Contesting the Rule of Law in the European Union: The Creation and Implementation of the Rule of Law Conditionality Regulation

This chapter provides an overview on the political and academic debates that occurred during the various stages of the process of adopting and implementing the European Union’s 2020 Regulation concerning rule of law conditionality. The chapter starts by reviewing the disagreements on the potential (lack of) effectiveness of establishing provisions concerning conditionality in this context, and discusses a variety of political and legal alternatives that were proposed to tackle the crisis. Subsequently, the legislative process of setting up the mechanism also proved controversial, both among scholars and within and among the EU institutions, involving disagreements between those who favoured a far-reaching instrument to confront rule of law violations comprehensively and others seeking to establish a narrower solution making use primarily of budgetary tools. The delayed implementation of the regulation ignited further debates about the impact of these decisions on the EU’s institutional balance, with questions raised in particular about the role of the European Council in this process. In a final section the chapter then discusses the particular case of Hungary—at the time of writing the only member state to have been sanctioned under the new regulation. Here controversies surrounded the—arguably inconsistent—application of the new regulation alongside other mechanisms at the disposal of the European Union. The chapter concludes by putting the application of the regulation into the perspective of the wider context within which this process has unfolded, and which has demonstrated the tensions between legal provisions and the opportunities for political interference that remain.