In the Political guidelines issued by President von der Leyen upon entering into office in 2019 it was announced that the Commission would set up a mechanism covering all Member States aiming at evaluating via annual reports the compliance with the Rule of Law standards(1). Last 24th of July the Commission issued the reports following the 2023 evaluation exercise(2). In the report concerning Italy some remarks on the freedom of press raised some turmoil on the Italian media. I’m not sure if in Italy the freedom of press is in danger or not, whereas it is clear to me that rule of law standards are being infringed in Italy in many serious respects that were overlooked by the report. Here I want to focus on the methodological reliability of the report. I will first of all briefly single out some of the most preposterous violations of the rule of law standards that were overlooked by the report on Italy and subsequently I will focus on the methodology employed.
Concerning the violations of the rule of law standards overlooked by the report on Italy I will single out three items:
First of all, I will call the attention on the general neglect in Italy of the hierarchy of norms by public officers. People involved with public authorities in Italy are well aware of the fact that Italian public servants implement directly “implementing guidelines” (i.e. administrative acts) not worrying whether these are in line with the legislation they are supposed to implement, not to mention with the acquis communautaire. The problem is so urgent that some fine experts in constitutional law established an ad hoc observatory(3).
The non respect of the hierarchy of standards is reinforced by an actual power of ransom provided in some key cases to public officers. In the case a citizen should object via the means provided by the law to a decision of an officer, this very officer has the power to paralyze any activity of the citizen withdrawing the so called “certification of correct bookkeeping” (documento di regolarità contabile DURC), which implies as a matter of fact a real veto to operating in the market. The Commission report overlooks the corruption potential implied in this practice, provided that the decision of the officer is absolutely discretionary and cannot be opposed.
As third item I want to single out the fact that motivations of criminal judgments are issued a few months after the judgment itself has been issued and implemented.
Concerning the compliance with rule of law standards Italy is much worse off than it might appear according to the controversial report issued by the Commission on the 24th July. It appears that it is now time to understand how it is possible that so serious infringements of the rule of law standards were overlooked. We wonder if the methodology employed by the Commission is not biased.
The methodology employed by the Commission is described at the beginning of the document with the 27 country reports(4).
People familiar with this platform devoted to “Risk & Compliance” are well aware that, to audit the compliance with given standards, it is mandatory to trigger off a three-step process: (i) singling out the standards whose compliance is to be evaluated; (ii) singling out the indicators that would point out compliance/not compliance; (iii) collecting data in a reliable way. The methodology employed by the Commission can be summarized as follows: (i) the principles of the Rule of Law are set down the EU Charter of Fundamental Rights as it is reported in the Lisbon Treaty and the case law of the EU Court of Luxembourg; (ii) the actual indicators should be looked for in the Rule of Law checklist of the Venice Commission of the Council of Europe(5); (iii) data are collected via reports provided by the Member States themselves, by experts visits to the country concerned, by consultations with (not better defined) stakeholders, by informations given by a network of national correspondents (collected through surveys constructed and submitted by expert groups). It is here to be remarked that the methodology employed by the Commission hints to a sort of “continuous improvement approach” where it makes reference to a standing dialogue with the country under evaluation.
Let’s now take into consideration these 3 items to check whether there might be biases that allow non compliances to be overlooked.
As to the standards of the Rule of Law, the EU Charter of Fundamental Rights is clear and exhaustive; however the intertwining of case law of the Luxembourg EU Court of Justice with the Charter, rather than better define the principles, raises doubts. As to actual indicators the Rule of Law check list of the Venice Commission of the Council of Europe was not conceived as a tool to check something but as a tool to be used in efforts of institutional engineering to support the transitions of CEEC from communism to democracy. The UN rule of law indicators on the contrary were just conceived as indicators to check actual compliance with the standards of the Rule of Law(6) and might provide a good example.
Data collection represents the major weakness in the methodology employed by the Commission, whereas it confuses the information to be gathered to set up an evaluation grid with the data to be checked via the evaluation grid. Stakeholders, reports provided by the very Member States under evaluation, local referents are useful to set up the evaluation grid but data to be evaluated should be collected by external auditors. Experts visits are not up to the task if experts employed are experts in Rule of Law and not in auditing, as it is the case with the evaluation exercise carried out by the Commission. The “continuous improvement approach” hinted by the Commission requires a dialogue between the evaluators and the country under evaluation; if the methodological preconditions mentioned above are not met such approach will lead to a low profile bargaining.
Evaluating periodically the compliance with the standards of the Rule of Law is of course a good idea. However, carrying it out with inadequate methodological tools will plague the political debate. It appears therefore urgent to develop a group of qualified external auditors of compliance.
The author, Massimo BALDUCCI, is an Expert of the Centre for Good Governance of the Council of Europe, Professor at the University of Florence and Vice President of the European Network of Training Organisations of Local and Regional Authorities (ENTO). Massimo is also an author of several publications in French, English and Italian, with a focus on Public Management.
He is one of the Authors of the Italian Risk & Compliance Platform (www.riskcompliance.it).
(1) https://ec.europa.eu/commission/sites/beta-political/files/political-guidelines-next-commission en.pdf
(2) 2024 Rule of law report – Communication and country chapters
(3) Osservatorio sulle Fonti (www.osservatoriosullefonti.it)
(4) Cfr. Directorate General Justice and Consumers, (2024), Rule of Law Report, Methodology, European Commission
(5) Cfr. Council of Europe, (2016), The Rule of Law Checklist, Implementation Guide and Project Tools
(6) Cfr. The United Nations, (2011), Rule of Law Indicators, Implementation Guide and Project Tools
