9 DIGNITAS n Respect for the rule of law in the EU on the example of Slovenia Abstr Act t he rule of law is one of the fundamental principles of the EU, but in the last few years in some member states, including slove- nia, challenges have arisen regarding respect for the rule of law. An analysis of the recommendations given to member states in 2022 and 2023 by the European c ommission shows that slovenia is generally located approximately in the middle or leans slightly more towards the upper (better) half of the EU member states de- spite the identified challenges, where one-off violations and not systemic threats to the rule of law prevail. In connection to the question of the effectiveness of the measures that the EU envis- ages to ensure respect for the rule of law, the mechanism under r egulation (EU) 2020/2092 has currently been recognized as the most effective for ensuring progress in the protection of the rule of law in the EU. Keywords: r ule of Law, slovenia, European Union, European c ommission, mechanisms Spoštovanje vladavine prava v EU na primeru Slovenije Povz Et Ek v ladavina prava je eno temeljnih načel EU, vendar se v zadnjih nekaj letih v nekaterih državah članicah, med njimi tudi v sloveni- ji, pojavljajo izzivi na področju zagotavljanja spoštovanja vladavi- ne prava. Analiza priporočil, ki jih je državam članicam v 2022 in 2023 podala Evropska komisija, kaže, da je slovenija na splošno r espect for the rule of law in the EU on the example of slovenia Tanja Teršar 10 DIGNITAS n Constitutional Law približno na sredini oz. se nekoliko bolj nagiba proti zgornji (bolj- ši) polovici držav članic EU kljub identificiranim izzivom, kjer prevladujejo enkratne kršitve, ne pa sistemske grožnje vladavini prava. v povezavi z vprašanji ali so ukrepi, ki jih EU predvideva za zagotavljanje spoštovanja vladavine prava učinkoviti, je kot najučinkovitejše sredstvo za zagotavljanje napredka v prizadeva- njih za zaščito vladavine prava v EU zaenkrat prepoznan mehani- zem pogojevanja koriščenja sredstev EU skladno z Uredbo (EU) 2020/2092. Ključne besede: vladavina prava, slovenija, Evropska unija, Evropska komisija, mehanizmi 1. The rule of law as a fundamental value of the EU t he rule of law is one of the fundamental values on which the European Union (hereinafter: EU) is based. In its most basic defi- nition, the rule of law means that all members of society are equal before the law; therefore, strengthening the rule of law is the main goal of citizens, governments, civil society organizations, compa- nies, and investors (Agrast et al., 2021, pp. 9, 13). since one of the fundamental principles of the EU and its member states is that they are based on the rule of law, the promotion and preservation of the latter is of central importance to the work of the European c om- mission as the very legal, political and economic basis of the EU’s functioning can be threatened by undermining the rule of law. Deficiencies related to the principle of the rule of law in one mem- ber state can affect other member states and the EU as a whole. t herefore, it is in the EU’s common interest to resolve potential is- sues regarding the rule of law (strengthening the rule of law within the Union: A blueprint for action, 2019, p. 1). Although all member states are, in principle, considered to respect the rule of law at all times, challenges have emerged in some member states over the past few years that make this no longer a self-evident claim. Among the examples of countries where threats to the rule of law are par- ticularly prominent in the media and academia are Hungary and Poland, where the departure from EU values has been going on for a long time and political tensions are escalating. In 2019, the European c ommission highlighted cases of disre- spect and threats to the principle of the rule of law, such as insuf- 11 DIGNITAS n Respect for the rule of law in the EU on the example of Slovenia ficient independence of the judicial process, weakened constitu- tional courts, the increasing use of executive decrees or repeated attacks by one branch of government on another, high-level cor- ruption and abuse of official position in cases, when political power seeks to dominate the rule of law, attempts to limit media pluralism and the suppression of civil society and independent media (strengthening the rule of law within the Union: A blueprint for action, 2019, p. 1). In its communication on strengthening the rule of law in the EU, the European c ommission acknowledged that the aforementioned challenges also cause concern about the EU’s ability to deal with such situations and that there is a need to strengthen it (strengthening the rule of law within the Union: A blueprint for action, 2019, p. 1). t he EU has a number of tools at its disposal to ensure and strengthen respect for the rule of law in all member states, which were developed and tested over the past decade (r ule of law: First Annual r eport on the r ule of Law situation across the European Union, European commision, 2020, e-source). t hese tools include the judicial mechanism pur- suant to Articles 258–260 of the t reaty on the Functioning of the European Union (hereinafter: t FEU) and the procedure pursuant to Article 7 of the t reaty on European Union (hereinafter: t EU). European c ommission can also initiate the rule of law framework in the case of systemic threats to the rule of law in the EU member states. It includes the preparation of a report on the rule of law and the provision of specific recommendations to the member states. In 2020, when Europe and the rest of the world began to deal with the cov ID-19 epidemic, in the financial framework for dealing with the epidemic, there was a proposal to condition the use of EU funds with respect for the rule of law. t his entered into force in January 2021 with r egulation (EU) 2020/2092. When reviewing the key areas for ensuring the rule of law, i.e., judicial system, anti-corruption framework, freedom and plu- rality of the media, and system of checks and balances, it can be observed that even in slovenia, in recent years, there were quite a few examples of events that do not comply with the definition of rule of law. t he European commission clearly highlighted some of them as shortcomings in its reports on the rule of law in the years 2020–2023 (2020 r ule of Law r eport: c ountry c hapter on the rule of law situation in slovenia, 2020, p. 1; 2021 r ule of Law r eport: c ountry c hapter on the rule of law situation in slo- 12 DIGNITAS n Constitutional Law venia, 2021, p. 1; 2022 r ule of Law r eport: c ountry c hapter on the rule of law situation in slovenia, 2022, p. 1; 2023 r ule of Law r eport: c ountry c hapter on the rule of law situation in slovenia, 2023, p. 1). t he alarming situation in slovenia was clearly dem- onstrated and condemned by the r esolution of the European Parliament of 16 December 2021 on fundamental rights and the rule of law in slovenia, in particular, the delayed nomination of EPPo prosecutors (r esolution of the European Parliament no. P9_t A (2021)0512, points 2–9). With this, slovenia also found itself on the list of problematic member states that are sliding away from the values they undertook to respect by becoming EU members. When looking at the situation in various EU member states, including slovenia, questions arise as to whether the measures that the EU envisages to ensure respect for the rule of law in the member states are effective, why, despite the efforts of the Eu- ropean c ommission and threats of sanctions there are still viola- tions or deviations from EU values, and how the rule of law can be strengthened and the situation corrected so that all member states would respect the rule of law as much as possible. t ime should not be wasted in solving these challenges. In its commu- nication on strengthening the rule of law in the EU in 2019, the European commission made an important observation that in solving a potential crisis of the rule of law, it is necessary to act as soon as possible because otherwise, there is the risk of bad prac- tices taking root, which would make eliminating their adverse ef- fects in the future even more difficult (strengthening the rule of law within the Union: A blueprint for action, 2019, p. 12). based on this, questions arise regarding the state of the rule of law in slovenia compared to other EU member states and how convinc- ingly and successfully the European commission responded to the state of the rule of law in slovenia compared to other EU member states. 2. The rule of law in Slovenia based on the analysis of the European commission’s recom- mendations for the judicial and anti-corruption framework, me- dia plurality and freedom, and system of checks and balances, the situation regarding respect for the rule of law in slovenia was 13 DIGNITAS n Respect for the rule of law in the EU on the example of Slovenia compared to the rest of the EU member states. It was assessed whether slovenia is comparable to the majority or better or worse than most of the other EU member states. We investigated the mechanisms available to the European c ommission per EU law to ensure respect for the rule of law in EU member states, as well as how the European c ommission reacts in case of threats or viola- tions of the rule of law in member states and uses available tools. If the European commission acted on such cases, we analyzed whether it succeeded in effectively suppressing law violations, nullifying the effects of such violations, and sanctioning the of- fending member states within the framework allowed by the es- tablished EU legal system. A key objective of the European commission’s first annual rule of law report from 2020, which is part of the European rule of law framework, was to raise awareness and encourage open debate among member states on rule of law issues. t his report did not identify serious risks for respect of the rule of law in slo- venia. According to some stakeholders, it was also insufficiently critical of the actual situation in slovenia (sedej, 2020, e-source; bruselj objavil prvo poročilo o vladavini prava v članicah EU, Lexpera, 2020, e-source). t he European commission’s second annual report presented findings that the state of the rule of law in slovenia has deteriorated significantly (2021 r ule of Law r eport: c ountry c hapter on the rule of law situation in slovenia, 2021, p. 1). Even the third annual report of the European c om- mission, despite mentioning the progress concerning some of the challenges from the previous report, highlighted in particu- lar the deterioration of media freedom, challenges regarding the independence or autonomy of law enforcement authorities, deficiencies in rules governing parliamentary investigations and concerns about the independence of the National bureau of In- vestigation and other institutions for the fight against corruption (2022 r ule of Law r eport: country chapter on the rule of law situation in slovenia, 2022, p. 1). European c ommission’s fourth annual report reported on the improvement of the situation in the judicial framework and civil society, freedom and pluralism of the media, and the provision of greater independence of the National bureau of Investigation; however, it highlighted the challenges of ensuring adequate resources and the independ- ence of judges and risks regarding the fight against corruption 14 DIGNITAS n Constitutional Law (2023 r ule of Law r eport: country chapter on the rule of law situation in slovenia, 2023, p. 1). In recent years, the European c ommission has made the most of specific recommendations to member states in connection to the successful fight against corruption and the efficient opera- tion of judicial systems. t hese two fields are among the most es- sential for ensuring respect for the rule of law in the EU and, at the same time, the most under threat. In 2022 and 2023, slove- nia also had the most challenges identified regarding the judicial system, where it received four and two additional recommenda- tions. r egarding anti-corruption framework and media freedom, it received three recommendations for each of these fields, while it earned one recommendation for the system of checks and bal- ances. Among the challenges of the justice system, which have been most exposed in recent years, are ensuring the impartiality and independence of the judiciary, the prosecution, and the po- lice, providing adequate resources, lack of adequate safeguards, and lengthy legal proceedings, especially in the corruption pros- ecution, while the internationally more resounding event was the delay in the appointment of European delegated prosecutors. slovenia has not adopted a current valid national anti-corruption strategy, and the challenge is also the implementation of provi- sions for preventing and managing conflicts of interest in public administration. In connection with this, systemic corruption risks have been identified, which may be even greater due to obstacles to effective investigation and prosecution of corruption at the highest levels. r epeated reports by slovenia’s commission for the Prevention of c orruption that its recommendations regarding identified challenges are not being heeded cause concerns. t here are also concerns about the independence, organization, and ef- fectiveness of the c ommission for the Prevention of c orruption due to the lack of resources and adequate safeguards in the leg- islation. In addition, there have been reports of political pressure on independent and investigative institutions such as the Infor- mation c ommissioner, the c ommission for the Prevention of c or- ruption, the Audit court, the o mbudsman, the police, and the National bureau of Investigation. Moreover, political interference poses a risk to the independence of the media, in connection to which slovenia is characterized by the non-transparency of media ownership and actual owners, verbal harassment of journalists, 15 DIGNITAS n Respect for the rule of law in the EU on the example of Slovenia lawsuits with an intimidating effect, while more internationally resounding were the complications with state financing of the national press agency st A, and the obstruction of its work. t he noticeable trend of deterioration of media freedom from previ- ous years started to improve in 2023. challenges in connection to the system of checks and balances are represented by non- compliance with the recommendations of the o mbudsman, the overloading of the c onstitutional c ourt and the resulting delays in adjudicating cases, the lack of opportunities for the participa- tion of the public, independent bodies, and civil society in the legislative process, insufficient protective measures for the finan- cial independence of independent bodies and financial restric- tions for civil society organizations. In the crisis of the cov ID-19 pandemic, challenges were identified regarding the insufficient respect for the rule of law by ruling with unconstitutional decrees (t eršar, 2023, pp. 118-119). We can assess that in the case of all the described deviations from the principle of the rule of law, these are primarily isolated cases. At the same time, the risk of systemic threats is present in the judicial system regarding court backlogs, where there is a risk that the situation would gradually worsen in the future. Addition- ally, there is risk in the anti-corruption framework regarding the implementation of provisions on the prevention and manage- ment of conflicts of interest in public administration, in connec- tion to which the c ommission for the Prevention of c orruption detected systemic corruption risks (ocena stanja komisije za preprečevanje korupcije 2021, 2022, pp. 5–6). As they represent threats to respect for the rule of law, all identified challenges must be given additional attention and effective solutions must be pre- pared and implemented. 3. Comparison of the state of the rule of law between EU member states What is the state of the rule of law in slovenia compared to oth- er EU member states? based on the analysis of the total number of recommendations member states received from the European commission in 2022 and 2023, this research classified member states into five groups. Despite all the identified challenges, slo- venia generally belongs to the third-best group of member states 16 DIGNITAS n Constitutional Law (out of five groups), located roughly in the middle of all member states. In general, slovenia leans slightly more towards the upper (better) half of the EU member states. At the top of the list, where the fewest challenges of respect for the rule of law are identified, are Estonia, Denmark, Finland, the Netherlands, sweden, Latvia, and belgium. countries with the most issues regarding respect for the rule of law are Hungary, Poland, r omania, bulgaria, and Malta, followed by cyprus, the czech r epublic, slovakia, spain, Italy, c roatia, Greece, and slovenia. In contrast to the overall assessment based on the recommen- dations of the European commission, in the assessment of the World Justice Project, slovenia ranked 13th (out of 20) among EU member states in 2022 and 2023, which places it in the bottom half of the member states. In the ranking of all world countries, slovenia reached 31st place in 2022, while in 2023 it climbed to 27th place with a slight improvement in the result (Agrast et al., 2022, p. 12; Agrast et al., 2023, p. 11). slovenia seems to be slowly changing the direction and turning the respect for the rule of law into a positive trend. t he findings from the analysis of the latest European c ommission report on the rule of law from 2023 show an improvement after a notable decline, which was particularly evident in the annual reports from 2021 and 2022. t he alarming state of respect for the rule of law in slovenia was additionally recognized with the European Parliament’s r esolution on funda- mental rights and rule of law in slovenia from December 2021, which theoretically ranked slovenia even a little lower in respect of the rule of law, or into the group of the most problematic member states. However, in fulfilling the recommendations of the European c ommission from 2022, slovenia made the most signifi- cant progress of all the states, having fully fulfilled half of the rec- ommendations, followed by Lithuania, Estonia, and Italy. o n the other hand, the least progress was made by Poland. Among other states with the most challenges in terms of respecting the rule of law, slightly more progress was made in r omania, bulgaria, Malta, and Hungary, where the latter made the most considerable progress (Annex to the 2022 r ule of Law r eport: t he r ule of Law situation in the European Union, 2023, pp. 2, 6, 12, 15, 17–18, 21, 23–24). When comparing the state of respect for the rule of law be- tween member states, it is necessary to take into account the con- 17 DIGNITAS n Respect for the rule of law in the EU on the example of Slovenia cerns that the European commission, in its annual reports on the rule of law and the recommendations, did not adequately cover all the challenges of respect for the rule of law in individual member states, but rather presented them in a deficient or non- objective way. As a result, the European c ommission’s reports do not necessarily reflect the real situation of the rule of law in the member states. Particularly problematic is the fact that the Euro- pean commission generally obtains information directly from the national stakeholders involved, which leaves no room for a broader sociological approach, based on which the respect for the rule of law in individual countries could be analyzed more comprehensively. Avbelj singled out slovenia as an example of the flawed approach of the European commission, as the en- tire situation regarding the decision-making on the matter of the new r adiotelevizija slovenija Act was not presented. In relation to this, there is an indication of a risk that the political bias of the European c ommission in the case of certain countries could be divisive for the actual state of the European rule of law and thus the existence of the EU as such, as it could present an argument against the directions of the EU and the European commission on the part of the member states, where the challenges of the rule of law are the most serious (Avbelj, 2023, e-source). 4. The response of the EU and the European Commission to the challenges of the rule of law in the member states Upon analysis of the reaction of the EU or the European c om- mission in cases of threats or disrespect for the rule of law in slovenia and other EU member states, it was found that the only formal response of the European c ommission in the case of slo- venia was the highlighting of identified challenges in the annual report on the state of the rule of law from 2020 onwards. In 2022 and 2023, specific recommendations for judicial and anti-corrup- tion systems, pluralism and freedom of the media, and the system of checks and balances were also provided. t he European Parlia- ment was somewhat stricter with its resolution on fundamental freedoms and the rule of law in slovenia, prepared in December 2021. All of the above responses highlighted problematic situ- 18 DIGNITAS n Constitutional Law ations represented by one-off violations or potential emerging risks for systemic violations of the rule of law that resulted in ge- neric recommendations to resolve these situations as soon as pos- sible. Within the framework of ensuring the rule of law, the Euro- pean c ommission made specific recommendations to all member states, where Estonia received the fewest recommendations and Hungary the most. Additionally, the European Parliament issued resolutions for bulgaria, Malta, slovakia, Hungary, Poland and slo- venia. However, such recommendations and resolutions are not binding and have no concrete legal consequences for slovenia or the other member states. A stricter response from the European c ommission occurred in the case of Hungary (2018) and Poland (2017), against which a procedure was initiated in accordance with Article 7 of the t EU due to controversial reforms of the Polish judicial system and concerns about the state of democracy, the rule of law and the protection of fundamental rights in Hungary. Against Germany (2021), a procedure was initiated in accordance with Article 258 of the t FEU regarding the issue of respecting the primacy of EU law. t hese cases required a more serious response because the rule of law violations were more systematic and not so much one- off in nature. At the same time, they also represented a dangerous precedent that the rest of the member states could follow their example. sanctions for non-respect for the rule of law can be primarily financial, or they can cause a possible loss of voting rights, which is supposed to be a temporary measure until the sanctioned member state stops its violations and thus returns to respecting the rule of law. Non-fulfillment of obligations in accordance with the t FEU and t EU can only be dealt with on the basis of Articles 258-260 t FEU or Article 7 t EU. From a legal point of view, there is no procedure in EU law that could force a member state to leave the EU due to non-fulfillment of obligations from the treaties. A member state can decide to leave the EU in accordance with the procedure under Article 50 of the t EU, as happened in 2020 in the case of the United kingdom of Great britain and Northern Ireland. violation of the rule of law cannot, therefore, be a legal basis for sanctions in the form of exclusion from the EU, even if the member state strongly or persistently violates the principle of the rule of law. When assessing whether the introduction of such 19 DIGNITAS n Respect for the rule of law in the EU on the example of Slovenia a sanction in the EU treaties might be sensible, it must be taken into consideration that the exclusion of any member state is not in the interest of the EU. still, the goal is that all member states follow the set rules, including respect for the rule of law. In extreme cases, the use of Article 7 of the t EU is foreseen, where the threshold for activating response mechanisms is very high. At the same time, events in some member states have shown that these mechanisms are not always adequately effective or suitable for swift response to threats to the rule of law (com- munication from the commission to the European parliament and the council: A new EU Framework to strengthen the r ule of Law, 2014, pp. 5–6). In the procedure under Article 7 of the t EU against Poland and Hungary, significant development of the cases has not yet been achieved, and the measures implemented solely based on these procedures have not led to improvements in any of these countries. t he EU’s efforts to ensure respect for the rule of law have been relatively unsuccessful, as the avail- able legal tools have not been used forcefully enough. Although the dismantling of the rule of law in some countries is the result of deliberate political decisions (strengthening the rule of law within the Union: A blueprint for action, 2019, p. 5), the EU has not responded to such deviations with mechanisms that would include sanctions but mainly relies on preventing violations and dialogue with member states (Priebus, 2022). Which of the existing tools or the European c ommission’s re- sponses is, therefore, the most effective or encouraging for mem- ber states to prevent deviations from respect for the rule of law? Member states’ response depends primarily on the existence and severity of potential sanctions, which is why mere recommenda- tions to achieve the desired standards of the rule of law are not effective enough, as member states are not sufficiently encour- aged to strive for compliance. At the end of April 2022, the Euro- pean c ommission used, for the first time in the case of Hungary, the conditionality mechanism for the use of EU funds in accord- ance with r egulation (EU) 2020/2092 of the European Parliament and of the c ouncil of 16 December 2020 on the general regime of conditionality for the protection of the Union budget, thus directly sanctioning Hungary’s rule of law non-respect (bruselj proti Madžarski uradno sprožil mehanizem pogojevanja sredstev z vladavino prava (dopolnjeno), t ax-Fin-Lex, 2022, e-source). A 20 DIGNITAS n Constitutional Law good indicator of the effectiveness of this type of mechanism for conditioning financial resources, even in the most problematic countries, is the undoubted fact that Hungary began to actively fulfill the recommendations given by the European c ommission in 2022. From this point of view, it seems reasonable to establish a solution at the EU level, as was proposed by the European Par- liament in a resolution from March 2023. Namely, the European c ommission should more clearly define threats and violations of the rule of law in its annual cycle and report on the rule of law while also giving binding recommendations to member states and, thus, providing a direct basis for the automatic activation of the mechanism for conditioning the rule of law in accordance with r egulation (EU) 2020/2092 in case of violations of the rule of law (European Parliament’s r esolution no. P9_t A(2023)0094, 30. 3. 2023, pp. 9–10; r ule of law: the c ommission’s reporting has improved, but EU values are still deteriorating, European Parlia- ment, 2023, e-source). 5. Conclusion based on this research, possible solutions can be defined and potentially applied to the plan for ensuring respect for the rule of law in slovenia’s future or in key areas where the threats to the rule of law are the greatest. A comparison of slovenia with other EU member states can provide examples of bad and good practices in ensuring respect for the rule of law in the judicial framework, the anti-corruption framework, media plurality and freedom, and the system of checks and balances. based on this, solutions for the challenges faced by slovenia regarding respect for the rule of law can be adapted accordingly. t he present re- search can also represent a starting point for further research into the topic and related issues. t he EU is based on the common values of respect for human dignity, freedom, democracy, equality, the rule of law, and re- spect for human rights. All EU member states must respect them since joining the EU and later as full EU members and democratic countries, where the rule of law and fundamental rights are mutu- ally reinforcing values. t heir threat could pose a risk to the rights and freedoms of EU citizens. t herefore, respect for the rule of law is binding on all levels of governance in EU member states 21 DIGNITAS n Respect for the rule of law in the EU on the example of Slovenia (European Parliament’s r esolution no. P9_t A(2023)0094, 30. 3. 2023, p. 4). Although the rule of law is, in principle, ubiquitous, its broad definition makes it very likely that its meaning is not sufficiently understood by the citizens of the member states, which also cre- ates a high risk of its misuse or ideological abuse (bingham, 2011, p. 5). For this reason, it is essential to increase awareness of the importance of the rule of law among people in slovenia and the EU, which should start with educating the younger generations. t he holders of public functions, especially the executive and leg- islative branches of government, also have their role in this, as they can raise the level of political culture and contribute by their own example so that the rule of law, democracy, and integrity will become a standard in our society. c onscious and critical civil society and the media can encourage this type of behavior and, at the same time, reveal those who, with their actions, insist on the opposite and contribute to the disintegration of the rule of law. t herefore, continuous proactive action is required by every EU citizen to protect European society from existing and potentially developing challenges of the rule of law. 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