an  independent  court 
and  judicial  review  is  a  fundamental  element  of  the  rule  of  law.  The  partial  closure  of 
national  courts  –  which  also  act  as  Union  courts  when  applying  EU  law  –  has  revealed  a 
major vulnerability. A number of Member States have taken measures to reduce the impact of 
the  pandemic  and  were  able 
to  re-start  hearings  applying  distancing  rules  or 
videoconferencing  techniques.  The  pandemic  also  gave  a  boost  to  the  digitalisation  of 
proceedings in a number of Member States.  

These  reflections  echo  broader  rule  of  law  debates  in  a  number  of  Member  States  on  the 
resilience of their national systems.27 In that sense, the COVID-19 pandemic has underlined 
how the rule of law has a direct impact on people’s daily lives.  

2.  Key aspects of the rule of law situation in Member States 

Member States’ constitutional, legal  and political systems  generally reflect high rule of law 
standards.  The  key  principles  of  the  rule  of  law  –  legality,  legal  certainty,  prohibiting  the 
arbitrary  exercise  of  executive  power,  effective  judicial  protection  by  independent  and 
impartial courts, including respect for fundamental rights, separation of powers, and equality 
before the law– are enshrined in national constitutions and translated in legislation. However, 
there are also serious challenges, cases where the resilience of rule of law safeguards is being 
tested and where shortcomings become more evident.  

Looking  at  the  four  pillars  identified  for  the  mechanism,  the  next  four  sections  highlight  a 
number  of  significant  common  themes  and  trends,  specific  challenges  and  positive 
developments.28 Examples of developments  in  Member States which stand out  in  particular 
are  given,  drawn  from  the  assessment  for  all  27  Member  States  to  be  found  in  the  country 
chapters.29 The aim is to stimulate a constructive debate on consolidating the rule of law and 
encourage all Member States to examine how challenges can be addressed, learn from each 
other’s experiences and show how the rule of law can be further strengthened in full respect 
for national traditions and national specificities.  

26   See also Joint Communication to the European Parliament, the European Council, the Council, the European 
Economic and Social Committee and the Committee of the Regions: Tackling COVID-19 disinformation - 
Getting the facts right, 10.6.2020, JOIN(2020) 8 final. 

27   Other potential issues include the resilience of the anti-corruption framework to corruption-related risks in 

the area of public procurement during situations of emergency. 

28   Nevertheless, the analysis does not represent an exhaustive overview of all developments in Member States. 

See also footnote 18. 

29   The  developments  referred  to  in  the  examples  should  be  read  in  their  context  described  in  the  relevant 

country-chapters. Hyperlinks have been added to facilitate such a contextual reading. 

7 

 
 
 
                                                           
2.1 Justice systems 

Effective  justice  systems  are  essential  for  upholding  the  rule  of  law.  Independence,  quality 
and efficiency are the defined parameters of an effective justice system, whatever the model 
of the national legal system and tradition in which it is anchored. Whilst the organisation of 
justice in the Member States falls within the competence of the Member States, when they are 
exercising  that  competence,  Member  States  must  ensure  that  their  national  justice  systems 
provide  for  effective  judicial  protection.30  The  independence  of  national  courts  is 
fundamental to ensuring such judicial protection.31 National courts ensure that the rights and 
obligations provided under EU law are enforced effectively. As re-affirmed by the European 
Court of Justice, the very existence of effective judicial review to ensure compliance with EU 
law  is  of  the  essence  for  the  rule  of  law.32  Effective  justice  systems  are  also  the  basis  for 
mutual trust, which is the bedrock of the common area of freedom, justice and security,33 an 
investment friendly environment, the sustainability of long-term growth and the protection of 
EU financial interests.  The  European Court of Justice has further clarified the requirements 
stemming from EU law regarding judicial independence. The case-law of the European Court 
of  Human  Rights  also  provides  for  key  standards  to  be  respected  to  safeguard  judicial 
independence.  

The functioning of the justice system is high on national political agendas, as illustrated by 
the  fact  that  almost  all  Member  States  are  engaged  in  justice  reforms,34  even  if  their 
objective,  scope,  form  and  state  of  implementation  vary.  The  areas  of  reform  range  from 
structural  constitutional  changes,  such  as  establishing  a  council  for  the  judiciary  or  new 
courts,  to  concrete  operational  measures,  for  example  on  the  digitalisation  of  case 
management in courts.  The dialogue has shown that Member States follow closely  reforms 
and  rule  of  law  developments  in  other  Member  States,  and  the  evolving  case  law  of  the 
European Court of Justice and the European Court of Human Rights.  

Perceived judicial independence across the EU 
In Eurobarometer surveys conducted among both companies and the general public in 2020,35 
the  same  Member  States  tend  to  cluster  around  the  higher  and  lower  end  of  the  scale.  The 
latest  Eurobarometer  survey  shows  that  the  perception  of  independence  among  the  general 
public is very high (above 75%) in six Member States. These ratings have remained more or 
less stable over the past four years. At the same time, the level of perceived independence has 
decreased in nine Member States over the past year and in a few Member States, the level of 
perceived judicial independence remains very low (below 30%). 

Efforts aimed at strengthening structural safeguards for judicial independence are ongoing 

30   Judgement  of  24  June  2019,  Commission  v  Poland,  C-619/18,  EU:C:2019:531,  paragraphs  52  and  54; 
Judgement of 5 November 2019, Commission v Poland, C-192/18, EU:C:2019:924, paragraphs 102 to103.  
31   Judgement  of  27  February  2018,  Associação  Sindical  dos  Juízes  Portugueses,  C-64/16,  EU:C:2018:117; 

Judgement of 7 February 2019, Escribano Vindel, C-49/18, EU:C:2019:106  

32   Judgement of 28 March 2017,  Rosneft C-72/15, EU:C:2017:236, paragraph 73; Judgement of 27 February 
2018, Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, paragraph 36; Judgement of 25 
July  2018,  LM,    C-216/18,  EU:C:2018:586,  paragraph  51;  Judgement  of  24  June  2019,  Commission  v 
Poland,  C-619/18,  EU:C:2019:531,  paragraph  46;  Judgement  of  19  November  2019,  A.K.,  C-585/18,  C-
624/18, and C-625/18, EU:C:2019:982 paragraph 120. 

33   Judgement of 25 July 2018, LM, C-216/18, EU:C:2018:586, paragraph 49. 
34   See also Figure 1, 2020 EU Justice Scoreboard.  
35   2020 EU Justice Scoreboard. Eurobarometer surveys FL 483 and 484 of January 2020. The Commission has 

also used other sources, such as the World Economic Forum. 

8 

 
 
                                                           
Efforts  are  under  way  in  a  number  of  Member  States  aiming  at  strengthening  judicial 
independence  and  reducing  the  influence  of  the  executive  or  legislative  power  over  the 
judiciary. These include setting up or strengthening an independent  national  council  for the 
judiciary. The method for the appointment of judges is one of the elements which can have an 
impact  on  judicial  independence  and  public  perceptions  of  independence.  A  number  of 
Member States have envisaged or adopted reforms aimed at strengthening the involvement of 
the  judiciary  in  the  procedure,  or  defining  clear  criteria  or  judicial  review  mechanisms. 
Reforms of disciplinary procedures for judges and prosecutors also demonstrate an increased 
attention  to  the  need  for  a  balance  that  provides  essential  safeguards  while  preserving 
accountability. 

In Malta, for example, a number of reforms of the justice system have recently been adopted 
by  Parliament  to  strengthen  judicial  independence.  In  Czechia,  reforms  under  preparation 
seek  to  increase  transparency  in  the  appointment,  promotion  and  dismissal  of  judges.  In 
Cyprus,  since  July  2019,  the  appointment  of  judges  is  subject  to  new  detailed  criteria,  and 
further changes are under discussion. In Latvia, new powers have been granted to the Council 
for the Judiciary with a view to strengthening judicial independence. 

Debates, reflections and reform plans on strengthening legal and constitutional safeguards for 
judicial  independence  are  also  taking  place  in  Member  States  where  judicial  independence 
has traditionally been seen as high or even very high.36 Member States where the separation 
of  powers  and  respect  for  judicial  independence  relies  more  on  political  tradition  than  on 
detailed legal safeguards reported that developments in other Member States have been one 
reason behind steps to apply more formal systems.  

In Ireland, for example, an independent Judicial Council was established at the end of 2019 to 
safeguard judicial independence. In Luxembourg, a planned revision of the Constitution aims 
at introducing new elements to strengthen judicial independence. In Finland, in January 2020, 
an independent  agency responsible for the administration of the courts, the National  Courts 
Administration, has taken over functions previously exercised by  the Ministry of Justice. In 
the  Netherlands,  reforms  are  envisaged  to  limit  the  influence  of  the  executive  and  the 
legislature in the appointment of Supreme Court judges and members of the Council of the 
Judiciary.  In  Sweden,  a  Commission  of  Inquiry  on  ‘Strengthening  the  protection  of 
democracy  and  the  independence  of  the  judiciary’  was  set  up  in  February  2020  with  the 
objective to bring forward proposals for legislative and constitutional reforms.  

The independence of the prosecution with regard to the executive is increasingly discussed as 
it has important implications for the capacity to fight crime and corruption  

While  there  is  no  single  model  in  the  EU  for  the  institutional  set-up  of  the  prosecution 
service, or for appointment, dismissal or disciplinary procedures for prosecutors at different 
levels,  institutional  safeguards  can  help  to  ensure  that  the  prosecution  is  sufficiently 
independent and free from undue political pressure.37 A judgment of the European Court of 
Human Rights38 recently underlined that the independence of prosecutors is a key element for 
the maintenance of judicial independence.  

36   See previous footnote.   
37   Council  of  Europe  standards.  The  Venice  Commission  notes  in  its  Rule  of  Law  Checklist,  concerning  the 
prosecution  service,  that  ‘[t]here  is  no  common  standard  on  the  organisation  of  the  prosecution  service, 
especially  about  the  authority  required  to  appoint  public  prosecutors,  or  the  internal  organisation  of  the 
public prosecution service. However, sufficient autonomy must be ensured to shield prosecutorial authorities 
from undue political influence’. 

38   Judgment of 5 May 2020, Kövesi v. Romania, application no. 3594/19, § 208.  

9 

 
 
                                                           
Reforms  to  strengthen  the  independence  of  the  prosecution  are  ongoing  in  Malta,  where  a 
fully separate prosecution service is being set up, ending the traditional role of the prosecutor 
general  also  acting  as  legal  advisor  to  the  government.  Cyprus  is  also  preparing  legislative 
changes  which  aim  at  restructuring  the  Law  Office  of  the  Republic  with  the  creation  of 
separate, self-contained directorates within the Law Office. 

The  right  of  the  executive  to  give  formal  instructions  to  the  prosecution,  including  in 
individual  cases,  has  been  a  particular  topic  of  debate  in  certain  Member  States  such  as 
Germany and Austria,39 in particular following the European Court of Justice case law on the 
European Arrest  Warrant.40  In  Poland, the double role where the Minister of Justice is  also 
the  Prosecutor  General  has  raised  particular  concerns,  as  it  increases  the  vulnerability  to 
political influence as regards the organisation of the prosecution service and the investigation 
of  cases.  The  role  of  the  Prosecutor  General  towards  lower-ranking  prosecutors  is  also  a 
source of concerns in certain Member States. In Bulgaria, for example, legislative procedures 
to answer long-standing concerns about an effective accountability regime for the Prosecutor 
General remain to be finalised.  

Judicial independence remains an issue of concern in some Member States  

Despite  reform  efforts  in  a  number  of  Member  States  to  enhance  judicial  independence, 
developments raise concerns in a few of them. These concerns vary in the type of measures 
they relate to and in their intensity and scope. They range from concerns about the capacity of 
councils  for  the  judiciary  to  exercise  their  functions  to  more  structural  concerns  over  an 
increasing influence of the executive and legislative branch over the functioning of the justice 
systems,  including  constitutional  courts  or  Supreme  Courts.  Some  of  these  developments 
have  led  the  Commission  to  launch  infringement  proceedings  or  express  concerns  in  the 
context of the Article 7(1) TEU procedures. 

In some Member States, the direction of change has given rise to serious concern about the 
impact of reforms on judicial independence. This was one of the issues raised in the Article 
7(1) TEU procedure initiated by the European Parliament  regarding  Hungary.  In particular, 
the independent National Judicial Council faces challenges in counter-balancing the powers 
of the President of the National Office for the Judiciary in charge of the management of the 
courts; the election of a new President may open the way for reinforced cooperation. Other 
concerns related to new rules allowing for the appointment to the Supreme Court of members 
of the Constitutional Court, elected by Parliament, outside the normal appointment procedure. 
Poland’s  justice  reforms  since  2015  have  been  a  major  source  of  controversy,  both 
domestically and at EU level, and have raised serious concerns, several of which persist. This 
led the Commission to launch the procedure under Article 7(1) TEU in 2017, which is still 
under  consideration  by  the  Council.  In  2019  and  2020,  the  Commission  launched  two 
infringement  procedures  to  safeguard  judicial  independence  and  the  Court  of  Justice  has 
granted  interim  measures  to  suspend  the  powers  of  the  Supreme  Court’s  Disciplinary 
Chamber with regard to disciplinary cases concerning judges.  
Challenges  also  remain  in  certain  other  Member  States.  In  Bulgaria,41  the  composition  and 
functioning  of  the  Supreme  Judicial  Council  and  the  Inspectorate  to  the  Supreme  Judicial 

39   The right of the executive is accompanied by institutional safeguards or long-standing conventions limiting 

in practice the risk that this power could be abused by the executive. 

40   Notably the Judgment of 27 May 2019, OG and PI, Joined C-508/18 and C-82/19 PPU, EU:C:2019:456 (on 

the European Arrest Warrant). 

41   Since  accession  to  the  EU  in  2007,  Bulgarian  reforms  in  areas  including  justice  and  anti-corruption  have 
been  followed  by  the  Commission  through  the  Cooperation  and  Verification  Mechanism  (CVM).  The 

10 

 
 
                                                           
 
Council  have  also  raised  concerns  which  are  still  pending.  In  Romania,42  controversial 
reforms  enacted  in  2017-2019  with  a  negative  impact  on  judicial  independence  continue  to 
apply.43  In  2020,  the  government  expressed  its  commitment  to  restore  the  path  of  judicial 
reform after the backtracking of previous years, leading to a significant decrease in tensions 
with  the  judiciary.  In  Croatia,  low  administrative  capacity  creates  difficulties  for  the  State 
Judicial Council and the State Attorney’s Council in fulfilling their mandate, with their role 
with  respect  to  the  appointment  of  judges  and  prosecutors  having  been  reduced  and  an 
upgraded  IT system for  the verification of asset  declarations lacking.  In  Slovakia, there are 
long-standing  concerns  regarding  the  independence  and  integrity  of  the  justice  system.  In 
April  2020,  the  government  announced  important  reform  plans  to  strengthen  judicial 
independence and integrity, as well as the appointment process for the Constitutional Court. 

Political attacks and media campaigns against judges and prosecutors are frequently reported 
in  some  Member  States.  Measures,  including  disciplinary  ones,  have  also  been  taken 
affecting the freedom of judges to submit preliminary references to the Court of Justice of the 
European Union. Such attacks and measures can have a chilling effect and a negative impact 
on public trust in the judiciary, affecting its independence.44 In a number of cases, the attacks 
target  judges  and  prosecutors  who  are  taking  public  positions  to  denounce  developments 
which  could  damage  the  judiciary  as  a  whole.  In  its  recent  decision  of  5  May  2020,  the 
European Court of Human Rights reaffirmed the freedom of expression for prosecutors and 
judges to participate in public debates on legislative reforms affecting the judiciary, and more 
generally on issues concerning the independence of the judiciary.45 

The COVID-19 pandemic has further highlighted the importance of  digitalisation of justice 
systems 

For a number of years, Member States have been striving to make the best use of ICT tools to 
facilitate the communication of courts with parties and lawyers, for an efficient management 
of workload, and to increase transparency, including on-line access to court decisions. Many 
initiatives are ongoing in Member States to deliver real improvements for the users of justice 
systems. The COVID-19 pandemic has given an extra impetus to these efforts, showing the 
importance  of  accelerating  reforms  to  digitalise  the  handling  of  cases  by  the  judicial 
institutions,  the  exchange  of  information  and  documents  with  parties  and  lawyers,  and  the 
continued and easy access to justice for all. A number of initiatives are being taken ranging 
from  allowing  court  users  to  monitor  on-line  the  stages  of  proceedings  to  modelling 
judgments according to a standard enabling their machine-readability. 

Some Member States are already well advanced in the implementation of such systems. For 
example,  in  Estonia  and  Latvia,  the  justice  systems  are  characterised  by  some  of  the  most 
advanced information and communication technologies used in courts. They provide a high 

Communication  on  strengthening  the  rule  of  law  (COM(2019) 343)  states  that  once  the  CVM  mechanism 
ends,  monitoring  should  continue  under  horizontal  instruments.  The  rule  of  law  mechanism  provides  the 
framework for taking these issues forward in the future. 

42   Since  accession  to  the  EU  in  2007,  Romanian  reforms  as  regards  justice  and  anti-corruption  have  been 
followed  by  the  Commission  through  the  Cooperation  and  Verification  Mechanism  (CVM).  The 
Communication  on  strengthening  the  rule  of  law  (COM(2019)  343)  states  that  once  the  special  CVM 
mechanism  ends,  monitoring  should  continue  under  horizontal  instruments.  The  rule  of  law  mechanism 
provides the framework for taking these issues forward in the future. 

43   An  example  of  this  is  the  Prosecutorial  Section  for  Investigation  of  Offences  in  the  Judiciary,  tasked 
exclusively with the prosecution of crimes committed by judges and prosecutors, which continues to operate. 

44   This is especially the case where an official reaction or effective possibilities for redress are lacking. 
45   Judgment  of  5  May  2020,  Kövesi  v.  Romania,  application  no.  3594/19,  §§  201,  205,  and  209.  See  also 

judgment of 23 June 2016, Baka v. Hungary, application no. 20261/12, §§ 156-157 and 164-167. 

11 

 
 
                                                                                                                                                                                     
degree of accessibility and flexibility to court uses, and have also contributed greatly to the 
continued  functioning  of  the  courts  with  relatively  little  disruption  during  the  COVID-19 
pandemic.  In  Slovenia,  the  digitalisation  of  the  justice  system  for  case  management  is  well 
advanced  and  further  developments  are  ongoing  to  improve  electronic  communication 
between courts and parties. Hungary also has a high level of digitalisation of justice, with a 
high  availability  of  electronic  means  as  regards  online  access  to  published  judgements.  In 
Portugal, an amendment to the Code of Civil Procedure implemented the principle of ‘digital 
by default’ to all civil proceeding. In Italy, a draft reform of the civil procedure is ongoing to 
provide for an exclusive online filing and a wider range of electronic means, including online 
payment of court fees. The Commission has underlined the importance of the digitalisation of 
justice  systems  in  the  context  of  the  recovery  plan.46  These  efforts  could  be  supported 
through the future Digital Europe Programme and the Next Generation EU instrument. 

Investing in justice is more than ever necessary for addressing efficiency challenges 

Effective justice systems rely on adequate human and financial resources. While government 
expenditure on the justice system is in general increasing47, in a number of Member States the 
judiciary  has  to  cope  with  limited  resources.  Investment  in  justice  systems  is  also 
indispensable for  addressing the  efficiency  challenges  that certain  Member States still face. 
The excessive length of proceedings and backlogs in the justice systems need to be addressed 
through appropriate measures. The economic and social effects of the COVID-19 crisis has 
underlined  the  need  to  strengthen  the  resilience  of  the  justice  system,  namely  because 
caseload  can  be  expected  to  increase.  Inefficiency  can  generate  mistrust  in  justice  systems, 
which can become a pretext for inadequate justice reforms affecting the rule of law. Planned 
investments  in  the  efficiency  and  quality  of  justice  systems  which  benefit  the  business 
environment can be facilitated by the Next Generation EU programmes and the Recovery and 
Resilience  Facility.  In  some  Member  States,  the  need  for  additional  resources  has  been 
officially recognised in government programmes. For example,  Germany is implementing a 
‘Pact for the Rule of Law’, which includes significant additional resources, both at the federal 
level and the level of the Länder. Initiatives in Austria and France also aim at increasing the 
resources for the justice system.  

2.2 Anti-corruption framework  

The  fight  against  corruption  is  essential  for  maintaining  the  rule  of  law.  Corruption 
undermines  the  functioning  of  the  state  and  of  public  authorities  at  all  levels  and  is  a  key 
enabler  of  organised  crime48.  Effective  anti-corruption  frameworks,  transparency  and 
integrity  in  the  exercise  of  state  power  can  strengthen  legal  systems  and  trust  in  public 
authorities. Fighting corruption needs to be based on evidence about its prevalence and form 
in a given country, the conditions that enable corruption and the legal, institutional and other 
incentives that can be used to prevent, detect and sanction corruption.  

The  fight  against  corruption  cannot  be  reduced  to  a  standard  ‘one-size-fits-all’  set  of 
measures.  It  also  needs  to  take  into  account  specific  risk  factors,  which  may  vary  between 
different  Member  States.  Nevertheless,  all  Member  States  need  tools  in  place  to  prevent, 
detect,  curb and sanction corruption. The need for comprehensive prevention strategies that 
increase transparency and integrity in all sectors of society and focus on root causes, has long 

46   Europe's moment: Repair and Prepare for the Next Generation (COM(2020) 456 final) 
47   2020 EU Justice Scoreboard 
48   EU Serious and Organised Crime Threat Assessment (EU SOCTA), 2017 Europol.  

12 

 
 
                                                           
been  recognised  by  the  EU.49  Such  strategies  should  be  based  on  an  assessment  of  threats, 
vulnerabilities  and  risk  factors.  Likewise,  the  need  for  reliable  and  effective  integrity 
measures, efficient corruption prevention systems and effective, accountable and transparent 
public institutions at all levels is also part of the EU approach to fighting corruption. 

A comprehensive approach to fighting corruption must rely on a combination of prevention 
and  repressive  measures.  This  calls  for  independent  and  impartial  justice  systems  that 
effectively  enforce  anti-corruption  legislation  by  conducting  impartial  investigations  and 
prosecutions,  and  effective,  proportionate  and  dissuasive  sanctions  including  the  effective 
recovery  of  proceeds  of  corruption.50  This  in  turn  requires  a  robust  legal  and  institutional 
framework,  sufficient  administrative  and  judicial  capacity,  as  well  as  the  political  will  for 
enforcement  measures.  Independent  and  pluralistic  media,  in  particular  investigative 
journalism and an active civil society, play an important role in the scrutiny of public affairs, 
detecting  possible  corruption  and  integrity  breaches,  raising  awareness  and  promoting 
integrity. The fight against corruption also has an important EU dimension as it is linked to 
the  protection  of  the  financial  interests  of  the  Union51.  The  European  Public  Prosecutor 
Office will play  a crucial  role in  this regard.52 Over the past  few  years, EU legislation was 
adopted  to  strengthen  the  fight  against  corruption,  including  standards  to  protect 
whistleblowers  against  all  forms  of  retaliation.53  Revised  rules  against  money  laundering, 
notably by setting up beneficial ownership registries of companies54, and further steps to help 
the exchange of financial information and to speed up financial investigations55, all have an 
important impact on facilitating the fight against corruption. 

Corruption perceptions across the EU 
The results of the Corruption Perception Index56 show that ten Member States are in the top 
twenty of the countries perceived as least corrupt in the world, while the average score of the 
EU is globally good. Several Member States have improved their score compared to previous 
years, whereas others continue to score significantly lower than the other European countries. 
The  latest  Eurobarometer  perception  surveys57  show  that  corruption  remains  a  serious 
concern  for  EU  citizens  and  businesses.  Over  seven  in  ten  Europeans  (71%)  believe  that 

49   Council document 14310/19. 
50   Idem. 
51   According  to  Article  325  TFEU,  the  Union  and  its  Member  States  have  to  take  appropriate  measures  to 
counter fraud and any other illegal activities affecting the financial interests of the Union. While fraud and 
corruption are distinct legal concepts, fraud cases against the EU budget might involve corruption. At the EU 
level,  the  EU’s  Anti-Fraud  Office  OLAF  conducts  internal  and  external  investigations  for  the  purpose  of 
fighting fraud, corruption and other illegal activities affecting the financial interests of the Union.  

52   The European Public Prosecutor’s Office, currently being set up, will be an independent prosecution office 
of  the  EU,  with  the  competence  to  investigate,  prosecute  and  bring  to  judgment  crimes  against  the  EU 
budget,  such  as  fraud,  corruption  or  serious  cross-border  VAT  fraud.  The  Member  States  currently 
participating  in  the  European  Public  Prosecutor  Office  are  Austria,  Belgium,  Bulgaria,  Croatia,  Cyprus, 
Czech  Republic, Estonia, Finland, France, Germany, Greece, Italy,  Latvia,  Lithuania,  Luxembourg, Malta, 
Netherlands, Portugal, Romania, Slovakia, Spain and Slovenia. 

53   Directive 2019/1937 of 23 October 2019 on the protection of persons who report breaches of Union law. 
54   Directive  (EU)  2015/849  on  the  prevention  of  the  use  of  the  financial  system  for  the  purposes  of  money 
laundering  or  terrorist  financing  and  Directive  (EU)  2018/1673  of  23  October  2018  on  combating  money 
laundering by criminal law. 

55   Directive  (EU) 2019/1153 laying down rules facilitating the  use of financial and other information  for the   

prevention, detection, investigation or prosecution of certain criminal offences. 

56   https://www.transparency.org/en/news/cpi-western-europe-and-eu.  
57   Special  Eurobarometer  502  ‘Corruption’,  June  2020  and  Flash  Eurobarometer  482  ‘Businesses’  attitudes 

towards corruption in the EU’, December 2019.  

13 

 
 
                                                           
corruption is widespread in their country and over four in ten Europeans (42%) consider that 
the  level  of  corruption  has  increased  in  their  country.  In  the  meantime,  only  34%  of 
respondents  are  of  the  opinion  that  their  government’s  efforts  to  combat  corruption  are 
effective.  In  addition,  more  than  six  in  ten  European  companies  (63%)  consider  that  the 
problem  of  corruption  is  widespread  in  their  country  and  a  majority  of  companies  (51%) 
think that it is unlikely that corrupt people or businesses in their country would be caught, or 
reported to the police or prosecutors.  

National anti-corruption strategies 

the  opportunity 

A  strategic  anti-corruption  framework  offers 
translate  political 
commitment and vision into concrete actions. National anti-corruption strategies can ensure 
that  individual  legislative  or  institutional  loopholes  are  not  addressed  in  isolation  and  that 
anti-corruption provisions are mainstreamed in all relevant policy sectors in order to have an 
effective impact on the ground. Several Member States have adopted comprehensive new or 
revised  anti-corruption  strategies  with  specific  and  measurable  objectives,  clear-cut  budget 
and well-defined responsibilities  of specialised institutions, as well as a strong involvement 
of relevant stakeholders.  

to 

For example, in January 2020, France adopted a multiannual national plan to fight corruption 
(2020-2022),  covering  both  the  preventive  and  repressive  dimensions  of  corruption.  Other 
Member  States,  such  as  Bulgaria,  Croatia,  Czechia,  Estonia,  Greece,  Italy,  Lithuania, 
Romania, and  Slovakia  have had comprehensive national  anti-corruption strategies in place 
for  several  years.  Whilst  developing  anti-corruption  plans  and  strategies  is  important,  their 
effective implementation and monitoring is key to ensure that progress is made.  

Other  Member  States  are  in  the  process  of  preparing  national  anti-corruption  strategies.  In 
Ireland, the government has announced its intention to tackle corruption more effectively, by 
following up on the ongoing comprehensive assessment of the various State bodies involved 
in  preventive  and  repressive  anti-corruption  measures  and  the  procedures  in  criminal  law 
enforcement.  Discussions  are  ongoing  also  in  Portugal,  where  a  working  group  was 
established  to  prepare  a  national  anti-corruption  strategy.  Finland  and  Sweden,  which  have 
relied  less  on  a  strategic  approach  and  more  on  practices,  traditions  and  high  standards  of 
integrity  and  transparency  to  prevent  corruption,  are  also  now  in  the  process  of  preparing 
national anti-corruption plans. 

Strengthening the capacity of the criminal justice system to fight corruption  

Some  Member  States  have  also  carried  out  reforms  to  align  their  criminal  legislation  with 
international  anti-corruption  standards.  Latvia,  for  example,  has  recently  amended  its 
criminal  law  as  regards  the  definition  of  several  corruption  offences,  eliminating  certain 
restrictions from the scope of bribery and trading in influence.  

It is also of key importance for the institutions entrusted with enforcement of criminal law to 
work  in  an  effective  and  impartial  manner.  It  is  fundamental  for  the  judiciary,  prosecution 
and  law  enforcement  bodies  to  be  equipped  with  adequate  funding,  human  resources, 
technical  capacity  and  specialised  expertise.  Measures  to  strengthen  the  capacity  of  the 
institutional  framework  to  fight  corruption  and  to  reduce  obstacles  to  effective  prosecution 
have been introduced in some Member States. For example, the anti-corruption law adopted 
in  January  2019  in  Italy  has  tightened  sanctioning  for  corruption  crimes  and  suspended 
limitation periods after the first instance judgments.  In addition, a comprehensive reform to 
streamline  criminal  procedure  is  being  discussed  in  Parliament,  as  the  dissuasive  impact  of 
sanctions is hampered by the excessive length of criminal proceedings. Spain has also sought 
to  increase  the  capacity  of  prosecution  by  allocating  additional  resources  and  updating 

14 

 
 
criminal  legislation  to  extend  the  statute  of  limitations  for  serious  offences  and  introduce 
more  severe  sanctions  for  corruption-related  crimes.  Similarly,  France  has  recently  taken 
measures to reorganise the financial police, and a 2020 report showed that corruption-related 
cases have increased significantly as a proportion of all cases.  

Striking  the  right  balance  between  the  privileges  and  immunities  of  public  officials  and 
ensuring  that  these  are  not  used  as  obstacles  to  effective  investigation  and  prosecution  of 
corruption  allegations  is  also  important.  Greece  has  taken  measures  to  eliminate  some 
important  obstacles  to  the  prosecution  of  high-level  corruption  related  to  immunities  and 
special statutes of limitation by way of a constitutional review in 2019.  

Significant  efforts  are  ongoing  in  other  Member  States,  often  in  response  to  specific 
challenges or societal pressure. Examples include Malta, where the ongoing investigation and 
separate  public  inquiry  into  the  assassination  of  investigative  journalist  Daphne  Caruana 
Galizia  unveiled  deep  corruption  patterns  and  sparked  a  strong  public  demand  for 
significantly strengthening the capacity to tackle corruption and wider rule of law reforms. A 
broad reform project has now been launched to address gaps and strengthen the institutional 
anti-corruption framework, including as regards law enforcement and prosecution. Similarly, 
in Slovakia, the government announced a range of reforms in response to public outcry over 
the revelations made in the context of investigations into the murder of journalist Ján Kuciak 
and his fiancée Martina Kušnírová. Judicial procedures are still ongoing. 

In some cases, ongoing reforms also respond to specific concerns in areas such as corruption 
or  money  laundering.  For  example,  in  Austria,  following  certain  high  profile  corruption 
cases, the government envisages possible reforms to further strengthen the control of political 
party  financing  by  the  Court  of  Audit.  There  are  also  several  initiatives  under  way  in  the 
Netherlands aimed at further strengthening the framework to detect, investigate and prosecute 
corruption, in  particular  in  relation  to  the financial sector. The joint  analysis  of files by the 
Anti-Corruption  Centre  and  the  Financial  Intelligence  Unit  in  the  Netherlands,  ensuring  a 
sharing  of  know-how  and  a  more  efficient  and  broader  analysis  of  unusual  transactions 
related to corruption, constitutes a good example of identifying shortcomings to be addressed.  

Criminal investigations and the application of sanctions for corruption still face challenges  

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.  Two  European  Commission  pilot  data  collections  of  official  statistics  on  the 
criminal  treatment  of  corruption  cases  in  Member  States  have  shown  that  there  are  still 
obstacles  to  gather  comparative  data  across  the  EU  on  the  treatment  of  corruption  cases  in 
various stages of the criminal procedure in Member States. The collected data received from 
participating  Member  States  has  shown  that  there  are  notable  differences  between  Member 
States in definitions of offences, availability of data, and methodology for recording data.58  

58   Through  the  expert  group  on  policy  needs  for  data  on  crime,  the  Commission  has  worked  with  Member 
States  to  identify  those  indicators  where  official  statistics  from  the  crime  and  criminal  justice  process  are 
sufficiently  widely  available  to  warrant  an  EU-wide  data  collection.  Responses  were  received  from  26 
Member States for the collection related to the reference years 2011, 2012 and 2013.  The final version of 
the data collection of official statistics on the treatment of corruption cases in the criminal justice system in 
Member  States  was 
https://ec.europa.eu/home-
at 
affairs/sites/homeaffairs/files/what-we-do/policies/organized-crime-and-human-
trafficking/corruption/docs/official_corruption_statistics_2011_2013_jan16_en.pdf. A second data collection 
was  launched  in  June  2018  to  update  the  data  collection  for  the  reference  years  2014,  2015  and  2016 
received responses from 22 Member States. 

published 

available 

January 

2016, 

in 

15 

 
 
                                                           
 
Monitoring  shows  that  there  are  concerns  about  the  effectiveness  of  the  investigation, 
prosecution  and  adjudication  of  corruption  cases,  including  high-level  corruption  cases,  in 
several  Member  States.  Examples  include  Bulgaria,  where  a  reform  of  its  legal  and 
institutional  anti-corruption  frameworks  has  led  to  improved  cooperation  between  the 
relevant authorities, however, important challenges remain before these institutions can build 
a solid reputation of impartiality, objectivity and independence. A solid track record of final 
convictions in high-level corruption cases remains to be established. In Croatia, the efforts of 
the  specialised  anti-corruption  services  to  fight  corruption  are  hampered  by  a  lack  of 
specialised  investigators  and  by  the  inefficiency  of  the  justice  system,  as  lengthy  court 
proceedings and appeals often impede closure of cases, including against high-level officials. 
Similarly,  in  Slovakia,  only  few  high-level  corruption  cases  have  been  investigated  or 
prosecuted  in  recent  years,  with  weak  whistleblower  protection  and  limited  capacity  of  the 
specialised  anti-corruption  institutions  to  investigate  and  prosecute  being  important 
challenges.  

Concerns that high-level corruption  cases are not pursued systematically  are also present in 
Czechia, where investigations and audits are currently ongoing at both national and European 
level into potential conflicts of interests and the use of EU funds. In Hungary, while there is 
prosecution of high-level corruption in some cases, it remains very limited and there appears 
to  be  a  consistent  lack  of  determined  action  to  start  criminal  investigations  and  prosecute 
corruption  cases  involving  high-level  officials  or  their  immediate  circle  when  serious 
allegations arise. The treatment of high-level corruption cases also presents shortcomings in 
Malta,  where  criminal  files  against  holders  of  top  executive  functions  reportedly  remain  in 
the early stages of criminal proceedings and where recent reforms seek to address challenges 
to investigation and prosecution.  

Measures to strengthen the corruption prevention and integrity framework  

Corruption prevention policies cover many areas, typically including ethical rules, awareness-
raising  measures,  rules  on  asset  disclosures,  incompatibilities  and  conflicts  of  interest, 
internal control mechanisms, rules on lobbying, and revolving doors. Transparency, access to 
public  information,  the  protection  of  whistleblowers  and  an  overall  culture  of  integrity  in 
public  life  are  key  elements  enabling  the  prevention  and  detection  of  corruption.  Many 
Member  States  have  taken  or  are  envisaging  measures  to  strengthen  the  prevention  and 
integrity framework. Examples include Bulgaria, Ireland, Greece, Malta, Czechia, Poland and 
Portugal.  Legislation  under  way  covers  areas  including  obligations  for  asset  declarations, 
conflict  of  interest  rules  for  all  public  officials  (including  Members  of  Parliament), 
transparency in public office, or setting up dedicated transparency entities and offices tasked 
with the monitoring and verification of asset declarations and conflicts of interests. In certain 
other  Member  States,  such  as  Denmark,  Finland  and  Sweden,  corruption  prevention  relies 
essentially on a strong integrity culture, with few formal rules and controls. 

In order to be effective, such measures need to be based on a careful diagnosis of risks and 
vulnerabilities  and  contain  mechanisms  that  ensure  adequate  enforcement  of  and  follow-up 
on  integrity  incidents.  Prevention  measures  lead  to  visible  results  when  they  are  part  of  a 
comprehensive  approach  and  are  streamlined  across  all  relevant  policy  sectors.  Challenges 
remain in several countries when it comes to enforcement or the control mechanisms to verify 
and possibly sanction integrity incidents relating to asset declarations, lobbying, conflicts of 
interest and revolving doors.  

16 

 
 
                                                                                                                                                                                     
 
2.3 Media pluralism and media freedom 

All  Member States have legal  frameworks in  place to  protect  media freedom  and pluralism 
and EU citizens broadly enjoy high standards of media freedom and pluralism. Freedom of 
expression, media freedom and pluralism and the right of access to information are generally 
enshrined  in  the  Constitution  or  in  secondary  law.  Media  pluralism  and  media  freedom  are 
key enablers for the rule of law, democratic accountability and the fight against corruption. 
The murders of journalists who were investigating high-level corruption and organised crime 
allegations have been a wake-up call reminding Member States of the obligation to guarantee 
an enabling environment for journalists, protect their safety and pro-actively promote media 
freedom and media pluralism.  

Developments  caused  by  the  COVID-19  pandemic  have  further  confirmed  the  key  role  of 
free and pluralistic media and the essential service they provide to society by supplying fact-
checked  information  –  and  thereby  contributing  to  the  fight  against  disinformation  –  and 
maintaining democratic accountability. They also underlined the potential risks arising from 
restrictions on freedom  of expression and on access  to  information. The crisis  has  revealed 
that the measures  designed to  tackle the ‘infodemic’ can be used  as  a pretext  to  undermine 
fundamental rights and freedoms or abused for political purposes.59 It has also amplified the 
already difficult economic situation of the sector due to a dramatic fall in advertising revenue, 
despite  increased  audiences.  The  situation  is  particularly  difficult  for  vulnerable  smaller 
players and local and regional media outlets. The strength and diversity of the media sector 
within the EU risk being weakened as a result.  

The monitoring in the first rule of law report focuses on some fundamental elements of media 
freedom and pluralism with a particular bearing on the rule of law, such as the independence 
of  the  media  regulatory  authorities,  transparency  of  media  ownership,  state  advertising,  the 
safety of journalists and access to information. Other aspects of the media landscape not yet 
covered in this first report, such as for example the role and independence of public service 
media, are also critical in a rule of law context and will be further developed in future years. 
The monitoring in the rule of law report will also be complemented by actions to be proposed 
in the upcoming European Democracy Action Plan and Media and Audiovisual Action Plan.  
The Media Pluralism Monitor60  

The  Media  Pluralism  Monitor  assesses  risks  to  media  freedom  and  pluralism  in  all  EU 
Member States, focusing on four areas -basic protection of media freedom, market plurality, 
political  independence  and  social  inclusiveness  of  media.  The  latest  results  of  the  Monitor 
(MPM 2020) highlight, in particular, that journalists and other media actors continue to face 
threats and attacks (both physical and online) in several of the Member States monitored. The 
results further show that not all media regulators can be considered to be free from influence, 
both  due to  the manner of appointment of their boards and when implementing their remit. 
According  to  the  report,  the  transparency  of  media  ownership  presents  on  average  medium 
risk across the Member States, due to a lack of effectiveness of legal provisions and/or to the 
fact  that  information  is  provided  only  to  public  bodies,  but  not  to  the  public.  Results  also 

59   JOIN(2020)8 final.  
60   The  Media  Pluralism  Monitor  2020  has  been  an  important  source  for  the  2020  Rule  of  Law  Report.  The 
Media  Pluralism  Monitor  is  a  scientific  and  holistic  tool  to  document  the  health  of  media  ecosystems, 
detailing threats to media pluralism and freedom in Member States and some candidate countries, and is co-
financed  by  the  European  Union.  It  has  been  implemented,  on  a  regular  basis,  by  the  Centre  for  Media 
Pluralism and Media Freedom, since 2013/2014. The Commission has also used other sources, such as the 
World Press Freedom Index, as referenced in the country chapters. 

17 

 
 
                                                           
highlight  that  news  organisations  continue  to  be  vulnerable  to  political  interference, 
especially when economic conditions for the news organisations are unstable. 

Independence of media authorities  

Media  authorities  are  key  actors  for  enforcing  media  pluralism.  When  implementing  media 
specific  regulation  and  media  policy  decisions,  their  independence  from  economic  and 
political  interests  and  the  impartiality  of  their  decisions  have  a  direct  impact  on  market 
plurality and on the political independence of the media environment. 

The independence and competence of media authorities is established by law in all Member 
States. Nevertheless, some concerns have been raised with regard to the risk of politicisation 
of the authority, for instance in Hungary, Malta and Poland. There are also concerns about the 
effectiveness of some national media authorities in light of the resources available to them, 
for  example  in  Bulgaria,  Greece,  Luxembourg,  Romania  and  Slovenia.  In  Czechia,  the 
government  is  considering  a  reform  to  further  strengthen  independence  of  the  media 
regulator. 

The  Audiovisual  Media  Services  Directive  (AVMSD),  whose  transposition  should  be 
completed this  year61, includes specific requirements which will contribute to strengthening 
the independence of national media authorities.  

Transparency of media ownership  

Transparency of media ownership is an essential precondition for any reliable analysis on the 
plurality  of  a  given  media  market;  it  is  necessary  not  only  to  conduct  informed  regulatory, 
competition  and  policy  processes,  but  also  to  enable  the  public  to  evaluate  the  information 
and opinions that are disseminated by the media.62 Some Member States have well-developed 
systems  to  ensure  transparency  of  media  ownership.  In  Germany,  for  example,  there  are 
specific  obligations  to  disclose  ownership  applying  to  the  news  media  sector,  commercial 
broadcasters, online media and the press. Political parties must disclose their involvement in 
media entities. In France, media companies are required to disclose their three largest owners 
to the public, and have to notify the media authority (‘Conseil Supérieur de l’Audiovisuel’  - 
CSA) when the ownership or control reaches the threshold of 10% or more. Information on 
the capital structure of publishers is available on the CSA website.  Portugal has a thorough 
framework  for  ensuring  transparency  of  media  ownership.  The  obligation  of  disclosure  of 
ownership and financing of the media is laid down in the Constitution, and its monitoring is 
the responsibility of the media authority. 

In a few Member States, there are obstacles to an effective public disclosure of ownership, or 
there is no effective disclosure system in place. In Czechia, media companies are not obliged 
to reveal their ownership structures, any changes to them or any information relating to the 
ultimate  beneficial  owner  of  the  company.  In  Cyprus,  there  is  no  ownership  transparency 
with  regard  to  the  written  and  digital  press,  which  creates  concerns  with  regard  to  cross-
ownership. The lack of transparency of media ownership is a source of concern in Bulgaria, 
too. 

Distribution of state advertising  

61   Directive (EU) 2018/1808 of 14 November 2018 includes specific requirements for the independence of the 

national media authorities. 

62   Recommendation CM/Rec(2018)11 of the Committee of Ministers to member States on media pluralism and 

transparency of media ownership. 

18 

 
 
                                                           
State advertising63 can be an important source of support to media. Financial support from the 
state  can  be  crucial,  especially  for  non-profit,  community  media  and  other  less  commercial 
forms of journalism, in particular in times of economic crisis, and transparent rules and fair 
criteria  lower  the  risk  of  favouritism.  It  is  therefore  of  particular  importance  that  fair  and 
transparent rules on the distribution of state resources and support are in place and effectively 
implemented. The absence of such rules increases the risk of public money being allocated to 
specific media outlets in a biased manner.  

In many Member States, there is no specific legislation to ensure fair and transparent rules on 
the distribution of state advertising to media outlets. The risks caused by the lack of clear and 
transparent  rules  may  manifest  themselves  through  low  transparency  in  relation  to  the 
distribution criteria, the amounts allocated and the beneficiaries. In Hungary, in the absence 
of legislation and transparency in the distribution of state advertising, significant amounts of 
state  advertising  channelled  to  pro-government  outlets  have  opened  the  door  for  the 
government  to  exert  indirect  political  influence  over  the  media.  Austria  allocates  relatively 
high levels of state advertising to media companies, and concerns were raised over potential 
political influence over such allocation, in the absence of rules on its fair distribution.  

In  some  cases,  these  risks  are  mitigated  by  general  public  procurement  rules  and/or  good 
governance rules of state expenditure. In Slovakia for example, no framework for regulating 
the distribution of state advertising exists, however contracts between the state and the private 
sector are registered in the central register of contracts which is publicly available.  

Recently, the Commission has proposed that the recovery package from the EU budget could 
help  address  immediate  liquidity  needs,  while  the  digital  investment  and  resilience  of  the 
sector would also be strengthened through InvestEU, Creative Europe, and Horizon Europe 
Programmes.  The  Commission  further  encouraged  Member  States  and  all  EU  actors  to 
support  media  while  ensuring  the  respect  of  their  independence,  media  freedom  and 
pluralism.64  

Political pressure on the media 

Vulnerabilities  and  risks  to  media  pluralism  increase  when  the  political  independence  of 
media is under threat, in the absence of regulation against political interference or as a result 
of rules allowing political actors to own media.  

The  country  chapters  have  identified  a  number  of  cases  where  serious  concerns  have  been 
raised by stakeholders. In Bulgaria, for example, it is reported that the ownership of several 
media  outlets  is  closely  linked  to  political  actors,  even  if  not  officially  owned  by  them.  In 
addition, a large number of Bulgarian journalists have characterised political interference in 
the  media  as  “common”  and  “widespread”.  In  Hungary,  the  establishment  of  the  KESMA 
media  conglomerate  via  the  merger  of  more  than  470  government-friendly  media  outlets, 
without scrutiny from media and competition authorities, has been seen as a threat to media 
pluralism. Further concerns have been voiced that a recent takeover might follow a pattern of 
economic  takeover  of  the  remaining  independent  news  media  sites.  In  Malta,  the  two  main 
political  parties  represented  in  Parliament  own,  control  or  manage  multiple  Maltese  media 
outlets  and  broadcasters.  In  Poland,  during  the  2020  presidential  campaign,  the  governing 
coalition referred to  possible plans for legislative changes concerning foreign-owned media 
outlets, which could have implications for media pluralism. 

63   The Media Pluralism Monitor defines state advertising as “any advertising that is paid for by governments 

(national, regional, local) and state-owned institutions and companies, to the media”. 

64   JOIN(2020) 8. 

19 

 
 
                                                           
Right of access to information  

The right of access to information is a fundamental precondition for democratic debate and 
scrutiny  of  public  institutions,  of  key  importance  to  the  media  but  also  more  generally  for 
upholding  the  rule  of  law.  It  relies  on  transparency  of  public  administration  and  decision-
making. This right is guaranteed in the Constitution or in secondary legislation in all Member 
States but some country chapters point to obstacles or delays in providing the information. In 
Czechia,  Malta  and  Romania,  for  instance,  repeated  difficulties  and  obstacles  to  obtain 
information have been reported.  

Measures to support and protect journalists against threats and attacks 

In  a  number  of  Member  States,  journalists  and  other  media  actors  increasingly  face  threats 
and attacks (physical and online) in  relation to their publications and their work, in various 
forms: the deployment of ‘SLAPP’65 lawsuits; threats to physical safety and actual physical 
attacks;  online  harassment,  especially  of  female  journalists;  smear  campaigns,  intimidation 
and politically oriented threats. Such threats, attacks and smear campaigns are reported in one 
form or another in several Member States. Particular examples have been highlighted in the 
country chapters in Bulgaria, Croatia, Hungary, Slovenia and Spain. Threats and attacks have 
a  chilling  effect  on  journalists,  and  entail  the  risk  of  a  shrinking  public  debate  on 
controversial societal issues. 

To address this situation, a number of Member States have developed good practices, and set 
up  structures  and  measures  offering  support  and  protection.  In  Belgium,  the  Flemish 
association  of  journalists  set  up  a  specific  hotline  for  physical  or  verbal  aggression  against 
journalists. In Italy, a Coordination Centre dealing with acts against journalists has been set 
up.  In  the  Netherlands,  the  ‘PersVeilig’  protocol  aimed  at  reducing  threats,  violence  and 
aggression  against  journalists  was  concluded  between  the  public  prosecution  service,  the 
police, the Society of Editors-in-Chief and the Association of Journalists. Sweden has set up 
national  contact  points  and  allocated  additional  human  and  financial  resources  to  support 
journalists and better investigate hate crimes. 

2.4 Other institutional issues linked to checks and balances 

Institutional  checks  and  balances  are  at  the  core  of  the  rule  of  law.  They  guarantee  the 
functioning, cooperation and mutual control of State organs so that power is exercised by one 
state authority with the scrutiny of others. In addition to an effective justice systems, checks 
and  balances  rely  on  a  transparent,  accountable,  democratic  and  pluralistic  process  for 
enacting  laws,  the  separation  of  powers,  the  constitutional  and  judicial  review  of  laws,  a 
transparent and high-quality public administration as well as effective independent authorities 
such  as  ombudsperson  institutions  or  national  human  rights  institutions.  In  every  Member 
State, the specific checks and balances differ depending on the equilibrium resulting from the 
political, legal and constitutional traditions. Whilst the precise model chosen by each Member 
State may vary, what is crucial is that it ensures the respect for the rule of law and democratic 
norms. 

The first rule of law report focuses on some key elements of particular importance for the rule 
of  law,  such  as  the  process  for  preparing  and  enacting  laws,  in  particular  as  regards 
stakeholders’  involvement,  the  use  of  fast-track  and  emergency  procedures,  and  the  regime 

65   A  strategic  lawsuit  against  public  participation  (SLAPP)  is  a  lawsuit  intended  to  censor,  intimidate,  and 
silence  critics  by  burdening  them  with  the  cost  of  a  legal  defence  until  they  abandon  their  criticism  or 
opposition. 

20 

 
 
                                                           
for the constitutional review of laws. It also looks at constitutional reforms to strengthen the 
checks and balances. Reporting also includes an examination of exceptional measures taken 
to  fight  the  COVID-19  pandemic.  The  role  of  independent  authorities,  such  as  the 
Ombudsperson  and  other  National  Human  Rights  Institutions,  and  the  role  of  civil  society 
organisations in safeguarding the rule of law, are other elements of analysis.   

Stress on checks and balances can be found in all Member States and is often a normal part of 
the political process in a democratic society. Economic crisis, the COVID-19 pandemic and 
societal  changes  can  add  to  these  tensions,  but  checks  and  balances  remain  as  essential  as 
ever.  In  recent  years,  several  rule  of  law  crises  have  unfolded  in  the  Union  and  have  been 
associated with  attacks on institutional checks and balances.  Strengthening the resilience of 
institutional checks and balances is therefore essential for safeguarding the rule of law.  

An enabling framework for civil society allows for debate and scrutiny of those in power. As 
is  the  case  for  independent  journalists  and  critical  media,  attempts  to  suppress  civil  society 
actors should always be considered as a warning sign with regard to the rule of law. 

Debates on the rule of law contributing to strengthening the rule of law culture  

Positive reform initiatives often emerge out of public debates on specific issues of relevance 
for the rule of law. Debate and increased awareness of the checks and balances needed for the 
rule of law to function effectively is therefore an important first step. The increasing attention 
to  the rule of law debate across the Union can be illustrated by  efforts  to promote national 
debates through parliamentary hearings, public awareness campaigns or initiatives driven by 
the judiciary.  In  Czechia, the Senate organises conferences  and debates on topics related to 
the  justice  system.  In  Denmark,  the  National  Courts  Administration  has  in  recent  years 
undertaken a series of efforts to promote the rule of law, better understanding of the justice 
system  to  a  variety  of  target  groups  and  improve  the  user  focus  of  the  justice  system.    In 
Germany, regular debates, nationwide information and publicity campaigns, and publications 
on rule of law topics contribute to fostering a dynamic rule of law culture. In the Netherlands, 
regular  policy  debates  on  the  State  of  the  rule  of  law  are  organised  in  both  Chambers  of 
Parliament. 

Constitutional  reforms  to  strengthen  institutional  checks  and  balances,  in  particular  on 
constitutional review 

In a number of Member States, reform processes are under way. In particular, they concern 
the  opening  up  of  new  channels  for  citizens  to  challenge  the  exercise  of  executive  or 
legislative power. 

In Cyprus, for example, draft legislation foresees the creation of a Constitutional Court that 
would  take  over  the  constitutionality  review  of  laws  from  the  Supreme  Court.  Following  a 
constitutional revision in  Lithuania, the possibility of individual constitutional review and  a 
posteriori  control  of  enacted  laws  was  introduced  in  2019.  In  Luxembourg,  a  recent 
constitutional  reform  reinforced  the  effects  of  Constitutional  Court’s  decisions  when 
declaring legal provisions unconstitutional and a proposed revision of the constitution would 
give  constitutional  status  to  the  office  of  the  Ombudsman.  In  Slovakia,  the  government  is 
considering  strengthening  the  powers  of  the  Constitutional  Court  by,  amongst  others, 
introducing the possibility of a constitutional complaint and an ex ante control of compliance 
of laws with the Constitution. Constitutional reforms also concern other aspects of checks and 
balances.  For  example,  in  Malta,  a  recently  adopted  constitutional  reform  concerns  the 
election procedure of the President of Malta and the role of the ombudsman institution, and, 
another  constitutional  reform  on  the  appointment  to  certain  independent  commissions  has 
been  tabled  to  Parliament.  Reflections  in  Sweden  on  strengthening  the  democratic  system 

21 

 
 
include reforming how constitutional amendments are adopted, while a parliamentary inquiry 
is reviewing the constitutional status, remit and activities of the Parliamentary Ombudsmen. 

Some  of  these  efforts  are  drawing  on  the  advice  of  international  expert  bodies,  such  as  the 
Venice Commission, itself a recognition that taking account of different views and expertise 
through a broad and thorough consultation contribute to develop a balanced system.  

Improving the inclusiveness and quality of the legislative process is important for structural 
reforms 

The process for enacting laws is benefitting from increasingly inclusive and evidence-based 
tools.  In particular, many  Member States have established systematic policies for involving 
stakeholders and ensure that structural reforms are the product of a broad discussion within 
society, although these policies are not always fully applied in practice.  

Some  Member  States  are  improving  the  inclusiveness  of  the  legislative  process.  In  Cyprus 
and Czechia, for example, efforts  to  improve consultation  and transparency are ongoing.  In 
Estonia,  a  new  law-making  environment  and  legislative  policy  guidelines  are  being 
developed to enhance user-friendliness and inclusiveness. In Greece, a comprehensive reform 
of  law-making  procedures  is  under  way.  In  France,  the  recent  initiative  of  Citizens 
Convention  on  Climate  is  seen  as  an  innovative  way  of  engaging  citizens  in  the  legislative 
process. 

Excessive  use  of  accelerated  and  emergency  legislation  can  give  rise  to  concerns  over  the 
rule of law  

In  all  Member  States,  the  normal  legislative  process  gives  supremacy  to  Parliament  as 
legislator. However, fast-track legislative processes and absence of consultation are common 
features of rule of law crises. The Venice Commission and the Organisation for Security and 
Cooperation in Europe (OSCE) have, on several occasions, underlined the importance of the 
Parliamentary  procedure:  thorough  deliberations  of  legislative  proposals  and  amendments, 
including  meaningful  consultations  with  stakeholders,  experts  and  civil  society,  and  a 
dialogue  with  the  political  opposition.66  In  addition,  bypassing  Parliament  in  the  legislative 
procedure skews the separation of powers, a key principle of the rule of law.  

In  a  few  Member  States,  repeated  recourse  to  fast-track  legislation  in  Parliament  or 
emergency  ordinances  from  the  government  has  given  rise  to  concerns,  especially  when 
applied in the context of broad reforms affecting fundamental rights or the functioning of key 
State organs such as the judicial system or the Constitutional Court. In such cases, there is an 
increased risk of adopting laws which endanger the respect of fundamental rights, the rule of 
law  or  democracy,  as  well  as  international  obligations.67  In  Poland,  in  the  period  of  2015-
2019,  the  expedited  adoption  of  legislation  through  Parliament  was  widely  used  in  the 
adoption of significant structural reforms of the judiciary, which have increased the political 
influence  on  the  judiciary.  In  Romania,  the  widespread  use  of  government  emergency 
ordinances  applied  in  key  areas,  including  judicial  reforms,  raised  concerns  regarding  the 
quality of legislation, legal certainty and the respect for the separation of powers.68 Frequent 
use  of  fast-track  procedures  or  the  adoption  of  legislation  based  on  initiatives  introduced 

66   Rule of Law Checklist - CDL-AD(2016)007; https://www.osce.org/odihr/legislative-support 
67   In  addition,  many  legislative  amendments  adopted  by  Parliament,  including  through  fast-track  procedures, 

lack predictability and transparency, and raise concerns with regard to the public interest. 

68    In  a  consultative  referendum  in  May  2019,  a  majority  of  citizens  supported  banning  the  adoption  of 

government emergency ordinances in the area of justice. 

22 

 
 
                                                           
directly by members of Parliament, without going through the normal preparatory processes 
and consultation of stakeholders, is also a risk from a rule of law perspective.  

National  Parliaments,  Constitutional  courts and Supreme Courts have played a key role in 
the scrutiny of measures taken to respond to the COVID-19 pandemic  

Reactions  to  the  crisis  showed  overall  strong  resilience  in  national  systems,  with  intense 
political  and  legal  debates  on  the  measures  taken.  In  many  Member  States,  Parliamentary 
scrutiny and debates have been instrumental in framing the proposals for a state of emergency 
or, alternatively, a health emergency regime, and in checking ex post on the ordinances taken 
by  the  government.  In  addition,  these  measures  have  often  been  reviewed  by  the 
Constitutional  Court,  Supreme  Courts  or  ordinary  courts.  Ex  ante  mechanisms  for 
constitutionality  review  before  the  adoption  of  laws  have  been  particularly  relevant  in  this 
context where rapid response and respect for fundamental rights must go hand in hand.  

The Ombudsperson and the National Human Rights Institutions play an important role 

National Human Rights Institutions play an important role as rule of law safeguard and can 
provide  an  independent  check  on  the  system  in  a  rule  of  law  crisis.  A  few  Member  States 
(Czechia,  Italy  and  Malta)  have  not  yet  established  such  an  institution,  although  other 
authorities are active in the field of fundamental rights.69 In  Italy, two draft laws proposing 
the creation of an Independent National Human Rights Authority (NHRI) are currently being 
examined by Parliament. In Malta, a proposal to establish a human rights institution is under 
discussion in Parliament. The role of the ombudsperson in the checks and balances varies. In 
some Member States, the ombudsperson can challenge laws to the Constitutional Court or ask 
for their revision in Parliament.  

Civil society organisations operate in an unstable environment, but continue to be a strong 
actor in defending the rule of law.  
In a recent ruling, the European Court of Justice70 made clear that civil society organisations 
“must be able to pursue [their] activities and operate without unjustified interference by the 
State”. It recognised that the right to freedom of association constitutes one of the essential 
foundations of a democratic and pluralist society, as it enables citizens to act collectively in 
areas of common interest and, in so doing, contribute to the proper functioning of public life. 

In  most  Member  States,  there  is  an  enabling  and  supporting  environment  for  civil  society. 
Recently some Member States have strengthened, or intend to take initiatives relating to, the 
environment  for  civil  society.  In  Croatia,  for  instance,  the  government  is  ready  to  adopt  a 
National Plan to improve the legal, financial and institutional support system for the activities 
of civil society organisations. In Slovenia, the National Strategy for the Development of the 
Non-Governmental Sector and Volunteering aims at improving support to non-governmental 
organisations  by  2023,  in  particular  when  contributing  to  the  principles  of  pluralism  and 
democracy in the society. In many Member States, civil society has proved to be resilient in 
difficult circumstances and continued to play an active part in the national and European rule 
of  law  debate  as  part  of  the  checks  and  balances.  In  Slovakia,  civil  society  has  reacted 
robustly following the assassination of Ján Kuciak and his fiancée Martina Kušnírová in 2018 
and  in  its  aftermath.  In  Romania,  strong  involvement  of  civil  society  has  been  key  to 

69   An independent ombudsperson is present both in Czechia and Malta; in Italy the Inter-ministerial Committee 
for Human Rights (CIDU) interacts with civil society, academia and all relevant stakeholders to promote and 
protect  human  rights  and  several  regional  ombudsmen  are  responsible  for  safeguarding  the  freedoms  and 
rights of persons. 

70   Judgment of 18 June 2020, Commission v Hungary, C-78/18, EU:C:2020:476, paragraphs 112 and 113. 

23 

 
 
                                                           
encourage anti-corruption reforms  and in  defending the rule of law in  the country.  In  Italy, 
there  is  a  vibrant  civil  society,  although  some  NGOs,  particularly  on  certain  issues  such  as 
migration, are subject to smear campaigns. In Greece, some civil society organisations active 
in the field of migration have expressed concerns that the civic space to operate on the ground 
has narrowed. 

In  some  Member  States,  however,  there  have  been  examples  of  civil  society  facing  serious 
challenges  in  terms  of  new  legislations  limiting  access  to  foreign  funding  or  smear 
campaigns. In Bulgaria, for example, new draft rules on transparency of foreign funding for 
NGOs have been criticised for their possible negative impact on civil society. In Hungary, in 
June  2020,  the  European  Court  of  Justice  found  that  a  law  of  2017  on  the  transparency  of 
foreign-funded  civil  society  organisations is  incompatible with  free movement of  capital  as 
well as with the right to freedom of association and the rights to protection of private life and 
personal  data.  In  Poland,  NGOs  are 
the 
representatives of the public authorities adversely affecting the civil society space. Actions of 
the  government  aimed  at  LGBTI+  groups,  including  arresting  and  detaining  some  of  the 
groups’  representatives,  and  smear  campaigns  conducted  against  such  groups  have  raised 
further concerns.  

targeted  by  unfavourable  statements  of 

3.  Developments and actions at EU level on the rule of law 

Over the past  year, the rule of law has continued to be high on the agenda of the European 
Union.  Respect  for  the  rule  of  law  is  a  key  priority  for  this  Commission  as  stated  in  the 
political guidance of President Ursula von der Leyen, which specifically identified this as a 
priority portfolio entrusted to a Vice-President and a Commissioner responsible for the rule 
of law. From the start, while also setting in place the new European rule of law mechanism, 
the  Commission  has  responded  to  rule  of  law  developments  in  Member  States  and  at  EU 
level.  In  addition  to  ongoing  monitoring,  it  has  stimulated  dialogue  and  cooperation,  using 
processes  such  as  the  European  Semester  to  highlight  challenges  with  regard  to  the 
effectiveness of the judicial system or the anti-corruption framework in Member States.  

The  COVID-19  pandemic  has  raised  important  rule  of  law  questions  still  present  in  the 
European debate. From mid-March, the Commission has been monitoring the measures in the 
Member States which have an impact on the rule of law, democracy and fundamental rights. 
Under  the  European  Semester,  the  Country  Specific  Recommendations  of  August  2020 
recalled that these exceptional measures should be necessary, proportionate, limited in time 
and subject to scrutiny.71  

The  European  Parliament  plays  an  increasingly  important  role  in  setting  the  debate  on  the 
rule  of  law  at  European  level.  In  the  last  year,  the  European  Parliament  reacted  to 
developments relating to the respect of our common values, including the rule of law, as they 
were  unfolding.  The  European  Parliament  has  adopted  several  resolutions72  and  the 
Committee  on  Civil  Liberties,  Justice  and  Home  Affairs  (LIBE)  has  adopted  reports  and 

71   Adopted by the Council - OJ of 26/08/20, C 282. 
72   In particular, resolution of 28 March 2019 on the situation of rule of law and fight against corruption in the 
EU, specifically in Malta and Slovakia P8_TA(2019)0328; resolution of 18 December 2019 on the rule of 
law  in  Malta  following  the  recent  revelations  surrounding  the  murder  of  Daphne  Caruana  Galizia  
P9_TA(2019)0103;  resolution  of  16  January  2020  on  ongoing  hearings  under  Article  7(1)  of  the  TEU 
regarding Poland and Hungary P9_TA(2020)0014; resolution of 17 April 2020 on EU coordinated action to 
combat the Covid-19 pandemic and its consequences P9_TA(2020)0054. 

24 

 
 
 
                                                           
organised on-the-spot country visits.73 These political debates have been a key component in 
raising the profile of rule of law issues. The Commission recognises the necessary link to be 
made  with  democracy  and  fundamental  rights,  which  will  be  addressed  in  dedicated  work 
strands: the European Democracy Action Plan and the New Strategy for the Implementation 
of  the  Charter  of  Fundamental  Rights,  both  to  be  adopted  later  in  2020.  The  Commission 
considers  that  the  first  rule  of  law  report  and  the  preparatory  dialogue  with  Member  States 
provides a solid basis for future work in the European Parliament.   

The rule of law mechanism also responds to intensified Council action on the rule of law. In 
autumn  2019,  the  Council  debated  further  strengthening  the  Council’s  annual  rule  of  law 
dialogue through a yearly stocktaking exercise. This would use discussion and the exchange 
of  best  practice  to  contribute  to  the  prevention  of  rule  of  law  problems  in  an  inclusive  and 
constructive manner. The Council Presidency has set out its intention to organise a political 
rule of law dialogue, on the basis of the Commission’s rule of law report, including a debate 
focusing on specific Member States.74 

In this way the first rule of law report will help to drive debate in the European and national 
institutions. There will also be regular meetings of the network of rule of law contact points 
and  with  stakeholders.  Member  States  will  be  asked  to  contribute  in  early  2021,  to  be 
followed by country visits to all Member States in spring ahead of the next report. In parallel, 
there  will  also  be  work  to  promote  rule  of  law  compliant  reforms  through  EU  funding  and 
expertise. Since 2017, the Commission  has a dedicated programme  for technical  support to 
reforms in Member States, covering rule of law reforms.75 The support provided can take the 
form  of  expert  and  fact-finding  missions  on  the  ground,  sharing  relevant  best  practices, 
diagnostic  analyses,  and  developing  and  implementing  targeted  solutions  to  address  the 
situation.  Other  Commission  programmes  such  as  those  for  Justice  and  Citizens,  Equality, 
Rights  and  Values,  and  Internal  Security  Fund  (Police),  can  also  make  a  contribution, 
including  through  calls  for  proposals  open  for  civil  society  and  other  stakeholders.  Judicial 
and  anti-corruption  reforms  can  have  an  important  impact  on  the  business  environment,  as 
already  often  highlighted  in  European  Semester  reports,  and  should  therefore  be  carefully 
considered by Member States when preparing their national Recovery and Resilience Plans. 

In  addition  to  the  European  rule  of  law  mechanism,  the  EU  rule  of  law  toolbox  includes 
different instruments to respond to a variety of situations. Article 7 of the Treaty on European 
Union is most often the focus of public debate. It sets out a Treaty-based procedure to address 
risks  to  the  founding  values  of  the  EU  in  the  Member  States,  ultimately  providing  for  the 
most serious political sanction the EU can impose on a Member State, namely the suspension 
of  voting  rights  in  the  Council.  Until  2017,  the  procedure  had  never  been  triggered. 
Proceedings  were  launched  in  December  2017  for  Poland  by  the  Commission,  and  then  in 
September 2018 for Hungary by the European Parliament. These procedures continue in the 
Council with hearings and updates on the situation in the two Member States concerned76, but 

73   LIBE’s  Democracy,  Rule  of  Law  and  Fundamental  Rights  Monitoring  Group.  The  Group  is  focused  on 
threats to democracy, the rule of law and fundamental rights, as well as the fight against corruption within 
the EU, across all Member States. It is meant to recommend specific actions to the LIBE Committee, such as 
meetings  with  stakeholders,  hearings  and  missions,  as  well  as  to  make  suggestions  for  proposals  for 
resolutions and reports. 

74   German Presidency programme, page 20.  
75   The Structural Reform Support Programme, to be replaced as of 2021 by the Technical Support Instrument; 

this programme does not require co-financing. 

76   In 2019, two hearings under Art. 7(1) TEU and two updates on the state of play on the situation in Hungary 
as well as five updates on the state of play of the situation in Poland took place. In 2020, one update on the 

25 

 
 
                                                           
 
most of the challenges identified remain unresolved. The Commission calls on the Member 
States  concerned  and  the  Council  to  invest  in  accelerating  the  resolution  of  the  problems 
raised  under  these  procedures,  finding  solutions  that  protect  the  rule  of  law  and  the  values 
common  to  all  Member  States.  Until  a  solution  is  found  to  the  concerns  raised,  the 
Commission remains committed to supporting the Council in the continuation of the Article 7 
procedures so as to resolve the issues at stake.  

The European Court of Justice also plays a crucial role in upholding the rule of law through 
its developing case-law in this area. Where rule of law deficiencies constitute a violation of 
EU law, the Commission pursues a strategic approach to infringement proceedings, building 
on the case law of the European Court of Justice. These proceedings are targeted to address 
specific issues of non-compliance with EU law. The Commission is committed to make full 
use of its powers and continue to play its role as guardian of the Treaties to ensure the respect 
of  EU  law  requirements  relating  to  the  rule  of  law.  It  has  brought  proceedings  before  the 
European Court of Justice on rule of law-relevant issues a number of times and the Court has 
also been called upon by national courts to issue preliminary rulings on the interpretation of 
EU law in a number of cases. In 2019 and 2020, the Court developed an important case law 
on the rule of law. It has in particular confirmed and further clarified the principle of effective 
judicial protection and the right to an effective judicial remedy.77 This case law is expected to 
be  further  developed  in  the  coming  months  and  years,  in  view  of  a  number  of  important 
pending infringement proceedings and preliminary references on rule of law-related issues.  

Finally,  in  the  conclusions  of  its  meeting  of  17-21  July,  the  European  Council  recalled  the 
importance of the respect of the rule of law and EU founding values in relation to the Union’s 
budget. Recalling the importance to protect the Union’s budget in accordance with the values 
of  Article  2  TEU,  the  European  Council  supported  the  introduction  of  a  regime  of 
conditionality and measures in  case of breaches.  The commitment of the European Council 
should accelerate the adoption of the Commission’s proposal to protect the EU budget in case 
of breaches of the rule of law in a Member State under discussion in the European Parliament 
and  the  Council.78  The  aim  is  to  protect  the  EU  budget  in  situations  where  the  Union’s 
financial  interest  might  be  at  risk  due  to  generalised  deficiencies  of  the  rule  of  law  in  a 
Member State.  

4.  Conclusions and next steps 

In July 2019, President von der Leyen called on the European Parliament, the Council and the 
Member States to engage in a process of cooperation on the rule of law, a new European rule 
of  law  mechanism  involving  all  the  Member  States  and  EU  institutions  in  a  preventive 
exercise. 

The  first  rule  of  law  report  is  the  result  of  a  new  dialogue  between  the  Commission  and 
Member  States  feeding  into  the  country-specific  analysis  for  all  the  Member  States.  This 
report is an important step towards strengthening a common understanding of the rule of law 
in  the  EU  and  enhancing  mutual  trust.  The  Commission  welcomes  the  open  dialogue  held 
with all the Member States and their engagement in preparing the country-specific analysis. It 
is  a  sign  both  of  the  importance  of  the  rule  of  law  for  all  Member  States  and  of  their 
commitment  to  a  European  process.  The  Commission  considers  that  this  process  will  help 

state of play on the situation in Hungary and Poland took place and no hearings under Art. 7(1) TEU were 
held.  

77   As guaranteed by Article 19(1) TEU and by Article 47 of the EU Charter of Fundamental Rights. 
78   COM(2018) 324 

26 

 
 
                                                                                                                                                                                     
preventing  rule  of  law  problems  from  emerging  or  deepening,  and  further  contribute  to 
promoting a robust political and legal rule of law culture throughout the EU. The rule of law 
mechanism can now act as a core elements of the rule of law toolbox of the EU. 

The report takes stock of rule of law developments in the Member States. It highlights that 
many Member States have high rule of law standards and are recognised, including globally, 
as  providing  best  practices  in  applying  the  key  principles  of  the  rule  of  law.  However,  the 
report  also  finds important  challenges, when judicial independence is  under pressure, when 
systems  have not  proven sufficiently resilient to  corruption, when threats to  media freedom 
and pluralism endanger democratic accountability, or when there have been challenges to the 
checks and balances essential to an effective system. The Commission is encouraged by the 
fact that all the Member States have cooperated in the preparation of the report and calls on 
them to continue this cooperation in the follow-up to the report.  

The  Commission  looks  forward  to  the  further  engagement  of  the  European  Parliament  and 
the  Council  on  rule  of  law  issues  and  considers  that  this  report  provides  a  solid  basis  for 
further  inter-institutional  work.  The  Commission  also  invites  national  Parliaments  and 
national  authorities  to  discuss  this  report,  including  its  country  chapters,  and  seek  support 
from  one  another,  as  an  encouragement  to  pursue  reforms  and  an  acceptance  of  European 
solidarity. The wide circle of national actors, beyond government authorities, who have been 
involved and have contributed in this exercise, also shows that there is a demand for holding 
national debates. 

This first rule of law report is the foundation stone for a new and dynamic process, involving 
a continued dialogue with Member States, the European Parliament and national parliaments 
as  well  as  other  stakeholders  at  national  and  EU  level.  The  Commission  will  now  start 
preparing the 2021 rule of law report, drawing on experiences gained in the first year of the 
functioning of the European Rule of Law Mechanism, and carrying forward the momentum 
to make the rule of law more resilient in our democracies. Being better equipped will help all 
Europeans to take up the challenges of the unprecedented economic, climate and health crisis, 
in full respect for our common principles and values. 

27