Respect for the Rule of Law as one of the foundations of the European Union is declared in the TEU, both as a principle for the internal (Art.2), as well as external actions (Art. 21). Art. 7 of the Treaty on European Union, combined with the voting procedures for the Parliament and the Council laid out in Art. 354 of TFEU, also provides a procedure to sanction a serious breach of the values defined in Art. 2 of TEU, including the Rule of Law. Article 7 has two different procedures: the so-called ‘preventive measures’ (Art. 7.1 TEU) and the so-called ‘sanctions mechanism’ (Art. 7.2 – 7.5 TEU). In all these measures, the concerned Member State is excluded from the vote and the counting for the majorities, and the Parliament must reach a two-thirds majority of votes, representing the majority of its members.

For the ‘preventive measures’, the Commission, one-third of the Member States or the European Parliament can start the procedure when they see a clear risk of a serious breach of the fundamental values laid out in Art. 2 of TEU. The Council has to hear the concerned Member State, after which, if the European Parliament gives consent, the Council determines with a four-fifths majority the existence of a clear risk to fundamental values and, with the same majority, makes recommendations to the Member State.

The very high thresholds required to enforce Article 7, especially the unanimity by the European Council, has prompted the development of other mechanisms to monitor and act on the Rule of Law in the Member States, including the possibility, with the approval of the Council, to suspend the EU funding to a Member State that is breaching the Rule of Law and putting at risk EU financial interests (the so-called ‘Rule of Law conditionality’). An overview of the so-called Rule of Law toolbox is available here. The mechanisms are embedded in a new annual cycle called the Rule of Law Mechanism’ (also called the ‘Rule of Law cycle’).

The Rule of Law cycle has its core in the preparation, publishing and follow-up of the Rule of Law report. Established in 2020, the Rule of Law report comprises a report on the general situation of the Rule of Law in the EU, as well as specific country chapters for each Member State. The Rule of Law report has evolved over the years, also based on the input of civil society. The 2023 Report analyses four dimensions:  the justice system, the anti-corruption framework, media pluralism and freedom, and other institutional issues related to checks and balances. The country chapters have analysed new developments since the previous Report and the follow-up to the situation analysed in the 2022 report. One of the key requests of civil society has been to include country-specific recommendations, which have been added since the 2022 report, and to follow up on them. Indeed, the Rule of Law report can be used as one of the sources to trigger the different mechanisms under the ‘Rule of Law toolbox’.

The Rule of Law cycle (here explained for the 2023 report) starts in November when the Member States are consulted on the questionnaire and the stakeholders are asked to contribute to the evidence gathering via a questionnaire in the Have your say portal. From January to April, while the Member States send their answers to the Commission’s questionnaire, the Commission organises ‘country visits’ (mostly online meetings) with stakeholders and civil society organisations of the Member State under analysis. In June, the Member States receive their country chapters to provide factual updates, and in July, the Report is published, in order to be discussed at the European and national levels.

While the Rule of Law report has been improving over the years, still several critical points remain. Civil society organisations lament the vagueness of certain country-specific recommendations, as well as the lack of proper follow-up, including using the conditionality mechanism when necessary. Furthermore, the timing of the publication of the report, July, is unfortunate, as it may get lost due to the summer break. Publishing it earlier in June or later in September and adapting the cycle timeline accordingly may solve the issue, as well as help tackle the other problem of the very short timeframe for CSOs to provide input. For instance, the targeted stakeholder consultation opened from 14 November 2022 to 20 January 2023 —amounting to a little less than nine weeks, which is shorter than the 12-week period for consultations indicated in the Better Regulation communication— and during an end-of-the-year period when many organisations close their offices. Furthermore, the methodology with which the Commission analyses and takes into consideration the stakeholder input should be further clarified. Another difficulty is linked to access to the Member States’ contribution to the Rule of Law Cycle, and the possibility for CSOs to react to them. 

Example of the improvements of the

Rule of Law report

Among the elements that were improved due to the feedback from the CSOs, the following can be listed: formulation of country-specific recommendations; and publication of the calendar of the country visits.

Materials and resources

• Civil Society Europe & Philea (2023): Joint Civil Society Contribution to the 2023 Annual Rule of Law Report on Civic Space.
• Rule of Law report – Communication and country chapters (2023).
• Rule of Law report factsheet on the 2023 annual Rule of Law cycle (2023).
• Regulation 2020/2092 on a general regime of conditionality for the protection of the Union budget.
• Treaty on European Union (2012). 
• Treaty on the Functioning of the European Union (2012).
• Have your say portal.
• The EU’s Rule of Law toolbox factsheet.