Evaluation of the Rule of Law in the EU
Presented by: Mrs. Paul
Date: March 12, 2025
Introduction
EU's Rule of Law activities:
1. EU Justice Scoreboard - annual overview of indicators on the efficiency, quality and
independence of justice systems
2. Rule of Law Report - overview of developments in Member States in four areas for the rule
of law
Viviane Reding: "This is not a beauty contest. It's not about ranking national justice systems.
In Europe we have rich and varied legal traditions that need to be safeguarded. But whatever
the model of the national justice system, timeliness, independence, affordability, and easy
access are hallmarks of an effective justice system."
Legal Basis For EU Activity?
Any EU action must have a legal basis in founding treaties (See Article 5 TEU).
Article 7 TEU is not a sufficient.
So, what empowers the Commission to act?
Argument 1: it is soft law, legal bases is not necessary:" At the same time, the Scoreboard marks
a significant transition in the Commission's policy towards EU justice from supranational
harmonization to softer methods of policy coordination through monitoring and evaluation
mechanisms". (Dori)
Argument 2: Article 114 TFEU regulating the internal market is the proper legal basis "an
efficient and trustworthy justice system will bring an economic benefit. Trusting that the rule
of law is fully upheld directly translates into the confidence to invest in the economy."
(Reding, 2013)
Partial conclusions:
The absence of legal basis is a problem (undemocratic solution as national parliaments as
representatives of people we excluded.
If we want to preserve the rule of law assessment, let us strive to ensure that it is properly
regulated at the level of primary law in the next revision of the founding treaties.
Or perhaps should EU stay out and others (Council of Europe in particular) deal with the
evaluation and act only if the wrong is identified?
The Scope Of The Rule Of Law Review Cycle
Rule of Law Review Cycle, later renamed to the Rule of Law Mechanism is a relatively new
instrument that includes an annual report on the rule of law in all member states and a follow-
up on this report with the European Parliament and the Council.
Purpose: to ensure the early detection of emerging rule of law problems in Member States.
Mechanism: the Commission as the "guardian of the treaties", monitors the rule of law
developments through a mutual exchange of information and dialogue, including through a
network of national contact persons. Evaluation takes place in 4 areas:
1. justice systems
2. anti-corruption framework
3. media pluralism and media freedom, and
4. other institutional issues related to checks and balances.
The evaluation is of considerable importance because it reveals changes in Member States,
trends and current issues.
The evaluation reports for individual Member States are too general to give a truly accurate
and comprehensive picture in each country.
The evaluation of the Member States also includes a list of recommendations, which is annexed
to the Commission Communication. These are again very general.
The Scope Of The EU Justice Scoreboard
Launched in 2013, explicitly linked to economic factors, economic policies and growth
The EU Justice Scoreboard supplies the data for the annual Rule of Law Report.
Does not deal directly with all individual definitional elements of the rule of law in its
complexity
- focuses exclusively on the judiciary and its functioning through a combination of quantitative
and qualitative criteria as well as subjective perceptions of the courts and their independence
in society
Assesses the efficiency, quality and independence of the judiciary in the Member States. The
Commission collects data on
1. accessibility from justice for citizens and business;
2. adequate financial and human resources;
3. assessment tools and
4. digitalization
"examines only the technical functioning of courts, such as the length of court proceedings, the
availability of training for judges, the availability of alternative dispute resolution mechanisms,
and the use of information and communications technologies in judicial proceedings. These
criteria tell us very little about how effectively courts uphold the rule of law in terms of keeping
governments' powers in check - a vital function for which the principal criteria would include
judicial independence, how easily individuals can access the courts for judicial review, and the
scope of the judiciary's authority to review and remedy violations by national authorities"
Butler, 2013)
"is currently too concerned with the financial guarantees and the infrastructure of the judicial
system, instead of a holistic analysis of the rule of law"..."as it stands, only measures whether
a justice system is generally capable of delivering justice. It does not measure, however,
whether it is actually working as an independent judiciary. Consequently, the outcome of the
EUJS for a specific Member State might well be a high justice score, as the justice system is
well equipped with staff and computers, despite actually not guaranteeing the rule of law due
to arbitrary and biased results. Therefore, the EUJS cannot detect whether a Member State
actually does not want to guarantee an independent rule of law. Or to put it directly, bad justice
can be very effective." (Jakab and Kirchmair).
The Control Mechanisms
EU Rule of Law tools can be subdivided according to the stage of the rule of law breach at
which they are applied. They can therefore be preventive in nature. In such a case, they may be
applied:
1. even before there is even the possibility of a violation of the rule of law.
2. in a situation where the possibility of a breach of the rule of law arises, but the actual breach
has not yet occurred
3. in a situation where there is already a clear risk of a serious breach by a Member State.
4. at the moment when a qualified violation of the rule of law has already occurred
5. at the moment when the breach of the rule of law has already been remedied.
Positives: The rule of law review cycle and the EU justice scoreboard belong among preventive
tools. They are a means of mutual inspiration and enrichment.
Negatives: that the data are difficult to interpret, even for experts. Data can be unwittingly or
deliberately interpreted by the media or the opposition to promote their own particular interests.
Soft law, thus there is no possibility of direct enforcement by the Court of Justice or the
European Commission.
Sanctions Related To The Control Mechanisms
Soft law, thus there is nothing that can be enforced or sanctioned.
Similarly, these instruments are not subject to legal review.
Only de facto sanctions (political, reputational).
Conclusion
Do both mechanisms really evaluate the rule of law?
Yes, but only partially, only to a certain extent. Plus, their further interpretation is necessary.
Is it a beauty contests; can we conclude from them which state is successful and which is not?
Although some authors try to do so, and you can see it also in the EU reports, the data are not
sufficient for a real comparison, but de facto, it is a competition
Does the EU have the power to make such an assessment?
Indeed, competence is difficult to infer. A great deal of imagination is necessary.
Does this assessment make sense?
Without any doubt, yes! But, then, see the problem of the lack of competence and also the
question of whether it should be the EU that will carry out this evaluation
