Table of Contents: I. Situating the topic. – II. Dealing with rule transgressions. – II.1. Instrumentalist and normative approaches. – II.2. The potential of peer reviews. – III. What is wrong with the current approaches? – III.1. The Article 7 procedure and the rule of law framework. – III.2. The budget conditionality mechanism. – III.3. The Commission Rule of Law Report. – III.4. The Council’s annual Rule of Law Dialogue. – IV. The EU Rule of Law Peer Review. – IV.1. History of the initiative. – IV.2. Which institutional design for the initiative? – IV.3. Can the EU peer review address the problems of the approaches? – V. Ways ahead?
Abstract: The possible remedies that the EU can use against backsliding on the rule of law are limited: While art. 7 TEU has been widely conceived as ineffective, the recently introduced budget conditionality may become bogged down in court cases. Softer instruments like the Commission Rule of Law Report provide observations on rule of law developments, but are in themselves unable to address transgressions. Against this background, the Council has recently introduced a peer review mechanism that may exert peer and public pressure on transgressors. However, the agreed procedures show important deficits such as lacking transparency to the outside world, limited time devoted to the review, and the absence of clear country-specific recommendations that could become the focus of peer and public pressure. The new procedure thus needs reform to achieve results. A comparison with peer reviews among states in other international organizations show the potential that peer reviewing holds.
Keywords: rule of law – peer review – compliance – European Union – article 7 – backsliding.
* Professor of International Relations, Maastricht University, email@example.com.