COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2021 Rule of Law Report The rule of law situation in the European Union
Date: 2021-07-20
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, 20.7.2021  COM(2021) 700 final  COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2021 Rule of Law Report      The rule of law situation in the European Union {SWD(2021) 701 final} - {SWD(2021) 702 final} - {SWD(2021) 703 final} - {SWD(2021) 704 final} - {SWD(2021) 705 final} - {SWD(2021) 706 final} - {SWD(2021) 707 final} - {SWD(2021) 708 final} - {SWD(2021) 709 final} - {SWD(2021) 710 final} - {SWD(2021) 711 final} - {SWD(2021) 712 final} - {SWD(2021) 713 final} - {SWD(2021) 714 final} - {SWD(2021) 715 final} - {SWD(2021) 716 final} - {SWD(2021) 717 final} - {SWD(2021) 718 final} - {SWD(2021) 719 final} - {SWD(2021) 720 final} - {SWD(2021) 721 final} - {SWD(2021) 722 final} - {SWD(2021) 723 final} - {SWD(2021) 724 final} - {SWD(2021) 725 final} - {SWD(2021) 726 final} - {SWD(2021) 727 final}  
 
 
1.  INTRODUCTION  

The  EU  is  based  on  a  set  of  shared  values  including  respect  for  fundamental  rights, 
democracy, and the rule of law1. These fundamental values are seen by Europeans as amongst 
the EU’s main assets2, and safeguarding them is a shared responsibility of all EU institutions 
and  all  Member  States.  While  the  EU  is  recognised  as  having  very  high  standards  in  these 
areas, these values should never be taken for  granted. Promoting  and upholding the rule of 
law  requires  vigilance  and  constant  improvement,  because  there  is  always  a  risk  of 
backsliding. 

The rule of law is not only an integral part of the democratic identity of the EU and of the 
Member  States,  but  also  essential  for  the  functioning  of  the  EU,  and  for  citizens  and 
businesses to trust public institutions. While Member States have different legal systems and 
traditions, the core meaning of the rule of law is the same across the EU. The key principles 
of the rule of law are common to all Member States – legality, legal certainty, prohibition of 
the  arbitrary  exercise  of  executive  power,  effective  judicial  protection  by  independent  and 
impartial  courts  respecting  fundamental  rights  in  full,  the  separation  of  powers,  permanent 
subjection of all public authorities to established laws and procedures, and equality before the 
law – are enshrined in national constitutions and translated in legislation3.  

The case-law of the Court of Justice of the European Union (CJEU) on the rule of law and 
judicial independence provides a clear set of legal requirements which Member States have to 
follow  in  their  rule  of  law-related  reforms4.  Respect  for  the  rule  of  law  entails  compliance 
with EU law and the principle of primacy of EU law, which is the foundation of the EU.  

The Rule of Law Report is designed on this common and objective basis, as a yearly cycle to 
promote the rule of law and to prevent problems from emerging or deepening and to address 
them,  looking  at  all  Member  States  equally.  It  seeks  to  strengthen  the  rule  of  law  in  full 
respect  for  national  traditions  and  specificities,  stimulating  a  constructive  debate  and 
encouraging  all  Member  States  to  examine  how  challenges  can  be  addressed  and  to  learn 
from each other’s experiences. 

The rule of law is also an important dimension and guiding principle for EU external action. 
The credibility of our external policies relies on the state of the rule of law in the EU itself. 
Pressure is mounting on the rule of law globally, and the EU is working actively to protect, 
inspire and support democracies around the world. Developments close to our borders, most 
recently in Belarus, have recalled the need to promote our values in the neighbourhood with 
determination. Moreover, the EU will continue to pursue a strong and coherent approach in 
its external action, and in particular embed the rule of law in its work on enlargement, in the 
neighbourhood and globally.  

There is also a close link to EU policies to bring economic recovery: strong justice systems, a 
robust  anti-corruption  framework,  and  a  clear  and  consistent  system  of  law-making,  the 
protection of the EU’s financial interests, and sustainable growth. This is a key driver for the 

1   Article 2 of the Treaty on European Union. 
2   Special Eurobarometer 500 on the Future of Europe. 
3   See 2020 Rule of Law Report COM/2020/580 final, p. 1 and 7. 
4   For example stating that compliance with the rule of law is a precondition for the accession to the EU and 
Member States cannot subsequenly amend their legislation in such a way as to bring about a reduction in the 
protection of the value of the rule of law. See judgement of 20 March 2021, Repubblika v Il-Prim Ministru, 
C-896/19, ECLI:EU:C:2021:311. 

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work of EU instruments which promote structural reforms in Member States5. In addition, the 
quality of public administration and the rule of law culture as reflected in the way authorities 
apply the law and implement court decisions are key. 

Deepening  work  on  the  rule  of  law  needs  close  and  continuous  cooperation  between  EU 
institutions  and  Member  States.  The  Commission  was  encouraged  by  the  response  to  the 
2020  Rule  of  Law  Report  in  the  European  Parliament  and  in  the  Council,  as  well  as  in 
national  Parliaments,  and 
inter-institutional 
cooperation on the rule of law.  

to  further  strengthening 

looks  forward 

The Report is also part of broader EU efforts to promote and defend its founding values. This 
work  includes  the  European  Democracy  Action  Plan6  and  the  renewed  Strategy  for  the 
Implementation  of  the  Charter  of  Fundamental  Rights7,  as  well  as  targeted  strategies  to 
progress towards a “Union of Equality”8. Another related aspect is monitoring the application 
of EU law and the protection of fundamental rights under the Charter, including through the 
use of infringement proceedings9. 

The 2021 Rule of Law report covers the same scope as last year – justice systems, the anti-
corruption framework, media pluralism and media freedom and other institutional checks and 
balances – consolidating the exercise started by the 2020 report while further deepening the 
Commission’s assessment. It also develops further on the impact and challenges brought by 
the  COVID-19  pandemic.  The  country  chapters,  which  form  an  integral  part  of  this  report, 
analyse  new  developments  since  the  first  report  and  the  follow  up  to  the  challenges  and 
developments identified in the 2020 Report.  

2.  THE COVID-19 PANDEMIC AND THE RULE OF LAW  

The  COVID-19  pandemic  has  posed  particular  challenges  for  the  rule  of  law.  Health 
imperatives required extraordinary measures to combat the pandemic, often overturning daily 
life  and  curtailing  fundamental  rights  as  a  result.  The  urgency  to  take  emergency  measures 
can put strains on democratic legitimacy, as well as on the normal working of constitutional 
and legal systems and public administrations.  

The  Commission  has  monitored  developments  in  all  Member  States  and  analysed  the 
exceptional  measures  taken,  with  their  impact  on  the  rule  of  law  reflected  in  the  country 
chapters.  Key  questions  are  whether  COVID-19-related  measures  were  limited  in  time, 
whether  their  necessity  and  proportionality  had  been  justified,  the  extent  of  continued 
scrutiny by national parliaments and courts, and the legal foundation of the measures. Equally 
critical  was the  ability to maintain the checks  and balances upholding the rule of law. This 

5   Such  as  the  EU  Justice  Scoreboard,  the  Recovery  and  Resilience  Facility,  the  Structural  Funds  and  the 

Technical Support Instrument.   

6    COM (2020) 790 final. 
7   COM (2020) 711 final. 
8   See  Gender  equality  strategy  2020-2025,  COM(2020)  152;  EU  Anti-racism  Action  Plan  2020-2025, 
COM(2020) 565; EU Roma strategic framework for equality, inclusion and participation, COM(2020) 620, 
LGBTIQ  equality  strategy  2020-2025,  COM(2020)  698;  Strategy  on  the  rights  of  the  child,  COM(2021) 
142; Strategy for the Rights of Persons with Disabilities 2021-2030, COM(2021) 101; The European Pillar 
of Social Rights Action Plan, COM(2021) 102. 

9    The  Commission  launches  infringements  to  defend  these  rights.  The  most  recent  examples  include  cases 
against Hungary and Poland for violations of fundamental rights of LGBTIQ people. In the case of Hungary, 
this  concerns  a  recently  adopted  law  banning  LGBTIQ  content  and  a  decision  imposing  a  disclaimer  on 
children’s  books  with  LGBTIQ  content.  In  the  case  of  Poland,  the  infringements  relates  to  the  ‘LGBT-
ideology free zones'.  

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includes the role of Parliaments, Constitutional Courts and other national courts, as well as of 
ombudspersons  and  national  human  rights  institutions  reviewing  the  legal  regime  and  the 
measures  taken.  It  also  concerns  the  extent  to  which  the  role  of  media  and  civil  society  in 
exercising public scrutiny could be maintained, and how the authorities took steps to mitigate 
the impact of the pandemic on these actors. As the measures taken to address the pandemic 
often  involved  relaxing  administrative  rules  and  controls  in  the  interests  of  rapid  reaction, 
measures  taken  to  prevent  corruption  and  conflict  of  interest  in  public  spending  during  the 
pandemic are also relevant.  

Overall,  the  monitoring  indicates  that  national  systems  showed  considerable  resilience. 
However, beyond the immediate response, there is a need to reflect on how to prepare better 
for the impact of crisis situations on the rule of law, which could last for extended periods. 
Some  Member  States  already  had  a  legal  framework  enshrined  in  their  constitution  or  in 
public  health  or  other  laws  for  use  in  crisis  situations.  This  foresight  helped  to  bolster  the 
legitimacy  of  COVID-19  measures,  which  could  draw  on  a  pre-existing  framework.  Other 
Member  States  introduced  a  new  emergency  regime  specifically  for  this  pandemic.  In  the 
course of the pandemic, most Member States modified, often several times, the legal regime 
for  taking  pandemic-related  measures.  These  changes  often  took  place  in  tense  political 
circumstances,  using  accelerated  procedures,  with  limited  constitutional  checks  and 
parliamentary  debates.  In  some  Member  States,  the  legal  regime  under  which  fundamental 
rights have been restricted had not been clearly established. In its interim report of 2020, the 
Venice  Commission  has  pointed  to  the  importance  of  having  a  clear  legal  regime  in  place 
before  a  crisis,  so  that  respect  for  the  rule  of  law,  as  well  as  for  fundamental  rights  and 
constitutional requirements, is built in from the outset10.  

The  urgent  demands  of  the  crisis  put  pressure  on  established  constitutional  systems.  Some 
Member  States  maintained  Parliaments’  responsibility  for  legislative  scrutiny  on  all 
pandemic-related  measures.  Others  restored  strengthened  parliamentary  oversight  after  an 
initial  period  where  this  was  curtailed.  In  terms  of  scrutinising  the  executive,  many 
Parliaments  also  changed  rules  about  physical  presence  and  voting  to  allow  democratic 
participation. Other institutions key to  checks and balances were also  able to  adapt,  despite 
the serious impact of the pandemic on their ability to work. In many Member States, courts 
and  Constitutional  Courts  played  an  important  role  in  ensuring  that  judicial  review  was 
maintained.  Ombudspersons  and  human  rights  institutions  made  particular  efforts  to  keep 
working and took up a number of challenges to review emergency measures. It proved more 
difficult  to  maintain  the  ability  of  society  as  a  whole  to  take  part  in  the  formulation  of 
measures,  with  public  consultation,  institutionalised  social  dialogue  and  consultation  of 
stakeholders being generally curtailed.  

The regulatory and administrative action of governments was also put under strain, but steps 
were also taken to mitigate the impact. For example, a high level of digitalisation helped to 
limit disruption. Support for digitising public administration and the judiciary and for better 
policy  making  is  included  in  many  Member  States’  Recovery  and  Resilience  Plans.  For 
public  administrations,  lighter  procedures  in  areas  such  as  public  procurement  were 
introduced  to  accelerate  decision-making.  This  created  risks  for  the  rule  of  law  and  for  the 
fight  against  corruption,  but  in  some  cases  were  mitigated  by  safeguards  built  in  to  the 
emergency regimes.   

10   Venice Commission, Opinion No. 995/2020 - Interim report on the measures taken in the EU Member States 
as a result of the COVID-19 crisis and their impact on democracy, the rule of law and fundamental rights.  

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The democratic fabric protecting the rule of law also relies on the media and on civil society. 
Both found their work severely constrained by pandemic-related restrictions. The role of the 
media in providing reliable information and casting light on the actions of the authorities is 
more  essential  than  ever  in  a  crisis.  News  media  have  been  critical  in  keeping  citizens 
informed and providing  fact-checked information  about  the pandemic, but  at  the same time 
many have faced serious economic challenges. Several Member States took action as a result, 
in particular through schemes to support the media and journalists. Transparency and fairness 
in the distribution of such support is key. Journalists’ work was also hindered by constraints 
on access to public information and to the public at large. Transparency and public access to 
information were a general concern, and the source of several instances of pandemic-related 
measures being challenged in court by civil society and citizens. 

Overall, there are many positive developments and examples to draw on in order to improve 
the  legal  and  political  response  at  times  of  crisis,  so  as  to  strengthen  the  rule  of  law  and 
democratic resilience. The experience has increased awareness of the importance of the rule 
of law and of how State authorities act in times of crisis. This could usefully be the subject of 
debates at EU level in the European Parliament and the Council, as well as at national level. 
Such a debate can also draw on analysis under way in international organisations such as the 
Council of Europe11.  

3.  KEY ASPECTS OF THE RULE OF LAW SITUATION IN MEMBER STATES 

Looking  at  the  four  pillars  of  the  Rule  of  Law  report,  the  next  four  sections  highlight  a 
number  of  significant  common  themes  and  trends,  specific  challenges  and  positive 
developments.  Examples  are  given  of  developments  in  specific  Member  States  that  reflect 
these trends, drawn from the assessment for all 27 Member States to be found in the country 
chapters.  

Guidance to the reader - methodology 

The  assessment  included  in  this  section  needs  to  be  read  in  close  conjunction  with  the  27 
country chapters presenting the specific national assessments. Examples are drawn from the 
country chapters to illustrate the general findings, but the detailed context is presented in the 
country chapters, providing a deeper understanding of the developments  and debates taking 
place at national and European level.12  

The assessment contained in the country chapters has been prepared in line with a scope and 
methodology  discussed  with  Member  States13.  The  country  chapters  rely  on  a  qualitative 
assessment  autonomously  carried  out  by  the  Commission,  focusing  on  a  synthesis  of 
significant  developments  since  September  2020.  This  presents  both  challenges  and  positive 
aspects  and  includes  good  practices  identified  in  Member  States.  When  referring  to  the 
evolution of the situation since the previous report, it examines the extent to which concerns 
identified in  2020 have  been addressed, whether they continue or whether the situation has 
further deteriorated/aggravated. 

The Commission  uses a coherent  and equivalent approach,  applying the same methodology 
and examining the same range of topics in all Member States, while remaining proportionate 
to  the  situation.  In  each  country  chapter,  the  analysis  focuses  in  particular  on  topics  where 

11    The Venice Commission is monitoring developments in all Member States and will issue a report in 2022.  
12   Hyperlinks to the country chapters have been provided to this effect. 
13   https://ec.europa.eu/info/files/2021-rule-law-report-methodology 

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there have been significant developments, or where important challenges have been identified 
in  the  previous  report  and  persist  during  the  reporting  period.  The  terms  used  for  the 
assessments  aim  at  being  comparable  and  uniform  across  the  country  chapters  and  at 
capturing  the  level  of  gravity,  taking  into  account  the  overall  country-specific  context.  The 
country chapters do not purport to give an exhaustive description of all rule of law issues in 
every  Member  State,  but  to  present  significant  developments.  The  assessment  refers  to  EU 
law requirements, including those resulting from the case-law of the CJEU. In addition, the 
recommendations and opinions of the Council of Europe provide a useful frame of reference 
for relevant standards and best practices.  

The Report is the result of close collaboration with Member States and relies on a variety of 
national and other sources. All Member States participated in the process, providing written 
contributions14  and  joining  in  dedicated  country  visits  held  between  March  and  May15.  A 
targeted  stakeholder  consultation  also  provided  valuable  horizontal  and  country-specific 
contributions.16 The Council of Europe also provided an overview of its recent opinions and 
reports concerning EU Member States17. Prior to the adoption of this report, Member States 
have been given the opportunity to provide factual updates on their country chapter. 

3.1 Justice systems 

Independence, quality and efficiency are essential parameters of an effective justice system, 
whatever  the  model  of  the  national  legal  system  and  tradition  in  which  it  is  anchored.  The 
independence  of  national  courts  is  a  necessary  condition  for  ensuring  effective  judicial 
protection, an obligation for Member States under the Treaties. As re-affirmed by the CJEU, 
the existence of effective judicial review designed to ensure compliance with EU law is of the 
essence of the rule of law18. Effective justice systems are the basis for mutual trust, which is 
the  foundation  of  the  common  area  of  freedom,  security  and  justice.  The  themes  that  have 
come  out  of  the  analysis  in  the  27  country  chapters  are  key  parameters  for  judicial 
independence:  the  reforms  of  the  Councils  for  the  Judiciary,  of  judicial  appointment 
processes,  and  the  independence  of  the  prosecution  service.  A  specific  focus  in  many 
Member  States  has  also  been  the  integrity  and  accountability  of  judges  and  prosecutors,  as 
well as progress in digitalisation. Legal professions play a fundamental role in ensuring the 
protection of fundamental rights and the strengthening of the rule of law. An effective justice 
system  requires  that  lawyers  be  free  to  pursue  their  activities  of  advising  and  representing 
their  clients,  and  bar  associations  play  an  important  role  in  helping  to  guarantee  lawyers’ 
independence and professional integrity. 

Almost  all  Member  States  continue  to  be  engaged  in  justice  reforms,  showing  the  high 
political importance of the topic. The country chapters show that the objectives, scope, form 
and state of implementation of these reforms vary. The organisation of justice systems falls 
within  the  competence  of  the  Member  States  and  national  courts  act  as  EU  courts  when 

14   https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/rule-law-

mechanism/2021-rule-law-report-input-member-states 

15   More detailed information on the country visits can be found in the country chapters. 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 stakeholders, such as journalists’ 
associations and civil society.  

16   https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/rule-law-

mechanism/2021-rule-law-report-targeted-stakeholder-consultation 

17   https://ec.europa.eu/info/files/2021-rule-law-report-stakeholder-contribution-council-europe 
18   For references to relevant case-law see 2020 Rule of Law Report COM(2020) 580. 

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applying  EU  law.  When  reforming  their  justice  systems,  Member  States  must  respect  the 
requirements set by EU law and the case law of the CJEU, guaranteeing the effectiveness of 
the  rights  set  out  in  the  EU  Charter  of  Fundamental  Rights.  Since  the  first  Rule  of  Law 
Report, the CJEU has reaffirmed in  several  rulings the key importance of effective judicial 
protection for upholding the rule of law and the values upon which the EU is founded19.  

Perceived judicial independence across the EU  

According to the EU Justice Scoreboard, Eurobarometer surveys conducted among both the 
general  public  and  businesses  in  202120  show  that,  compared  to  2020,  the  same  Member 
States continue to cluster around the higher and lower end of the scale of perceived judicial 
independence. Among the general public, in Austria, Finland, Germany, the Netherlands, and 
Luxembourg,  the  level  of  perceived  judicial  independence  remains  very  high  (above  75%), 
while in Croatia, Poland and Slovakia, the level of perceived judicial independence remains 
very low (below 30%).  

Councils  for  the  Judiciary  and  procedures  for  appointing  judges  as  key  safeguards  for 
judicial independence  

The  2020  Rule  of  Law  Report  noted  that  in  a  number  of  Member  States,  steps  were  under 
way to strengthen judicial independence and reduce the influence of legislative and executive 
powers  on  the  justice  system.  The  important  role  of  the  Councils  for  the  Judiciary  in 
safeguarding  judicial  independence  is  increasingly  recognised21.  The  new  Councils  for  the 
Judiciary  established  in  Ireland  and  Finland  are  now  operational.  In  Luxembourg,  the 
proposal  to  establish  an  independent  Council  for  the  Judiciary  is  progressing  and 
consultations 
its  composition  with  Council  of  Europe 
recommendations are ongoing. In Sweden, the Commission of Inquiry on “Strengthening the 
protection  of  democracy  and  the  independence  of  the  judiciary”  continues  its  work  and 
intends to propose legislative and constitutional reforms in 2023. 

including  how 

to  align 

In  other  Member  States,  reforms  to  strengthen  the  existing  Councils  of  the  Judiciary  are 
ongoing  or  have  been  completed.  For  example,  in  Slovakia,  reforms  introduced  changes  to 
the  method  of  appointment  and  dismissal  of  the  members  of  the  Judicial  Council  and 
extended the Council’s powers. In Italy, reforms to the way the judges are elected to the High 
Judicial  Council  are  under  discussion  in  Parliament,  which  aim  to  strengthen  its 
independence. In Cyprus, reforms are pending to enhance representativeness of the members 
of  the  Judicial  Council.  In  the  Netherlands,  deliberations  have  continued  to  revise  the 
appointment procedure for the members of the Council, to strengthen its independence from 
the executive. In France, an envisaged reform to strengthen the independence of the Council 
has not advanced towards adoption. In Bulgaria a reform of the Council, which was part of a 
more comprehensive Constitutional reform, was not approved by the Parliament. The Council 
of  Europe  has  established  standards  regarding  the  composition  and  powers  of  the  Councils 
for the Judiciary, and these can be an important guide when reforms are undertaken.  

The method for the appointment of judges can have a key impact  on judicial  independence 
and public perception of independence. The CJEU has clarified that under EU law, in order to 
guarantee  judicial  independence,  substantive  conditions  and  procedural  rules  governing 

19   A reference to the key judgments since the last report can be found in section 4.  
20   Figures 48 and 50, 2021 EU Justice Scoreboard.  
21   The  CJEU  has  recognised  that  a  Council  for  the  Judiciary  can  constitute  a  safeguard  for  judicial 
independence provided that such body is sufficiently independent from the executive and legislative powers 
and from the body to which it is submitting an opinion.  See e.g. case C-824/18 AB et al. paragraphs 123-
125, and the case-law cited. 

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judicial appointments must prevent reasonable doubts as to the imperviousness of the judges 
concerned  to  external  factors  and  as  to  their  neutrality  as  judges22.  Since  the  last  report, 
reforms  to  strengthen  the  appointment  procedures  for  judges  have  continued  in  several 
Member  States.  For  example,  Czechia  adopted  a  new  transparent  and  uniform  system  of 
appointment of new judges and court presidents. In Latvia, new appointment procedures set 
up last year are now being implemented and applied. In Malta the comprehensive reforms of 
2020  are  now  in  place  and  being  applied,  and  have  contributed  to  strengthening  judicial 
independence. 

Reforms  of  appointment  procedures,  notably  for  high-level  positions  in  the  justice  system, 
have raised important debates at national level. For example, in Ireland, a draft law to reform 
the system for judicial appointments and promotions is alleviating previous concerns, but the 
reform would continue to leave broad discretion to the Government. In Germany, discussions 
are  ongoing  on  the  selection  criteria  for  presiding  judges  at  the  Federal  Courts,  following 
some  criticism.  In  Cyprus,  Parliament  continues  to  discuss  draft  legislation  on  the 
appointment procedures for judges and Presidents of the new proposed Constitutional Court 
and High Court. In Austria, the limited involvement of the judiciary in the appointments of 
court  presidents  and  vice-presidents  at  administrative  courts  continues  to  raise  some 
concerns.  

Reinforcing the autonomy and independence of the prosecution services  

While there is no single model in the EU for the institutional set-up for prosecution services, 
institutional safeguards can help to ensure that the prosecution is sufficiently independent and 
free  from  undue  political  pressure.  The  independence  of  the  prosecution  has  important 
implications for the capacity to fight crime and corruption. In Cyprus, the restructuring of the 
Law Office is being implemented with the creation of separate, self-contained directorates to 
make  the  separation  of  the  two  main  functions  of  the  Attorney  General  more  effective.  In 
Austria, a reform to create an independent Federal Prosecution Service is under preparation. 
In Luxembourg, proposals have been brought forward to limit the possibility of the executive 
to give instructions in individual cases.  

In  Portugal,  the  regime  of  hierarchical  instructions  to  prosecutors  is  under  judicial  review, 
following concerns raised by prosecutors about interference with their internal autonomy. In 
Spain,  questions  remain  as  regards  the  system  of  appointment  of  the  Prosecutor  General. 
There has been no change in Poland, where the double role of the Minister of Justice, who is 
also the Prosecutor General, continues to raise concern. In Hungary, while the independence 
of the prosecution service is enshrined in law, there has been no change as regards concerns 
about  some  aspects  of  the  prosecution  service  with  insufficient  safeguards  against  political 
influence.  

Ensuring  accountability  in  the  judiciary  and  safeguarding  judicial  independence  in 
disciplinary procedures  

A  number  of  Member  States  have  strengthened  the  integrity  framework  for  judges  and 
prosecutors. In Belgium, the integrity framework has been strengthened by applying general 
ethical principles to all categories of members of the judiciary, as well as ethics training for 
both regular and lay judges. In Austria, a comprehensive compliance management system is 
being implemented for courts and prosecution services, and in  Latvia, a new code of ethics 
for  judges  was  adopted.  In  Lithuania  and  Italy,  initiatives  to  strengthen  integrity  rules  are 
ongoing,  with  measures  on  asset  declarations.  Such  initiatives  can  contribute  to  increasing 

22   See case C-824/18 AB et al. paragraphs 117, 119, 123 and the case law cited. 

7 

 
 
                                                           
public trust in the judiciary. In Portugal, Croatia, Slovakia, and Italy, the judicial authorities, 
including the Councils for the Judiciary, have taken significant steps to address allegations of 
breaches of judicial ethics, disciplinary misconduct or corruption within the judiciary. 

Reforms  to  strengthen  safeguards  for  judicial  independence  in  disciplinary  proceedings  are 
ongoing in a number of Member States. In France, reflection has started on possible reforms 
of  the  liability  and  protection  of  magistrates,  while  a  broader  reform  of  the  disciplinary 
regime to  improve judicial  independence is  being discussed.  In  Ireland, work is  ongoing to 
establish  a  disciplinary  regime  for  judges,  though  Parliament’s  role  in  removing  judges 
remains  unchanged.  In  Slovenia,  the  judiciary  initiated  discussions  on  improving  the 
framework for disciplinary proceedings. In Czechia, a draft law introducing the possibility for 
review  in  disciplinary  proceedings  is  being  discussed  in  Parliament.  In  Malta,  the  2020 
reform  of  the  procedure  for  dismissal  of  magistrates  and  judges  provides  for  additional 
guarantees.  

Judicial independence remains an area of concern in some Member States  

Concerns  about  judicial  independence  vary  in  their  intensity  and  scope.  Serious  structural 
concerns exist in a few Member States and have deepened, while challenges of a lesser nature 
in other Member States require attention. 

In  a  few  Member  States,  the  direction  of  reform  has  been  towards  lowering  safeguards  for 
judicial  independence.  These  changes  have  given  rise  to  serious  concerns,  which  have 
aggravated  in  some  cases,  as  they  have  led  to  increasing  influence  of  the  executive  and 
legislative  branch  over  the  functioning  of  the  justice  system.  Reforms  of  disciplinary 
procedures  and  of  liability  of  judges  raise  particular  concerns.  In  reaction  to  these 
developments, national judges have referred preliminary rulings to the CJEU. In Poland, the 
reforms, including new developments, continue to be a source of serious concerns as referred 
to in 2020. In particular, the independence of the Disciplinary Chamber of the Supreme Court 
cannot be guaranteed, but it continues to take decisions with a direct impact on judges and the 
way they exercise their function, creating a ‘chilling effect’ for judges23. In addition, concerns 
over  the  independence  and  legitimacy  of  the  Constitutional  Tribunal  have  still  not  been 
resolved, as confirmed by the European Court of Human Rights finding that the composition 
of  a  bench  of  the  Constitutional  Tribunal  did  not  meet  the  requirement  of  ‘a  tribunal 
established by law’24. In Hungary, the direction of change continues to be towards lowering 
previously existing safeguards. The justice system has been subject to new developments, for 
example with regard to the nomination of the new President of the Supreme Court (Kúria). 
This adds to existing concerns on judicial independence, which have been expressed also in 
the context of the Article 7(1) TEU procedure initiated by the European Parliament.  

On  the  other  hand,  in  Romania,  steps  are  seeking  to  address  the  changes  enacted  in  2017-
2019,  which  had  had  a  negative  impact  on  judicial  independence  and  the  fight  against 
corruption.  Some  of  these  reforms25  were  examined  in  a  preliminary  ruling  of  the  CJEU, 

23   On 15 July 2021, the Court of Justice issued a final ruling finding that the disciplinary regime for judges in 
Poland  is  not  compatible  with  EU  law  (Judgment  of  the  Court  of  Justice  of  15  July  2021,  Commission  v 
Poland, C-791/19 ECLI:EU:C:2021:596). 

24   Judgment of 7 May 2021 Xero Flor w Polsce sp. z o.o. v. Poland (application no. 4907/18).  
25   The special prosecution section for the investigation of offences committed by judges and prosecutors and a 
regime  for civil liability  introduced in 2018, as well as the interim appointment of the  management of the 
Judicial Inspection, 

8 

 
 
                                                           
which  set  out  the  criteria  to  be  respected  to  ensure  compliance  with  EU  law26.  Legislative 
amendments are under way to address these problems. 

Challenges regarding judicial independence remain in other Member States. In Bulgaria, the 
composition and functioning of the Supreme Judicial Council and of the Inspectorate to the 
Supreme Judicial Council continue to raise concerns. A new law aiming to address the long-
standing  issue  of  accountability  and  lack  of  effective  criminal  liability  of  the  Prosecutor 
General  was  declared  unconstitutional.  The  issue  therefore  remains  unresolved,  with 
implications  for  the  influence  of  the  post  of  Prosecutor  General  over  the  justice  system.  In 
Slovakia, important steps have been taken to strengthen the integrity and independence of the 
judiciary, both legislative steps and steps to address corruption within the judiciary. However, 
important challenges remain, including on the possible impacts of certain reforms on judicial 
independence, such as the reform of the dismissal of the members of the Judicial Council and 
the new criminal liability regime for judges.   

Political  attacks  against  the  judiciary  and  repeated  attempts  to  undermine  the  reputation  of 
judges continue in some Member States. At times, these attacks target judges and prosecutors 
who have taken a public position or made judicial referrals against judicial reforms they saw 
as having negative implications for judicial independence. This can have a chilling effect on 
judges and prosecutors and a negative impact on public trust in the judiciary.  

Tensions around judicial independence are also seen in stalemates, delays and public debates 
in connection with appointments to high posts in the judiciary. In Croatia the ongoing process 
for appointing the new Supreme Court President has given rise to controversy, with repeated 
disparaging public statements against judges. In  Slovenia, appointments of state prosecutors 
are unjustifiably delayed and the failure to nominate European Delegated Prosecutors in due 
time raises concerns. In Spain, the Council for the Judiciary has been exercising its functions 
ad  interim  since  December  2018,  thus  prolonging  concerns  that  it  might  be  perceived  as 
vulnerable to politicisation. In Lithuania, the appointment of a new President of the Supreme 
Court  is  pending  since  September  2019,  and  the  sitting  President  remains  in  function  ad 
interim.  

Investing in justice and digitalisation  

The COVID-19 pandemic has affected the functioning of the national justice systems and the 
activity of the courts. In particular, in the first phase of the pandemic, there were interruptions 
or  delays  in  the  handling  of  cases  and  court  proceedings  leading  to  significant  additional 
backlogs in courts in a number of Member States. Despite the steps taken by Member States 
and judicial authorities to help justice systems to adapt, this has highlighted a vulnerability to 
disruption in an emergency. The handling of criminal investigations and criminal proceedings 
in court during the pandemic has been a challenge in many Member States, in particular to 
ensure that the rights of suspects and the accused, as well as the rights of victims, are fully 
respected and all witnesses heard, without creating unreasonable delays. Restrictions limiting 
freedom  of movement and access  to  premises were an  additional challenge  for the work of 
prosecutors and police.  

Generally, in those Member States where there was already a high level of digitalisation and 
appropriate  procedural  rules  and  safeguards  in  place,  the  justice  systems  worked  more 
effectively  and  the  risk  of  backlogs  was  mitigated.  For  example,  in  Estonia,  the  advanced 
digitalisation of the justice system – such as developing a specific virtual court-room – was a 

26   Judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor Din România’ v Inspecţia Judiciară and others, 

C-83/19, C-127/19, C-195/19, C-291/19, C-397/19, ECLI:EU:C:2021:393. 

9 

 
 
                                                           
determining factor in ensuring the justice system’s resilience. In  Hungary, the high level of 
digitalisation  for  proceedings  in  civil/commercial  and  administrative  cases  and  in  criminal 
cases allowed the justice system to adapt. In Finland, the National Court Administration paid 
particular  attention  to  providing  guidance  and  technical  help  for  options  such  as  remote 
connections at trials. 
The pandemic has  given a new sense of urgency to digitalisation of justice systems27 and a 
high  interest  in  learning  from  best  practice.  Initiatives  to  ensure  electronic  communication 
between  courts  and  court  users  are  being  taken  in  many  Member  States.  In  Belgium,  the 
Federal  Government  programme  includes  ambitious  initiatives  to  improve  the  digitalisation 
of  the  justice  system  by  2025.  In  France,  comprehensive  projects  to  digitalise  all  areas  of 
justice are advancing, including the creation of a digital criminal office – a single access point 
for criminal  proceedings  – and the possibility to  lodge applications online in  some areas of 
litigation,  and  to  request  legal  aid.  In  Denmark,  a  new  database  will  improve  access  to 
judgements  online.  Projects  under  way  in  Spain  include  the  development  of  an  IT  tool  to 
automatically  transform  recordings  of  trials  and  hearings  into  text.  In  the  Netherlands  the 
judiciary  and  prosecution  service  are  jointly  developing  a  digital  plan  for  criminal  justice. 
Strengthening the resilience of the justice systems through structural reform and digitalisation 
is a priority under the Recovery and Resilience Facility, and a number of Member States have 
included this in their national Recovery and Resilience Plans.  

Effective justice systems rely on adequate human and financial resources. The justice systems 
in  Malta,  Belgium,  Italy,  Greece,  Portugal  and  Cyprus  still  face  substantial  efficiency 
challenges.  Investing  in  human  and  financial  resources  and  digitalisation  of  the  justice 
system,  as  well  as  addressing  structural  obstacles,  is  indispensable  to  improve  significantly 
the efficiency of the justice systems and effective judicial protection.  

3.2 Anti-corruption framework  

The  fight  against  corruption  is  essential  for  maintaining  the  rule  of  law  and  preserving 
citizens’  trust  in  public  institutions.  This  section focuses  on  the  different  stages  of  national 
action  essential  to  tackle  corruption,  anti-corruption  strategies,  the  capacity  of  the  criminal 
justice  system  to  fight  corruption,  and  the  measures  set  up  by  Member  States  to  prevent 
corruption.  

Corruption perceptions across the EU 
The 2020 Corruption Perceptions Index (CPI)28 shows that EU Member States continue to be 
among the world’s best performers. Ten Member States are in the top twenty of the countries 
perceived  as  least  corrupt  in  the  world29.  Six  Member  States  (Denmark,  Finland,  Sweden, 

27   In its Communication on the digitalisation of justice in the EU, the Commission proposed a toolbox for the 
digitalisation  of  justice  in  order  to  move  the  justice  sector  forward  in  the  digital  area,  at  national  and  EU 
level. COM(2020) 710 and accompanying SWD(2020) 540, 2 December 2020.  

28   Transparency  International,  Corruption  Perception  Index  2020:  https://www.transparency.org/en/news/cpi-
2020-western-europe-eu. This index captures experts and businesses’ perceptions of the level of corruption 
in  a  given  country.  It  covers  a  variety  of  corrupt  practices,  including  bribery,  diversion  of  public  funds, 
misuse  of  public  office  for  private  gain,  adequate  corruption  prevention  regulations  and  enforcement, 
including  on  financial  disclosure  and  conflict  of  interest,  as  well  as  effective  criminal  prosecution  of 
corruption involving a public official. The Eurobarometer data on corruption perception and experience  of 
citizens and businesses as reported last year is updated every second year. The latest data sets are the Special 
Eurobarometer 502 (2020) and the Flash Eurobarometer 482 (2019). 

29  In order of their scores, these Member  States are  as  follows: Denmark, Finland, Sweden, the  Netherlands,    

Germany, Luxembourg, Austria, Belgium, Estonia and Ireland. 

10 

 
 
                                                           
Netherlands, Germany and Luxembourg) score above 80/100 on the index, and a further five 
(Austria, Belgium, Estonia, Ireland and France) score above 69/10030. Some Member States, 
while remaining below the EU average (63/100), have improved their scores over the last five 
years  (Spain,  Italy  and  Greece).  Some  others  have  registered  a  significant  deterioration  in 
perceived corruption levels (Poland, Malta and Hungary)31. 

National anti-corruption strategies need to lead to effective results 

A  strategic  anti-corruption  framework  allows  political  commitment  to  be  translated  into 
concrete  action  and  helps  to  address  legislative  or  institutional  gaps  in  a  coherent, 
comprehensive  and  coordinated  manner.  Clear  and  measurable  objectives,  adequate 
budgetary  resources,  regular  evaluations  and  well-defined  responsibilities  for  specialised 
institutions, as well as a strong involvement of relevant stakeholders, are important elements 
for such strategies to be effectively implemented and lead to tangible results.   

Since September 2020, Finland and Sweden have adopted national anti-corruption strategies 
or action plans for the first time, and a government proposal for such a strategy is awaiting 
approval  by  Parliament  in  Portugal.  Bulgaria,  Czechia,  Estonia,  Lithuania  and  Malta  have 
revised existing strategies and accompanying action plans and in  Croatia, Germany, Greece 
and  Latvia,  the  revision  process  is  ongoing.  Romania  has  conducted  an  internal  evaluation 
and  an  external  audit  and  is  preparing  a  new  National  Anti-Corruption  Strategy  for  2021-
2025.    

In  Hungary,  the  anti-corruption  programme  is  limited  to  fostering  integrity  in  the  public 
service, leaving out other areas of risk. In other Member States, while strategies are in place, 
they  have  experienced  delays  in  implementation.  This  is  the  case  for  example  in  Czechia, 
where several key reform initiatives in the area of corruption prevention are still pending.    

Reforms to strengthen the capacity to fight corruption 

Most Member States have in place extensive legislation providing the criminal justice system 
with tools to fight corruption in all its forms. Efforts continued in several Member States to 
fill gaps and bring existing frameworks in line with international anti-corruption standards32 
and  EU  law33.  For  example,  Slovakia  has  complemented  its  criminal  legal  framework  with 
the  entry  into  force  of  a  new  law  on  asset  seizure,  also  introducing  new  criminal  offences, 
such  as  the  crime  of  accepting  or  offering  unjustified  benefits  or  undue  advantages.  Italy 
introduced  stricter  sanctions  on  fraud  and  widened  the  personal  scope  of  international 
corruption.  Hungary  introduced  legislation  to  address  foreign  bribery  and  criminalise 
informal  payments  in  healthcare.  Reforms  in  the  area  of  substantive  or  procedural  criminal 
law are under discussion in other Member States. Sweden, for instance, is currently reviewing 
its  statute  of  limitation  for  all  crimes,  including  corruption  offences,  which  could  remove 
obstacles to the effective adjudication of complex corruption cases.  

30    In  the  country  chapters,  the  level  of  perceived  corruption  is  categorised  as  follows:  low  (the  perception 
among experts and business executives of public sector corruption is above 79); relatively low (between 79-
60), relatively high (between 59-50), high (below 50). 

31  A change is “significant” when the score has changed by more than five points in the last five years.  
32    Primarily the Council of Europe’s Criminal Law Convention on Corruption and its Civil Law Convention on 
Corruption;  the  OECD  Convention  on  Combating  Bribery  of  Foreign  Public  Officials  in  International 
Business Transactions; and the United Nations Convention Against Corruption.  

33   Over the past few years, EU legislation has been adopted to strengthen the fight against corruption, including 
standards to protect whistleblowers against all forms of retaliation. Revised rules against money laundering, 
notably by setting up beneficial ownership registries of companies, and further steps to help the exchange of 
financial information and to speed up financial investigations also have an important impact on facilitating 
the fight against corruption.   

11 

 
 
                                                           
Some Member States have introduced measures to strengthen the capacity of the authorities 
to  fight  corruption  and  to  reduce  obstacles  to  effective  investigation  and  prosecution. 
Lithuania has reinforced its special police unit tasked with investigating corruption cases as 
well as with analytical tasks providing policy support to authorities. In Cyprus, the office of 
the  Attorney  General  has  been  considerably  strengthened  to  prosecute  financial  crimes, 
including corruption. Denmark is preparing the establishment of a new national investigative 
unit  for  a  more  efficient  approach  to  serious  crime  including  complex  corruption  cases.  In 
Slovenia,  legislative  amendments  have  improved  the  independence,  organisation  and 
functioning of the Commission for the Prevention of Corruption. 

In  some  Member  States,  structural  and  organisational  changes  took  place  or  are  being 
considered.  In  Malta,  the  Attorney  General  has  taken  over  the  prosecution  of  specified 
serious crimes, including high-level corruption, and a task-force on complex financial crimes 
has been set up. Austria is revising its system of reporting obligations, seen as the source of 
unnecessary burdens and delays, with a negative impact on anti-corruption investigations.  

Challenges  linked  to  criminal  investigations,  prosecutions  and  the  application  of  sanctions 
for corruption   

Major  or  highly  complex  corruption  cases  continued  to  emerge  in  various  Member  States, 
sometimes  involving  high-level  officials.  Slovakia’s  efforts  to  repress  corruption  have 
significantly  increased,  resulting  in  a  number  of  high-level  corruption  cases  being 
investigated  and  prosecuted.  In  Estonia,  a  case  currently  under  investigation  led  to  the 
resignation  of  the  previous  Government  in  January  2021.  In  Czechia,  investigations  and 
audits at national and European level on the use of EU funds have recently found evidence of 
conflict of interest at the top executive level, and a case has been accepted by the European 
Public Prosecutor’s Office. In Austria, investigations into high-level political corruption have 
intensified  following  recent  political  scandals.  In  Romania,  the  effectiveness  of  the 
investigation and sanctioning of high-level corruption has improved, although amendments to 
the  criminal  code  and  criminal  procedure  code  as  well  as  the  justice  laws  remain 
indispensable for an effective fight against corruption. 

In  many  Member  States,  resources  allocated  for  investigating  corruption  and  prosecution 
authorities  have  created  particular  difficulties  in  hiring  or  retaining  highly  specialised 
personnel.  Human  resource  challenges  have  been  reported  in  Latvia,  impacting  the 
operational efficiency of some prosecution offices. Croatia and Luxembourg find it difficult 
to recruit qualified candidates. In Spain, prosecution authorities note that the lack of adequate 
resources  affects  the  speed  of  the  investigation  and  prosecution  of  corruption  cases.  This 
includes high-level cases of corruption, many of which have been pending in the investigation 
phase  for  several  years.  Some  instances  were  reported  in  Slovakia  and  Poland  where  legal 
constraints to access financial data created obstacles in investigations. 

In  some  Member  States,  concerns  persist  about  the  effectiveness  of  the  investigation, 
prosecution  and  adjudication  of  high-level  corruption  cases34.  Measures  to  speed  up 
indictments and cases in trials are being considered in  Italy. In Croatia, the prosecution and 
investigation  of  high-level  corruption  cases  continues,  but  due  to  protracted  proceedings, 
convictions  are  often  delayed.  In  Malta,  while  investigative  and  prosecution  bodies  have 
improved their capacity to deal with corruption cases, with an increase in the number of cases 

34   As noted in the 2020 Rule of Law Report, the lack of uniform, up to date and consolidated statistics across 
all Member States makes it difficult to track the comparative success of the investigation and prosecution of 
corruption offences.  

12 

 
 
                                                           
opened,  investigations  continue  to  be  lengthy  and  there  is  not  yet  a  track  record  of 
convictions  in  high-level  cases.  In  Bulgaria,  despite  increased  investigative  activity  and 
reinforced  resources,  progress  in  high-profile  cases  of  corruption  remain  slow  and  a  solid 
track  record  of  final  convictions  remains  to  be  established35.  In  Hungary,  while  the 
indictment  rate  for  corruption  cases  is  high,  and  some  new  high-level  cases  involving 
politicians  have  been  opened  since  2020,  the  track  record  of  investigations  of  allegations 
concerning high-level officials and their immediate circle remains limited. 

Strengthening the corruption prevention and integrity framework 

The  2020  Rule  of  Law  report  showed  that  many  Member  States  had  taken  measures  to 
strengthen the corruption prevention and integrity frameworks and many of these efforts have 
continued.  

-  Preventing conflicts of interest and fostering integrity in public institutions 

In  some  Member  States,  the  integrity  framework  has  been  complemented  with  codes  of 
conduct for parliamentarians, as in Spain, or clearer or consolidated rules on gifts, conflicts of 
interest  and  incompatibilities  for  senior  and  high-level  officials,  as  for  instance  in  Finland, 
Italy  and  Portugal.  In  addition,  some  Member  States,  such  as  in  Belgium,  Cyprus,  the 
Netherlands,  and  Malta,  have  introduced  integrity  and  screening  programmes  or  oversight 
entities in law enforcement bodies, which contribute to strengthening integrity in the police.    

-  Lobbying and revolving doors 

Lobbying is a legitimate act of political participation36. It needs to be accompanied by strong 
requirements  of  transparency  and  integrity  to  ensure  accountability  and  inclusiveness  in 
decision-making37.  Some  Member  States  have  revised  their  frameworks  to  introduce  more 
transparency  and  improve  access  to  information  about  lobbying.  Germany,  for  instance, 
adopted a new law to introduce an electronic lobby register at federal level. New rules have 
entered  into  force  in  Lithuania  which  foresee  a  cross  declaration  scheme  where  lobbyists, 
politicians  and  civil  servants  have  to  report  their  meetings  in  a  lobbying  registry.  In  Spain, 
discussions on the creation of a transparency register are ongoing. Non-binding guidelines on 
lobbying  and  on  conflicts  of  interest  have  been  put  in  place  in  Estonia.  In  Czechia,  the 
adoption of new draft lobbying legislation remains pending. 

Another area under public scrutiny in many Member States is the regulation and enforcement 
of rules on “revolving doors” between public and private functions. Introducing stricter post-
employment  restrictions,  such  as  cooling-off  periods,  are  under  discussion,  for  example  in 
Finland  and  Italy.  France  has  recently  amended  the  law  to  include  revolving  doors  in  the 
mandate  of  the  agency  in  charge  of  transparency  and  integrity  in  public  life.  Whereas  new 
rules  establishing  relatively  long  cooling-off  periods  and  dissuasive  sanctions  for  non-
compliance had recently introduced in Portugal, they still need to be monitored and enforced.   

-  Asset and interest disclosure 

All Member States have rules in place to ensure that categories of public sector officials are 
subject  to  asset  and  interest  disclosure  obligations.  However,  these  vary  in  the  scope, 
transparency and accessibility of disclosed information, or in the system of verification and 

35   In  June  2021  the  United  States  issued  sanctions  targeting  certain  Bulgarian  citizens  (including  a  former 

member of Parliament) for acts of corruption, in accordance with the US Global Magnitsky Act. 

36   OECD (2021) Lobbying in the 21st century  
37   OECD (2010), Recommendation of the Council on Principles for  Transparency and Integrity in Lobbying; 

Council of Europe standards on lobbying transparency, Recommendation CM/Rec(2017)2. 

13 

 
 
                                                           
enforcement.  Recent  reforms  in  a  number  of  Member  States  aim  to  improve  the  system. 
Estonia extended the scope of persons obliged to submit a declaration of financial interests to 
include  ministers’  political  advisers,  and  Croatia  has  made  the  asset  declarations  of  judges 
and  state  attorneys  publicly  available.  Portugal  introduced  obligations  to  publish  complete 
and  consolidated  asset  declarations  online.  In  Lithuania,  a  new  registry  is  now  operational 
allowing  the  information  in  interest  declarations  to  be  linked  to  several  other  national 
registers.  Finally,  other  Member  States  which  had  introduced  reforms  in  the  past  are 
establishing  a  track  record  of  monitoring  and  verification.  In  France,  the  competent 
authorities  perform  systematic  and  regular  controls,  some  resulting  in  transmission  to  the 
prosecution service for possible criminal follow-up. In Romania, the electronic submission of 
asset  and  interest  disclosures  became  operational  in  April  2021  and  is  expected  to  further 
facilitate the verification work.  

Shortcomings remain in some Member States. In Belgium, declarations are not published or 
verified  for  accuracy  and  are  only  accessible  to  investigating  judges  in  the  framework  of 
criminal  investigations.  In  Greece,  while  asset  declarations  from  officials  and  Members  of 
Parliament  are  made  public,  there  are  delays  and  data  available  for  publication  remains 
limited.  In  Hungary,  although  there  are  extensive  disclosure  requirements,  concerns  remain 
regarding  the  lack  of  systematic  checks  and  insufficient  oversight  of  asset  and  interest 
declarations, and suspicions of unjustified increase in wealth may lead to verification by the 
tax  authorities  only  if  investigative  authorities  have  also  opened  criminal  enquiries.  In 
Slovenia,  while  the  categories  of  officials  under  disclosure  obligations  keep  expanding,  the 
resources  devoted  to  monitoring  and  verifications  has  not  kept  pace.  Shortage  of  human 
resources persists also at the Commission for Resolution of Conflict of Interest in Croatia. 

-  Whistleblower protection 

In  the  context  of  the  transposition  of  the  2019  EU  Directive  on  whistleblower  protection38, 
Member States are in the process of revising existing national legislation or introducing new 
rules.  Some  Member  States  have  streamlined  the  institutional  setting  for  handling 
whistleblower  reports.  This  was  the  case  in  Slovakia,  where  the  Parliament  appointed  the 
head of a new independent Whistleblower Protection Office covering both the private and the 
public sector. In the Netherlands, following an evaluation, the Whistleblowers Authority Act 
will be amended to increase the legal protection of the whistleblowers.   

-  Political party financing 

Political party financing can be used as a conduit for corruption, making transparency and the 
rigour of regulation an important factor. Reforms to increase the transparency and oversight 
of political party financing have been carried out or are under discussion in several Member 
States.  In  Luxembourg, the political  party financing regulation  has been revised to  bring in 
more transparency. In Finland, a parliamentary working group is reviewing the development 
of relevant legislation. In Czechia, a more detailed analysis of the party financing system is 
envisaged,  to  identify  legislative  loopholes  and  challenges  in  practice.  In  the  Netherlands, 
proposed  legislation  currently  under  discussion  in  Parliament  aims  at  protecting  the 
functioning and organisation of political parties against foreign interference.  

38   Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law. The transposition 

deadline is 17 December 2021. 

14 

 
 
 
 
                                                           
Countering the impact of the pandemic on corruption  

The COVID-19 pandemic affected the pace of reforms or the adjudication of corruption cases 
in some Member States, as authorities and courts were faced with the imperative of tackling 
the  health  emergency.  GRECO  recommended  streamlining  anti-corruption  measures  in 
pandemic-related  processes  such  as  the  allocation  and  disbursement  of  recovery  funds, 
emergency legislation and medical care39. At the same time, the Commission and the Council 
flagged the continued importance of tackling corruption40. Similarly, the OECD warned that 
integrity violations and corrupt practices could undermine recovery, flagging in particular the 
need to  address  immediate risks in  emergency procurement and to integrate anti-corruption 
risk assessments in economic recovery measures41.  

Corruption  risks  appear  to  have  increased  during  the  pandemic,  in  particular  with  the 
increased  use  of  accelerated  and  simplified  procurement  procedures,  resulting  in  direct 
awards  or  non-competitive  procurement  procedures.  These  exceptional  circumstances 
prompted  audit  and  control  authorities  in  several  Member  States,  for  example  Cyprus, 
Portugal,  France,  Italy,  and  Lithuania,  to  issue  guidelines  for  addressing  these  risks,  or  to 
carry out targeted audits like in Austria or Romania.  

3.3 Media pluralism and media freedom 

Media  pluralism  and  media  freedom  are  key  enablers  for  the  rule  of  law,  democratic 
accountability  and  the  fight  against  corruption.  Member  States  have  an  obligation  to 
guarantee  an  enabling  environment  for  journalists,  protect  their  safety  and  promote  media 
freedom  and  media  pluralism.  This  section  focuses  on  areas  where  political  decisions  and 
policies can have a powerful impact on the ability of the media to play its role. 

The Media Pluralism Monitor  
The  Media  Pluralism  Monitor42  assesses  the  risks  to  media  freedom  and  pluralism  in  all 
Member States, focusing on four areas – basic protection of media freedom, market plurality, 
political  independence  and  social  inclusiveness  of  media.  The  latest  results  of  the  Monitor 
(MPM  2021)  point  to  a  deteriorating  situation  compared  to  MPM  2020  in  three  key 
indicators: freedom of expression, protection of the right to information and the journalistic 
profession,  and  protection  of  journalists.  Once  more,  several  governments’  response  to  the 
COVID-19 pandemic has had a bearing on this result. While the results confirm 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,  there  has  been  a  slight 
improvement.  The  transparency  of  media  ownership  continues  to  present  on  average  a 
medium risk across Member States, due to a lack of effectiveness of legal provisions and to 

39   GRECO (2020) Corruption risks and useful legal references in the context of COVID-19. 
40   The 2020 Country Specific Recommendations highlighted for several Member States that continuing efforts 
to strengthen the framework to prevent and sanction corruption are key to ensuring recovery in the aftermath 
of the COVID-19 crisis and achieving an efficient, accountable and transparent allocation and distribution of 
funds and resources. 

41  OECD (2020) Policy measures to avoid corruption and bribery in the COVID-19 response and recovery. 
42   The  Media  Pluralism  Monitor  2021  has  been  an  important  source  for  the  2021  Rule  of  Law  Report.  The 
Media  Pluralism  Monitor  is  a  scientific  and  holistic  tool  that  documents  the  health  of  media  ecosystems, 
detailing threats to media pluralism and freedom in Member States and some candidate  countries. It is co-
financed  by  the  European  Union  and  has  been  implemented,  in  an  independent  manner  and  on  a  regular 
basis, by the Centre for Media Pluralism and Media Freedom, since 2013/2014. The Commission has used 
other sources, such as Reporters Without Borders’ World Press Freedom Index, as referenced in the country 
chapters. 

15 

 
 
                                                           
the fact that information is provided only to public bodies, but not to the public. As set out in 
the  country  chapters,  for  a  number  of  reasons  the  political  independence  of  the  media  is 
considered  to  be  an  area  of  high  risk  in  the  same  six  Member  States  identified  in  MPM 
202043.     

Ongoing reforms to strengthen the independence of media regulators  

National media regulators play a key role in upholding and enforcing media pluralism. As the 
2020  Rule  of  Law  Report  emphasised,  when  implementing  media-specific  regulation  and 
taking media policy decisions, their independence from economic and political interests has a 
direct  impact  on  market  plurality  and  on  the  political  independence  of  the  media 
environment.  All  Member  States  have  legislation  in  place  setting  out  the  competences  and 
independence  of  media  regulators.  The  Audiovisual  Media  Services  Directive  (AVMSD)44 
includes specific requirements to strengthen the independence of national media authorities. 
Since the publication of the first  report, in the context of the transposition of the Directive, 
some Member States, such as Belgium, Bulgaria, Greece, Latvia, Luxembourg and Sweden, 
have introduced new legislation which is expected to further strengthen the independence of 
their media regulators. Other Member States (Czechia, Cyprus, Estonia, France and Poland) 
have announced or are preparing such legislation.  

Concerns  remain  with  regard  to  the  functional  independence  and  effectiveness  of  some 
regulators. For example, in Romania the work of the regulator was hampered by the fact that 
no  new  members  were  appointed  when  several  previous  mandates  expired,  and  due  to 
insufficient resources. In Spain and Slovenia concerns as to the adequacy of the regulator’s 
resources  were  also  raised.  Political  influence  in  the  nomination  process  or  the  absence  of 
effective  safeguards  against  political  interference  remain  a  matter  of  concern  in  some 
Member  States,  despite  formal  independence  being  enshrined  in  law.  This  is  the  case  in 
Member States like Croatia, Malta, Slovakia and Hungary.   

Improvements and obstacles related to the transparency of media ownership  

Transparency of media ownership is an essential precondition for any reliable analysis of the 
plurality  of  media  markets  and  for  enabling  the  public  to  evaluate  the  information  and 
opinions  disseminated  by  the  media.  International  standards45  and  EU  legislation46 
encourages Member States to adopt specific measures in this area. Since the last Report, new 
legislation to enhance the transparency of media ownership and public availability of media 
ownership  information  has  been  adopted  in  Greece.  In  Finland,  new  specific  legislation 
obliges  media  service  providers  to  make  information  on  their  ownership  structure  publicly 
accessible.  In  several  other  Member  States,  laws  to  enhance  media  ownership  transparency 
are  in  preparation  and  a  few  have  seen  accessibility  of  the  information  enhanced.  For 
example,  Ireland  has  established  a  searchable  database  covering  ownership  information  of 
media,  facilitating  public  oversight.  Lithuania  is  establishing  a  publicly  accessible 
information  system  to  disclose  information  on  ownership  and,  progressively,  income 
resulting from state advertising.  

43   Bulgaria, Hungary, Malta, Poland, Romania, Slovenia. 
44   Directive (EU) 2018/1808 of 14 November 2018. 
45   Recommendation CM/Rec(2018)11 of the Committee of Ministers to member States on media pluralism and 

transparency of media ownership. 

46   Directive  (EU)  2018/1808  of  14  November  2018,  article  5(2).  General  (non-sectoral)  obligations  of 
transparency  of  beneficial  ownership  also  exist  in  the  Anti-Money  Laundering  Directives  (Directive  (EU) 
2018/843 of 30 May 2018 and Directive (EU) 2015/849 of 20 May 2015). 

16 

 
 
                                                           
Concerns  regarding  the  lack  of  transparency  of  the  ultimate  ownership  structures  exist  in 
several  Member  States,  due  in  particular  to  practical  problems  to  identify  ultimate  owners. 
Slovenia  has  specific  provisions  on  transparency,  but  concerns  remain  as  the  ultimate 
beneficial  owners  are  not  always  identifiable  in  the  Media  Register.  Czechia  adopted 
legislation  that  guarantees  public  access  via  a  registry  to  a  limited  amount  of  ownership 
information for all companies, including media, but concerns remain that the system does not 
oblige  media  companies  to  disclose  their  full  ownership  structure.  Lack  of  transparency  of 
media ownership remains a source of concern in Bulgaria, as data on media ownership is still 
not fully disclosed to the public.  

Risks to transparency and fair allocation of state advertising  

Transparent  rules  and  fair  criteria  lower  the  risk  of  favouritism  in  the  distribution  of  state 
advertising. The absence of such rules increases the risk of public money being allocated to 
specific media outlets in a biased manner and may allow indirect political influence over the 
media, undermining its independence.  

The 2020 Report noted the lack of specific legislation on this matter in many Member States. 
This remains the case, despite the fact that central or local authorities in a number of Member 
States continued to direct significant sums of advertising revenue to media. In  Austria, high 
amounts  of  state  advertising  to  media  are  accompanied  by  continuing  concerns  about  the 
transparency  and  fairness  of  the  allocation  and  insufficient  attention  to  media  pluralism.  In 
Croatia, while state advertising is partly regulated, stakeholders report it often undermines the 
political independence of media outlets which are economically dependent on such funding, 
notably at local level. In Bulgaria, the lack of regulatory safeguards for fair and transparent 
allocation  of  state  advertising  combines  with  concerns  related  to  transparency  in  the 
allocation of public funding to media outlets. In  Hungary, the allocation of state advertising 
continues to permit the Government to exert indirect political influence over the media, with 
the state being the largest advertiser in the country and the large majority of revenue going to 
media  companies  supportive  of  the  government.  In  Poland,  state  advertising  appears  to  be 
directed mostly to media outlets considered as supportive of the government. 

Political pressure and influence on the media  

Vulnerabilities and risks increase when the political independence of media is under threat, in 
the absence of regulation against political interference or when rules allow political actors to 
own media. Since the publication of the last report, political pressure on the media has been 
manifest in a number of cases. In Czechia, political controversies have continued to affect the 
Czech TV supervisory board. In Malta, in the light of the ownership by the two main political 
parties  of  their  own  television  and  radio  stations,  a  constitutional  case  has  been  lodged 
challenging the relevant section of the Maltese Broadcasting Act, arguing against the way in 
which  the  rules  are  applied  by  the  media  regulator.  In  Slovenia,  possible  changes  in  the 
funding of the public service broadcaster and the pressure on the national  press agency are 
seen by stakeholders  as politically motivated. In  Poland, the potential acquisition of a large 
privately  owned  press  group  by  a  state-controlled  oil  company  has  raised  concerns  as  a 
potential  threat  to  media  market  pluralism.  In  Bulgaria,  political  influence  on  the  media 
continues to be an issue of concern, also due to the lack of rules preventing politicians and 
political  parties  from  owning  media  outlets.  In  Hungary,  the  Media  Council  adopted  a 

17 

 
 
number of decisions which had the effect of taking one of Hungary’s last independent radio 
stations off air47.  

Access to information is a key tool for the media, civil society and public trust   

The right of access to information held by public authorities is a fundamental precondition for 
media, as well as civil society and citizens at large, to be able to play their role in democratic 
debate  and  scrutiny  of  public  institutions.  New  legislation  establishing  the  framework  and 
conditions  for  access  to  public  information  came  into  force  in  Cyprus  in  2020,  and  several 
other  Member  States  are  planning  to  introduce  comprehensive  legislation  on  access  to 
information (Austria) or introducing mechanisms for mediation on complaints (Netherlands). 
While  access  to  information  is  guaranteed  by  law  in  all  Member  States,  practical  obstacles 
remain  in  many  cases.  In  Romania,  regular  monitoring  by  the  national  authorities  reveals 
differing  implementation  in  the  administration,  as  well  as  an  insufficient  prioritisation  of 
transparency measures by public bodies, with compliance levels lowest for local authorities. 
In Croatia, shortcomings were highlighted about enforcement of decisions of the Information 
Commissioner. In Luxembourg, concerns remain about the lengthy procedures for access to 
official documents. In Denmark, existing restrictions to the right of access to public files are 
under debate.  

Protecting journalists against threats and attacks 

The  need  to  address  the  safety  of  journalists  across  the  EU  has  been  highlighted  by  recent 
cases currently under investigation, such as the murder of Greek journalist Giorgios Karaivaz 
in  April  2021  and  the  murder  of  Dutch  journalist  Peter  R.  de  Vries  in  July  2021.  Many 
journalists remain subject  to  threats and  attacks,  in  particular when investigating  crime  and 
corruption.  In  Slovakia,  a  number  of  individuals  involved  in  the  2018  assassination  of 
investigative  journalist  Ján  Kuciak  and  his  fiancée  were  convicted,  and  trial  of  the  alleged 
mastermind  is  ongoing.  In  Malta,  the  public  inquiry  into  the  assassination  of  investigative 
journalist Daphne Caruana Galizia in 2017 has now concluded its work. There have been a 
number of developments in the criminal proceedings related to her murder.  

In 2020, the Council of Europe Platform to Promote the Protection of Journalism and Safety 
of  Journalists  recorded  its  highest  number  of  alerts  ever,  an  increase  of  40%  compared  to 
201948. In 2020, the Mapping Media Freedom Platform49 also monitored 280 cases of media 
freedom violations, affecting a total  of  908 persons or media entities in  23 Member States. 
These violations included harassment or psychological abuse, legal threats, physical assaults, 
attacks  on  property,  hate  speech,  smear  campaigns  and  censorship.  Physical  attacks  have 
been  reported  in  particular  in  the  context  of  public  protests,  and  journalists  in  France, 
Germany,  Greece  and  Poland  have  been  subject  to  aggression  from  protesters,  but  also  in 
some cases police forces. Online threats are on the rise across the EU, with female journalists 
and  journalists  of  minority  background  particularly  at  risk.  This  situation  is  particularly 
concerning  when  politicians  or  powerful  public  figures  are  initiating  such  attacks.  In 
Slovenia, for example, a number of prominent cases have concerned online harassment and 
threats against journalists by politicians. In Portugal, a case of police surveillance, seeking to 
identify journalists’ sources and carried out without a judicial mandate, is under investigation. 
In  Italy,  a  recent  alert  concerns  alleged  wiretapping  of  several  journalists  working  on 

47   In  June  2021,  the  Commission  launched  an  infringement  procedure  against  Hungary  following  the  Media 

Council’s decisions to reject Klubrádió’s application on the use of radio spectrum.   

48   https://rm.coe.int/final-version-annual-report-2021-en-wanted-real-action-for-media-freed/1680a2440e. 
49   www.mappingmediafreedom.org   

18 

 
 
                                                           
migration issues as part  of a public prosecutors’  investigation into relations between NGOs 
and traffickers in human beings. 

Mechanisms  that  provide  practical  support  to  journalists  in  need  of  help  exist  in  several 
Member  States.  In  the  Netherlands,  the  ‘PersVeilig’  project  aimed  at  reducing  threats, 
violence  and  aggression  against  journalists  was  reviewed  in  2021,  with  proposals  made  for 
improvements. In Italy, a Coordination Centre dealing with acts against journalists set up in 
2017  continues  to  be  considered  best  practice  at  EU  level.  Other  Member  States  are 
considering  introducing  new  legislative  safeguards  for  the  protection  of  journalists.  In 
Finland,  the  government  is  planning  changes  to  the  Criminal  Code  to  facilitate  the 
prosecution  of  unlawful  threats  and  targeting  of  vulnerable  victims,  such  as  freelance 
journalists, and to  increase the punishment for gender related  crime, to  address  hate speech 
directed at female journalists. Sweden is also taking steps to improve journalists’ protection, 
as  part  of  the  ongoing  review  of  the  criminal  law  protection  for  certain  vital  functions  in 
society.   

Strategic  lawsuits  against  public  participation  (SLAPPs),  a  particular  form  of  harassment 
used  against  journalist  and  others  involved  in  protecting  the  public  interest,  often  in 
combination with threats to physical safety, are a serious concern in several Member States. 
For example, in Croatia, the extensive use of SLAPPs had a strong impact on media outlets, 
in particular smaller or local ones, as well as on freelance journalists. In other countries, such 
as Poland, the news media community has observed an increase in lawsuits against journalists 
with intimidating effects, linked to warning letters addressed to journalists and newsrooms to 
stop critical reporting concerning companies or public institutions. This appears to affect in 
particular smaller news outlets and freelancers, with a high risk of self-censorship.  

The impact of the pandemic on media freedom and media pluralism 

Europe’s news media have been critical in keeping citizens informed during the COVID-19 
pandemic. The demand for fact-checked information and news has substantially increased, as 
noted  in  the  Commission’s  Audiovisual  and  Media  Action  Plan.50  At  the  same  time,  the 
pandemic  triggered  serious  economic  challenges  for  the  media  sector,  as  well  as  for 
individual journalists and media workers.  

Several  country  chapters  point  to  an  unprecedented  loss  of  revenue  and  financial  liquidity 
issues  for  media  houses,  or  even  bankruptcy  and  closure.  Regional  and  local  media  outlets 
appear to have been hit hardest, with of the result that some Member States now have large 
areas  with  no  local  news  outlets.  Individual  journalists  faced  deteriorating  economic  and 
working conditions in several Member States. Unemployment has increased in the sector, and 
many media professionals and journalists  – particularly those who are subject to precarious 
employment conditions or are freelancers – have found themselves with no income. All this 
has increased their vulnerability to pressure.  

To counter and cushion the impact of the pandemic, about half of all Member States put in 
place  specific  media  support  schemes,  primarily  providing  funds  or  grants  to  all  or  some 
media sectors. Local media were explicitly included in such schemes in Member States such 
as  Estonia,  Sweden,  Finland,  Denmark,  Netherlands,  France  and  Italy.  Several  Member 
States,  such  as  Cyprus,  Lithuania,  Portugal  and  Romania,  supported  both  the  media  and 
public  information  through  public  advertising  for  COVID-19-related  awareness  campaigns. 
In  some  countries,  journalists  could  benefit  from  generalised  unemployment  support 
(Ireland),  whilst  in  some  Member  States  the  situation  often  proved  difficult  for  freelance 

50   COM (2020) 784 final  

19 

 
 
                                                           
journalists.  The  majority  of  these  measures  have  been  welcomed  by  media  stakeholders, 
though  certain  aspects  were  questioned,  like  for  example  their  transparency  (Malta),  the 
fairness of the distribution criteria (Austria) or the possible impact on citizen’s trust in media 
(Romania).  

However, the impact of the pandemic on the media and the measures taken to mitigate it are 
not  limited  to  economic  aspects.  A  series  of  restrictions  put  in  place  to  fight  the  pandemic 
made journalists’ work more difficult and at times affected their access to public information. 
While  disruptions  or  derogations  from  general  access  to  information  rules  were  generally 
limited to the very early stages of the pandemic (e.g. Spain, Italy), in Member States such as 
Hungary access to public information was tightened through emergency measures introduced 
during the pandemic, making timely access to such information harder for independent media 
outlets. Journalists also continued to  face obstacles as regards access  to  venues or selective 
access to online or physical press conferences in some Member States. In Poland, exercising 
the right of access to public information risks being further limited as a result of an ongoing 
constitutional  challenge  and  the  pandemic  led  to  the  suspension  of  deadlines  stipulated  by 
administrative law, thereby limiting or delaying access to public information. In Romania, the 
pandemic was seen as being used to justify delays or refusals to provide information, and data 
protection rules were used to limit access. In contrast, Member States including Lithuania and 
the  Netherlands  exempted  journalists  from  COVID-19  travel  bans,  so  that  they  could 
continue following events and report first hand. 

3.4 Other institutional issues linked to checks and balances 

The  rule  of  law  in  a  democracy  is  based  on  institutional  checks  and  balances  between  the 
organs  of  the  State,  guaranteeing  their  functioning,  cooperation  and  mutual  control  so  that 
power is exercised by one state authority under the scrutiny of others, in accordance with the 
political and legal tradition of each Member State. Civil  society also plays a key role in the 
system of checks and balances. 

This  section  examines  significant  developments  related  to  such  checks  and  balances.  This 
includes the process for preparing, enacting and reviewing laws and the role of independent 
authorities in safeguarding the rule of law. An underlying theme in this regard is the quality 
of  the  public  administration,  and  how  authorities  apply  the  law  and  implement  court 
decisions. An enabling framework for civil society allows for debate and scrutiny of those in 
power; and when their space to operate shrinks, it is a sign that the rule of law is at risk. This 
section  also  presents  developments  on  the  legal  regime  under  which  COVID-19  measures 
were 
the  courts  and 
the  roles  of  Parliaments,  Constitutional  Courts, 
ombudspersons. 

taken,  and 

Constitutional reforms and debates to strengthen institutional checks and balances  

The  constitutional  reform  processes  to  strengthen  safeguards  and  checks  and  balances 
mentioned  last  year  have  continued  to  progress.  In  Cyprus,  the  creation  of  a  separate 
Constitutional Court taking over the review of the constitutionality of laws from the Supreme 
Court is now pending in Parliament. In Malta, the Constitutional reform on the appointments 
to  certain  independent  commissions  has  been  finalised,  but  progress  has  been  slow  on  the 
Constitutional  Convention  which  would  address  the  strengthening  of  the  role  of  the 
Parliament.  In  Luxembourg,  the  previously-announced  constitutional  reform  will  not  be 
pursued  further:  the  approach  is  now  to  introduce  targeted  revisions  on  specific  topics,  for 
example  on  the  Council  for  the  Judiciary.  Extensive  debates  on  the  proper  functioning  of 
checks  and  balances  are  taking  place  in  the  Netherlands,  following  a  parliamentary 
investigation on the implementation of the childcare allowances system.  

20 

 
 
To  help  develop  a  balanced  system,  a  number  of  Member  States  are  drawing  on  different 
views  and  expertise,  including  international  expert  bodies  such  as  the  Venice  Commission. 
The Commission considers this to be a constructive approach. 

The inclusiveness, quality and transparency of law-making remains a challenge 

A  number  of  Member  States  are  taking  steps  to  further  improve  the  processes  to  build 
evidence-based  policies,  for  consultations  and  the  involvement  of  stakeholders,  so  as  to 
ensure that laws are the result of a broad discussion within society. The innovative project of 
the Citizens Convention for Climate in France attracted substantial attention and interest from 
other  Member  States.  In  Portugal,  Parliament  took  forward  measures  to  improve  the 
transparency  of  law-making  and  the  quality  of  legislation.  In  Greece,  a  new  framework  to 
examine the impact and the quality of draft laws is now under way, and stakeholders report 
improved  quality  and  a  significant  reduction  in  unrelated  last-minute  amendments  in 
Parliament.  In  Estonia,  Latvia  and  Austria,  steps  are  being  taken  to  improve  citizens’  and 
stakeholders’ involvement in policy-making. In Spain, a new Fourth Open Government Plan 
(2020-2024)  has  been  approved  to  strengthen  the  links  between  citizens  and  public 
authorities, as well as increasing citizen involvement in the development of public policies.  

The  dialogue  with  stakeholders  has  indicated  challenges  in  a  number  of  Member  States  to 
ensure  that  rules  for  the  inclusiveness,  transparency  and  quality  of  law-making  policies  are 
systematically  applied  in  practice.  In  Slovakia,  stakeholders  raised  concerns  about  the 
absence of an extensive and informed debate on the main features of the recent constitutional 
reform, and regretted the authorities did not seek an opinion of the Venice Commission on its 
judicial and constitutional reform. In Czechia, a high number of urgency procedures has been 
reported, and stakeholders raised concerns that these procedures were used also for acts that 
were not related to addressing the pandemic. In  France, the number of accelerated and fast-
increased  significantly,  with  consequences  for 
track  procedures 
consultation  of  stakeholders  as  well  as  for  parliamentary  work.  In  Belgium,  the  Council  of 
State  experiences  challenges  in  giving  opinions  on  draft  legislation  due  to  insufficient 
resources and frequently shortened deadlines for consultation.   

in  Parliament  has 

In a few Member States, the legislative process has raised concerns over the rule of law. In 
Hungary, frequent and sudden changes of legislation continue to undermine the predictability 
of the regulatory environment, and in some cases the pace of new legislation has accelerated 
further.  In  Poland, the expedited adoption of legislation continues to  be  used, including  for 
significant structural reforms of the judiciary, such as the recent amendments to the law on 
the Supreme Court. In Bulgaria, the practice of introducing important legislative amendments 
through  amendments  to  other  unrelated  legal  acts,  which  bypass  public  consultation  and 
impact  assessment  requirements,  continues  to  raise  concerns.  In  Romania,  concerns  remain 
on  the  stability  and  predictability  of  legislation,  as  legislation  is  changed  often  and  the 
resulting  laws  can  be  contradictory,  although  encouraging  signals  have  been  given  by 
Parliament during this legislature. 

Significant developments on Supreme and Constitutional Courts in the checks and balances 

Supreme  Courts  and  Constitutional  Courts  play  a  key  role  in  the  system  of  checks  and 
balances.  However,  developments  in  some  Member  States  raise  concerns.  In  Slovakia,  the 
Constitutional  reform  of  December  2020  explicitly  excludes  the  competence  for  the 
Constitutional Court to review Constitutional laws. This specific reform is now in turn being 
reviewed by the Constitutional  Court.  In  Hungary,  concerns have been expressed about  the 
role of the Constitutional Court in reviewing final court decisions, acting as another level of 

21 

 
 
appeal, adjudicating on the merits of the case in the same manner as ordinary appellate courts 
although it is not part of the court system, and raising questions as regards legal certainty. 

A number of recent  developments  have also  raised concerns with  regard to  the principle of 
primacy of EU law. Respect for the rule of law and the equality of Member States in the EU 
requires EU law to have primacy over national law and the rulings of the CJEU to be binding 
on all Member States’ authorities, including national courts. On 9 June 2021, the Commission 
decided to initiate infringement proceedings against  Germany for breach of the principle of 
primacy  of  EU  law  in  relation  to  the  5  May  2020  judgment  of  the  German  Constitutional 
Court51. In Poland, this ruling has been invoked to challenge the competence of the CJEU to 
deal  with  cases  related to judicial independence, and the Government  has seized the Polish 
Constitutional Tribunal for a declaration of the precedence of the Polish Constitution over EU 
law.  On  14  July  2021,  the  Constitutional  Tribunal  held  that  interim  orders  issued  by  the 
CJEU  that  affect  the  organisation  of  Polish  courts  are  not  compatible  with  the  Polish 
Constitution52 and on 16 July 2021 the First President of the Polish Supreme Court repealed a 
decree  implementing  a  previous  CJEU  order  to  suspend  the  activities  of  the  Disciplinary 
Chamber of the Supreme Court in disciplinary cases against judges53. In France, a ruling of 
the Council of State on data retention has raised concerns as regards its interplay with the EU 
legal order54. In Romania, a decision of the Constitutional Court did not accept the findings 
of a CJEU preliminary ruling and questioned the principle of primacy of EU law, which may 
constitute a significant obstacle for courts called upon to apply the EU law requirements set 
out in the preliminary ruling when adjudicating on cases.   

The key role of the Ombudsperson and the National Human Rights Institutions  

The  Ombudsperson  and  the  National  Human  Rights  Institutions  play  an  important  role  in 
providing checks and balances, defending the right to good administration and fair treatment, 
and pointing to violations of fundamental rights. In the Netherlands, the Ombudsman was one 
of  the  first  to  alert  the  administration  of  unfair  treatment  in  relation  to  reimbursements  of 
child subsidies, and has criticised a lack of government follow-up. In Greece, the powers of 
the  Ombudsperson  Institution  have  been  reinforced,  notably  in  investigating  incidents  of 
arbitrariness by law enforcement authorities, and it has intervened in instances of violations 
of  fundamental  rights55.  In  Malta,  a  Constitutional  reform  strengthened  the  appointment, 
suspension and dismissal of the Ombudsperson, and the new rules will be applied for the first 
time with the appointment of a new Ombudsperson, which is pending. 

In certain Member States, the appointment and dismissal of the Ombudsperson have been the 
point  of  political  and  legal  disputes.  In  Poland,  the  Ombudsperson  continued  to  play  a  key 
role  as  a  rule  of  law  safeguard.  The  mandate  of  the  last  incumbent  ended  in  2020,  but  he 
stayed  in  his  position  as  political  agreement  could  not  be  found  on  a  replacement.  The 
continued exercise of powers by the outgoing Ombudsperson ended in July 2021 following a 
decision  of  the  Constitutional  Tribunal  and  parliamentary  proceedings  now  point  to  an 

51   Judgment of the Federal Constitutional Court of 5 May 2020, 2 BvR 859/15. 
52   Case P 7/20, brought by the Disciplinary Chamber of the Supreme Court. 
53   https://www.sn.pl/en/actualities/SitePages/Actualities.aspx?ItemSID=31-0d89abd2-8bba-4029-999a-

feb44dcfa88b&ListName=current_events.  

54   In this last judgment, referring to the binding nature of rulings of the Court of Justice, the Council of State 
nevertheless rejected the request of the Government to consider whether a ruling from the CJEU could be in 
breach  of  the  principle  of  conferral  and  the  division  of  competences  between  the  Union  and  its  Member 
States.; such a request is in itself problematic. 

55   In particular, it investigated the increasing number of allegations about incidents of pushbacks of migrants at 

external borders. 

22 

 
 
                                                           
appointment  with  cross-party  support56.  In  Romania,  the  Constitutional  Court  found 
unconstitutional the decision of the Parliament to dismiss the ombudsperson appointed under 
a previous parliamentary mandate, and she was reinstated in her functions. 

Civil society organisations as essential actors for the rule of law  

In the majority of Member States, there is an enabling and supportive environment for civil 
society,  and  the  civil  society  space  continues  to  be  considered  open57.  Moreover,  in  some 
Member States, the authorities provided additional financial support in order to support civil 
society organisations. In Estonia, a new government programme for 2021-2024 was set up to 
further  build  strategic  partnership  between  Civil  Society  Organisations  and  public 
institutions. In several Member States, civil society is investing more in grass-root work on 
the rule of law. 

However, in  some Member States, civil  society  organisations are facing serious challenges. 
Examples include deliberate threats, including through financial restrictions or controls, from 
the authorities, or inadequate protection against  physical or verbal  attacks, against arbitrary 
decisions,  against  SLAPPs,  or  when  the  level  of  protection  of  fundamental  rights 
guaranteeing  the  work  of  civil  society  are  lowered.  For  example,  in  Hungary,  pressure 
remains on civil society organisations critical towards the government, and, while the law on 
transparency of foreign-funded civil society organisations was repealed following the CJEU 
ruling, new measures were introduced. In Poland, NGOs critical of Government policies are 
subject  to  harassment  and  intimidation  by  public  authorities  and  officials.  In  Greece,  the 
registration  process  of  NGOs  active  in  the  area  of  asylum,  migration  and  social  inclusion 
continues  to  raise  questions.  While  some  progress  has  been  made,  challenges  regarding 
registration are also a concern in Cyprus. In Malta civil society organisations have expressed 
concerns about new fundraising rules, which would make it more difficult for associations to 
conduct their activities. In Slovakia, verbal attacks from public authorities and politicians on 
activists and civil society organisations, as well as reduction of public funds for organisations 
that promote gender equality, raise concern about respect for civil society’s democratic role. 
In France and Spain, there are concerns about the impact of public security legislation on the 
work of civil society organisations, in relation to the freedom of expression and information 
and the right to protest.  

The impact of the COVID-19 pandemic on checks and balances and public debates  

There were different legal regimes under which COVID-19 measures, including restrictions 
on fundamental  rights,  were adopted: a  constitutional  emergency  regime, a new  emergency 
regime specific for the pandemic, public health laws, or no special regime at all. These legal 
regimes  were  often  modified  over  time.  In  the  Netherlands  and  Sweden,  for  example,  the 
regimes  were  strengthened  to  ensure  that  restrictive  measures  would  be  based  on  a  robust 
legal  basis.  In  Belgium,  a  ‘pandemic  law’  to  provide  a  new  legal  basis  for  emergency 
measures  has  been  adopted.  In  a  number  of  Member  States,  the  constitutionality  of  the 
emergency  regimes  and  public  health  laws  were  subject  to  review.  In  Slovakia,  the 
Constitutional Court reviewed the constitutionality of the emergency regime, at the beginning 
and when extended, confirming its conformity with the Constitution. In most Member States, 

56   According to the Constitution of Poland, the Ombudsperson is appointed by the Parliament for 5 years. The 
Constitutional Tribunal considered it against the Constitution for the Ombudsperson to continue fulfilling its 
function beyond the 5-year period prescribed by the Constitution. 

57  According  to  the  evaluation  done  by  CIVICUS  non-governmental  organisation.  Ratings  are  on  a  five-

category scale defined as: open, narrowed, obstructed, repressed and closed. 

23 

 
 
                                                           
the special regimes have an end date, with many already ended in spring 2021 or are about to 
end.  

Continued democratic oversight by Parliaments has been shown through regular debates on 
the  prolongation  of  emergency  regimes.  Parliament  oversight  of  individual  COVID-19 
measures  has  varied.  In  Italy,  all  decree-laws  taken  by  the  government  in  case  of  urgency 
have immediate effect but need to be converted into law by the Parliament within 60 days. In 
Finland,  all  emergency  measures  are  subject  to  approval  by  the  Parliament  and  to 
constitutionality review by the Chancellor of Justice and the Constitutional Law Committee. 
In Portugal, an ad hoc parliamentary committee was created to monitor the measures adopted 
to  respond  to  the  pandemic,  with  the  Government  required  to  report  on  each  period  of  the 
state of emergency, enabling the Parliament to exercise also an ex post control.  

In  a  number  of  Member  States,  parliamentary  oversight  of  COVID-19  measures  was 
strengthened  over  time.  In  Germany,  parliamentary  control  was  enhanced  by  introducing  a 
standard  list  of  measures  that  can  be  taken  by  ordinance.  Austria  required  that  more 
restrictive  ordinances  should  be  validated  by  Parliament  before  entering  into  force,  and  be 
limited  in  time,  as  well  as  strengthening  the  obligations  to  consult.  Parliament  in  Croatia 
requested a report three times a year on COVID-19 measures. In Denmark, in February 2021, 
new  legislation  was  adopted  with  strengthened  parliamentary  control,  and  in  particular  a 
special parliamentary committee was set up to review executive orders.  

As regards Parliaments themselves, their functioning was also affected by the pandemic, but 
most  adapted  their  rules  of  procedure  to  ensure  continuity  of  debates,  voting  and  adequate 
representation,  even  when  rules  required  a  reduced  number  of  persons  present  and  when 
Members  of  Parliament  had  to  self-isolate.  Some  Member  States  had  already  very  well 
developed IT platforms which allowed a better transition, as was the case in Latvia. 

Scrutiny  of  the  legality,  justification  and  proportionality  of  COVID-19  measures  by  the 
courts  has  been  an  essential  counterweight  to  Government  powers  to  take  decisions  which 
could  disproportionately  affect  citizens’  fundamental  rights.  In  Estonia,  all  COVID-19-
related orders of the Government contain information on how they can be legally challenged, 
and citizens have seized administrative courts in a number of cases.  In  Germany, measures 
have  been  subject  to  comprehensive  judicial  review,  primarily  by  the  higher  administrative 
courts and constitutional courts of the Länder, with over 6000 cases registered by the end of 
2020.  In  France,  the  Council  of  State  ruled  in  many  urgent  proceedings  challenging  the 
Government’s  management  of  the  pandemic  and  ordered  a  number  of  measures  or 
suspensions of acts, in particular related to fundamental rights. In Poland, courts consider that 
certain  measures  are  unlawful,  as  the  Polish  constitution  explicitly  provides  that  any 
curtailment  of  fundamental  rights  and  freedoms  can  be  imposed  only  under  a  state  of 
emergency (which had not been declared). 

Independent authorities have played an active role throughout the pandemic, by assessing the 
impact on fundamental rights of the specific measures and alerting authorities. In France, the 
National Human Rights Commission scrutinised COVID-19 measures and published several 
opinions.  In  Lithuania,  parliamentary  Ombudspersons  assessed  the  compliance  with 
fundamental rights and freedoms of emergency measures. In Ireland, the Irish Human Rights 
and Equality Commission recommended shorter extensions of COVID-19 measures and that 
the maximum length of any extension should be specified in law. 

Civil society organisations were impacted by the pandemic, not only due to the limits on the 
freedom of movement and assembly, but also in terms of funding. The involvement of civil 
society  in  the  design  and  implementation  of  COVID-19  measures  has  generally  been  very 

24 

 
 
limited.  In  Austria,  the  Government  made  efforts  to  further  develop  dialogue  with  civil 
society, notably consulting them on the support allocated during the pandemic. 

In some Member States, the experience has already triggered reflections for (constitutional) 
changes, to be better prepared for future crisis. In Finland, the constitutional Law Committee 
has asked for a thorough review of the regulation of the state of emergency after the end of 
the pandemic. In Sweden, a committee of inquiry will be set up to examine the need to add 
provisions on a state of emergency during peacetime to the Constitution. In Italy, the Senate 
proposed to set up a special bicameral consultative Commission to ensure a central role for 
Parliament during emergencies. In Hungary, a constitutional change will limit the powers of 
the  government  as  regards  special  legal  order  regimes  as  of  July  2023.  The  current 
constitutional emergency regime, which gives extensive powers to the Government, is still in 
place and will remain until the Government decides to terminate it. 

4.  DEVELOPMENTS AND ACTIONS AT EU LEVEL ON THE RULE OF LAW  

Over the past year, the rule of law remained high on the agenda of the EU. The publication of 
the first annual Rule of Law Report in September 2020 was followed by important debates in 
the  European  Parliament  and  the  Council.  Outreach  was  also  undertaken  with  civil  society 
and the Member States, including with national parliaments. These developments at EU level 
can be seen  as  a  gradual consolidation  of the  rule of law process  along several axes:  inter-
institutional dialogue, dialogue with and among Member States, dialogue with stakeholders, 
and  international  cooperation.  In  parallel,  work  on  the  enforcement  of  the  rule  of  law 
continued at the CJEU, with the Commission fulfilling its role as guardian of the Treaties, via 
infringement  procedures.  The  rule  of  law  toolbox  was  also  further  developed  after  an 
agreement was reached on a general conditionality regime to protect the EU budget.   

Strengthening the inter-institutional response 

A key objective of the Rule of Law Report has been to raise awareness and promote an open 
discussion  among  Member  States  on  rule  of  law  issues.  As  noted  in  the  2020  Report58,  a 
review of the Council’s own annual rule of law dialogue in 2019 resulted in a wide consensus 
on  strengthening  this  dialogue,  on  the  basis  of  the  Commission’s  report.  As  a  result,  in 
autumn  2020,  the  Presidency  organised  a  two-step  process,  with  a  horizontal  discussion  on 
general  rule of law developments  as well as  a separate  country-specific discussion, looking 
first  at  five  Member  States59,  based  on  the  Rule  of  Law  Report.  In  the  spring  of  2021,  the 
country-specific dialogue continued, covering an additional five Member States60. This sets a 
yearly  cycle  for  discussion  in  the  General  Affairs  Council.  The  current  Presidency  has 
announced that it will continue this approach in the second half of 2021. Discussions in the 
Council  so  far  have  shown  a  clear  interest  from  Member  States  to  share  developments  and 
best  practices,  to  contribute  to  the  prevention  of  problems  in  an  inclusive  and  constructive 
manner. In parallel, thematic exchanges have also taken place in different Council formations 
on rule of law issues, including to share good practices. 

The European Parliament has played an increasingly important role in setting the debate on 
the rule of law, a trend which has continued over the past year. In October 2020, Parliament 
adopted a resolution inviting the Commission and the Council to enter into negotiations on an 

58   2020 Rule of Law report, p. 25.  
59   Belgium, Bulgaria, Czech Republic, Denmark and Estonia. 
60  Germany,  Greece,  Spain,  France  and  Ireland.  In  general,  the  selection  of  countries  follows  the  protocol 

order, except that Germany was replaced by Estonia during its presidency.  

25 

 
 
                                                           
inter-institutional agreement on Reinforcing Union Values61. The Commission welcomed the 
resolution and fully agrees with the European Parliament on the importance of strengthening 
the EU’s  capacity to  monitor and uphold  the common EU values. The annual  Rule of  Law 
Report plays an important role in this regard, covering issues with a direct relevance also for 
other Union values such as democracy and fundamental rights, which also links to the work 
on the European Democracy Action Plan, on supporting the Charter of Fundamental Rights, 
and on the promotion of a Union of Equality. The evolving dialogue between the institutions 
on the rule of law should be seen in this broader context and will continue to develop in the 
coming  years. The  European Parliament  adopted a Resolution  welcoming the 2020 Rule of 
Law Report, while reiterating its previous calls for improvements, notably on the inclusion of 
country-specific  recommendations62.  The  Commission  welcomes  the  resolution,  and  will 
carefully  reflect  on  it  in  the  preparation  of  future  Reports.  The  Commission  remains 
committed to deepening the dialogue with the European Parliament. 

As regards the situation in specific Member States, the European Parliament has in the past 
year adopted resolutions on the situation of the rule of law in Bulgaria, Malta, and Poland63. 
The Democracy, Rule of Law and Fundamental Rights Monitoring Group64 of the European 
Parliament’s  committee  on  civil  liberties,  justice  and  home  affairs  (LIBE)  has  played  an 
important  role  in  deepening  the  rule  of  law  debate  in  the  European  Parliament.  The 
Monitoring  Group  held  exchanges  of  views  on  the  situation  in  Bulgaria,  Malta,  Poland, 
Slovakia and Slovenia, on a specific case in Belgium, and on the space for civil society in the 
EU. The Monitoring Group has also actively followed the situation in the Union as regards 
COVID-19 related measures65. 

Finally,  the  European  Economic  and  Social  Committee,  through  its  Ad  hoc  group  on 
Fundamental  Rights  and  the  Rule  of  Law66,  and  the  Committee  of  Regions,  through  its 
Commission for Citizenship, Governance, Institutional and External Affairs (CIVEX)67, have 
also contributed to the rule of law dialogue at EU level. 

Strengthening dialogue with Member States 

Following the publication of the 2020 Rule of Law Report, a particular effort has been made 
to  reach  out  to  Member  States.  At  political  level,  national  parliaments  play  a  key  role  in 
upholding the rule of law, both as lawmakers and in holding the executive accountable. Over 
the  past  year,  the  Commission68  visited  most  national  Parliaments  in  order  to  present  and 
discuss the methodology and the country specific findings of the 2020 Rule of Law Report.  

61   European  Parliament  resolution  of  7  October  2020  on  the  establishment  of  an  EU  Mechanism  on 

Democracy, the Rule of Law and Fundamental Rights.  

62   European  Parliament  resolution  of  24  June  2021  on  the  Commission’s  2020  Rule  of  Law  Report 

(2021/2025(INI)). 

63   European Parliament resolutions of 8 October 2020 on Bulgaria, P9_TA(2020)0264; of 29 April 2021 on the 
Assassination  of  Daphne  Caruana  Galizia  and  the  rule  of  law  in  Malta,  P9_TA(2021)0148;  and  of  17 
September 2020 on Poland, P9_TA(2020)0225. 

64   The Monitoring Group is focused on threats to democracy, the rule of law and fundamental rights, as well as 
the  fight against corruption across all Member States. It can recommend specific actions to LIBE, such as 
meetings with stakeholders, hearings and missions, as well as making proposals for resolutions and reports. 
65   Activity report of the Democracy, Rule of Law and Fundamental Rights Monitoring Group, 16 June 2021. 
66   The ad hoc group on Fundamental Rights and the Rule of Law (FRRL) is a horizontal body within the EESC 
tasked to provide a forum for European civil society organisations to meet and share their assessment on the 
state of fundamental rights, democracy and rule of law in the Member States.  

67   The remit of the CIVEX Commission includes Constitutional Affairs, and Governance, better Law-Making, 

Subsidiarity and Proportionality. 

68   Vice-President Jourová or Commissioner Reynders represented the Commission in these meetings. 

26 

 
 
                                                           
The Commission also conducted bilateral meetings, including both dialogue at political level 
and technical meetings to gather information on the state of play on key reforms as a follow 
up  to  the  findings  of  the  2020  Rule  of  Law  Report.  Such  contacts  were  limited  to  a  few 
Member States this first year but could become a more prominent feature in the future. 

The  network  of  rule  of  law  contact  points  continued  to  meet  regularly,  gathering 
representatives from  all Member States. Initially  focussed on helping set  up the mechanism 
and  its  methodology,  this  forum  is  now  increasingly  acting  as  a  channel  for  ongoing 
communication with and between the Member States for the preparation of the Rule of Law 
Report.  It  is  also  envisaged  that  these  meetings  could  increasingly  serve  as  a  platform  for 
sharing good practices and exchanging information on envisaged rule of law-related reforms 
between Member States at technical level. 

Strengthening dialogue with stakeholders at national and EU level 

Civil society is a key partner for the EU in its work to promote a stronger European rule of 
law culture. In preparation of the report, the Commission held meetings to discuss rule of law 
developments  with  stakeholders  such  as  European  networks,  national  and  European  civil 
society organisations and professional organisations69. Civil society organisations also made 
a large number of written contributions as input for the Report70.  

In May 2021, the first High-Level Conference on the Rule of Law was organised in Coimbra 
by the Portuguese Presidency in cooperation with the European Commission on the theme of 
the  rule  of  law  in  Europe,  bringing  together  policy  makers,  civil  society  organisations, 
European  judicial  networks,  academics  and  journalists.  The  conference  took  stock  of  the 
efforts  to  uphold  the  rule  of  law  in  Europe  and  focussed  on  the  role  of  civil  society, 
challenges linked to the communication of rule of law issues, and rule of law in the context of 
the pandemic and the economic recovery.  

The  strong  participation  of  civil  society  in  the  preparation  of  this  second  report  has  given 
recognition  to  civil  society  organisations  at  national  level  and  has  further  encouraged  links 
and networks beyond national borders. The Commission will continue to reflect on ways to 
mobilise civil society, professional networks and other stakeholders in the rule of law debate 
at national and European level.  

Strengthening international cooperation  

The  rule  of  law  is  also  a  guiding  principle  for  the  EU  beyond  its  borders.  Guided  by  the 
universal values and principles embedded in the UN Charter and international law, including 
international humanitarian 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 2020-202471, and in line with the Sustainable Development Goals72. 
The  EU  will  continue  to  pursue  a  coherent  approach  in  its  cooperation  with  candidate 
countries  and  potential  candidates,  countries  across  the  neighbourhood  as  well  as  in  all  its 
external  action,  at  bilateral,  regional  and  multilateral  level.  The  EU  addresses  rule  of  law 
issues regularly in human rights dialogues with partner countries and at multilateral level, in 
particular the United Nations. 

69   These  include  the  Human  Rights  and  Democracy  Network,  Fundamental  Rights  Agency,  EuroCommerce, 

ENNHRI, Civil Society Europe, Transparency International. 

70   https://ec.europa.eu/info/files/2021-rule-law-report-stakeholder-contributions 
71   https://www.consilium.europa.eu/media/46838/st12848-en20.pdf. 
72   https://www.un.org/sustainabledevelopment/.  

27 

 
 
                                                           
Upholding the rule of law at  global level includes strengthening cooperation on rule of law 
issues  with  international  and  regional  organisations73.  The  assessments  of  specialised 
international bodies has provided an important input to the Commission’s analysis, and closer 
cooperation  and  exchange  has  helped  deepen  the  Commission’s  understanding  of  the 
situations  in  the  Member  States.  At  technical  level,  contacts  between  Commission  services 
and the different Council of Europe bodies have become a regular element in the preparation 
of the report74. 

The Commission aims to further strengthen this key element in its rule of law work, building 
on  its  close  relations  with  the  Council  of  Europe  and  other  international  bodies.  On  26 
January  2021,  the  Commission  presented  the  2020  Rule  of  Law  Report  before  the 
Parliamentary  Assembly  of  the  Council  of  Europe.  The  Commission  has  also  taken  part  in 
events organised by the Organisation for Economic Co-operation and Development (OECD) 
where the topics covered by the rule of law mechanism were presented and discussed.  

Other institutional developments related to the rule of law  

The  CJEU  continued  to  develop  its  case  law  on  the  rule  of  law,  notably  in  relation  to  the 
Treaty’s  requirement  that  Member  States  are  to  provide  remedies  sufficient  to  ensure 
effective legal protection in the fields covered by Union law75, where the CJEU has further 
clarified  the  guarantees  of  judicial  independence  under  EU  law.  Through  the  preliminary 
ruling  mechanism,  national  courts  continued  to  bring  rule  of  law  relevant  questions  to  the 
attention of the CJEU. It has ruled on requests for preliminary rulings on rule of law related 
matters  by  courts  from  Malta,  Poland,  the  Netherlands  and  Romania.  These  rulings  were 
related  in  particular  to  judicial  appointment  procedures,  the  execution  of  European  Arrest 
warrants  in  case  of  persistent  deficiencies  as  regards  judicial  independence  in  a  Member 
State,  the  disciplinary  regime  for  judges,  the  personal  liability  of  judges,  the  creation  of  a 
special prosecution section dealing with judges, and the principle of primacy of EU law76. 

The  Commission  also  continued  to  exercise  its  role  as  guardian  of  the  EU  Treaties  by 
launching infringement procedures. In some specific cases, the Commission has requested the 
CJEU to order interim measures to prevent irremediable harm77. 

Besides infringement proceedings, which aim to address specific breaches of EU law, Article 
7  of  the  Treaty  on  European  Union  provides  the  more  general  procedure  for  upholding  the 
common values of the Union, including the rule of law. The Council remains seized in two 
procedures,  brought  by  the  Commission  against  Poland  in  2017  and  by  the  European 
Parliament against Hungary in 2018, with a view to determining that there is a clear risk of a 

73   Such  as  the  United  Nations,  the  Council  of  Europe,  the  Organisation  for  Economic  Cooperation  and 

Development (OECD) and the Organisation for Security and Cooperation in Europe (OSCE).  

74   Such  as  the  Venice  Commission,  Group  of  States  against  Corruption,  Department  of  execution  of 
judgements  and  Media  department.  To  reinforce  the  cooperation,  the  Council  of  Europe  has  appointed  a 
contact person to coordinates the work. 
75   Article 19(1) TEU, second subparagraph. 
76   Key judgments since the last report include the judgments of 6  October 2020, Commission v Hungary, C-
66/18,  ECLI:EU:C:2020:792;  of  24  November  2020,  AZ  (Forgery  of  documents),  C‑ 510/19, 
EU:C:2020:953;  of  17  December  2020,  Openbaar  Ministerie,  C-354/20  PPU  and  C-412/20  PPU, 
ECLI:EU:C:2020:1033; of 2 March 2021, A.B. and Others, C-824/18, ECLI:EU:C:2021:153; of 20 March 
2021, Repubblika v Il-Prim Ministru, C-896/19, ECLI:EU:C:2021:311; of 18 May 2021, Asociaţia ‘Forumul 
Judecătorilor  Din  România’  v  Inspecţia  Judiciară  and  others,  C-83/19,  C-127/19,  C-195/19,  C-291/19,  C-
397/19, ECLI:EU:C:2021:393; of 15 July 2021, Commission v Poland, C-791/19 ECLI:EU:C:2021:596.  
77   See in particular Commission press release of 31 March 2021 IP/21/1524. Case registered as C-204/21. The 
CJEU ordered interim measures in that case (order of the vice-president of the Court of Justice of 14 July 
2021, Commission v Poland, C-204/21 R, ECLI:EU:C:2021:593). 

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serious  breach  of  the  Union’s  values.  In  September  2020,  the  Commission  updated  the 
Council on the latest developments in the areas covered by the reasoned proposals.  In June 
2021, the Council held hearings for both Hungary and Poland. 

The rule of law is a precondition for the proper management of EU funds and in May 2018 
the Commission proposed to accompany its proposals for the new budgetary framework with 
a legislative proposal for a dedicated mechanism to protect EU funds against risks arising due 
to rule of law breaches in individual Member States. The resulting Regulation was adopted in 
December  202078.  The  Commission  is  fully  committed  to  enforcing  the  Regulation  and  is 
actively  working  on  its  concrete  application.  The  Commission  is  currently  consulting  the 
European Parliament and the Member States on guidelines, which will set out in more detail 
how  the  Commission  envisages  to  apply  the  Regulation  in  practice.  At  the  same  time,  the 
Commission  has  begun  monitoring  possible  cases.  The  Regulation  applies  as  of  1  January 
2021, and any breach that occurs from that day onwards will be covered.  

1  June  2021  marked  the  operational  start-date  of  the  European  Public  Prosecutor’s  Office 
(EPPO), which is competent to investigate, prosecute and bring to judgment fraud and other 
criminal offences relating to the EU budget79, complementing the role of the European Anti-
Fraud  Office  (OLAF)80.  The  EPPO  undertakes  criminal  investigations,  carries  out  acts  of 
prosecution,  and  exercises  the  functions  of  prosecutor  in  the  competent  courts  of  the 
participating Member States, until the cases have been finally disposed of. The effectiveness 
of the national  justice systems  analysed in  this report will be a key  factor for ensuring that 
cases are brought to conclusions and effective sanctions apply.  

The  rule  of  law  is  also  prominent  in  the  implementation  of  the  Recovery  and  Resilience 
Facility.  The  Member  States’  Recovery  and  Resilience  Plans  include  important  reform 
priorities such as improving the business environment through effective public administration 
and  justice  systems.  The  European  Commission  is  also  providing  technical  support  to 
Member  States,  notably  provided  through  the  Technical  Support  Instrument,  to  improve 
efficiency, quality and independence of public administration and justice systems.  

5.  CONCLUSIONS AND NEXT STEPS 

The  COVID-19  pandemic  has  further  underlined  the  importance  of  the  rule  of  law  for  our 
democracies, our fundamental rights and for Europeans’ daily lives. It has also been a stress 
test for the rule of law.  The experience of the pandemic has shown the  strong  resilience in 
national systems overall, while also exposing a number of specific areas where the rule of law 
has been under pressure. The rule of law is an important component in preparedness for times 
of crisis.  

78   Regulation  (EU,  Euratom)  2020/2092  of  16  December  2020  on  a  general  regime  of  conditionality  for  the 
protection  of  the  Union  budget,  OJ  L  433I,  22.12.2020,  p.  1.  Hungary  and  Poland  have  challenged  the 
validity  of  the  Regulation  before  the  Court  of  Justice  of  the  European  Union,  see,  respectively,  cases  C-
156/21 and C-157/21.   

79   This includes EU expenditures and revenues, VAT (above €10 million and cross-border), money laundering, 
active  and  passive  corruption,  misappropriation  of  EU  funds  or  assets  by  a  public  official  and  organised 
crime linked to the EU budget. The Member States currently participating 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. 

80   New rules (Regulation (EU, Euratom) 2020/2223 (OJ L 437, 28.12.2020, p. 49–73)) that strengthen the role 

of OLAF and ensure smooth collaboration with the EPPO entered into force in 2021.  

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This Report has been able to show many  positive rule of law developments in the Member 
States,  where  challenges  previously  identified  are  being  followed  up.  It  also  shows  where 
challenges  and  concerns,  sometimes  serious,  remain  or  have  intensified.  The  Commission 
welcomes the participation of all Member States, with continued engagement and cooperation 
and a willingness to enter into a dialogue on sensitive issues.  

The adoption of the 2021 Rule of Law Report marks the start of new cycle of dialogue and 
monitoring.  The  Commission  invites  the  Council  and  the  European  Parliament  to  have 
general  and  country-specific  debates  on  the  basis  of  this  report,  as  well  as  national 
parliaments  and  other  key  actors  to  intensify  national  debates.  The  Commission  invites 
Member States to effectively take up the challenges identified in the Report and stands ready 
to assist Member States in these efforts.  It is a common commitment of the Member States 
and the EU to protect, promote and strengthen the rule of law and make it a vibrant element 
of our political culture. 

The Commission looks forward to continuing the dialogue with key actors for the rule of law. 
Respect for the rule of law, as well as democracy and human rights, are seen by Europeans as 
amongst  the  EU’s  main  assets.  This  gives  a  sense  of  responsibility  and  direction  for  all 
Member States and EU institutions in playing their part.  

30