Same Old, Same Old

Following the General Affairs Council on 12 December 2023, the Spanish presidency issued its conclusions on the evaluation of the Annual Rule of Law Dialogue (ARoLD). The evaluation is largely informed by a questionnaire addressed to national delegations in July, where they were asked for their opinions on the current state of the mechanism and potential improvements. As argued in a previous post on this blog, the questionnaire failed to show a uniformity of understanding of the tool and clear intentions for further developments among the member states. So what is the final interpretation of the Spanish presidency and what does it say about the future of the dialogue?

As the present blog will argue, the overly positive assessment that transpires from the conclusion fails to convince, due to the continued reliance on confidentiality and the lack of any tangible standards. Moreover, the improvements suggested by the presidency fall overwhelmingly short of addressing the issues that plague this instrument, confirming it as a weak exercise in posturing with no real stakes involved.

Qualifying the Praise

In the months following the questionnaire, conclusions to be adopted by the end of the year were repeatedly discussed in GAC meetings. However, having failed to reach a consensus, the Spanish presidency resorted to issuing its conclusions, which were supported or not objected to by 25 delegations. This is not unprecedented, as the last evaluation, in 2019, also did not result in the adoption of conclusions by the Council. However, in that case, the presidency received the support of 26 delegations. Though the delegation behind the objection and its reasoning is not known, it certainly casts a negative light on the claims of absolute support for the mechanism otherwise made in the text.

The first half of the conclusions is in fact mostly dedicated to praising the current content and structure of the dialogue, which in line with the almost universal response to the first question of the questionnaire, was deemed useful for “creating a space for constructive political exchanges” and sharing “best practices and lessons learned.” It is further remarked that the mechanism is now a “more result-oriented” stock-taking exercise and it facilitates “comprehensive, genuine and interactive political discussion.”

However, due to the informal and confidential nature of the dialogue, which notably does not produce recommendations or publish minutes, it is impossible to substantiate claims as to its efficacy, especially considering the ongoing rule of law crisis in several member states has certainly not improved since the introduction of the dialogue in 2014 (if anything it has spread to more countries in that time period, including Poland and possibly now Slovakia).

Moreover, it is worth noting that from the single insight provided by France on the participation to discussions, it emerged that some of the MS that most suffer from (deliberate) rule of law deficiencies – Hungary, Poland, Bulgaria – do not to engage. As such, hailing the dialogue as strong and genuine is misleading, or at least, its usefulness is solely limited to the MS that participate in good faith, and furthermore, it can only be measured through the MS’ own self-assessment.

Some Improvements

Acknowledging the need for improvements aimed at strengthening the rule of law and preventing “emerging and existing rule of law challenges,” the Spanish presidency introduced one main change, pertaining to the scheduling of the ARoLD cycle. While the horizontal discussion is maintained on a yearly basis, country-specific discussions will take place three times a year, instead of twice, and the number of countries to be subject to each session will go from five to four.

This change takes account of the answers of the Member States (see question 5b). These were split in the middle between those who agreed that lowering to four countries would enhance discussions with greater focus and depth, and those that warned against dilating the frequency of the cycle at the detriment of meaningful monitoring. The compromise achieved by the presidency, which effectively increases the total number of states to be heard each year from 10 to 12, while also allowing each of them more time per session, strikes the optimal balance. Whether this marginal, technical change will yield any tangible results, however, remains to be seen.

Falling Short…

In terms of the other proposals suggested in the questionnaire, specifically on the introduction of additional sources besides the Commission’s Annual Rule of Law Report and the possibility of opening the dialogue to civil society, experts, and delivering some conclusions, it was perhaps foreseeable from the tepid reaction of the MS delegations that little would change. However, some minor amendments ought to be noted.

Indeed, the presidency’s conclusions do offer a small opening to the consideration of “international public law organisations insofar as the Commission’s ARoLR has taken them into account,” referring to them as “ancillary and auxiliary but valuable sources of information.” The type of sources envisioned in this context are mainly the Council of Europe and its bodies, presumably the Venice Commission and GRECO as mentioned by some Member States (Ireland, France, Cyprus), owing to their recognition by the Council, the Commission and the Court of Justice in separate instances.

This is an interesting position expressed by the presidency, which diverges somewhat from the opinion of the majority of the Member States. These had argued external sources are already duly taken into account by the Commission. At the same time, the inextricable relationship between possible external sources and their use in the Report is rather limiting, and though the wording makes sense when read in the context of the Member States’ responses, in practice it does not offer any useful improvement.

It was always unlikely that ambitious ideas, like the one put forward by Cyprus to use a more comprehensive set of indexes to identify blind spots and make the rule of law more measurable, would be implemented. But at the same time, the inherent flaws of the ARoLR and the dialogue’s continued nearly exclusive reliance on it is reductive and falls short of fixing the essential issue with the self-referential nature of this mechanism.

…And Missing the Mark.

In terms of involving civil society and experts to the ARoLD, there was no consensus amongst the Member States. However, the general attitude was more positive than for other proposals, with the likes of the Netherlands and Denmark (to name but two) outwardly stating it would improve transparency. On the other hand, a strong minority comprised of Germany, Italy, Sweden, Portugal, Malta, Croatia and Bulgaria, argued against infringing upon confidentiality, one of the key features of this tool.

The result is a watered-down compromise which provides that a presidency may organise interactive exchanges on a more frequent basis, such as seminars, involving stakeholders like citizens, civil society, parliamentarians, local authorities, academia, social partners, and journalists. This is not a new feature of the dialogue; the Swedish presidency, for example, had organised a Symposium on Democracy and the Rule of Law in Stockholm, which was open to the Member States, institutions and civil society. The last prong of the question, asking about the potential for presenting conclusions to civil society representatives, receives no mention or reference in the conclusions.

Ultimately, this is a great missed opportunity. The cult of confidentiality continues to significantly curb accountability and transparency, which is particularly problematic when dealing with the rule of law. It once again proves the MS are determined to keep the ARoLD weak by design, posturing commitment to EU values, but fundamentally rejecting the idea of holding themselves to real, predetermined and openly available standards. It is an oxymoron and a victory for those MS who feel they have something to hide.

Nothing New Under the Sun

Unsurprisingly, the ARoLD is set to live on as the most toothless and secretive instrument in the EU’s rule of law toolbox. The fact that Member States are content with the status quo, save for a small amendment to the schedule and ambiguous openings to the use of external sources which are unlikely to significantly improve the efficacy of the dialogue, is a damning indictment of how ill-fitted the Council is as the institution entrusted with conducting this and other rule of law procedures (most notably Article 7 TEU).

There has been a complete lack of meaningful improvement to the rule of law crisis over the almost ten years since its creation. In light of this, the choice to reject change and indeed praise the instrument only truly benefits those governments that will continue to erode their domestic checks and balances without the fear of intergovernmental accountability and oversight.