Author: Siena Hoban
Committee: Academic Committee
Date: 12/01/2024
On 5 July 2023, for the fourth year running, the European Commission released a Rule of Law Report. The Report is a Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions that evaluates “all member states’ performance on rule of law criteria”.[1] It is a non-binding report that “takes the pulse of the rule of law situation in each Member State and the EU as a whole, detecting and preventing emerging challenges and supporting rule of law reforms”.[2]
The Report sets out significant common themes and trends, specific challenges, and positive developments relating to four pillars: justice, anti-corruption, media freedom and pluralism, and broader institutional issues related to checks and balances. This serves as a comprehensive survey of the state of the rule of law in Europe.
Beyond this, the Report also includes specific recommendations to Member States on how to address the issues identified within the Report and reports on each Member States’ progress in implementing the specific recommendations issued in the previous year. In this way, since its launch, the “annual reporting cycle has served as a basis for constructive discussions and a rich exchange of best practices among Member States – at both political and technical level – in the European Parliament, and in national parliaments”.[3] There has been some criticism that this mechanism has little bark and no bite, but, as Dr Joelle Grogan argues, this misses the value of the Report.[4] The Report does not solve problems but rather “obliges engagement, bringing together a wide range of stakeholders and highlights common problems where an EU-wide response can be appropriate”.[5] Indeed, the Report has been relatively successful in this regard. According to the Commission, discussions in the Council following previous releases were “positive and constructive, with Member States welcoming the report’s findings and recommendations”.[6] This is illustrated by the fact that almost 65% of the specific recommendations issued in the past year have already been followed up.[7]
The Report clearly plays a central role in the EU’s efforts to promote and safeguard the rule of law in Europe. In this blog, I examine whether the European Public Prosecutor’s Office (EPPO) may be able to contribute to addressing some of the key focus areas identified in the 2023 European Commission Rule of Law Report. This blog will specifically assess whether contributions can be made to the justice systems and anti-corruption frameworks pillars, as these are the most relevant to the remit of the EPPO.
I first turn to the justice systems pillar. The justice systems pillar concerns the independence, quality and efficiency of justice systems. According to the Report, upholding these parameters is key in ensuring “that the application and enforcement of EU law is effective and that the rule of law is upheld” but also for “for judicial cooperation across the EU, as well as for the functioning of the Single Market and the EU’s legal order as a whole”.[8] The fulfilment of this goal requires that European institutions take responsibility and fulfil their duty in correcting any lapses.[9]
The EPPO is independent. Article 6 of the EPPO’s founding Regulation outlines that “the EPPO shall be independent” and its bodies and staff “shall act in the interest of the Union as a whole, as defined by law, and neither seek nor take instructions from any person external to the EPPO, any Member State of the European Union or any institution, body, office or agency of the Union in the performance of their duties under this Regulation”.[10] It thus conforms to, and reinforces the argument in favour of, the autonomy and independence of prosecution services, as advocated for in the Report. This independence allows the EPPO to carry out its work in an effective and impartial manner, which, as acknowledged by the Report, is “not only essential for national and EU criminal law, but also has a direct impact on the EU in ensuring issues such as the protection of the financial interests of the EU”.[11]
The EPPO is also focused on the quality and efficiency of justice. The College of the EPPO is tasked with the general oversight of the activities of the EPPO. Article 9 of the EPPO’s founding Regulation dictates that, in the course of that work, the College must make decisions with a “view to ensuring coherence, efficiency and consistency in the prosecution policy of the EPPO”.[12] Furthermore, efficiency is also referenced with respect to conducting investigations,[13] the referral and transferral of proceedings to national authorities[14] and future reviews and evaluations of the EPPO.
[15] This again indicates that the EPPO is upholding and simultaneously reinforcing the Report’s rule of law standards.
I now turn to the anti-corruption frameworks pillar. This pillar concerns the “effectiveness of national anti-corruption policies” which in turn helps to “ensure the strength and reliability of state power”.[16] The EPPO’s role is to investigate, prosecute and try offences against the EU’s financial interests, including various types of fraud, VAT fraud involving more than €10 million, money laundering, and, importantly, corruption. Because corruption that damages, or is likely to damage, the EU’s financial interests is now within the mandate of the EPPO, there is a greater arsenal to draw upon to combat corruption in Europe. Also, by opening new avenues for anti-corruption criminal investigations and prosecutions, the creation of the EPPO bolsters the existing dissuasive sanctions for high-level corruption.[17] This ultimately contributes to creating the “comprehensive, coherent and integrated approach” envisaged by the Report.[18]
As such, the EPPO is concordant with the rule of the law standards set out within the 2023 European Commission Rule of Law Report. But beyond this, the EPPO can positively contribute to realising a number of objectives in relation to the justice systems and anti-corruption frameworks pillars.
Finally, given the recent release of the Relazione Annuale (Annual Report) by the Comitato per la lotta contro le frodi nei confronti dell’Unione Europea (Committee for the fight against fraud towards the European Union) on 11 December 2023,[19] it is also worth taking a moment to compare this Annual Report to the 2023 European Commission Rule of Law Report.[20]
Whilst presenting the Annual Report, the Hon. Raffaele Fitto, Minister for European Affairs, the South, Cohesion Policies and the National Recovery and Resilience Plan, emphasised the importance of Italy having an effective fraud prevention and repression system. The comprehensive Annual Report puts this into action by setting out Italy’s National Anti-Fraud Strategy, which is in turn operationalised primarily by the Guardia di Finanza.
Although the report does not explicitly focus on the rule of law per se, it pursues many of the key focus areas identified in the European Commission’s Rule of Law Report. Notably, the Italian Annual Report pursues a number of the Rule of Law Report’s targets in relation to the anti-corruption frameworks pillar. In doing so, the Italian Annual Report contributes to fostering a stronger rule of law within Italy.
[1] A. Oleart & T. Theuns (2023). ‘Democracy without Politics’ in the European Commission’s Response to Democratic Backsliding: From Technocratic Legalism to Democratic Pluralism. Journal of Common Market Studies, 61(4), 882–899, p. 892.
[2] European Commission (2023) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, 2023 Rule of Law report, COM(2023) 800 final, 5 July 2023, p. 1.
[3] Ibid.
[4] J. Grogan (12 July 2023). The EU’s annual Rule of Law Report 2023. UK in a Changing Europe. Available at: https://ukandeu.ac.uk/the-eus-annual-rule-of-law-report-2023/.
[5] Ibid.
[6] European Commission (2023) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, 2023 Rule of Law report, COM(2023) 800 final, 5 July 2023, p. 1.
[7] European Commission (2023) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, 2023 Rule of Law report, COM(2023) 800 final, 5 July 2023, p. 1.
[8] Ibid, p. 2.
[9] T. Marzal (2023). Between Integration and the Rule of Law: EU Law’s Culture of Lawful Messianism. German Law Journal, 24(4), 718–734, p. 733.
[10] Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (the EPPO), Article 6(1).
[11] European Commission (2023) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, 2023 Rule of Law report, COM(2023) 800 final, 5 July 2023, p. 7.
[12] Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (the EPPO), Article 9(2).
[13] Ibid, Article 28(4).
[14] Ibid, Article 34(3).
[15] Ibid, Article 119(1).
[16] European Commission (2023) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, 2023 Rule of Law report, COM(2023) 800 final, 5 July 2023, p. 2.
[17] Ibid, p. 13.
[18] Ibid, p. 11.
[19] Relazione Annuale (Legge 24 dicembre 2012, n. 234 – art. 54). Available at: https://www.affarieuropei.gov.it/media/7278/relazione-annuale-colaf-al-parlamento-anno-2022-ld.pdf.
[20] See https://www.steppo-eulaw.com/2024/01/08/presentazione-annuale-colaf-2022/ for more analysis.