European Parliament resolution of 19 May 2022 on the Commission’s 2021 Rule of Law Report (2021/2180(INI))
Date: 2022-05-19
Institutions: Committee on Budgetary Control, Committee on Budgets, Committee on Civil Liberties, Justice and Home Affairs, Committee on Constitutional Affairs, Committee on Legal Affairs, Committee on Petitions, European Parliament
Subjects: EU Member State, coronavirus disease, corruption, democracy, epidemic, fundamental rights, infringement of EU law, legal system, political rights, rule of law








C_2022479EN.01001801.xml










16.12.2022   


EN


Official Journal of the European Union


C 479/18






P9_TA(2022)0212
Commission’s 2021 Rule of Law report
European Parliament resolution of 19 May 2022 on the Commission’s 2021 Rule of Law Report (2021/2180(INI))
(2022/C 479/02)

The European Parliament,






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having regard to the Treaty on European Union (TEU), and in particular Article 2, Article 3(1), Article 3(3), second subparagraph, Article 4(3) and Articles 5, 6, 7, 11, 19 and 49 thereof,










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having regard to the Treaty on the Functioning of the European Union (TFEU), and in particular the articles thereof relating to respect for and the protection and promotion of democracy, the rule of law and fundamental rights in the Union, including Articles 70, 258, 259, 260, 263, 265 and 267,










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having regard to the Charter of Fundamental Rights of the European Union (‘the Charter’),










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having regard to the case-law of the Court of Justice of the European Union (CJEU), especially to the decisions in Cases C-156/21, Hungary v European Parliament and Council of the European Union (1) and C-157/21, Poland v European Parliament and Council of the European Union (2) on the measures for the protection of the Union budget,










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having regard to the Commission communication of 20 July 2021 on the 2021 Rule of Law Report — the rule of law situation in the European Union (COM(2021)0700),










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having regard to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (3),










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having regard to Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities (4),










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having regard to Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget (5) (the Rule of Law Conditionality Regulation),










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having regard to Regulation (EU) 2021/692 of the European Parliament and of the Council of 28 April 2021 establishing the Citizens, Equality, Rights and Values programme and repealing Regulation (EU) No 1381/2013 of the European Parliament and of the Council and Council Regulation (EU) No 390/2014 (6),










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having regard to the Universal Declaration of Human Rights,










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having regard to the UN instruments on the protection of human rights and fundamental freedoms and the recommendations and reports of the UN Universal Periodic Review, as well as the case-law of the UN treaty bodies and the special procedures of the Human Rights Council,










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having regard to the recommendations and reports of the Office for Democratic Institutions and Human Rights, the High Commissioner on National Minorities, the Representative on Freedom of the Media and other bodies of the Organization for Security and Co-operation in Europe (OSCE),










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having regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Social Charter, the case-law of the European Court of Human Rights and the European Committee of Social Rights, and the conventions, recommendations, resolutions, opinions and reports of the Parliamentary Assembly, the Committee of Ministers, the Human Rights Commissioner, the European Commission Against Racism and Intolerance, the Steering Committee on Anti-Discrimination, Diversity and Inclusion, the Venice Commission and other bodies of the Council of Europe,










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having regard to the Memorandum of Understanding between the Council of Europe and the European Union of 23 May 2007 and the Council conclusions of 8 July 2020 on EU priorities for cooperation with the Council of Europe 2020-2022,










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having regard to the Commission’s reasoned proposal for a Council decision of 20 December 2017 on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law, issued in accordance with Article 7(1) TEU (COM(2017)0835),










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having regard to the EU anti-racism action plan 2020-2025 entitled ‘A Union of equality’, launched on 18 September 2020 (COM(2020)0565),










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having regard to the report of the EU Agency for Fundamental Rights of 9 November 2021 entitled ‘Antisemitism: Overview of antisemitic incidents recorded in the European Union 2010-2020’,










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having regard to the EU Agency for Fundamental Rights’ report of 22 September 2021 entitled ‘Protecting civic space in the EU’, and its other reports, data and tools, in particular the European Union Fundamental Rights Information System (EFRIS),










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having regard to its resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (7),










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having regard to its resolution of 1 March 2018 on the Commission’s decision to activate Article 7(1) TEU as regards the situation in Poland (8),










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having regard to its resolution of 19 April 2018 on the need to establish a European Values Instrument to support civil society organisations which promote fundamental values within the European Union at local and national level (9),










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having regard to its resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) TEU, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (10),










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having regard to its resolution of 14 November 2018 on the need for a comprehensive EU mechanism for the protection of democracy, the rule of law and fundamental rights (11),










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having regard to its resolution of 16 January 2020 on ongoing hearings under Article 7(1) TEU regarding Poland and Hungary (12),










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having regard to its resolution of 8 October 2020 on the rule of law and fundamental rights in Bulgaria (13),










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having regard to its resolution of 7 October 2020 on the establishment of an EU Mechanism on Democracy, the Rule of Law and Fundamental Rights (14),










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having regard to its resolution of 13 November 2020 on the impact of COVID-19 measures on democracy, the rule of law and fundamental rights (15),










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having regard to its resolution of 26 November 2020 on the situation of Fundamental Rights in the European Union — Annual Report for the years 2018 — 2019 (16),










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having regard to its resolution of 24 June 2021 on the Commission’s 2020 Rule of Law Report (17),










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having regard to its resolution of 8 July 2021 on the creation of guidelines for the application of the general regime of conditionality for the protection of the Union budget (18),










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having regard to its resolution of 8 July 2021 on breaches of EU law and of the rights of LGBTIQ citizens in Hungary as a result of the legal changes adopted by the Hungarian Parliament (19),










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having regard to its resolution of 14 September 2021 on LGBTIQ rights in the EU (20),










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having regard to its resolution of 16 September 2021 on media freedom and further deterioration of the rule of law in Poland (21),










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having regard to its resolution of 20 October 2021 on Europe’s media in the digital decade: an action plan to support recovery and transformation (22),










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having regard to its resolution of 21 October 2021 on the rule of law crisis in Poland and the primacy of EU law (23),










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having regard to its resolution of 11 November 2021 on strengthening democracy and media freedom and pluralism in the EU: the undue use of actions under civil and criminal law to silence journalists, NGOs and civil society (24),










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having regard to its resolution of 11 November 2021 on the first anniversary of the de facto abortion ban in Poland (25),










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having regard to its resolution of 15 December 2021 on the evaluation of preventive measures for avoiding corruption, irregular spending and misuse of EU and national funds in case of emergency funds and crisis-related spending areas (26),










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having regard to its resolution of 16 December 2021 on fundamental rights and the rule of law in Slovenia, in particular the delayed nomination of EPPO prosecutors (27),










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having regard to its resolution of 9 March 2022 on foreign interference in all democratic processes in the European Union, including disinformation (28),










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having regard to Special Report 09/2021 of the European Court of Auditors of 3 June 2021 entitled ‘Disinformation affecting the EU: tackled but not tamed’,










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having regard to Special Report 01/2022 of the European Court of Auditors of 10 January 2022 entitled ‘EU support for the rule of law in the Western Balkans: despite efforts, fundamental problems persist’,










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having regard to Rule 54 of its Rules of Procedure,










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having regard to the opinions of the Committee on Budgetary Control, the Committee on Legal Affairs, the Committee on Budgets, the Committee on Constitutional Affairs and the Committee on Petitions,










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having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A9-0139/2022),










A.


whereas the Union is founded on the common values enshrined in Article 2 TEU of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities — values that are common to the EU Member States and to which candidate countries must adhere in order to join the Union as part of the Copenhagen criteria, which cannot be disregarded or reinterpreted after accession; whereas democracy, the rule of law and fundamental rights are mutually reinforcing values which, when undermined, may pose a systemic threat to the Union and the rights and freedoms of its citizens; whereas respect for the rule of law is binding on the Union as a whole and its Member States at all levels of governance, including subnational entities;










B.


whereas the principle of sincere cooperation in Article 4(3) TEU places an obligation on the Union and the Member States to assist each other in carrying out obligations which arise from the Treaties in full mutual respect, and on Member States to take any appropriate measure, general or in particular, to ensure the fulfilment of the obligations arising from the Treaties or resulting from the acts of the institutions of the Union;










C.


whereas the annual rule of law review cycle is a welcome addition to the tools available to preserve the Article 2 TEU values by addressing the situation in all EU Member States in a report based on four pillars with a direct bearing on respect for the rule of law;










D.


whereas without concrete recommendations and effective follow-up, the rule of law report may fail to prevent, detect and address effectively and in a timely manner systemic challenges and backsliding on the rule of law, as witnessed in several EU Member States in recent years;










E.


whereas the Member States introduced emergency measures to respond to the COVID-19 pandemic; whereas, in order to be lawful, these needed to respect the principles of necessity and proportionality when restricting fundamental rights or basic freedoms; whereas some Member States have seen a negative trend on the rule of law as governments have used the extraordinary measures as an excuse to weaken democratic checks and balances;










F.


whereas it is necessary to strengthen and streamline existing mechanisms and to develop a single comprehensive EU mechanism to protect democracy, the rule of law and fundamental rights effectively and to ensure that Article 2 TEU values are upheld throughout the Union as well as by candidate countries, albeit with different monitoring regimes, so that Member States are prevented from developing domestic law that runs counter to the protection of Article 2 TEU;










G.


whereas the rights to freedom of expression and information and the right to public participation are among the cornerstones of democracy;










H.


whereas the Council of Europe’s Committee of Experts on Combating Hate Speech has prepared a draft Committee of Ministers recommendation on combating hate speech, which provides non-binding guidance on how to address the phenomenon and is currently awaiting adoption in 2022 (29); whereas the newly established Committee of Experts on Combating Hate Crime is tasked with preparing, by the end of 2023, a draft Committee of Ministers recommendation on hate crime;










I.


whereas the Citizens, Equality, Rights, and Values programme allows for direct flexible support to civil society actors promoting and protecting the values enshrined in Article 2 TEU at local, national and European level;






The 2021 Rule of Law Report: general considerations










1.


Welcomes the Commission’s second annual rule of law report; notes that Parliament makes regular use of this annual report as a source of information and input when discussing the rule of law situation in a specific Member State; regrets the fact that the Commission did not address in full the recommendations made by Parliament in its resolution of 24 June 2021 on the Commission’s 2020 Rule of Law Report, in particular the expansion of the scope of its reporting to cover all values enshrined in Article 2 TEU, the differentiation between systemic and individual breaches, and a more in-depth, transparent assessment, including taking actions in response to breaches; considers that these recommendations remain valid and reiterates them;












2.


Welcomes the fact that the functioning of justice systems, the anti-corruption framework, media pluralism and certain institutional issues related to checks and balances, including civic space to a certain extent, are all part of the Commission’s annual report; regrets, however, that not all rule of law issues were covered in sufficient detail or breadth in the 2021 report; suggests that the Commission analyse rule of law issues in each pillar through the prism of all the values enshrined in Article 2 TEU and fundamental rights as described in the Charter; calls for the inclusion in the annual report of other important elements of the Venice Commission’s 2016 Rule of Law Checklist, such as the prevention of abuse of powers, equality before the law and non-discrimination and access to justice including aspects of the right to a fair trial; reiterates its call on the Commission to include in future reports an evaluation of prison conditions;












3.


Notes with satisfaction that the report contains country-specific chapters; commends the Commission’s efforts to engage with national governments, national parliaments and the European Parliament, as well as civil society and other national actors; calls on the Member States to cooperate proactively with the Commission and make public their written submissions, so as to enable independent experts and civil society groups to fact-check and react to them and to ensure full transparency; encourages the Commission to continue deepening the analysis, and invites the Commission to ensure proper resources for this, including human resources, in a bid to reach out to a wide and diverse range of stakeholders; believes that more time and importance should be given to the Commission’s country visits, especially on site; calls on the Commission to raise greater awareness of these visits among the public in order to foster a rule of law culture at national level; welcomes the visits conducted by the Commission to national parliaments in order to present the findings of the report;






Methodology










4.


Stresses the fact that all Member States are scrutinised according to the same indicators and methodology, with no discrimination against any Member State; calls on the Commission to elaborate on its indicators used to assess the Member States’ rule of law situation; calls on the Commission to establish an annual EU Values Week each September, during which the report is presented to the European Parliament and national parliaments at the same time and is better integrated within the EU Justice Scoreboard, the fundamental rights report of the EU Fundamental Rights Agency, and the Media Pluralism Monitor; is of the opinion that the rule of law report currently serves as a descriptive documentation of the situation in the Member States, but that it should be an analytical and prescriptive instrument in order to fulfil its preventive and mitigation purposes; stresses that a thorough analysis of the state of play in the Member States requires an overall analysis and evaluation of the rule of law in the Member States; emphasises that presenting deficiencies or breaches of a different nature or intensity risks trivialising the most serious breaches of the rule of law; urges the Commission to differentiate its reporting by distinguishing between systemic and deliberate breaches of the rule of law and isolated breaches in a clearer and more comprehensible way;












5.


Regrets the fact that the report fails to clearly recognise the deliberate process of the rule of law backsliding in countries subject to ongoing Article 7(1) TEU procedures, notably Poland and Hungary, and to identify rule of law deficiencies in a number of Member States; calls on the Commission to make clear that when the Article 2 TEU values are being systematically, deliberately, gravely and permanently violated over a period of time, Member States could fail to meet all criteria that define a democracy and become authoritarian regimes;












6.


Regrets the fact that several Member States, in particular Hungary and Poland, had to be mentioned several times by the Commission as points of concern in the synthesis report and that no tangible improvements have been made since the report was published; recalls that since June 2021 Parliament has also addressed the rule of law situation in Hungary, Poland and Slovenia in its plenary resolutions; further recalls that Parliament’s Committee on Civil Liberties, Justice and Home Affairs’ Democracy, Rule of Law and Fundamental Rights Monitoring Group and the Committee on Budgetary Control have also addressed problems in several Member States; stresses that, after having conducted several ad-hoc delegations to some of these Member States, it has become clear that the situation of the rule of law, democracy and fundamental rights in these Member States is far worse than what was described by the Commission in its report; believes that in order to better identify backsliding countries, the Commission should carry out a more comprehensive assessment of the same elements in all country chapters;












7.


Calls on the Commission to conclude each country chapter with an assessment of the Member States’ performance vis-à-vis the individual pillars of the report, indicating the extent to which the conditions of the Rule of Law Conditionality Regulation have been fulfilled; calls, therefore, on the Commission to develop, in addition to the qualitative assessment, a rule of law index for the different pillars based on an objective, accessible, transparent, legible and non-discriminatory system for presentation and comparative analysis, to be conducted by independent experts, which could signal the level of respect for the rule of law in the Member States;












8.


Considers that the annual report should identify cross-cutting trends, including possible systemic vulnerabilities, at EU level; asks the Commission to identify instances where measures or practices that undermine the rule of law in one Member State become or risk becoming blueprints for others; highlights that the intentional targeting of minority groups’ rights in some Member States has created and established momentum elsewhere, as can be evidenced by backtracking on the rights of women, LGBTIQ persons and other minority groups; calls on the Commission, furthermore, to highlight the negative effect that breaches of the rule of law can have on the Union as a whole;












9.


Considers that the report should go beyond annual snapshots and provide an evolving and dynamic view of respect for or backsliding on the rule of law in the justice systems of all Member States; commends the effort of the 2021 report to compare the situation with that of the 2020 report; believes that it is necessary to identify clearly positive and negative trends as regards the rule of law situation and provide an analysis of the underlying reasons for that;












10.


Considers that a new separate chapter on the Union’s institutions, which would assess the situation in relation to separation of powers, accountability and checks and balances, would be desirable;






Assessment and recommendations










11.


Considers that the 2021 report could have provided clearer assessments, stating whether there were deficiencies, a risk of a serious breach or an actual breach of Article 2 TEU values in each of the pillars analysed in the country chapters; invites the Commission to include an assessment of all rule of law measures implemented in the previous year, accompanied by an analysis of their effectiveness and possible avenues for improvement; calls for a more integrated analysis on the interlinkages between the four pillars and of how combined deficiencies may amount to breaches or risks of breaches of Article 2 TEU values; reiterates the importance of using direct, unambiguous language, and of clearly underlining the issue at hand in line with the Commission's position;












12.


Welcomes the Commission’s intention to include country-specific recommendations in the 2022 report; calls on the Commission to accompany such recommendations with deadlines for implementation, targets and concrete actions to be taken; calls on the Commission to include in subsequent reports information on progress made on the implementation of its recommendations, and, in addition, to make it part of the structured dialogue with Parliament throughout the year; calls on the Commission to ensure that its annual reports also focus on any relevant country-specific recommendations for the European Semester, notably those linked to the independence of the judiciary and the public prosecutor and to fighting corruption and ensuring transparency and integrity;












13.


Recommends that the Commission indicates next to each of its recommendations the non-exhaustive list of tools which are appropriate to use by EU institutions in case the shortcomings are not remedied; calls on the Commission to not hesitate in using those tools, especially when there is no trust in a quick implementation of the recommendations or a risk of further deterioration, without waiting for the next annual reporting cycle;






Scope










14.


Regrets the fact that both the 2020 and the 2021 reports fail to fully encompass the Article 2 TEU values of democracy and fundamental rights, which are immediately affected when countries start backsliding on the rule of law; reiterates the intrinsic link between the rule of law, democracy and fundamental rights;





Justice systems









15.


Emphasises that judicial accountability, prosecutorial and judicial independence and the enforcement of judgments are crucial components of the rule of law; deplores the serious and structural problems regarding judicial independence in certain Member States; stresses the fundamental role of the legal professions in ensuring the protection of fundamental rights and strengthening the rule of law; calls on Member States to protect judges and prosecutors from political attacks and pressures that attempt to undermine their work and insists that Member States must fully comply with Union and international law regarding judicial independence; calls on the Commission to include concrete recommendations in its 2022 report in order to ensure the independence of the judiciary in all Member States, and to also cover the independence of lawyers and bar associations in the annual report, as they are essential for independent justice systems;












16.


Recalls that Union law has primacy over national law regardless of the way in which national justice systems are organised; calls on the Commission to closely monitor the rulings of national courts regarding the primacy of EU law over national legislation and in particular the incompatibility of certain articles of the Treaties with national constitutions; urges the Commission to ensure concrete, immediate and adequate responses to refusals to implement and respect CJEU rulings and report back to Parliament on the actions taken with regard to this;












17.


Underlines the important role of the councils of the judiciary in safeguarding judicial independence; points out that several Member States have long-lasting problems regarding the composition of their councils of the judiciary and appointment of judges, which are sometimes vulnerable to undue political interference; encourages Member States to systematically ask the opinion of the Venice Commission in case it seeks to adapt the composition and functioning of these bodies and to follow up on those recommendations; considers it necessary for the Commission to evaluate such follow-up in the annual report;












18.


Points out that the prosecution service is a key element in fighting crime, corruption and abuse of power; stresses the need for safeguards to be put in place to preserve the independence of the prosecution service and individual prosecutors so that they are free from undue political pressure, especially from the government, while meeting necessary conditions of accountability to prevent abuse or negligence; expresses its total solidarity and full support for all victims of crime;












19.


Points out that strategic lawsuits against public participation (SLAPPs) not only severely undermine the right of effective access to justice for their victims, and thereby the rule of law, but also constitute a misuse of Member States’ justice systems and legal frameworks, especially by hampering the ability of Member States to successfully address existing challenges such as the length of proceedings and the quality of justice systems, as well as caseload administration and case backlogs;





Anti-corruption framework









20.


Reiterates its view that corruption is a serious threat to democracy, European funds and the rule of law; is deeply concerned by the increasing level of corruption and deterioration observed in certain Member States, the continued emergence of corruption cases involving high-level officials and politicians and the infiltration of organised crime in the economy and public sector; welcomes the information included in the 2021 rule of law report on this matter and calls for more clarification in future reports on whether EU funds have been affected;












21.


Urges the Commission to update and enhance the Union’s anti-corruption policy and instruments, including by providing for a uniform definition of the crime of corruption and by creating common standards and benchmarks and ensuring their proper implementation and enforcement; recalls the importance for the Member States of engaging with the EPPO and actively supporting its tasks; calls on Member States that have not done so yet to join the EPPO; welcomes the sending by the Commission of letters of formal notice to almost all Member States for lack of transposition of the Whistleblower Protection Directive (30);





Freedom of expression and information, media freedom and pluralism









22.


Recalls that media freedom and pluralism, including high-quality, sustainably and transparently financed and independent news media, both traditional and digital, independent journalists, fact-checkers and researchers, and strong public service media are essential to democracy, a guarantee against abuse of power and the best antidote to disinformation; expresses concern for the political independence of the media in some Member States as editorial lines reflect the strong polarisation of the political scene;












23.


Is alarmed by the increasingly hostile environment in which journalists and media actors are operating inside many Member States, particularly when their work focuses on the misuse of power, corruption, fundamental rights violations and criminal activities; recalls that journalists and media outlets are increasingly subjected to intimidation, threats (including on social media), criminal charges, physical attacks, violent incidents and murder in some Member States; condemns the oppressive strategies employed by some Member States’ governments such as the use of SLAPPs and smear campaigns, as well as increasing state control over public media, civil society and academic institutions, leading to self-censorship and the growing deterioration of media and academic freedom; recalls that at the time of her assassination, investigative journalist Daphne Caruana Galizia was facing 47 civil and criminal defamation lawsuits, many of which her family continues to face; warns that these unacceptable developments may have a chilling effect on freedom of speech and freedom of the press and should not be allowed to set precedent both within the Union and for Union candidate and potential candidate countries;












24.


Regrets that the 2021 report does not reflect the gravity of these trends, especially related to state control, strategic lawsuits and smear campaigns by certain Member States; urges the Commission to improve the media-related chapters by providing an assessment of the efficiency and effectiveness of the national frameworks for the protection of media freedom, media pluralism and transparency of media ownership, to introduce Union legislation against the use of SLAPPs establishing minimum standards and to present an ambitious legal framework to counter the growing politicisation of the media in certain Member States in the upcoming Media Freedom Act; stresses that the report should include a thorough assessment of the independence of Member States’ audiovisual media services regulators, which under Union law must be independent of their respective governments; calls on the Commission to ensure additional and more flexible funding for independent, investigative journalism in the Union;












25.


Stresses the importance of editorially independent public service media to provide high-quality, impartial and free coverage of public affairs, especially during elections; calls on Member States to ensure stable, open, transparent, sustainable and adequate funding for public service media on a multi-annual basis in order to guarantee their quality and independence from governmental, political, economic and other pressures; regrets that public service media are omitted from the annual report; calls on the Commission to review public service media thoroughly in its future reports;












26.


Observes that fake news and the resulting misinformation aimed at EU citizens is a threat to democracy and the rule of law in the Union, as the spread of disinformation polarises and weakens our democracy; welcomes the Commission’s description in the annual report of political pressure and influence on the media and calls on the Commission to describe more clearly the systematic campaigns of disinformation and foreign interference aimed at reducing public confidence in state institutions and in the independent media; acknowledges that global online platforms may have a vast disruptive impact on the media sector; stresses, in this respect, that current legislation does not entirely provide for a fair environment in the online ecosystem, such as in the fight against disinformation and for algorithmic accountability; considers that the adoption of relevant legislation, notably the Digital Services Act and Digital Markets Act, was a step in the right direction, but that more needs to be done in the European Media Act to create fair conditions in the light of the digital transformation of the media sector and the spread of online platforms;












27.


Stresses that media freedom is closely related to artistic and academic freedom; deplores the fact that, in some Member States, freedom of expression, freedom of the arts and freedom of assembly are severely curtailed and restricted; underlines that the independence of education systems is under threat when the autonomous organisational structure of its institutions is not guaranteed; calls on the Commission to include all aspects of freedom of expression in its rule of law report;





Democracy and checks and balances









28.


Defends the position that the principle of the separation of powers is essential to the effective functioning of the state, including the effective, independent, impartial and efficient functioning of justice systems across the Union, and that it requires institutions to refrain from exercising any pressure on judges and prosecutors, especially from political and economic levels;












29.


Underlines that fair and free elections are among the absolute minimum standards for a functioning democracy and that every election process in the Union should be without undue influence and irregularities; stresses that in case of the observation by the OSCE that elections have not taken place in a fair and free manner, concrete actions must be taken, including under the Article 7(1) TEU procedure; urges the Commission and the Member States to take all measures necessary when the risk of manipulation of elections in a Member State is identified, whether by state, foreign or private actors;












30.


Recalls that the exercise of fundamental freedoms, including the right to be critical in public, is a core element of a free and democratic society; expresses its concern about the shrinking civic space in various Member States, manifested through the use of SLAPPs against and surveillance of media and journalists, human rights defenders, civil society actors and activists, and political opponents; welcomes the Commission’s commitment to propose a directive against abusive litigation targeting journalists and rights defenders and emphasises that the scope must be comprehensive enough to encompass all those who are rights defenders, including individual activists;












31.


Stresses that the illegal use of Pegasus and equivalent spyware by Member States against journalists, lawyers opposition politicians and other persons poses a direct threat to democracy, the rule of law and human rights; calls on the Commission to assess the abuse of surveillance tools and its impact on democratic processes within the Union as well as potential breaches of Article 2 TEU values and the Charter;












32.


Believes that the situation of the civic space in the Member States deserves a separate chapter in the report and the creation of a ‘European civic space index’, given civil society’s central importance for maintaining a fully democratic and inclusive society based on respect for human rights and considering the challenges faced by civil society in various Member States, which include legislative and administrative measures, restricted access to funding and smear campaigns;












33.


Recommends that the Commission develop the annual report’s fourth pillar on ‘other institutional issues linked to checks and balances’ into a pillar on democracy and checks and balances, assessing elements such as potential threats to democratic processes in the Union and the Member States, including manipulation of elections;





Impact of COVID-19 measures on democracy, the rule of law and fundamental rights









34.


Recalls the strong impact of measures related to the COVID-19 pandemic, including emergency regimes and decree-laws, on democracy, the rule of law and fundamental rights within the Union, in particular in the areas of justice, media freedom and anti-corruption;












35.


Regrets the nature and the excessive use of emergency measures during the COVID-19 pandemic coupled with the lack of ex-post control of such measures by some national parliaments, and even the closure of parliaments in numerous Member States, which has increased the power of governments and led to a lack of accountability and transparency of the executive;












36.


Recalls that the COVID-19 pandemic had a negative impact on both access to justice and the efficiency of national courts, including the partial closure of national courts; highlights that the extraordinary situation imposed by the pandemic showed that there is an urgent need to modernise justice proceedings and introduce digital elements in order to increase the efficiency of justice systems and facilitate access to legal aid and information;












37.


Welcomes the fact that the report includes a section on the impact of the COVID-19 pandemic on the rule of law; stresses that monitoring of the use and proportionality of these measures should be continued until all measures are lifted without any exceptions; notes in this regard the risk of misuse of funds from the EU Recovery and Resilience Facility; reiterates that these funds can only be distributed once these concerns have been fully addressed; urges the Commission to assess in due course whether measures taken by Member States were indeed time-limited, necessary and proportionate, while observing checks and balances; invites the Commission to set out recommendations to help the Member States mitigate the negative impact of the pandemic in the areas of justice, anti-corruption and media freedom;





Fundamental rights and equality









38.


Stresses with concern the fact that women and people in vulnerable situations, including persons with disabilities, children, religious minorities, particularly at a time of rising antisemitism, antigypsyism and anti-Muslim hatred in Europe, Romani people, people of African and Asian descent and other persons belonging to ethnic and linguistic minorities, migrants, asylum seekers, refugees, LGBTIQ persons and elderly people, especially people living in marginalised settlements, continue to see their rights not being fully respected across the Union and continue to be subjected to discriminatory practices; emphasises the obvious link between deteriorating rule of law standards and violations of fundamental rights and minority rights, such as the use of excessive force by law enforcement authorities during protests and at the Union borders; recalls that in some circumstances, Member States deliberately resort to measures which are questionable from the perspective of the rule of law, such as legislation adopted in fast-track procedures without public consultation or even, in exceptional cases, constitutional changes as a way to legitimise discriminatory policies that could otherwise not be legislated upon, such as provisions that specifically target LGBTIQ persons or the imposition of a near-total ban on abortion; recalls that Member States have a responsibility towards individuals put in vulnerable situations and that they should provide them with safety and protection from discrimination; strongly reiterates its call on the Commission to include within the scope of future reports an in-depth assessment of the persistent violations of fundamental rights throughout the Union, including equality and the rights of persons belonging to minorities; calls on the Union institutions, in the meantime, to read the annual reports on the rule of law in the light of the reports on fundamental rights published by the EU Fundamental Rights Agency;












39.


Regrets that some Member States have not fully and correctly incorporated into national law the Council Framework Decision on Racism and Xenophobia (31), and that the provisions of the Racial Equality Directive (32) are still not being fully implemented in all Member States; recommends that more attention be paid to political and media discourses fuelling hatred against minorities and the direct impact these have on the adoption of discriminatory laws or practices that erode the rule of law for all, including in the area of counter-terrorism and security policies in the light of the George Floyd resolution (33) adopted by Parliament in 2020;












40.


Expresses particular concern about the deterioration of the situation of the sexual and reproductive health and rights of women in some Member States, including the imposition of highly restrictive laws on abortion, and the continued and systematic attacks on the fundamental rights of LGBTIQ persons, reinforced by the deterioration of the rule of law in several Member States; regrets that these developments are not consistently reflected in the Commission’s rule of law report; calls on the Commission to systematically address these issues in all relevant country reports and the synthesis report;












41.


Welcomes the infringement procedures initiated by the Commission in relation to Hungary and Poland as part of the July 2021 infringement package concerning respect for the human rights of LGBTIQ persons and breaches of Union law; notes that this is the first time the Commission has specifically initiated infringement procedures to safeguard the rights of LGBTIQ persons;












42.


Notes with concern the numerous reports of significant and systematic violations of the fundamental rights of migrants and asylum seekers across the Union and particularly at its external borders; deplores the fact that several Member States have adopted national legislation which severely limits the rights of asylum seekers and in some cases even poses a threat to the principle of non-refoulement and the right to effective remedy; regrets that, despite calls from Parliament, the Commission did not finalise its assessment of the compatibility of numerous national legislative measures in the field of asylum and migration with Union law; reiterates that respect for fundamental rights such as the rights to asylum and to effective remedy is integral to the proper functioning of the rule of law;






Sources










43.


Calls on the Commission to further strengthen the regular, inclusive and structured dialogue with governments and national parliaments, NGOs, national human rights institutions, ombudspersons, equality bodies, professional associations and other stakeholders and to be more transparent regarding the criteria used to select information from those stakeholders in the process of drafting its annual reports; considers that civil society organisations should be closely involved in all phases of the review cycle through a transparent process, based on clear criteria; highlights that thematically structured consultations would increase the efficiency of the process and the amount of valuable feedback; welcomes the fact that the consultation questionnaire now allows stakeholders to report aspects beyond the scope envisaged by the Commission, and calls on the Commission to adapt the structure of national reports if needed; calls on the Commission to review and improve online tools for stakeholder input and to be flexible regarding available space limits;












44.


Considers that the time limits for consultation with civil society were too short or ill-timed in the past and should be suitably adapted and flexible in order to allow for complete and comprehensive input; points out that this has made it more difficult for stakeholders to prepare and plan their contributions and awareness-raising activities, taking into account the limits on their capacities and their financial resources, in particular if the consultation coincides with annual holidays; invites the Commission to introduce the opportunity of year-round consultation for civil society instead of focusing mainly on time-limited calls for input; welcomes the fact that the Commission allows multilingual submissions in all the official Union languages; calls on the Commission to define and publish in advance its timeline for the upcoming report, setting dates for the several steps in the process including a calendar of country visits as well as the publication date of the report; notes that consultation can be further substantiated and encourages the Commission to follow-up with civil society actors on the input they provide;












45.


Encourages the Commission to ensure proper follow-up, within the framework of the annual report exercise, on petitions and other expressions of individual citizens’ concerns and testimonies about rule of law deficiencies; believes that with a view to strengthening the rule of law culture and the engagement of EU institutions with citizens, participatory forums and structures should be set up to identify trends and to provide greater visibility of the threats to and deficiencies and breaches of the values enshrined in Article 2 TEU across the Union;












46.


Recalls that the Commission should continue to take into account relevant information from pertinent sources and recognised institutions in a systematic manner; recalls that the findings of relevant international bodies, such as those under the auspices of the UN, the OSCE and the Council of Europe, should be taken into account; calls on the Commission to take better account of the data and findings from relevant indexes such as the Worldwide Governance Indicators (WGI) project, the World Justice Project Rule of Law Index and the Varieties of Democracy (V-DEM) project;












47.


Welcomes the Council agreement to modify the mandate of the EU Agency for Fundamental Rights (FRA) as a step forward; calls on the Commission to use this momentum and to invite the FRA to provide methodological advice and conduct comparative research to add detail in key areas of the annual report, bearing in mind that the right to a fair trial, freedom of expression and other fundamental rights have intrinsic links with the rule of law, in addition to the contributions the Agency already makes, for instance through EFRIS and its reports on civic space;












48.


Considers that cooperation with the Council of Europe and other international organisations is of particular relevance for advancing democracy, the rule of law and fundamental rights in the EU; calls on the Commission to analyse systematically data on non-compliance with judgments of the European Court of Human Rights (ECtHR) and views of the UN Treaty Bodies concerning individual communications;






Democracy, rule of law and fundamental rights mechanism










49.


Regrets the reluctance of the Commission and the Council to respond positively to Parliament’s call, in its resolution of 7 October 2020, for a joint EU mechanism on democracy, the rule of law and fundamental rights, which should cover the full scope of Article 2 TEU values; reiterates its call on the Commission and the Council to immediately enter into negotiations with Parliament on an interinstitutional agreement;












50.


Recalls its position regarding the involvement of a panel of independent experts to advise the three institutions, in close cooperation with the FRA; asks its Bureau, in light of the reluctance of the Commission and the Council, to organise a public procurement procedure in order to create such a panel under the auspices of Parliament, in line with the commitment undertaken in its resolution of 24 June 2021 on the Commission’s 2020 Rule of Law Report, in order to advise Parliament on compliance with Article 2 TEU values in different Member States and to show by example how such a panel could work in practice;












51.


Reiterates its call on the Commission to consider a more comprehensive and ambitious revision of the FRA Regulation (34); calls on the Commission, therefore, to explore in the long-term the full potential of developing the FRA in accordance with principles relating to the status and functioning of national institutions for the protection and promotion of human rights (the Paris Principles) in order for it to become a fully independent body providing impartial and publicly available positions on country-specific situations in the field of democracy, the rule of law and fundamental rights; underlines that such development should go hand in hand with an increase in available resources;






Complementarity with other rule of law instruments










52.


Reiterates that the annual report must be fit to serve as a an important source and reference document for deciding whether to activate one or several relevant tools such as Article 7 TEU, the Rule of Law Conditionality Regulation, other instruments available under EU financial legislation and the applicable sector-specific and financial rules to effectively protect the EU budget, the Rule of Law Framework or infringement procedures, including expedited procedures, applications for interim measures before the CJEU and actions regarding non-implementation of CJEU judgments; calls on the Commission to explicitly link these instruments to identified or possible rule of law issues in the report; calls on the institutions to activate such tools and instruments, including the Rule of Law Conditionality Mechanism, without delay in order to provide proactive support for the rule of law and tackle democratic backsliding in the Union, since the Commission’s 2021 Rule of Law Report contains multiple and detailed examples of breaches of the rule of law that fall within the scope of the Conditionality Regulation; reiterates its call on the Commission to create a direct link between the annual rule of law reports, together with other sources on the rule of law, and the Rule of Law Conditionality Mechanism;












53.


Recalls that infringement procedures are the core instrument to protect and defend EU law and the common values enshrined in Article 2 TEU; notes with concern that the number of infringement procedures launched by the Commission has plummeted since 2004; is surprised by the fact that infringement procedures are not triggered systematically at least as soon as the relevant infringement is documented in the annual report; deplores the Commission’s reluctance to actively and systematically monitor the implementation of EU law and to exhaust the possibilities of infringement procedures against Member States as the instrument most tailored to resolve the issues efficiently and without delay; notes that this reluctance resulted in calls on Member States to initiate inter-State cases in accordance with Article 259 TFEU; is concerned that without systematic and timely application the preventive capacity of infringement procedures declines; calls for the report to include an overview of all enforcement actions taken by the Commission for each Member State, including pending infringement procedures, as well as the state of compliance with the provisional measures and rulings of the CJEU and the ECtHR, feeding into a comprehensive application of the EU Justice Scoreboard;












54.


Recalls the importance of preliminary rulings on the rule of law; takes the view that the relevant case-law of the CJEU has helped to define the rule of law further and could serve the Commission to further refine its benchmarks against which to assess the situation of the rule of law in the Member States;












55.


Is concerned by the persistent failure by some Members States, including Hungary and Poland, to implement domestic, CJEU and ECtHR judgements, which contributes to the erosion of the rule of law; stresses that the non-implementation of judgments can lead to human rights violations being left without remedy; highlights that this may create a perception in the public that judgments can be disregarded, undermining the independence of the judiciary and general trust in the force of fair adjudication; calls on the Commission to continue reporting on the respective country chapters about the implementation of judgments by Member States in cases of partial or lack of implementation; encourages the Commission to engage with authorities in order to find suitable solutions for complete implementation and to update the information on an annual basis; recalls that the failure to implement the CJEU’s Coman & Hamilton judgment (35) resulted in the plaintiffs having to resort to the ECtHR for redress;












56.


Recalls the importance of the Rule of Law Conditionality Regulation where breaches of the principles of the rule of law affect or seriously risk affecting the sound financial management of the Union budget or the protection of the financial interests of the Union; welcomes the judgments of the CJEU of 16 February 2022 and its findings that the Union indeed has competences regarding the rule of law in the Member States, that the Rule of Law Conditionality Regulation is in line with Union law, and dismissing the actions brought by Hungary and Poland against the Rule of Law Conditionality Regulation; reiterates its call on the Commission to take immediate action under the Regulation, a tool that has been in force since January 2021;












57.


Considers that the annual report is the most appropriate place to dedicate a section to the conducting of relevant analysis under the Rule of Law Conditionality Regulation; takes note of the fact that on 27 April 2022, the Commission finally started the formal procedure against Hungary under the Rule of Law Conditionality Regulation by sending a written notification; urges the Commission to launch the procedure enshrined in Article 6(1) of that Regulation also at least in the case of Poland; recalls that the applicability, purpose and scope of the Regulation are clearly defined and do not need to be supported by further explanations; condemns the Commission’s decision to continue to draft guidelines even after the CJEU ruling confirming the legality and validity of the Regulation; calls on the Commission to ensure, possibly by means of a legislative proposal, that application of Article 6 of the Rule of Law Conditionality Regulation does not directly or indirectly affect citizens, given that those responsible for breaches of the rule of law are government representatives or heads of state, and that those funds remaining in the consolidated Union budget may be accessed directly by local public institutions or private entities; calls on the Commission to apply the Common Provisions Regulation and the Financial Regulation more stringently in order to tackle the discriminatory use of EU funds, in particular any use of a politically motivated nature and to explore the full potential of those instruments and the Rule of Law Conditionality Regulation to protect democracy, the rule law and fundamental rights, thereby ensuring that Union funds are not used for initiatives that do not comply with the Union values enshrined in Article 2 TEU, while respecting the interests of final beneficiaries which are not government entities;












58.


Is concerned about the Commission’s 2021 Rule of Law Report’s findings that, in some countries, the state-sponsored harassment and intimidation of LGBTIQ organisations affects their ability to access funding; calls on the Commission to assess the issue more closely and to ensure through the necessary means that the non-discrimination principle governing access to Union funds is fully complied with everywhere in the Union; considers that these findings reinforce Parliament’s long-standing position that the scope of the rule of law report should be broadened to include all Article 2 TEU values;












59.


Strongly regrets the inability of the Council to make meaningful progress in ongoing Article 7(1) TEU procedures; urges the Council to ensure that hearings take place at least once per Presidency during ongoing Article 7 procedures and also to address new developments affecting the rule of law, democracy and fundamental rights; emphasises that there is no need for unanimity in the Council in order to identify a clear risk of a serious breach of Union values under Article 7(1) TEU, nor to address concrete recommendations to the Member States in question and provide deadlines for the implementation of those recommendations; reiterates its call on the Council to do so, underlining that any further delaying of such action would amount to a breach of the rule of law principle by the Council itself; insists that Parliament’s role and competences be respected;












60.


Takes note of the country-specific discussions that have taken place in the General Affairs Council on the basis of the Commission’s annual rule of law reports in the framework of the Council’s annual Rule of Law Dialogue; suggests that these discussions be focused on the Member States with the most pressing rule of law issues in the first place, while keeping the practice of alphabetical order; emphasises that increased transparency would enhance the rule of law dialogue within the Union and therefore invites the Council to make these country-specific discussions public, including detailed public conclusions;












61.


Strongly condemns Member States’ authorities that refuse to engage in the Commission’s annual Rule of Law Dialogue; considers any such refusal to be grounds enough for the Commission to accelerate and refine further the examination of the rule of law situation in the countries concerned; is strongly of the opinion that the rule of law cycle can be effective only if the principle of sincere cooperation set out in Article 4(3) TEU is equally respected and applied by the European institutions and the Member States;












62.


Urges the Commission to actively participate in public debates at local, regional and national level and to invest more in awareness-raising about the Union’s values enshrined in Article 2 TEU and applicable tools, including the annual report, especially in those countries where there are serious concerns; underlines the importance of strategic communication to counter anti-democracy narratives, and of addressing these narratives by better explaining Union actions; calls on the Commission, therefore, to organise communication campaigns about the importance of respecting the rule of law; calls on the Commission to launch a dedicated programme that supports innovative initiatives with the aim of promoting formal education, in particular among legal professionals, as well as informal education with regard to the rule of law and democratic institutions among EU citizens of all ages;












63.


Commits itself to engaging in regular consultations with the Member States’ governments and parliaments on findings of the annual report; calls on the Member States to ensure that their representatives at the highest possible level take part in exchanges with Parliament on the rule of law; strongly regrets the Polish Sejm’s refusal to meet the European Parliament’s cross-committee mission in February 2022 and the lack of response to the official invitation, going directly against Article 9 of Protocol (No 1) to the EU Treaties on the role of national parliaments in the European Union;












64.


Stresses that internal rule of law deficiencies may have a detrimental effect on the credibility of the Union’s foreign policy, in particular towards its immediate neighbourhood and candidates and potential candidates for Union membership;












65.


Highlights that checks and balances at Union level should also be independently assessed; commits, to that end, to request a Venice Commission study on key principles of democracy in Union governance, in particular the separation of powers, accountability and checks and balances;




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66.


Instructs its President to forward this resolution to the Council, the Commission, the European Union Agency for Fundamental Rights, the Council of Europe and the governments and parliaments of the Member States.






(1)  Judgment of 16 February 2022, Hungary v European Parliament and Council of the European Union, C-156/21, ECLI:EU:C:2022:97.

(2)  Judgment of 16 February 2022, Poland v European Parliament and Council of the European Union, C-157/21, ECLI:EU:C:2022:98.

(3)  OJ L 119, 4.5.2016, p. 1.

(4)  OJ L 303, 28.11.2018, p. 69.

(5)  OJ L 433 I, 22.12.2020, p. 1.

(6)  OJ L 156, 5.5.2021, p. 1.

(7)  OJ C 215, 19.6.2018, p. 162.

(8)  OJ C 129, 5.4.2019, p. 13.

(9)  OJ C 390, 18.11.2019, p. 117.

(10)  OJ C 433, 23.12.2019, p. 66.

(11)  OJ C 363, 28.10.2020, p. 45.

(12)  OJ C 270, 7.7.2021, p. 91.

(13)  OJ C 395, 29.9.2021, p. 63.

(14)  OJ C 395, 29.9.2021, p. 2.

(15)  OJ C 415, 13.10.2021, p. 36.

(16)  OJ C 425, 20.10.2021, p. 107.

(17)  OJ C 81, 18.2.2022, p. 27.

(18)  OJ C 99, 1.3.2022, p. 146.

(19)  OJ C 99, 1.3.2022, p. 218.

(20)  OJ C 99, 1.3.2022, p. 218.

(21)  OJ C 117, 11.3.2022, p. 151.

(22)  Texts adopted, P9_TA(2021)0428.

(23)  Texts adopted, P9_TA(2021)0439.

(24)  Texts adopted, P9_TA(2021)0451.

(25)  Texts adopted, P9_TA(2021)0455.

(26)  Texts adopted, P9_TA(2021)0502.

(27)  Texts adopted, P9_TA(2021)0512.

(28)  Texts adopted, P9_TA(2022)0064.

(29)  Draft text of the Committee of Ministers recommendation on combating hate speech, accessible at https://rm.coe.int/draft-recommendation-on-combating-hate-speech-public-consultation-v-18/native/1680a2ef25; News announced at https://www.coe.int/en/web/committee-antidiscrimination-diversity-inclusion/-/the-cdadi-finalised-important-deliverables-at-its-fourth-plenary-meeting.

(30)  Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ L 305, 26.11.2019, p. 17).

(31)  Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law (OJ L 328, 6.12.2008, p. 55).

(32)  Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ L 180, 19.7.2000, p. 22).

(33)  European Parliament resolution of 19 June 2020 on the anti-racism protests following the death of George Floyd (OJ C 362, 8.9.2021, p. 63).

(34)  Interim report of 25 March 2021 on the proposal for a Council regulation amending Regulation (EC) No 168/2007 establishing a European Union Agency for Fundamental Rights (COM(2020)0225).

(35)  Judgment of 5 June 2018, Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne, C-673/16, ECLI:EU:C:2018:385.