"Nothing is agreed until everything is agreed": The Emergence of Rule of Law Conditionality in the Council of the EU

The EU has tried to use various existing mechanisms to counter illiberal practices by its member states and to ensure respect for the rule of law and its fundamental values. However, despite these attempts, the EU's action against rule of law backsliding is largely seen as futile. One of the reasons for the EU's rather limited action in defence of the rule of law lies in its institutional arrangement, which delegates the main enforcement capacity to the most intergovernmental level of the supranational entity - the Council of the European Union (the Council) and the European Council. This was evident in the negotiations on the recent conditionality regulation, where some even argue that the Council has significantly exceeded its institutional powers delegated by the EU Treaties. In order to shed light on the prospects for the development and enforcement of the EU's rule of law policy, this paper examines Member States' attitudes towards the rule of law during the negotiations on the recent regulation on budget conditionality. This regulation seems to be the most viable instrument in the EU's RoL toolbox so far, as it is linked to the management of EU funds that benefit all Member States. Moreover, as many believe, this policy of conditionality would allow the EU to "shoot the Achilleses of European illiberalism in the heel". I therefore suggest that the negotiations on the conditionality regulation should have been the first time that member states realised that the EU's rule of law enforcement policy could lead to something more serious than it had been before. Second, such a tense environment should have forced member states to put all their cards on the table, which in turn should have exposed the most vitriolic part of EU intergovernmental decision-making. Member states, both for and against the rule of law, should have made their preferences crystal clear to their counterparts and tried to translate them into the final outcome. In this paper, I then ask the following research question: What explains support and/or opposition to the development of EU rule of law policy in the Council? This means answering related questions such as why did member states support or oppose the conditionality regulation? Moreover, is decision-making driven by dominant symbolic reasons (e.g. demonstrating the EU's capacity to act) or substantive concerns (i.e. remedying violations of the EU's core values)? This research takes an inductive approach, analysing member states' positions on the rule of law and conditionality through qualitative analyses of two types of documents. First, member states' opinion papers on the Commission's 2019 Communication on further strengthening the rule of law in the Union. Second, I analyse 16 video deliberations on the negotiations on the MFF and the rule of law conditionality that took place in the General Affairs Council (GAC) and the Foreign Affairs Council (FAC) between 14 May 2018 and 17 November 2020. Finally, but importantly, I plan to conduct interviews with member state representatives in the Council to complement my analyses.