Peer reviewing the rule of law? A new mechanism to safeguard EU values

Over the past years, several instruments have been developed to confront backsliding on the rule of law and other fundamental values by some EU member states. The proposed paper discusses the latest addition to the EU’s toolbox, the Council’s peer review on the rule of law. Conducted for the first time in November 2020, the new instrument pursues a universal and dialogue-based approach. It will regularly review all EU member states, not just the ones with an acute rule of law crisis, and it relies on peer and public pressure to generate results. These features differentiate it from sanctioning instruments, such as the Article 7 TEU procedure and the recently agreed (but temporarily suspended) budget conditionality mechanism, but also from softer instruments, such as the Commission’s Rule of Law Report and the Council’s Annual Rule of Law Dialogue. The proposed paper assesses the new instrument in two ways. First, it discusses whether the rule of law peer review may avoid the shortcomings of other rule of law instruments, such as politicization, political stalemate, and ‘rallying-around-the flag’ effects in the case of sanctioning mechanisms, and the limited effects of the Rule of Law Report and the Council dialogue. Second, the paper assesses the EU rule of law peer review by evaluating its institutional design in the light of experiences with peer reviews in other international organizations and policy fields. Judging by the November 2020 round of the EU rule of law peer review, the limited time devoted to the review, the absence of transparency and publicity, and the lack of recommendations to reviewed countries may become problems. A comparative research project on peer reviews in various international organizations and policy fields (conducted by the paper-giver and colleagues) identifies the importance of such design choices and their practical effects.