Abstract
Within the broader discourse regarding the nature, evolution, and health of the rule of law in the EU the recent emphasis of the EU institutions on the topic of anti-corruption has gone unnoticed for a long time. Still, hidden by the technicalities and the apparent non-binding nature of the EU indications on how to fight corruption in Member treatys, this is quite a prolific trend, as it further develops the EU with the necessary anti-corruption tools. In particular, the EU proclaims that a key element of the rule of law is an impartial application and effective enforcement of the law, as ensured by an adequate anti-corruption framework.
1 Introduction
Despite being generally greeted, the first proposal for the application of the Conditionality Mechanism has been bittersweet.1 Even if the tool does not directly aim at protecting the rule of law per se, the grand expectation was that it would have addressed and tackled the Member States’ rule of law violations. Therefore, the delusion has been huge when reading the Commission’s proposal for a Council decision; most of the concerns were not directed to rule of law issues but to pretty technical remarks regarding corruption.
This is only prima facie a surprise. In the ever-growing adoption of tools concerning the promotion and protection of the rule of law, the EU has many times highlighted the importance of having a robust anti-corruption framework, capable in particular of ensuring the effective enforcement of the law. Over time, EU indications on how to address corruption in a Member State have become particularly detailed. One may wonder how and when the EU’s commitment to the rule of law and the request for Member States’ anti-corruption actions have been joined, and what the implications are for the EU’s understanding of the rule of law.
This res aims to fill this gap and it is structured as follows: Section 2 illustrates the origins of this juncture between the rule of law and anti-corruption measures, placing it in the broader context of the international fight against corruption (2.1) and the EU’s development of tools for enforcing the rule of law (2.2). Section 3 examines the EU process of providing anti-corruption recommendations to the Member States, which has passed from identifying key areas where to intervene (3.1), to specifically addressing the content of anti-corruption reforms (3.2), to issuing country-specific recommendations within a broader system of constitutional oversight (3.3), and to merging them into the procedures for the disbursement of EU funds (3.4). Section 4 looks holistically at this anti-corruption trend in the EU, identifying its implications for the EU as a supranational system. Finally, Section 5 addresses the nature of the rule of law the EU protects by resorting to this combination of rule of law and anti-corruption measures.
2 The Basis of Anti-Corruption in the EU Law
2.1 The International Pressure for an Anti-Corruption Commitment
At first sight, corruption and its antidote, anti-corruption, are not EU business. The behavior targeted by anti-corruption measures generally falls within the criminal law domain, which is outside the classic scope of EU law. Even the most recent understanding of anti-corruption, which includes measures of administrative law,2 involves procedures and tools – such as the establishment of independent supervisory authorities or the adoption of integrity rules for public officials – which seem to be of national concern only.3
The only direct connection for an EU competence in the field of anti-corruption would be Article 83(1) tfeu, which recognizes corruption as a “euro-crime”, referring to those particularly serious crimes with a cross-border dimension for which the EU may establish minimum rules on the definition of the offense in question and on sanctions. This provision thus authorizes the EU to adopt legislation on the topic. To date, however, the legislation adopted solely concerns corruption in its criminal sense, mostly providing minimum norms for its punishment, and exclusively when it represents a threat to EU financial interests.4
Also, such rules concern only those corruption cases with a cross-border dimension, meaning those actions that take place in the jurisdiction of multiple Member States at the same time and are then inherently of common concern. It is clear that the EU’s recent approach to corruption, measurable in terms of concrete actions, has been of a different nature, identifying the topic not simply as a cross-border crime but rather as the antagonist of the ordinary functioning of the law. Indeed, corruption for the EU is not only a serious crime that may require a common coordinated intervention in cross-border cases. Rather, the EU considers it a constant threat to the rule of law that needs to be addressed no matter its dimension – petty or grand5 – location – national or cross-border –, and its criminal law relevance.
This approach dates back more than 10 years. The first step in this direction has been the signature and ratification by the EU of the United Nations Convention against Corruption.6 The Convention requires the Contracting Parties to adopt measures of a criminal and administrative nature to deal with the issue of corruption and to tackle it with a holistic approach, coupling repressive measures with preventive tools and identifying corruption cases in a series of behaviors that go beyond the traditional conception of criminal law.7 All EU Member States are parties to this Convention and have therefore committed themselves to adopting anti-corruption laws following this approach. Moreover, all EU Member States are also parties – while the EU itself is not yet – to other similar international agreements in this field: the Organization for Economic Cooperation and Development’s Anti-Bribery Convention8 and the Council of Europe’s Civil and Criminal Conventions against Corruption.9
All these conventions, just like the one by the United Nations, provide a series of recommendations on how to deal with the issue of corruption, combining criminal, administrative, and civil law instruments.10 Moreover, the international institutions that drafted these conventions, respectively the Organization for Economic Cooperation and Development and the Council of Europe, have put in place mechanisms of peer review of the Contacting Parties’ compliance with their obligations.
Such mechanisms are headed on a rotating basis by groups of States, namely the oecd Working Group on Bribery and the Group of States against Corruption, which, on a plurilingual basis, have produced reports on compliance with the conventions. These reports consist of tailor-made recommendations on how to address the gaps between domestic legislation and the Convention prescriptions, relying on the most advanced international standards in the fight against corruption. Since the mid-2000s, the EU Member States were thus already acquainted with the process of peer-review of their legal framework against corruption, and they shared the understanding that the issue of corruption should not be limited to a purely criminal interpretation and should therefore also cover administrative law tools.
2.2 The Juncture between the Rule of Law and Anti-Corruption in the EU Acts
The basis for this new understanding of corruption, the necessity of anti-corruption measures, and the EU’s competence to act in this field as well have to be found within the concept of the rule of law. While it is still debated whether corruption is a violation of human rights, the rule of law, or other values such as equality,11 it is generally recognized that corruption, more than any other crime, disrupts the basic functioning of the fabric of the law, substituting the legal interactions between individuals and public officials with unlawful ones.12 Considering the EU’s commitment to upholding the rule of law – one of its foundational values13 – the necessity of anti-corruption measures, to prevent the rule of law from being substituted by the rule of men because of corruption, becomes apparent. Accordingly, with the increased commitment to the rule of law on the part of the EU, and the development of new tools and procedures for upholding the rule of law in the Member States, the EU’s anti-corruption actions have increased in quantity and quality.
The earliest connection the EU made between the rule of law and anti-corruption was within the Cooperation and Verification Mechanism, which was set up to monitor Romania and Bulgaria in the post-accession period.14
This mechanism has been established in consideration of the particular conditions of the rule of law in these two countries, which impeded their immediate accession to the EU in 2004 together with the other eight post-communist countries. It enabled the EU institutions to verify the progress of the two Member States in their fight against corruption and organized crime. These two issues were considered serious problems when the two countries were evaluated according to EU standards. The Cooperation and Verification Mechanism explicitly linked these two issues with the commitment to the rule of law, of which the EU institutions, and especially the Commission, are guardians. Particularly, the Cooperation and Verification Mechanism text defines the rule of law as implying “[…] the existence of an administrative system properly equipped, inter alia, to fight corruption and organized crime”.15 The juncture between the protection of the rule of law and the necessity of an anti-corruption system was then made, albeit in the form of a limited and temporary mechanism for Romania and Bulgaria. Also, considering its functions, the Cooperation and Verification Mechanism could be considered the first conditional tool in the area of the protection of the rule of law and anti-corruption.16
The first EU measure explicitly dedicated to fostering anti-corruption was the EU Anti-Corruption Report. The Commission launched this initiative in June 2011, consisting of Country Reports made based on an analysis of each Member State’s corruption problems and anti-corruption legal frameworks.17 This initiative aimed to identify trends and best practices in the fight against corruption in the national systems and to improve information exchange between the Member States. This country-specific manner of scrutinizing the Member States exposed them to the kind of peer review inherent in the above-mentioned anti-corruption international conventions. In the General Report,18 the Commission also defined corruption, as any ‘abuse of power for private gain’.19 This definition claims to follow the international legal instruments in the field; however, in the international conventions, there is not even a definition, but rather an encouragement to tackle different behaviors (e.g. bribery, embezzlement, conflicts of interests, abuse of functions) that lie in the grey area of corruption.
This general and broad definition of corruption was in line with the non-binding nature of the Report, and vital to the EU’s new approach to dealing with corruption to tackle the issue through a more general strategy, instead of limiting itself to a ‘cross-border’ crime only as provided by a detailed criminal law-style definition.
The Commission’s Anti-Corruption Report was supposed to be published on a biannual basis. After the first report, however, the Commission announced that it would not publish a second one, putting an end to its new initiative.20 The very short existence of the non-binding and soft-law natured Anti-Corruption Report prevented it from having any impact on Member States and their ability to tackle corruption. Still, it was the first EU action that concerned all Member States equally and simultaneously, and it highlighted that the problem of corruption was endemic to the EU as a whole, as the General Report stated that corruption harms the rule of law and affects all the Member States and not only the newest ones.21 Moreover, the Commission, in the communication in which it put an end to the report, highlighted that the corruption concerns were in any case to be “[…] properly reflected in the European Semester process”. This note paved the way, in the years to come, for the transformation of EU anti-corruption actions from soft law to conditional tools.
In the following period, the Commission, alarmed by the deterioration of the rule of law in Hungary and Poland, adopted the Rule of Law Framework, which provided a preventive tool for de-escalating rule of law crises before activating the more harmful procedure of Art. 7 teu.22 While anti-corruption is not directly mentioned in the text, the act itself, by describing the main elements that compose the rule of law, offers an understanding of the concept that considers anti-corruption policies a necessity. The Rule of Law Framework identifies the following elements as part of the concept of the rule of law: legality, which implies a transparent, accountable, democratic, and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive power; independent and impartial courts; effective judicial review, including respect for fundamental rights; and equality before the law.23
These requirements concern the whole fabric of the law, since the rule of law must be upheld in each of the following phases: when the law is made, enforced, and when it is adjudicated. As much as it is possible to distinguish these phases in any legal system – and in the language of constitutional law this concept is known as separation of powers – it is also possible to refer these elements of the rule of law to each specific phase: legality, as a process for enacting laws, refers to the law-making activity; prohibition of arbitrariness of the executive powers concerns the law-enforcement function; and the effective judicial review insists instead on the law-adjudication phase.
Of course, some elements might overlap, as the legal certainty regarding all three functions, but it appears clear that while the rule of law applies to all phases, it is shaped differently according to which phase of the law is at stake. This means that, for example, without the prohibition of the arbitrariness of executive powers – and arbitrariness also includes the non-application of law –, the rule of law is incomplete. A legal system that is not able to ensure the proper enforcement of the law is therefore not respectful of the requirements of the rule of law. While in the late 2010s, the rule of law debate was monopolized by the situation in Hungary and Poland – culminating in the activation of Art. 7 teu against both of them in less than one year – the discourse on corruption did not disappear. In both countries, and especially in Hungary, the deterioration of the rule of law was also caused and characterized by corrupt behaviors, particularly by high-profile public officials, in the management of EU funds. Furthermore, amid the adoption of new tools and the re-conceptualization of old procedures to halt the rule of law backsliding, in 2020 the Commission announced the publication of the first edition of the Annual Rule of Law Report.24
Following in the footsteps of the Anti-Corruption Report, this Rule of Law Report examines the legal systems of the Member States and focuses on their compliance with the rule of law, as understood in the relevant acts of the Commission and the case law of the Court of Justice. This Rule of Law Report examines the health of the rule of law in each Member State concerning four areas of interest: Institutional Checks and Balances; Anti-Corruption legal framework; Justice System; Pluralism and Media Freedom. The structure of these Member States’ reports mirrors the understanding of the law inherent in the Rule of Law Framework: these areas are concerned with how the law is made (Institutional Checks and Balances), how the law is enforced (Anti-Corruption) and how the law is adjudicated (Justice System), while the toolbox of pluralism and media freedom operates as an overarching structure where these phases can be performed in respect of the principle of separation of powers.
What is still lacking within the Rule of Law Report and even in the Anti-Corruption legal framework Section is a clearer definition of corruption. The Report simply takes it for granted, relying on the already broad definition provided by the former Anti-Corruption Report. However, the lack of a single and clear definition permitted a flexible approach that became useful in combination with the latest additions to the anti-corruption EU arsenal. Indeed, exactly by referring to the case of Member States violating the rule of law because of corrupt behaviors in the use of EU Funds, the EU has adopted the general conditionality regulation for the protection of the EU budget.25 Even though both the terms ‘(anti-)corruption’ and ‘rule of law’ do not appear in the title of the Regulation, they represent the core and main objective of the act.
The mechanism allows the EU institutions to adopt appropriate measures in case any potential rule of law breaches in a Member State threaten the EU’s financial interests.26 For these reasons, Member States are required to establish and maintain robust anti-corruption legal frameworks that prevent such breaches. In line with the connection between anti-corruption and the rule of law, the Regulation, instead of providing a single and clear definition of corruption, on a more open reference to ‘fraud, corruption, conflict of interest, or other breaches of the law’.27
Beyond introducing this mechanism for the protection of the EU budget, the Regulation goes on to elaborate on the connection between the rule of law and anti-corruption. First of all, the elements of the rule of law have been slightly reshaped and are currently made up of legality, implying a transparent, accountable, democratic, and pluralistic law-making process; legal certainty; the prohibition of arbitrariness of the executive’s powers; effective judicial protection, including access to justice, by independent and impartial courts; and the separation of powers.28
The most remarkable modification has been the addition of the separation of powers to the elements of the rule of law. This strengthens the case for an understanding of the rule of law that is based on and preserves the distinct functions and dignity of the different phases of the law-making process. Second, the juncture between the concepts of the rule of law and anti-corruption becomes clear from the functioning of the element of conditionality inherent in the mechanism. On the one hand, sound financial management, which is one of the goals pursued by the Regulation, can only be ensured if corruption and other breaches of the law are effectively addressed by the competent national authorities.29 On the other hand, breaches of the rule of law are identified by the Commission, among others, on the assessment of anti-corruption authorities and reports (European Anti-Fraud Office, European Public Prosecutor Office, Group of States against Corruption of the Council of Europe, Rule of Law Report, Justice Scoreboard).30 Finally, breaches of the rule of law, following Article 3(c) of the Regulation, may consist in limiting the implementation of the judgments and the prosecution of law violations, which jeopardize the law-enforcement phase of the law.31 According to Article 4(2)(c) of the Regulation, these breaches concern areas such as the prosecution of corruption. The recent activation of the Conditionality Mechanism gives tangible proof of this.32
Last, the Recovery and Resilience Facility Regulation has to be addressed too for assessing the importance of anti-corruption in the promotion of EU goals through the rule of law.33 The Recovery and Resilience Facility only disburses funds to Member States upon achievement of pre-agreed milestones laid out in a National Recovery and Resilience Plan, which must, in turn, address a substantial sub-set of country-specific recommendations issued under the European Semester, following Articles 17(3) and 18.4.b of the Regulation. These country-specific recommendations may cover any topic, including anti-corruption recommendations, as well as any other topic identified in the acts officially adopted by the Commission in the context of the European Semester. Moreover, all the National Recovery and Resilience Plans need to have an adequate anti-corruption system for the management of EU funds in addition to their system to combat corruption resulting from the Conditionality Regulation. The two regulations have to be read jointly: the Recovery and Resilience Facility Regulation expressly refers to the Conditionality Regulation (in Article 8), and the Conditionality Regulation in turn concerns, albeit not exclusively, the funds disbursed under the Recovery and Resilience Facility Regulation (in Article 4).
Following Article 19(3)(j), the arrangements proposed in the National Recovery and Resilience Plan, to be approved, have to adequately prevent, detect, and correct corruption, fraud, and conflicts of interest when using the funds provided by the Regulation. All the Member States must take appropriate measures to protect the EU’s financial interests and ensure that the use of funds complies with EU and national law. Article 22(1), in particular, obliges them to prevent, detect, and correct fraud, corruption, and conflicts of interest. All the National Recovery and Resilience Plans that have been approved by the Commission have such mechanisms of protection, which function independently from the activation of the Conditionality Regulation.34
Therefore, even in the most relevant recent transformation of the EU – in the passage from a community of stability to an actor whose purpose is to support national economies – the concern of anti-corruption is present, especially when it comes to the disbursement of EU funds in an attempt to halt the financing of countries that are deficient in the protection of the rule of law.
3 The EU System of Anti-Corruption Rules
3.1 The 2020 Rule of Law Report: Assessing the Playing Field
The main source on the state of the rule of law and (anti-)corruption in the EU is now the Annual Rule of Law Report. In its current form, the Report presents an overview of the situation in each of the 27 Member States.35 As for the Rule of Law Framework, the first Rule of Law Report,36 started with a compelling definition of the core elements of the rule of law, one of the EU’s foundational and common values enshrined in Article 2 teu, resorting to the same list of six elements.37 While the Member States have different national identities, legal systems, and traditions, the core meaning of the rule of law is the same across the EU.38 The Commission’s definition codifies the key legal principles laid down in the EU Treaties, EU secondary legislation, and Court of Justice case law. One relevant feature of the Rule of Law Report is the monitoring and assessment of the actions and inactions of national authorities in any area related to the rule of law. Indeed, the wide scope of the report results from the fact that it looks at issues beyond the scope of application of EU law, similar to the horizontal and general scope of Art. 7 teu.39
Along these lines, the first Rule of Law Report sketches the areas that need anti-corruption reforms and which specific measures would better benefit that area of law. For example, the country reports address the law-making process, regardless of whether the matter in question falls within the EU’s competencies or not. The reports insist that the law-making phase is fundamental for the rule of law and that there must be certain guarantees to ensure its proper functioning. In this context, increasing its transparency and publicity ensures that legislation is well drafted. Then there needs to be a thorough analysis of the interests at stake for legislation to reflect society’s interests.
However, there is also a need for rules that make the law-making process immune from lobbying, or at least to regulate lobbying.40 Thus, the rule of law is not only about constraints on public power but also about limitations on the influence that private interests have on the law-making process. The reports also deal with the field of immunities, though they take an innovative approach: the regulation of immunities needs to be balanced to protect the integrity of the function and at the same time avoid such protection from turning into a privilege for the bearer. Negative examples are systems that, for the prosecution of members of the government, require the consent of the government itself for offenses with a penalty higher than five years.41 Other examples are systems that require a decision from Parliament,42 or the Government,43 for mp s and Ministers to be prosecuted or investigated. Positive examples are the abolition of special tribunals for the prosecution of government members,44 the lifting of parliamentary approval for their prosecution,45 and limiting the scope of judges’ immunity to avoid their immunity becoming de facto absolute.46
Similarly, in the law-enforcement phase, all the reports insist on the need to adopt anti-corruption measures to prevent the law from being distorted in its implementation. This requires codes of conduct for public officials47 and reporting channels for whistle-blowers48 to ensure consistent law enforcement. Other integrity rules include the publication of the economic assets of public officials, codes of conduct for members of the executive and legislative branches, the introduction of revolving doors provisions, regulations on party financing and rules on conflicts of interests.49 The reports suggest increasing the sanctions on corruptive behaviors and providing accessory penalties, especially for mp s.50 Here too, the state of the rule of law depends not (only) on how laws are drafted but also on their consistent enforcement.
Concerning the law-adjudication function, the reports suggest establishing an independent, impartial, well-trained, and paid cadre of professional judges for the law-adjudication phase not to be obstructed by corruption and external influences.51 The reports also assess the state of the rule of law in several Member States according to how frequently there are final convictions for corruption crimes.52
This means that a state with a well-functioning rule of law needs to have a minimum number of criminal convictions for cases of corruption. This perspective is reinforced by the many recommendations in the country reports for a general increase in sanctions on crimes relating to corruption – not only in the administrative sphere but in that of criminal law too, and their establishment when absent53 – and for their extension to legal entities as well. Finally, the reports encourage the prolongation of the statutes of limitations to prosecute crimes more effectively54 and to eliminate any gap between legal provisions and their enforcement.55 Reforms that lower sanctions or de-criminalize corrupt behaviors are held to undermine the rule of law,56 leading to the re-opening of cases.57 The reports even cast some doubt on the limited temporal scope of new sanctioning regimes as a result of the principle of non-retroactivity in criminal law, somehow adhering to the cjeu’s original understanding of this principle in the Taricco case.58 It may thus be concluded that the reports indicated that an effective anti-corruption policy is crucial to the rule of law, and anti-corruption is slowed down by excluding criminal sanctions or delivering lenient judgments.
3.2 The 2021 Rule of Law Report: Into the Content of Member States’ Anti-corruption Reforms
The second edition of the Rule of Law Report,59 has offered other insights into the EU’s perspective on the issue. The 2021 Rule of Law Report did not qualitatively change the system, but it more specifically identified the content of the anti-corruption measures the Member States should take, highlighting in concreto and in context the actions needed, especially for countries that were facing rule of law crises. Moreover, the Report identified the required reform, taking into account what Member States have done – or not done – following the first Rule of Law Report indications. Just like the previous edition, the instability of the legislative process has been considered a concern for the rule of law on several accounts.
For instance, the reports blame the frequent changes in legislation that undermine the predictability and coherence of the law;60 the adoption of expedited legislation when it significantly affects the State powers organization;61 and the practice of introducing legislative amendments to other unrelated legal acts, which bypass public consultation and impact assessment.62 In the 2021 edition, many aspects of criminal law in the Member States have been scrutinized too. Concerning substantial criminal law, the Commission has positively evaluated reforms that introduced new criminal offenses in the area of corruption63 and widened the scope of already criminalized behaviors.64 Concerning procedural criminal law, the Commission appreciated reviews of the Member States’ statutes of limitation that allow for the removal of obstacles to the effective adjudication of complex corruption cases65 which is especially important for countries that face systemic corruption problems.66
An increased number of convictions has been observed in several countries.67 To this end, some Member States have introduced measures to strengthen the capacity of the authorities to fight corruption by reinforcing their special police units tasked with investigating corruption cases;68 by strengthening the Attorney General through the establishment of a new investigative unit for a more efficient approach to complex corruption cases;69 and by improving the independence, organization, and functioning of anti-corruption authorities.70 Some countries, however, still do not have such an institutional setting.71 Also, concerns persist about the effectiveness of the investigation, prosecution, and adjudication of corruption when delayed because of protracted national proceedings.72 Moreover, in some countries there is not yet a track record of convictions in high-level cases.73 The situation is particularly problematic in Hungary, where the record of investigations of high-level officials and their circles remains limited because of the benevolent attitude of the government vis-à-vis these officials.74
Similarly, in Poland, there has been an increase in institutionalized corruption, combined with impunity for government officials for political reasons.75 A particular case is Romania, where amendments to the criminal codes to readdress problematic court interventions remain necessary for an effective fight against corruption.76 The reports show that many Member States had strengthened their integrity rules and many of these efforts have begun with the indications from the 2020 Report.
These integrity rules are mostly codes of conduct for mp s,77 conflicts of interest provisions for high-level officials,78 and oversight entities within law enforcement bodies.79 The report highlights that these integrity rules must be followed by effective implementation.80 Coming again on a sore spot, the Commission has pointed out that in Greece this implementation has not been fully satisfactory because of the non-retroactivity of the new -more restrictive- legislation on bribery.81 Recent reforms in several Member States have improved the system of assets Declaration, concerning the extension of the scope of persons obliged to submit a Declaration of financial interests to include ministers’ political advisers;82 the online publication of consolidated asset Declarations;83 the connection of the interest Declarations to other national registers;84 and the establishment of a monitoring and verification system, which has proven to be useful in the prosecution of corrupt behavior.85 Problems persist, however, where Declarations are not published and are only accessible to investigating judges in the framework of criminal investigations.86 What is also problematic is when data available for publication remains limited,87 and when suspicions of unjustified wealth increase led to investigations only if investigative authorities have also started criminal inquiries.88
3.3 The 2022 Rule of Law Report: Towards an EU System of Anti-Corruption Oversight
The latest edition of the Rule of Law Report89 bears some significant novelties that go beyond the constant monitoring of anti-corruption rules in the Member States. First of all, the rule of law is portrayed as the identity of the EU, also from a geopolitical perspective.90 This commitment to the rule of law is also reflected in the disbursement of money in the context of the Recovery and Resilience Facility. The General Report emphasizes that the facility gives priority to reforms in Member States that enhance anti-corruption systems as a bulwark of the rule of law.91 This reference to the Recovery and Resilience Facility makes a clear connection to the other relevant innovation of the third edition of the Rule of Law Report: since this edition, the Reports have come with specific recommendations to Member States.92 Indeed, the country reports now contain explicit and specific recommendations on how to improve the national rule of law compliance. These recommendations have to be considered in synergy with the other tools that provide goals to be met in the EU context.93 Therefore, the novelty is twofold: there are explicit recommendations that concern the rule of law issues in each Member State, and these recommendations have to be read in conjunction with the other recommendations directed toward the Member State.
The Rule of Law Reports recommendations are preceded by a list of prior recommendations given to the Member State in previous years, derived from other procedures or mechanisms, and to be followed in addition and connection to these. Based on the quantity and quality of recommendations from different procedures, it is possible to discern four categories of countries concerning their rule of law compliance: i) ‘green’ countries, to which just the Rule of Law Report recommendations apply;94 ii) ‘yellow’ countries, to which Rule of Law Report and Recovery and Resilience Facility/ European Semester recommendations apply;95 iii) ‘orange’ countries, to which Rule of Law Report recommendation, Recovery and Resilience Facility/ European Semester recommendations, and another type of recommendations (Cooperation and Verification Mechanism) apply;96 iv) ‘red’ countries, to which both non-binding and conditional mechanisms apply and also hard-law procedures such as Article 258 tfeu and Article 7 teu.97
Essentially, the recommendations call upon the Member States to address the concerns expressed in the reports and initiate reforms to close the gaps with the EU standards on anti-corruption. In this edition, particular emphasis is given to the recommendation to the Member States to maintain a national anti-corruption strategy and preferably, to have it led by an independent supervisory authority. While there is not a clear EU obligation on this – after all, there is no EU legislation on this, as the institutional setting of the Member States is a national competence – all EU Member States are also part of the UN Convention against Corruption, which makes it mandatory for them to have an anti-corruption policy and to establish a contact point responsible for this.98 The reports applaud those Member States that have adopted a clear anti-corruption strategy and have a specific national anti-corruption authority at its head,99 while criticizing those Member States that do not have such institutions,100 or whose technical and human capacities have been reduced.101
A basic element of national anti-corruption strategies is the existence of effective sanctions to counter corrupt behaviors. This, in turn, depends on both the law in books and the law in practice. Concerning the former, the reports welcome the extension of the scope of the notion of corruption offenses (such as active and passive bribery, but also foreign bribery) and the increase of sanctions in terms of quality, quantity, and scope of application (e.g. extending liability to legal person).102 Concerning the latter, the reports highlight that is pivotal to provide the responsible authorities with the ability to issue sanctions and with the needed human and financial resources to allow them to specialize (for example through training) and remain independent (for example through their budget capacity).103
Linked to the effectiveness of the sanctions, the reports all insist on dealing with the (legal) obstacles that impair that effectiveness, which is identified mostly in the statute of limitations and provisions of immunities. This passage is crucial for the assessment of the EU’s understanding of anti-corruption and the rule of law. Statutes of limitations and rules on immunities are necessary and valuable legal components. However, they might obstruct the anti-corruption efforts and then undermine the EU’s commitment to the rule of law when they deprive the prosecution authorities of the possibility to finalize cases of corruption.104
Therefore, the reports commend those countries that keep on increasing their efforts to combat corruption105 and condemn those where corruption cases, especially high-profile ones, are unnecessarily lengthy because their of statutes of limitations.106 Regarding high-level corruption cases, concerns remain about institutionalized corruption and the risk of impunity caused by a disparity in the treatment of government officials and others, which breaches the principle of equality before the law.107 These concerns are based on the increased influence of the executive over the competent authorities tasked with the investigation of institutionalized corruption, which may result in political interference and the undermining of anti-corruption efforts in respect of top executive officials.108 In the field of immunities, de iure or de facto, there is a positive trend in Member States’ legislation to remove the immunity of Government members for corruption crimes109 and to limit the power to annul prosecutorial decisions in individual cases, as a response to decisions to close several high-level corruption cases.110 Concerns instead exist about the broad scope of immunities of senior executives who are also mp s,111 the use of the presidential pardon in cases of high-profile corruption112 and the abuse of clauses on mitigation of the punishment for witnesses or collaboration.113 Particularly, impunity clauses that, like in Poland, were adopted during the Covid pandemic and grant exemptions from criminal responsibility to enterprises providing medical supplies give rise to concerns about corruption, abuse of powers, and a perception of impunity on the part of government officials.114 The reports stress again that it is crucial to have integrity rules in place and to implement them effectively. Most Member States have such provisions, but some of them do not grant them binding effect.115 The prohibition on revolving doors provisions fit in this area too, as they prevent – albeit through an ex-post mechanism – the public office from being used for personal gain. One way they do so is by prohibiting public officials from being employed by private companies that may have benefited from favorable treatment while those officials were in office.
Last, concerning lobbying and political financing, the reports aim to ensure that lobbying, which is recognized as a legitimate act of political participation, is strictly regulated and subject to transparency rules. The same may be said of political financing. It must be ensured that the law-making phase and the political decisions made by political parties are the outcomes of genuine and publicly declared common interests and not driven by personal considerations or State-capture. Concerning this last point, the investor citizenship and residence schemes, operated by Bulgaria, Malta, and Cyprus, are targeted on the ground that corruption is inherent to such schemes. It must nonetheless be mentioned that all these countries have stopped or repealed those programs as a direct result of the Russian invasion of Ukraine.116
3.4 The Anti-Corruption Recommendations within the Recovery and Resilience Facility
It is clear, then, that from the Rule of Law Reports perspective, anti-corruption does not only mean the sanctioning of a crime but also a series of measures that contribute to upholding the rule of law in a legal system. This anti-corruption ideal is also alive in the Recovery and Resilience Facility and the Conditionality Regulation, where it operates as follows.
On the one hand, anti-corruption is a way to measure the solidity of the legal system as a whole – representing a pillar of the rule of law, as indicated by the Rule of Law Report. Corruption is indeed a topic that a country has to deal with – according to the gravity of the domestic situation – for having its own National Recovery and Resilience Plan green-lighted, following the recommendations contained in the European Semester. Such recommendations, in turn, look at different sources such as the Rule of Law Country Reports. On the other hand, anti-corruption is the security tool for the disbursement of EU funds, representing the conditionality element itself, as indicated by the Conditionality Regulation. This second aspect of (anti-)corruption, as opposed to the first, is that it is transversal: it is not a topic that relates to a specific country but an inherent part of the conditionality system. It is reflected in the system of tools and procedures that a country has at its disposal to check the correct management of EU funds. This feature is relevant for all Member States, as they have an interest in obtaining (and keeping) EU funds.
In line with these two aspects, the Recovery and Resilience Regulation addresses anti-corruption both as a criminal-administrative thematic area, according to Article 19(3)(b) and ii), and as a tool to ensure that the resources will be spent responsibly, according to Article 19(3)(j). It is important to stress that the approval of a National Recovery and Resilience Plan depends upon compliance with the European Semester recommendations which, now more than ever, are crucial within the architecture of the EU.117
Such country-specific recommendations – under Article 18(4)b) of the Recovery and Resilience Facility Regulation – include measures to ensure the rule of law through specific anti-corruption tools. Coherently, some National Recovery and Resilience Plans insist on the modernization of prosecution services and the enhancement of anti-corruption mechanisms as a whole. For example, it has been recommended the establishment of an anti-corruption authority,118 the development of a dedicated national anti-corruption strategy119 and the digitalization and upskilling of judges.120 Other plans focus on the effectiveness of anti-corruption measures through expected reforms in the area of substantial criminal law – for example, hardening the sanctions on corruption and conflicts of interests at the local level,121 or reforming the criminal code122 – or procedural criminal law – for instance by dealing with the length of the judicial proceedings.123 Other plans aim to introduce new administrative measures on lobbying, whistleblowing124 and money laundering.125
4 The EU’s Understanding of Corruption in the Fabric of the Law
The connection between the rule of law and anti-corruption makes it possible to determine that the foundation for the EU’s anti-corruption efforts lies in Article 2 teu. The EU, as a space of freedom, security, and justice, as provided in Article 3(2) teu; Article 67 tfeu, based on the value of the rule of law, has the task of providing a guarantee that the very fabric of the law would not be tainted by corruption. This emphasis on the rule of law and anti-corruption is due to the existential value these two concepts have for the EU. Without a stable anti-corruption framework in the Member States, there is no protection for the rule of law, and without it, there cannot be any more legal integration.
The aspiration of creating ‘an ever-closer union’ collapses if legal black holes appear in the EU. From the perspective of EU constitutional-administrative law, corruption is a malfunction in the fabric of the law that takes place in all legal functions: corruption in the law-making process, which takes the form of disproportionate influence over the legislative process; corruption in law-enforcement as misuse of public powers entrusted to administrative bodies; corruption in law-adjudication, when there is a violation of the independence of the courts. In all these scenarios, other-than-the-law considerations determine the normative relationships.126 It is thus possible to determine what happens when corruption overcomes the law-making, enforcement, and adjudication of the law: corruption substitutes the rule of law, as a matter of normative orientation, with the rule of men.
Where there is corruption in law-making, defiance of the rule of law is contained in the law itself. Circumstances help to find corrupt laws in the vast array of law-making. Timeliness (or untimeliness) of the legislation, lack of parliamentary debate, recourse to accelerated procedures, and over-constitutionalization are classic procedural symptoms that point towards the potential existence of corruption in law-making,127 as highlighted in the Rule of Law Reports. In this regard, the Court of Justice has instead declared that the principles of legal certainty128 and proportionality129 should be followed in the adoption of the law. The principle of legal certainty goes hand in hand with that of legitimate expectations for which the laws have to be clear, predictable, and prospective, providing a stable legal framework that fosters the rule of law, as highlighted by the Rule of Law Reports. However, these temporal concerns are limited to the area of criminal law, which is hostile to backward-looking legislation; in other areas, the legislation currently in force must be applied.130 As seen with the enforcement of anti-corruption sanctions in the Rule of Law Reports, the principle of non-retroactivity might then take different forms and serve different needs in the realm of the rule of law. Corruption in law-enforcement concerns all situations where the challenge to the rule of law regards its correct implementation or effective enforcement. Corrupt enforcement of the law is never legal: it is reprehensible in any legal system. The rule of law employs all its significance in having the law respected once it is in force. The Commission has made it very explicit: applying and enforcing EU law are at the very foundation of the EU as a rule of law community.131
This is even truer for the EU because of two reasons. The first is structural: the EU relies on the administrative apparatus of the Member States since the enforcement of EU law is mostly delegated to them. If these Member States cannot effectively implement EU law, EU law’s effectiveness is jeopardized. The second reason is the close interdependence between Member States. Negative externalities owed to one member’s lack of compliance have an impact on the others, and the principle of mutual recognition presupposes trust in the effectiveness of domestic administration.
The EU’s legal space presupposes mutual trust: a fair, consistent, non-arbitrary (in a word, non-corrupt) enforcement of the law should be the same all across the EU. The Court of Justice has reiterated that the effective application of EU law is an essential component of the principle of the rule of law and that adherence to legality must be properly ensured in the law-enforcement phase.132
Regarding corruption in the adjudication of the law, the Commission not only concerns itself with the crime of corruption in the adjudication of a dispute (e.g., a bribe to influence the judgments’ outcome), but with all activities, of the State or individuals, that hamper the correct adjudication of the law and compromise its impartiality and independence.133 The EU institutions have stressed this aspect of the judicial function many times, linking it to both the institutional setting of the judiciary under Article 19 teu134 and citizens’ right to have access to justice under Article 47 EU Charter.135 In any case, the independence and effectiveness of the judicial function are now considered a direct emanation of the EU’s commitment to the rule of law.136 A Member State whose legislation or actions (albethey very indirectly related to the question of independence, such as lowering the judges’ wages,137 or setting a new retirement age),138 might compromise this character of the judicial function is suspect for the EU and potentially in breach of the principle of the rule of law.
5 Conclusions
The described EU actions on the topic of corruption have relevant consequences for understanding the duo rule of law and anti-corruption, which are shaping the process of building the EU’s own rule of law system. From the EU’s perspective, the rule of law has a meaning for all three functions of the law-making process, law enforcement and law adjudication, each of them with its distinct dignity.139 The encourage the adoption of rules to secure the independence of the law-making (e.g. regulation of lobbying) and law-execution (e.g. codes of conduct), as well as of the law-adjudication (e.g. independence provisions). The Commission relies on the Member States to secure the independence and effectiveness of all these functions to effectively deal with issues of corruption and to uphold the principle of the rule of law.
Particularly, the existence of elements that concern the law-enforcement function proves that the rule of law not only implies institutional limits to public powers but also concerns the effectiveness of law enforcement. This view challenges and rebuts a traditional yet consolidated conception of the rule of law, which sees non-rule of law States as (exclusively) interfering too much with citizens’ lives.140 The EU, however, considers such a State not only the authoritarian one, where there may be an emphasis on the executive powers or an overabundance of criminal convictions, and often for political reasons, but also the ineffective one, as it proves itself unable to tackle corruption in the law enforcement and law adjudication phases.
Therefore, in the EU context, anti-corruption has been progressively framed as a rule of law necessity and by resorting to the rule of law narrative and anti-corruption mechanisms, the EU institutions aim to create the conditions for the correct implementation and effective enforcement of EU law. And as much as the rule of law, anti-corruption is not detailed through a single and unequivocal definition: it corresponds to a network of principles and actions that are required to ensure the correct functioning of the law.
Commission’s proposal for a Council Implementing Decision on measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary (Brussels, 18 September 2022 com (2022) 485 final 2022/0295 (nle)).
peters, “Corruption as a Violation of International Human Rights”, European Journal of International Law, 2019, p. 1251 ff.; rose, “The Limitation of a Human Rights Approach to Corruption”, International & Comparative Law Quarterly, 2016, p. 417 ff.; gordon, ‘Protecting the Integrity of the U.S. Federal Procurement System: Conflict of Interest Rules & Aspects of the System that help reduce Corruption’, in auby, breen and perroud (eds.), Corruption and Conflicts of Interest. A Comparative Law Approach, Cheltenham, 2014, p. 42 ff.
Art. 4(2) Treaty of the European Union (teu).
European Union, Directive 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the Fight against Fraud to the Union’s Financial Interests by Means of Criminal Law.
rose-ackerman and palifka, Corruption and Government: Causes, Consequences, and Reforms, Cambridge, 2016, p. 11 ff.
United Nations Convention against Corruption, 31 October 2003, Resolution 58/4, entered into force 14 December 2005.
Ibid., Arts. 5–14 and 15–27.
Organization for Economic Co-operation and Development, oecd Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 17 February 1997, entered into force 15 February 1999.
Council of Europe, Criminal Law Convention against Corruption, 1 January 1999, entered into force 1 July 2002; ibid., Civil Law Convention on Corruption, 4 November 1999, entered into force 1 November 2003.
oecd, cit. supra note 8, Art. 8 and Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions; Council of Europe, cit. supra note 9, Art. 20; ibid., cit. supra note 9, Arts. 10–13.
von bogdandy and ioannidis, “Systemic Deficiency in the Rule of Law: What It Is, What Has Been Done, What Can Be Done”, Common Market Law Review, 2014, p. 59 ff.; rose-ackerman, “International Actors and the Promises and Pitfalls of Anti-Corruption Reform”, Pennsylvania Journal of International Law, 2013, p. 3 ff.; dugard, “Corruption: Is There a Need for a New Convention?”, in rose-ackerman and carrington (eds), Anticorruption Policy: Can International Actors Play a Constructive Role?, Durham, 2013, p. 159 ff.
rose-ackerman, “Corruption and conflicts of interest”, in auby, breen and perroud (eds) Corruption and Conflicts of Interest. A Comparative Law approach, Cheltenham, 2014, p. 5 ff.
claes, “Editorial Note: How Common are the Values of the European Union?”, Croatian Yearbook of European Law and Politics, 2019, p. 9 ff.; weiler, “Europe in Crisis – On ‘Political Messianism’, ‘Legitimacy’ and the ‘Rule of Law’”, Singapore Journal of Legal Studies, 2012, p. 248 ff.
European Commission, Decision of 13 December 2006, establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption, C (2006) 6570 final.
According to the addenda of the Cooperation and Verification Mechanism, these benchmarks have been considered for evaluating the rule of law: i) a transparent, and efficient judicial process; ii) new civil and penal procedures codes; iii) an integrity agency responsible for verifying assets, incompatibilities, and conflicts of interest; iv) professional, impartial investigations into allegations of high-level corruption; v) measures to fight against corruption, in particular at the local level.
I use the term conditional tool to refer to those procedures that allow the achievement of a certain goal on the condition of compliance with a certain behavior. The distinctive character of the conditionality is the focus on the achievement of an objective – such a financial aid or a membership – rather than the issuing of a sanction.
European Commission, Decision 6 June 2011, establishing an EU Anti-corruption reporting mechanism for periodic assessment. EU Anti-corruption Report, Brussels, 6 June 2011 com (2011) 3673 final.
European Commission, EU Anti-Corruption Report, p. 2.
This definition of corruption actually dates back to the World Bank Executive Board Anti-Corruption Strategy of 1997 (World Development Report 1997), New York, 1997, p. 102.
European Commission, Letter to the EU Parliament, 25 January 2017, ares (2017), 455202.
European Commission, Report from The Commission to the European Parliament and the Council, EU Anti-Corruption Report, Brussels, 3 February 2014 com (2014) 38 final, p. 2.
European Commission, Communication from the Commission to the European Parliament and the Council, A new EU Framework to strengthen the Rule of Law, Bruxelles, 11 March 2014, com (2014) 158 final.
Ibid., p. 4.
European Commission, 2020 Rule of Law Report. The rule of law situation in the European Union, Bruxelles, 30 September 2020, com (2020) 580 final.
European Union Regulation 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.
European Union Budget Conditionality Regulation (2002/2092), Arts. 2–6.
Ibid., Art. 4(2)(c) and (e).
Ibid., para. 3.
Ibid., para. 8.
Ibid., para. 16. In the abovementioned Commission’s proposa, cit. supra note 1, see Explanatory Memorandum 2. Para. 11, para. 34; 5. Para. 74; 8. Para. 152.
Ibid., para. 9 and Art. 3(c).
The connection between corruption and the rule of law, being the former a breach to the latter in the terms here described, has been clearly and repeatedly stated in the Commission’s proposal for a Council Decision for the protection of the Union budget (cit. supra note 1) which provided that “systemic inability, failure or unwillingness, on the part of the Hungarian authorities, to prevent decisions that are in breach of the applicable law, as regards public procurement and conflicts of interest, and thus to adequately tackle risks of corruption. Those breaches constitute breaches of the principle of the rule of law, in particular, the principles of legal certainty and prohibition of arbitrariness of the executive powers” (Explanatory Memorandum, 1. Para. 5; Proposal, para. 11); systemic breaches to the rule of law have been found in situation pertaining “the prevention and sanctioning of fraud, […], corruption or other breaches of Union law” (Explanatory Memorandum 4. Para. 57); and in “a number of issues related to investigation and prosecution, and the anti-corruption framework, including limitations to effective investigation and prosecution of alleged criminal activity, the organization of the prosecution services, and the absence of a functioning and effective anti-corruption framework in practice. These issues constitute breaches of the principles of the rule of law, in particular regarding legal certainty, the prohibition of arbitrariness of the executive powers, and effective judicial protection” (Proposal, para. 4); in addition in the country “there is a lack of a comprehensive anti-corruption strategy covering also the most relevant corruption prevention areas; an underutilization of the full range of preventive tools to assist corruption investigation, in particular, high-level corruption cases; as well as an overall lack of effective prevention and repression of criminal fraud and corruption offences” (Proposal, para. 12).
European Union Regulation 2021/241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility.
The two procedures are at the same time independent and cooperative, as remarked in the abovementioned European Commission’s proposal cit. supra note 1 (Explanatory Memorandum, 5. para. 70; Proposal, para. 17).
The Annual Rule of Law Report is now part of the larger Rule of Law Mechanism. The Rule of Law Mechanism provides an annual process for dialogue on the back of the Annual Rule of Law Report. All Member States participated in the process, providing written contributions and joining in dedicated yearly country visits held between March and May.
European Commission, cit. supra note 24.
European Commission, 2020 Rule of Law Report, 1.
The literature on the EU rule of law is vast and ever-growing; for what it concerns the commonality of the concept across the EU see pech, “The Rule of Law as a Well‑Established and Well‑Defined Principle of EU Law”, Hague Journal of the Rule of Law, 2022, p. 107 ff.
European Commission, Communication to the Council and the European Parliament on Art. 7 of the Treaty on European Union, Bruxelles, 15 October 2003 com (2003) 606 final, Para. 1 (1).
European Commission, 2020 Rule of Law Report, Belgium, p. 9.
Ibid., Croatia, p. 8.
Ibid., Netherlands, p. 8.
Ibid., Romania, p.11.
Ibid., France, p. 2.
Ibid., Greece, p. 6.
Ibid., Lithuania, p. 3.
Ibid., Bulgaria, p. 10; ibid., Denmark, p. 6; ibid., Luxembourg, p. 5.
Ibid., Estonia, p. 7.
Ibid., Greece, p. 5; ibid., Cyprus, p. 8; ibid., Latvia, p. 6; ibid., Austria, p. 8; ibid., Czechia, p. 8; ibid., Denmark, p. 7; ibid., Hungary, p. 11; ibid., Italy, p. 11; ibid., Malta, p. 10; ibid., Poland, p. 11; ibid., Portugal, p. 8; ibid., Sweden, p. 6; ibid., Spain, p. 7.
Ibid., Spain, p. 7.
Ibid., Belgium, p. 4; ibid., Slovenia, p. 4; ibid., Slovakia, p. 8.
Ibid., Greece, p. 9.
Ibid., Bulgaria, p. 12; ibid., Croatia, p. 12; ibid., Hungary, p. 10; ibid., Malta, p. 8; ibid., Portugal, p. 9.
Ibid., Italy, p. 7; ibid., Spain, p. 7.
Ibid., Croatia, p. 11; ibid., Hungary, p. 8; ibid., Romania, p. 12.
Ibid., Greece, p. 5; ibid., Romania, p. 11; ibid., Spain, p. 9.
For example, the institution in Poland of an extraordinary appeal procedure by the new Chamber of the Extraordinary Control grants a new type of judicial review which cannot however be held to be good for the rule of law because it undermines legal certainty and is broad enough to be used for political reasons (ibid., Poland, p. 16).
Ibid., Greece, p. 6; ibid., Italy, p. 9; ibid., Latvia, p. 7; ibid., Belgium, p. 8. Particularly, in Greece, amendments passed in June 2019, which downgraded the active bribery offense to a misdemeanor, and lowered the associated sanction, were repealed in November 2019. This repeal was a reaction to concerns voiced by the greco and oecd. However, due to the applicable lex mitior principle in Greek criminal law, several ongoing cases will be subject to a shortened statute of limitation or more lenient sanctions (ibid., Greece, p. 6).
European Commission, 2021 Rule of Law Report, Brussels, 20 July 2021 com (2021) 700 final.
Ibid., Hungary, p. 21; ibid., Romania, p. 20.
Ibid., Poland, p. 26.
Ibid., Bulgaria, p. 9.
Ibid., Slovakia, p.12; ibid., Hungary, p.12.
Ibid., Italy, p.12.
Ibid., Sweden, p. 6.
Ibid., Greece, p. 7.
Ibid., France, p. 7; ibid., Estonia; ibid., Lithuania.
Ibid., Lithuania, p. 7.
Ibid., Cyprus, p. 7; ibid., Denmark, p.9.
Ibid., Slovenia, p. 11.
Ibid., Finland, p. 5, ibid., Luxembourg, p. 5.
Ibid., Italy, p. 11; ibid., Croatia, p. 11; ibid., Austria, p. 10.
Ibid., Malta, p. 7; ibid., Bulgaria, p. 12; ibid., Slovenia, p. 11.
Ibid., Hungary, p. 12; ibid., Czechia, p. 7.
There are also concerns about the increased influence of the executive over the judiciary, with the chain of criminal proceedings being exposed to political interference: in particular, the fact that the Minister of Justice also serves as Prosecutor-General and that the Central Anti-Corruption Bureau is subordinated to the executive (ibid., Poland, p. 11 and p. 18).
In the period 2017–2019 the Romanian Constitutional Court stated that the Prosecution services should no longer use the Intelligence services to collect evidence to be used in criminal procedures and should establish an investigative body of its own. This judicial intervention has represented a major impediment to the functioning of the anti-corruption mechanism in Romania (ibid., Romania, p. 12).
Ibid., Spain, p. 11.
Ibid., Finland, p. 8; ibid., Italy, p. 11; ibid., Portugal, p. 9.
Ibid., Belgium, p. 7; ibid., Cyprus, p. 8; ibid., Netherlands, p. 8.
Ibid., Croatia, p. 12; ibid., Bulgaria, p. 14; ibid., Netherlands, p. 8.
Ibid., Greece, p. 7.
Ibid., Croatia, p. 13.
Ibid., Portugal, p. 11.
Ibid., Lithuania, p. 11.
Ibid., France, p. 10.
Ibid., Belgium, p. 8.
Ibid., Greece, p. 7.
Ibid., Hungary, p. 13.
European Commission, 2022 Rule of Law Report, Luxembourg, 13 July 2022 com (2022) 500 final.
In the General Report it is affirmed that the Russian invasion of Ukraine constitutes a direct challenge to EU values and the rule of law (ibid., p. 1).
Ibid. Ibid.
As anticipated in the President of the Commission State of the Union Address, Strasbourg, 15 September 2021.
European Commission, cit. supra note 89, p. 2 and p. 4.
Denmark; Germany; Estonia; Ireland; France; Lithuania; Luxembourg; Netherlands; Austria; Finland; Sweden.
Belgium; Czechia; Greece; Spain; Croatia; Italy; Cyprus; Latvia; Malta; Portugal; Slovenia; Slovakia.
Bulgaria; Romania.
Hungary; Poland.
United Nations, cit. supra note 6, Art. 6.
European Commission, cit. supra note 89, Cyprus, p. 8.
Ibid., Belgium, p. 8; ibid., Luxembourg, p. 8; ibid., Finland, p. 8.
Ibid., Romania, p. 15.
Ibid., Germany, p. 11; ibid., Lithuania, p. 10; ibid., Portugal, p. 11; ibid., Slovakia, p. 13.
Ibid., Belgium, p. 9; ibid., Slovenia, p. 10.
Ibid., Greece, p. 12; ibid., Spain, p. 12; ibid., Croatia, p. 12; ibid., Cyprus, p. 9; ibid., Malta, p. 10; ibid., Portugal, p. 11; ibid., Slovenia, p. 13. Of particular relevance is the case of Romania, where the obstacles resulted from intense judicial intervention of the Constitutional Court which resulted in uncertainty in the definition of the crime of abuse of office and consequently, investigations were dropped and cases annulled in court (ibid., Romania, p. 14).
Ibid., Estonia, p. 7; ibid., Ireland, p. 12; ibid., Latvia, p. 10; ibid., Austria, p. 11; ibid., Finland, p. 9.
Ibid., Belgium, p. 9; ibid., Malta, p. 10; ibid., Czechia; ibid., Poland, p. 15.
Ibid., Bulgaria, p. 15; ibid., Hungary, p. 14.
Ibid., Poland, p. 16.
Ibid., Croatia, p. 13.
Ibid., Slovakia, p. 14.
Ibid., Poland, p. 16.
Ibid., Czechia, p. 9.
Ibid., Hungary, p. 13.
Ibid., Poland, p. 17.
Ibid., Belgium, p. 12; ibid., Netherlands, p. 11.
Ibid., Bulgaria, p. 19; ibid., Cyprus, p. 12; ibid., Malta, p. 14.
Already in 2018, the Council adopted the first country-specific recommendation concerning judicial independence matters in respect of Slovakia. In 2019 (and following years) the country reports in respect of Poland and Hungary contained an unprecedently detailed assessment and criticism of the rule of law in both countries and recommendations to reinforce judicial independence and reinforce anti-corruption measures. In 2020, Malta too also was asked to complete reforms addressing current shortcomings in institutional capacity to enhance judicial independence. Therefore, while it is true that the country-specific recommendations on the rule of law already existed before the Recovery and Resilience Facility, non-compliance with them now has immediate and financial consequences.
National Recovery and Resilience Plan, Cyprus (para. 35).
National Recovery and Resilience Plan, Malta (paras. 11–12).
National Recovery and Resilience Plan, Greece (para. 33).
National Recovery and Resilience Plan, Croatia (para. 15).
National Recovery and Resilience Plan, Romania (Milestone 424).
National Recovery and Resilience Plan, Italy (para. 19).
National Recovery and Resilience Plan, Bulgaria (para. 9).
National Recovery and Resilience Plan, Slovakia (para. 29).
European Commission, cit. supra note 89, p. 10.
landau, “Abusive Constitutionalism”, UC Davis Law Review, 2013, p. 199 ff.; waldron, “Legislation and the Rule of law”, Legisprudence, 2007, p. 107 ff.
Case C-147/13, Council of the European Union v. Spain, 2015, para. 79; Case C-550/07, Commission v. Akzo Nobel Chemicals Ltd et. al., 2010, para. 100.
Case T-306/00, Commission v. Conserve Italia, 2003, paras. 120–122.
C-212/80, Amministrazione delle Finanze dello Stato v. Salumi, 1981, para. 9.
European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Enforcing EU law for a Europe that delivers, Brussels, 13 October 2022 com (2022) 518 final, p. 1.
C-619/18, Commission v. Poland (Supreme Court), 2019, para. 45; C-441/17, Commission v. Poland, 2018, para. 102; C-496/99, Commission v. cas Succhi di Frutta, 2004, para. 63; C-46/87, Commission v. Hoechst ag, 1989, para. 33; C-101/78, Granaria bv v. Hoofdproduktschap, 1979, para. 5.
C-477/16, Openbaar Ministerie v. Kovalkovas, 2016, para. 36.
C-869/19, Repubblika v. Il-Prim Ministru, 2021, para. 53.
C-216/18, Minister of Justice and Equality v. L.M., 2018, para. 34.
C-562/12, Liivimaa Lihaveis mtü v. Eesti-Läti programmi 2007–2013 Seirekomitee, 2014, paras. 67–75.
C-64/16, Associação Sindical dos Juízes Portugueses v. Tribunal de Contas, 2018, paras. 31–45.
C-286/12, Commission v. Hungary, 2012, para. 62.
waldron, Dignity of Legislation, Cambridge, 1999, p. 15.
baer, “The Rule of-and not by any-Law. On Constitutionalism”, Current Legal Problems, 2018, p. 335 ff.; bingham, The Rule of Law, London, 2010; craig, “Formal and substantive conceptions of the rule of law: an analytical framework”, Public Law, 1997, p. 467 ff.
