Tuesday 4 July 2023

New EIN-DRI Rule of Law Report 2023

Yesterday, the European Implementation Network (EIN) and Democracy Reporting International (DRI) launched their new report entitled 'Justice Delayed and Justice Denied: Report on the Non-Implementation of European Judgments and the Rule of Law'. The report addresses the issue of non-implementation of judgments of the European Court of Human Rights and the Court of Justice of the European Union in EU Member States, and contains recommendations for actions by the EU. 

Here is the summary of the report:

'The attacks on fundamental European values in recent years have continued to raise concern for European stakeholders – governments, the media, and citizens alike. The EU has introduced a series of policy measures designed to halt and reverse this phenomenon, ranging from the new annual rule of law review cycle to targeted measures, such as withholding structural funds from countries with severe infringements of the rule of law. 

In 2022, following civil society calls for the EU’s rule of law reporting to take into account the non-implementation of judgments from the two key European courts – the ECtHR and the CJEU (hereafter, “the European Courts”) – the EU Commission has included this type of data in its annual Rule of Law Report. This development allowed the EU to identify longer-term problems with the rule of law across all Member States that had previously been overlooked. 

The EU Commission’s annual rule of law review cycle should continue to take into consideration the non-implementation of judgments of the two key European Courts in order to holistically assess the overall records of compliance with the rule of law in all EU states. 

The European Courts do not stop delivering new rulings; in 2022 alone, the ECtHR delivered 1,059 violation judgments. This report reflects the fact that the non-implementation of judgments of the European Courts continues to be a systemic problem. Some 40 per cent of the leading judgments of the ECtHR relating to EU states from the last ten years have not been implemented. Each of these judgments relates to a significant or structural problem in the laws or practices of states, often with direct consequences for many citizens. 

Non-implementation of judgments of the ECtHR is a problem across the continent. Bulgaria, Finland, Greece, Hungary, Italy, Malta, Poland, and Portugal all have leading judgments that have been pending implementation for over five years. In Bulgaria, Finland, Hungary, Italy, Poland, Romania, Slovakia, and Spain, over 50 per cent of leading judgments from the last ten years are yet to be implemented. Bulgaria and Romania have each failed to implement over 90 leading judgments.

Hungary has a particularly serious non-implementation problem, with 76 per cent of the leading ECtHR rulings from the last ten years awaiting implementation. Overall, it is notable that the majority of the highest non-implementing countries, namely Bulgaria, Hungary, Italy, Poland and Romania, are also the ones with much broader and systemic rule of law issues, including attacks on the independence of the judiciary and on other oversight institutions. 

There are 616 leading ECtHR judgments pending implementation concerning EU states. The European Commission’s Rule of Law Report should continue capturing the entirety of these cases and set out recommendations to those Member States with particularly poor levels of implementation. 

In the past few years, with the visible decline in the situation regarding the rule of law in several EU Member States, the CJEU has been increasingly focused on rule of law issues, and particularly on measures meant to weaken checks on the government. Hungary, Poland, and Romania have emerged as the countries with the largest number of unimplemented rulings of this kind. A few alarming tendencies have appeared: the refusal to comply with CJEU judgments, coupled with an open contestation of the CJEU’s authority; sham compliance, through façade changes that do not significantly change the status quo; partial compliance, through measures that address only fragments of broader systemic problems and do not address underlying issues; and, finally, protracted failure to make institutional arrangements EU law-compliant, despite general declarations of commitment and recognition of the CJEU’s authority. The European Commission’s alertness and clarity of assessments can be critical to avoiding illusory compliance or significant delays in the implementation of necessary measures. It is also critical that the Commission does not reach conclusions about the adequacy of reforms prematurely, thereby de-legitimising any further efforts of national actors to address shortcomings emerging in practice. 

The European Commission has addressed the non-implementation of the relevant judgments of the CJEU in its rule of law reports, albeit in a somewhat sporadic fashion. A more critical, systematic and holistic assessment of the levels of implementation is warranted, as is flagging significant delays in implementation. 

It needs to be kept in mind that, due to the differences in access provisions, the CJEU does not get to rule on as many situations signalling rule of law risks as the ECtHR. The claim is that this is partly because of the Commission’s reluctance to resort to the CJEU, and partly because of the formal and informal obstacles national judges face in submitting requests for preliminary rulings.'