Soft tool, tough problems: The EU Commission’s Rule of Law Report

A common trope in the discussion around rule of law backsliding in the EU has been the need ‘to get tough’ on transgressors. Accordingly, much of the scholarly and political debate has focused on the coercive tools of the EU, such as the Article 7 TEU procedure and rule of law conditionality in the EU’s budgets. In turn, the softer tools in the EU’s toolbox have been derided as toothless and as primarily rooted in the member state’s desire to avoid constraints on national sovereignty. Against the background of this debate, the paper reviews the significance of the Commission Rule of Law Report. After its establishment in 2020, the Report has been strengthened by the introduction of country-specific recommendations in the third (2022) edition of the report. In addition, the Report has been increasingly used as a reference in other procedures of the EU, for instance in budget conditionality procedures and in a 'peer review' of the report in the General Affairs Council. The Commission has also built connections to monitoring and review procedures outside of the EU (most significantly with the Council of Europe). Through these developments, the Report has developed at least some potential for "jawboning" transgressors into better rule of law performance. Yet, the extent to which this potential is realized remains unclear. The paper reviews the development of the Rule of Law Report since its establishment and the politics involved in its practical operation.