THE STATE OF THE EUROPEAN UNION Towards a new legislative term

SITUATION OF THE RULE OF LAW IN THE EUROPEAN UNION. THE ANNUAL MECHANISM 45 parliament, ministers and other government officers, who are able to operate as members of the manage- ment boards of these trusts); – limitations on the effective investigation and pros- ecution of alleged criminal activities, the organisa- tion of public prosecutors, and the lack of a func- tioning and effective anti-corruption framework (for example, lack of effective legal resources available to an independent legal body for deployment against decisions of the prosecutor’s office not to investigate or prosecute alleged cases of corruption, fraud and other crimes that affect the EU’s financial interests, or the lack of an obligation to explain causes of fraud and corruption attributed or reassigned); – lack of a general anti-corruption strategy which also encompasses the most important spheres of corrup- tion prevention; underuse of the whole range of pre- ventive instruments to support the investigation of corruption; and a general lack of prevention and ef- fective repression of fraud and crimes of corruption. The importance of this mechanism is its capacity to respond both politically and institutionally with larger financial sanctions than the coercive fines imposed by the Court of Justice. If to this we add the possibility of withholding payments within the framework of the Na- tional Recovery and Resilience Plans, it is clear that this mechanism is highly effective. The need for a global diagnosis But what is the diagnosis? And is it sufficient? Apart from the flagrant cases of Poland and Hungary, in which innovative strategies have been applied, the Rule of Law Mechanism must continue to gain prominence as a regulated metaconstitutional instrument, with all states sustaining their efforts in this area. In this respect, the annual Rule of Law Report con- stitutes a privileged observatory which can detect and publicly scrutinise progress and weaknesses. This report is not the place for a detailed study of the situation, progress and improvements between the third and fourth report, even in the most recalcitrant coun- tries such as Poland and Hungary, but even a superficial reading of the report is sufficient to reveal significant progress with respect to the most sensitive area: legal systems and their independence. Although these are fundamentally questions that can only be resolved with- in the internal constitutional framework –, the minima moralia to which I have already referred – the creation of an obligatory pan-European common framework of values, as we are constantly reminded by the Court of Justice, has made qualitative progress. 27 This is obvious in the case of Spain, where the recom- mendations do not censure the principles of the Spanish system but instead criticise the way that the incapacity to reach compromises and find consensus demonstrates the weak points of the system and the need for supple- mentary reforms. In the Recommendations addressed to Spain, it states: “On this basis, and considering other developments that took place in the period of reference, and in ad- dition to recalling the commitments made under the national Recovery and Resilience Plan relating to cer- tain aspects of the justice system, it is recommended to Spain to: – Strengthen the statute of the Prosecutor General, in particular regarding the separation of the terms of of- fice of the Prosecutor General from that of the Gov- ernment, taking into account European standards on independence and autonomy of the prosecution. – Proceed with the renewal of the Council for the Judi- ciary as a matter of priority and initiate, immediately after the renewal, a process in view of adapting the appointment of its judges-members. – Proceed to adopt legislation on lobbying, including the establishment of a mandatory public register of lobbyists. – Step up efforts to address the challenges related to the length of investigations and prosecutions to in- crease the efficiency in handling high-level corrup- tion cases, including by finalising the reform of the Code of Criminal Procedure. – Strengthen the rules on conflicts of interest and asset declarations of persons with top executive functions by reinforcing the sanctioning power of the Office for Conflicts of Interest. 27 A complete list of this progress and margins of improvement ap- pears on pages 4 to 11 of the Report. Communication cited in note I.