Professor Dr Federico Fabbrini, Full Professor of European Law at Dublin City University and Dr Niels Kirst, Assistant Professor of European Law at Dublin City University
1. Introduction
Since the early 2010s the European Union has faced what scholars conventionally call a “rule of law crisis”. A number of EU Member States have experienced legal and political developments that have openly challenged basic constitutional principles such as the independence of the judiciary, separation of powers, and the fairness of the electoral process. This backsliding is particularly acute among those states who had joined the EU in the 2004-2007 enlargement, and is part of a broader right-wing, populist political trend at play in former Communist countries – including also in Eastern Germany. In particular, Hungary under the leadership of Prime Minister Viktor Orban, and Poland during the rule of the PiS party, have become the posterchild of the rule of law backsliding.
The rule of law crisis constitutes a major danger for the EU, as it threatens the proper functioning of core areas of EU competences, such as the internal market and the area of freedom, security and justice. However, the steps taken by the EU to address the rule of law crisis have been largely unsatisfactory. The European Commission (Commission) and the Council established an annual rule of law dialogue, designed to nudge Member States to abandon illiberal practices. As this process proved to be toothless, though, in December 2017 the Commission activated the Article 7 TEU procedure against Poland, and in September 2018 the EP approved a resolution to initiate the same process against Hungary. Yet, also the Article 7 TEU procedure proved to be a paper tiger, as no meaningful progress was made on the matter by the Council for several years. It is also because of this that in preparations for the new Multiannual Financial Framework the Commission proposed to introduce a mechanism to freeze funds for Member States which failed to respect the rule of law — a proposal which ultimately come to light with the rule of law conditionality regulation in the framework of the Next Generation EU (NGEU) Recovery Fund.
2. The 2024 Rule of Law Report and its Findings
Even though the EU rule of law toolbox has expanded over the years, since 2020 the Commission has produced an annual rule of law report. This exercise assesses the state of the challenge across the EU but does not have immediate legal consequences. The Commission’s fifth Rule of Law Report, published in summer 2024, arrives at a critical juncture, reflecting the truth that the rule of law remains a fragile cornerstone of liberal democracies—a foundation that must be vigilantly protected and consistently reinforced. The aftermath of the Covid-19 pandemic, ongoing rule of law backsliding within the Member States, and the war in Ukraine have all tested the resilience of democratic institutions and the rule of law across Europe. Therefore, this year’s report arrives at a time of unprecedented challenges and shifting dynamics within the European Union (EU).
The current report lays emphasis on the state of media pluralism and media freedom in the Member States and, overall, the Commission pictures a positive theme that the EU is better equipped to face rule of law challenges due to new instruments and a multi-layered regime of rule of law conditionality. This is partly true, while the main improvement to the rule of law in the Member States has resulted from a change of government in Poland last year. This year’s report provides an assessment of the state of the rule of law in each Member State, identifying both progress and challenges across four main pillars: the justice system, the anti-corruption framework, media pluralism and media freedom, and checks and balances.
Moreover, this year’s report also audited four enlargement countries (Albania, Montenegro, North Macedonia and Serbia). An indication that the Commission prepares for potential enlargement in the future and puts those candidate countries under the microscope. Going forward, it will be important to track the implementation of the Commission’s recommendations in those countries to ensure that progress is not merely rhetorical. However, as the report integrates enlargement countries into its process, it must also grapple with the ongoing challenge of ensuring that existing Member States adhere to the standards that they pledged to uphold with their accession to the EU.
In the report, the Commission lauds the progress made in some Member States. For example, this year’s report highlights significant progress in judicial independence and anti-corruption measures in Romania and Slovenia. These improvements are marked by reforms that strengthen judicial independence, increase transparency, and enhance the accountability of public officials. This shows that Member States increasingly draw upon best practices how policies, institutions and laws can be shaped to protect the rule of law. Considering that Member States remain free in their choice to design solutions in line with their specific national context.
However, the reality is that despite the Commission’s reporting, fundamental rule of law issues within certain Member States persists, and in some cases, have even worsened. For example, during the past decade, the state of the rule of law and democracy has dramatically deteriorated in Hungary. Additionally, media freedom is increasingly at risk in other Member States, with governmental actions restricting press independence and contributing to a shrinking civic space. The EU’s commitment to dialogue, while commendable, has proven insufficient in curbing the erosion of democratic standards and judicial independence.
Still, this year’s report was already criticised by some scholars regarding its methodology which treats unequal Member States equally when it comes to rule of law backsliding. “Implementing qualitative and contextual assessments reflecting the varied rule of law conditions among the Member States is essential. Unequal situations should be treated unequally with tailored benchmarks differentiating between hybrid regimes and democracies.” The Commission should respond to this critique and be more considerate to the differences among the Member States. As the EU moves forward, the effectiveness of the Rule of Law Report will ultimately be judged by its ability to produce concrete, positive changes within Member States—not just by its intentions, but by its impact on the ground.
3. Conclusion
In fact, recently the Commission itself has conveniently emasculated other, more relevant, rule of law enforcement tools. In particular, in September 2023, the Commission terminated the post-accession Cooperation and Verification Mechanism (CVM) with Romania and Bulgaria – a special process of enhanced surveillance which had been put in place for the two Member States that joined the EU in 2007, and that still suffer of severe problems of corruption. This abrupt decision was not motivated by any real improvement by the two Member States concerned. Moreover, in May 2024 the Commission took the decision to also end the Article 7 TEU procedure against Poland, which had started in 2017 following the Polish government’s attack against the independence of the judiciary. Yet, once again, no real legal change had occurred in Poland – save for the election of a pro-EU government. But the latter’s effort to undo the action of its predecessor had been blocked by the Polish President and courts. All in all, therefore, besides weakening the internal rule of law enforcement mechanisms, the Commission appears to have conveniently disregarded egregious failures, which does not bode well for the future of the EU. In times rising populist parties across Europe, the Commission should exercise meticulous vigilance towards any governmental efforts to interfere with the rule of law, including press freedom, in any EU Member State.
Professor Dr Federico Fabbrini is Full Professor of European Law at Dublin City University and Founding Director of the DCU Brexit Institute and Dublin European Law Institute. He is PI of the Jean Monnet Centre of Excellence REBUILD housed at the Institute.
Dr Niels Kirst is Assistant Professor of European Law at Dublin City University and Deputy Director of the DCU Brexit Institute.
