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Biting Intergovernmentalism: The Case for the Reinvention of Article 259 TFEU to Make It a Viable Rule of Law Enforcement Tool

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In this largely instrumental thought experiment I make the case for exploring the potential of Article 259 TFEU, allowing for direct actions brought by the member states of the European Union against other member states in the context of the enforcement of the rule of law in the member states deviating from the principles of Article 2 TEU. Deploying this proposal will imply changing the established practice of (non-)application of Article 259 TFEU. Such a change, while not departing from the letter or the spirit of the law, has several advantages, from not getting the Commission directly involved in the action about the values of Article 2 TEU (should it wish to keep on staying away), to avoiding the unhelpful construction of Article 258 TFEU, which has been interpreted too cautiously and emerged as unhelpful in the context of rule of law enforcement and entirely unused in the context of the Charter of Fundamental Rights violations. Change should start somewhere and the member states, using Article 259 TFEU potentially could take the lead. In making the plea for paying more attention to horizontal enforcement of values among the member states (albeit via the Court of Justice) this contribution draws on the helpful analysis of the possibility of bundling evidence of member state disregard of the rule of law to start ‘systemic infringement actions’ before the Court of Justice. This technique, proposed by Kim Lane Scheppele, could make a difference in the world of enforcement of the promise of compliance with the very basics contained in Article 2 TEU.
Cover: Billy The Kid, 2000, Steven Lewis
THE JEAN MONNET PROGRAM
J.H.H. Weiler, Director
Gráinne de Burca, Director
Jean Monnet Working Paper 11/15
Dimitry Kochenov
Biting Intergovernmentalism:
The Case for the Reinvention of Article 259 TFEU to Make It
a Viable Rule of Law Enforcement Tool
NYU School of Law New York, NY 10011
The Jean Monnet Working Paper Series can be found at
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1
Biting Intergovernmentalism:
The Case for the Reinvention of Article 259 TFEU to Make It a Viable Rule of Law
Enforcement Tool
Dimitry Kochenov*
Abstract
In this largely instrumental thought experiment I make the case for exploring the
potential of Article 259 TFEU, allowing for direct actions brought by the Member States
of the European Union against other Member States in the context of the enforcement of
the Rule of Law in the Member States deviating from the principles of Article 2 TEU.
Deploying this proposal will imply changing the established practice of (non-
)application of Article 259 TFEU. Such a change, while not departing from the letter or
the spirit of the law, has several advantages, from not getting the Commission directly
involved in the action about the values of Article 2 TEU (should it wish to keep on
staying away), to avoiding the unhelpful construction of Article 258 TFEU, which has
been interpreted too cautiously and emerged as unhelpful in the context of Rule of Law
enforcement and entirely unused in the context of the Charter of Fundamental Rights
violations. Change should start somewhere and the Member States, using Article 259
TFEU potentially could take the lead. In making the plea for paying more attention to
horizontal enforcement of values among the Member States (albeit via the Court of
Justice) this contribution draws on the helpful analysis of the possibility of bundling
evidence of Member State disregard of the Rule of Law to start ‘systemic infringement
actions’ before the Court of Justice. This technique, proposed by Kim Lane Scheppele,
could make a difference in the world of enforcement of the promise of compliance with
the very basics contained in Article 2 TEU.
* Visiting Professor and Martin and Kathleen Crane Fellow in Law and Public Affairs, Woodrow Wilson
School, Princeton University (2015–2016); Chair in EU Constitutional Law, University of Groningen;
Visiting Professor, College of Europe, Natolin. Early versions of this work were presented at a seminar at
the European Parliament and at conferences in Paris and Tilburg. I wish to thank István Hegedűs,
Turkuler Isiksel and Maurice Adams for the kind invitations and Kim Lane Scheppele and Panos
Koutrakos for indispensable comments. Assistance of Elena Basheska and Harry Panagoloulos is kindly
acknowledged.
2
Introduction
This brief contribution makes the case for exploring the potential of Article 259 TFEU,
allowing for direct actions brought by the Member States of the European Union, in the
context of the enforcement of the Rule of Law in the Member States deviating from the
principles of Article 2 TEU.1 While plentiful possible ways to enforce the Rule of Law
have been proposed so far2 – some more likely to be effective than others3 – all the
proposals overwhelmingly focus on institutional action, either within the context of the
Union – including the actions by the existing institutions: Council,4 the European
Commission,5 the Fundamental Rights Agency of the EU (FRA)6 and actions by
institutions yet to be created, such as the Copenhagen Commission7 – or outside the EU
context, such as the involvement of the Venice Commission.8 Reliance on the Member
1 For a normative analysis of the context necessitating intervention, see e.g. A. von Bogdandy and M.
Ioannidis, ‘Systemic Deficiency in the Rule of Law: What It Is, What Has Been Done, What Can Be Done
(2014) 51 Common Market Law Review, 59; C. Closa, ‘Reinforcing EU Monitoring of the Rule of Law:
Normative Arguments, Institutional Proposals and the Procedural Limitations’, in C. Closa and D.
Kochenov (eds.), Reinforcing Rule of Law Oversight in the European Union (Cambridge: Cambridge
University Press, 2015).
2 For a brief overview, see C. Closa, D. Kochenov and J. H. H. Weiler, ‘Reinforcing the Rule of Law
Oversight in the European Union’ (2014) RSCAS Working Paper (EUI Florence), 25. For a more in-depth
approach, see the contributions in C. Closa and D. Kochenov (eds.), Reinforcing Rule of Law Oversight in
the European Union (Cambridge: Cambridge University Press, 2015); A. Jakab and D. Kochenov (eds.),
The Enforcement of EU Law and Values: Methods against Defiance (Oxford: Oxford University Press,
2016).
3 For comparative analyses, see e.g., Closa et al., ‘Reinforcing the Rule of Law Oversight’, op cit.; D.
Kochenov, ‘On Policing Article 2 TEU Compliance – Reverse Solange and Systemic Infringements
Analyzed’ (2014) XXXIII Polish Yearbook of International Law, 145.
4 Council of the EU, press release no. 16936/14, 3362nd Council meeting, General Affairs, Brussels, 16
December 2014, pp. 20–21; E. Hirsch Ballin, ‘Mutual Trust: The Virtue of Reciprocity Strengthening the
Acceptance of the Rule of Law through Peer Review’, in C. Closa and D. Kochenov (eds.), Reinforcing Rule
of Law Oversight in the European Union (Cambridge: Cambridge University Press, 2015).
5 European Commission, ‘A New EU Framework to Strengthen the Rule of Law’, Strasbourg, 11 March
2014, COM(2014) 158 final. For an analysis, see D. Kochenov and L. Pech, ‘Monitoring and Enforcement
of the Rule of Law in the European Union: Rhetoric and Reality’ (2015) European Constitutional Law
Review (forthcoming). See also, crucially, K. L. Scheppele, ‘Enforcing the Basic Principles of EU Law
through Systemic Infringement Actions’, in C. Closa and D. Kochenov (eds.), Reinforcing Rule of Law
Oversight in the European Union (Cambridge: Cambridge University Press, 2015) (outlining how to
empower the Commission to intervene in the cases related to the breach of Art. 2 TEU based on a so-
called ‘systemic infringement procedure’, allowing for a more effective deployment of Art. 258 TFEU).
6 G. N. Toggenburg and J. Grimheden,The Rule of Law and the Role of Fundamental Rights: Seven
Practical Pointers’, in C. Closa and D. Kochenov (eds.), Reinforcing Rule of Law Oversight in the
European Union (Cambridge: Cambridge University Press, 2015).
7 J.-W. Müller, ‘Should the European Union Protect Democracy and the Rule of Law in Its Member States’
(2015) 21 ELJ, 141; J.-W. Müller, ‘The EU as a Militant Democracy’ (2014) 165 Revista de Estudios
Políticos, 141.
8 K. Tuori,From Copenhagen to Venice, in C. Closa and D Kochenov (eds.), Reinforcing Rule of Law
Oversight in the European Union (Cambridge: Cambridge University Press, 2015); J. Nergelius, ‘The Role
of the Venice Commission in Maintaining the Rule of Law’, in A. von Bogdandy and P. Sonnevend (eds.),
Biting Intergovernmentalism: The Case for the Reinvention of Article 259
TFEU to Make It a Viable Rule of Law Enforcement Tool
3
States’ courts,9 and a potential fine-tuning of the EU’s powers through a broad
interpretation of the Charter of Fundamental Rights of the EU (CFR)10 by the Court of
Justice of the European Union (ECJ) has also been advocated.
Yet I would argue that in all the diversity of the proposed approaches, the
scholars and institutions proposing them tend to underplay the potential role that the
Member States of the European Union can and should play through direct actions
before the ECJ, bringing before the Court those their peers that depart from the
fundamental principles of Article 2 TEU – an argument potentially bringing the largely
ignored Article 259 TFEU,11 which contains the following rule: ‘A Member State which
considers that another Member State has failed to fulfil an obligation under the Treaties
may bring the matter before the Court of Justice of the European Union’ to the fore.12
Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and
Romania (Oxford: Hart, 2015).
9 A. von Bogdandy et al., ‘Reverse Solange – Protecting the Essence of Fundamental Rights against EU
Member States’ (2012) 49 CMLRev., 489. For analyses, see J. Croon-Gestefeld, ‘Reverse Solange – Union
Citizenship as a Detour on the Route to European Rights Protection against National Infringements’, in D.
Kochenov (ed.), EU Citizenship and Federalism: The Role of Rights (Cambridge: Cambridge University
Press, 2016); Kochenov, ‘On Policing Article 2 TEU Compliance’, op cit. See also an upgraded versions of
this proposal: A. von Bogdandy et al., ‘A European Response to Domestic Constitutional Crisis: Advancing
the Reverse-Solange Doctrine’, in A. von Bogdandy and P. Sonnevend (eds.), Constitutional Crisis in the
European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Oxford: Hart,
2015); A. von Bogdandy, C. Antpöller and M. Ioannidis, ‘Enforcing European Values’, in A. Jakab and D.
Kochenov (eds.), The Enforcement of EU Law and Values (Oxford: Oxford University Press, 2016).
10 A. Jakab, ‘The EU Charter of Fundamental Rights as the Most Promising Way of Enforcing the Rule of
Law against EU Member States’, in C. Closa and D. Kochenov (eds.), Reinforcing Rule of Law Oversight
in the European Union (Cambridge: Cambridge University Press, 2015). The Charter’s potential is as far-
reaching as it is unused: F. Hoffmeiser,Enforcing the EU Charter of Fundamental Rights in Member
States: How Far Are Rome, Budapest and Bucharest from Brussels?’, in A. von Bogdandy and P.
Sonnevend (eds.), Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics
in Hungary and Romania (Oxford: Hart, 2015); A. Łazowski, ‘Decoding a Legal Enigma: The Charter of
Fundamental Rights of the European Union and Infringement Proceedings’ (2013) 14 ERA Forum, 573.
See also P. Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’ (2002) 39
CMLRev., 945.
11 See most importantly, M. Smith,The Evolution of Infringement and Sanction Procedures. Of Pilots,
Diversions, Collisions, and Circling, in A. Arnull and D. Chalmers (eds.), The Oxford Handbook of
European Law (Oxford: Oxford University Press, 2015) 350; K. Lenaerts, I. Maselis and K. Gutman (J. T.
Nowak (ed.)), EU Procedural Law (Oxford: Oxford University Press, 2013), pp. 159–213; T. Materne, La
procedure en manquement d’État: Guide à la lumière de la jurisprudence de la Cour de justice de l’Union
européenne (Paris: Larcier, 2012); L. Prete and B. Smulders,The Coming of Age of Infringement
Proceedings’ (2010) 47 CMLRev., 9. See also Łazowski, ‘Decoding a Legal Enigma’, op cit., R. Baratta, ‘Un
recente procedimento di infrazione “interstatale” dinanzi alla Commissione europea’ (2010) XCIII Rivista
di diritto internazionale, 115. For a compelling account of the enforcement of EU law as it stands, see, M.
Cremona (ed.), Compliance and the Enforcement of EU Law (Oxford: Oxford University Press, 2012).
12 Art. 259(1) TFEU.
4
This paper’s argument is based on three fundamental starting points.
Firstly, the potential for direct actions under Article 259 TFEU has been unjustly
overlooked by the commentators so far, while offering a much less cumbersome way to
attempt to enforce the acquis and values, allowing one (or more) Member State to act
directly in a context where all other instruments depend on meeting relatively high
institutional thresholds, often implying the need to achieve difficult political
agreements, potentially putting the enforcement of the law (and values) in jeopardy.13
The ‘letters of foreign ministers’14 are a clear sign that some Member States tend to be
more upset than others with the state of affairs in values enforcement in the EU – the
contrary can also be true: some Member States, even while holding the Presidency of the
EU,15 would not be disturbed by disruptions in values protection. While the EU is based,
The provision continues as follows:
Before a Member State brings an action against another Member State for an alleged
infringement of an obligation under the Treaties, it shall bring the matter before the
Commission.
The Commission shall deliver a reasoned opinion after each of the States concerned has
been given the opportunity to submit its own case and its observations on the other party's
case both orally and in writing.
If the Commission has not delivered an opinion within three months of the date on which
the matter was brought before it, the absence of such opinion shall not prevent the matter
from being brought before the Court.
13 Art. 7 TEU, in particular, comes to mind in this context: W. Sadurski, ‘Adding Bite to a Bark: The Story
of Article 7, EU Enlargement, and Jörg Haider’ (2010) 16 Columbia Journal of European Law, 385; B.
Bugarič, ‘Protecting Democracy inside the EU: On Article 7 TEU and the Hungarian Turn to
Authoritarianism’, in C. Closa and D. Kochenov (eds.), Reinforcing the Rule of Law Oversight in the
European Union (Cambridge: Cambridge University Press, 2016); L. F. M. Besselink, ‘The Bite, the Bark
and the Howl: Article 7 and the Rule of Law Initiatives’, in A. Jakab and D. Kochenov (ed.), The
Enforcement of EU Law and Values: Methods against Defiance (Oxford: Oxford University Press, 2016
(forthcoming)).
14 See the letter of 6 March 2013 sent by four Foreign Affairs Ministers to the President of the Commission
http://www.rijksoverheid.nl/bestanden/documenten-en-ublicaties/brieven/2013 /03/13/brief-aan-
europese-commissie-over-opzetten-rechtsstatelijkheidsmechanisme/brief-aan-europese-commissie-over-
opzetten-rechtsstatelijkheidsmechanisme.pdf. The crucial thing to understand about such letters is that
all Member States are always invited, through their Foreign Ministers, to sign. That only four Ministers
ultimately signed thus means that 24 others do not consider extending the EU’s capacity for action in the
domain of values either timely or necessary.
15 So the Latvian presidency refused to attend a European Parliament debate on the state of the Rule of
Law in Hungary in May 2015. See Politics.hu, ‘European Liberals Condemn Latvian EU Presidency for
Shunning Debate on Hungary’: http://www.politics.hu/20150519/european-liberals-condemn-latvian-
eu-presidency-for-shunning-debate-on-hungary/. Interestingly, Hungary held the Presidency of the EU
when the problematic constitutional perturbations happened. On the story of the Hungarian ‘reforms’, see
L. Sólyom,The Rise and Decline of Constitutional Culture in Hungary, in A. von Bogdandy and P.
Sonnevend, Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in
Biting Intergovernmentalism: The Case for the Reinvention of Article 259
TFEU to Make It a Viable Rule of Law Enforcement Tool
5
inter alia, on the principle of subsidiarity and also requires blocking ultra vires action,
Article 259 TFEU provides for obvious respect for both such considerations, as the
Member States are empowered by the Treaty to seize the Court in a situation where the
institutions are silent and the violation of the law is ongoing.
Secondly, the idea of such direct actions is as appealing as it is usable in practice,
notwithstanding a most restricted history of use of the relevant Treaty provision.16 This
is due to the intricate connection, which emerged between Article 259 TFEU and the
Commission-initiated Article 258 TFEU:17 the Member State initiating the action
approaches the Commission first, which then takes over the action, should it agree with
the arguments presented. This says nothing about the potential effectiveness of Article
259 TFEU taken alone in the context of values’ enforcement. Moreover, parallels with
the use of direct state-versus-state actions in the context of other legal systems in
Europe testify to the appeal of the idea.18 The Council of Europe experience is
particularly valuable in this respect:19 direct state actions should not be dismissed
outright, especially not in the difficult circumstances.
Hungary and Romania (Oxford: Hart, 2015); M.nkuti, G. Halmai, and K. L. Scheppele, ‘Hungarys
Illiberal Turn: Disabling the Constitution’ (2012) 23 Journal of Democracy 138. See also R. Uitz, ‘Can You
Tell When and Illiberal Democracy Is in the Making? An Appeal to Comparative Constitutional
Scholarship from Hungary’ (2015) 13 I-CON, 279.
16 Only a handful of cases have been brought based on Art. 259 TFEU, most of them highly controversial:
e.g. Case 141/78 France v. UK [1979] ECR 2923; Case C-388/95 Belgium v. Spain [2000] ECR I-3123;
Case C-145/04 Spain v. UK [2006] ECR I-7917; C-364/10 Hungary v. Slovakia [2012]
ECLI:EU:C:2012:630.
17 See, most importantly, Lenaerts et al., EU Procedural Law, op cit.; Prete and Smulders, ‘The Coming of
Age of Infringement Proceedings’, op cit.
18 On the general need to apply comparative arguments in the context of the enforcement of the Rule of
Law and other values by regional organisations, see the impressive overview by Carlos Closa, including
precise mechanics of action under the law of each of the regional organisations: C. Closa, ‘Law
Enforcement by Regional Organisations’, in A. Jakab and D. Kochenov (eds.), Enforcement of EU Law
and Values: Methods against Defiance (Oxford: Oxford University Press, 2016 (forthcoming)).
19 A handful of inter-state cases have been brought before the ECtHR. The full list is as follows: Greece v.
UK (I and II) (application nos. 176/56 and 299/57); Austria v. Italy (application no. 788/60); Denmark,
Norway, Sweden and the Netherlands v. Greece (I and II) (application nos. 3321–3323/67, 3344/67 and
4448/70); Ireland v. UK (I and II) (application nos. 5310/71 and 5451/72); Cyprus v. Turkey (I, II and
III) (application nos. 6780/74, 6950/75 and 8007/77); Denmark, France, Norway, Sweden and the
Netherlands v. Turkey (application nos 9940–9944/82); Cyprus v. Turkey (IV) (application no.
25781/94); Denmark v. Turkey (application no. 34382/97); Georgia v. Russia (I, II and III) (application
nos. 13255/07, 38263/08 and 61186/09) Ukraine v. Russia (I and II) (application nos. 20958/14 and
43800/14). The absolute majority of these cases relate to open conflicts between states. For a critical
appraisal, see B. Browning, ‘Georgia, Russia and the Crisis of the Council of Europe: Inter-State
Applications, Individual Complaints, and the Future of the Strasbourg Model of Human Rights Litigation’,
in J. Green and C. Waters (eds.), Conflict in the Caucasus: Implications for International Legal Order
6
Thirdly, this contribution demonstrates that the triggering of Article 259 TFEU
should not be excessively difficult, legally speaking, in the context of growing
interdependence and mutual reliance in the EU,20 where not only acquis violations
sensu stricto but also violations of the fundamental values as expressed in Article 2
TEU21 have clear potential to result in negative externalities for all the EU Member
States.22 In this sense the argument relies on the idea that bringing systemic
infringement actions in the area of values based on Article 2 TEU23 in cumulation with
other instruments,24 such the duty of loyalty,25 should broaden the room for manœuvre
enjoyed by the Union – and its Member States, of course – and supply a sound method
of grounding infringement actions in the Treaties.
This being said, procedurally speaking Article 259 TFEU does not set a high
threshold at all. ‘Externalities’ per se are not even required.26 Closely following the
initial proposal concerning the deployment of systemic infringement actions made by
Kim Lane Scheppele,27 this contribution borrows the cumulation idea and
methodology28 and applies it to the direct action context, where one Member State
challenges another. The idea of itself is not entirely new, as the Court of Justice has
applied cumulation before, but only within the realm of the acquis sensu stricto – never
in relation to the breaches of the values (and, previously, principles) of Article 2 TEU.
(London: Palgrave Macmillan, 2010). For an analysis which approaches the ECHR procedure in the
context of other international inter-state actions, see e.g., S. Leckie, ‘The Inter-State Complaint Procedure
in International Human Rights Law: Hopeful Prospects or Wishful Thinking?’ (1988) 10 HRQ 249, 271–
276.
20 C. Closa, ‘Reinforcing EU Monitoring of the Rule of Law’, op cit.
21 For a detailed distinction between the acquis and the values of democracy and the Rule of Law now
reflected in Article 2 TEU, please consult D. Kochenov, EU Enlargement and the Failure of
Conditionality (The Hague: Kluwer Law International, 2008) (on the pre-accession context) and D.
Kochenov, ‘Self-Constitution through Unenforceable Promises’, in J. Přibáň (ed.) Self-Constitution of
Europe (Farnham: Ashgate, 2015 (forthcoming)).
22 See, for a general analysis, D. Kochenov, ‘The Internal Aspects of Good Neighbourliness in the EU:
Loyalty and Values’, in D. Kochenov and E. Basheska (eds.), Good Neighbouliness in the European Legal
Context (Leiden: Brill-Nijhoff, 2015).
23 Scheppele, ‘Enforcing the Basic Principles of EU Law’, op cit.
24 Closa et al., ‘Reinforcing the Rule of Law Oversight’, op cit.
25 M. Klamert, The Duty of Loyalty in EU Law (Oxford: Oxford University Press, 2014). See, also, C.
Hillion, ‘Overseeing the Rule of Law in the EU: Legal Mandate and Means’, in C. Closa and D. Kochenov
(eds.), Reinorcing the Rule of Law Oversight in the European Union (Cambridge: Cambridge University
Press, 2015 (forthcoming)).
26 See the analysis below.
27 Scheppele, ‘Enforcing the Basic Principles of EU Law’, op cit. See also P. Craig and G. de Búrca, EU
Law: Texts, Cases Materials (6th edn, Oxford: Oxford University Press, 2015), pp. 431–453.
28 For a great overview of the law as it stands, see, Lenaerts et al. EU Procedural Law, op cit. For a clear
selection of the most relevant cases, see Scheppele, ‘Enforcing the Basic Principles of EU Law’, op cit.
Biting Intergovernmentalism: The Case for the Reinvention of Article 259
TFEU to Make It a Viable Rule of Law Enforcement Tool
7
The novelty of the proposal is thus precisely in moving the cumulation technique to the
sphere of the enforcement of Article 2 TEU coupled with other provisions, such as the
duty of loyalty of Article 4(3) TEU, for instance. In terms of the steps to come following
a declaration of breach by the ECJ, Scheppele’s approach is applicable in full, as Article
260 TFEU works equally in the context of any failure to implement a judgment of the
ECJ, be it a declaration of breach on the basis of Article 258 TFEU, 259 TFEU, or a
judgment rooted procedurally in any other provision.
The paper will progress along the lines of the three points made above: arguing
that direct actions by the Member States are particularly useful in the context of the
current discussions in the area of values’ enforcement; that Article 259 TFEU is easy to
deploy and that it is also perfectly possible in practice; and drawing inspiration from
Kim Lane Scheppele’s proposal for systemic infringement actions made in the context of
the utilisation of Article 258 TFEU and, as a natural follow-up, of Article 260 TFEU. The
paper concludes by praising Article 259 TFEU for its hitherto unused potential and by
urging most serious consideration of its application in practice against a deviant
Member State to set the tone for a more regular, strict scrutiny of adherence to the
values of Article 2 TEU by the Member States.
I. Direct state vs. state actions in the current values-enforcement
climate
In making the case for not ignoring the obvious potential of Article 259 TFEU in
bringing about compliance with the Rule of Law and other values across the EU, this
contribution assumes the need for the EU’s intervention to achieve such ends. This is far
from illogical; indeed, there are compelling arguments for the EU’s intervention.29 Yet
when speaking about enhancing the EU’s potential effectiveness to intervene in the area
of values’ enforcement which is not per se squarely placed within the realm of the
acquis, the counterarguments against such interventions must also be borne in mind.
These are based on the coherence of the division of powers between the EU and the
29 Closa, ‘Reinforcing EU Monitoring of the Rule of Law’, op cit.; Müller, ‘Should the European Union
Protect Democracy and the Rule of Law in Its Member States’, op cit.; Müller,The EU as a Militant
Democracy’, op cit.
8
Member States,30 rooted in the caution stemming from the EU’s democratic deficit,31
and are also based on the EU’s own Rule of Law deficiencies, which become all the more
able to taint even properly functioning Member States,32 the more powers the EU
acquires in the context of values’ enforcement. These three strands of critical response
should not be ignored, clearly illustrating as they do the great dangers for the EU and for
the Member States which could stem from any enforcement reform enacted without
seriously rethinking the Union’s essence, as well as possibly adapting its legal-political
system to the new reality of the need for values enforcement.
This paper distinguishes itself from such observations – some of them the
author’s own33 at two levels. On the one hand, the argument made here is purely
instrumental rather than philosophical: the problem of non-compliance with the values
of Article 2 TEU in some quarters is quite clear and this paper proposes a possible
solution, thus taking its place alongside the other valuable proposals made to this end
over the last years. In doing so, its most obvious contribution consists in developing the
essentially important proposition made by Kim Lane Scheppele with regard to the
possibility of bringing systemic infringement actions. The proposal is thus sold to the
reader as purely instrumental.
On the other hand, however, Article 259 TFEU actually helps us avoid the
conceptual scepticism regarding allowing the EU to grow its enforcement powers out of
proportion in comparison with the scope of conferral. Virtually all such criticism focuses
on the potential harmfulness of extending the EU’s action in the area of values in the
current climate of the EU’s design and functioning – all the said need to enforce the
values notwithstanding. The way Article 259 TFEU works, however, puts the Member
States themselves – not the Union and its institutions – into the spotlight. This means
that when an action by a Member State which is related to the adherence to the values
30 J. Cornides,The European Union: Rule of Law or Rule of Judges? (2013) EJIL Analysis (blog)
available at: http://www.ejiltalk.org/the-european-union-rule-of-law-or-rule-of-judges/
31 J. H. H. Weiler, ‘Epilogue: Living in a Glass House: Europe, Democracy, and the Rule of Law’, in C.
Closa and D. Kochenov (eds.), Reinforcing Rule of Law Oversight in the European Union (Cambridge:
Cambridge University Press, 2016).
32 D. Kochenov, ‘EU Law without the Rule of Law. Is the Veneration of Autonomy Worth It?’ (2015) 34
Yearbook of European Law. See also, G. Palombella, ‘Beyond Legality – before Democracy: Rule of Law
Caveats in a Two-Level System’, in C. Closa and D. Kochenov (eds.), Reinforcing Rule of Law Oversight in
the European Union (Cambridge: Cambridge University Press, 2016).
33 Kochenov, ‘EU Law without the Rule of Law’, op cit.
Biting Intergovernmentalism: The Case for the Reinvention of Article 259
TFEU to Make It a Viable Rule of Law Enforcement Tool
9
expressed in Article 2 TEU by some other Member State is brought directly to the Court
of Justice, it is obviously the Member State bringing the action which acts as the
guardian of values in the first place, not an institution of the Union. This potentially
diminishes the arguably problematic aspects related to an overly broad interpretation of
the legal effects of Article 2 TEU.34
Accepting the possible objections to the very idea of enhancing the EU’s toolkit
for enforcing the values of Article 2 TEU in defiant Member States, this article thus
makes a simple claim: Article 259 TFEU is a relatively natural and easy way out, since
deploying this instrument amounts to empowering the Member States, not the Union’s
institutions directly, with the ECJ acting as a mediator in this context. The provision in
question, if deployed wisely, could solve an array of outstanding problems. It can enable
swift EU-level action; such action will not depend on achieving implausible thresholds
of institutional consensus – as the deployment of Article 7 TEU requires, for instance –
and such action will eventually push the (relatively passive) EU institutions,35 especially
the Commission, to rethink their behaviour, as they will be confronted with a clear
expression of the disaffection of the Member States with developments in the values
arena.
II. Direct state vs. state actions as a tool of the enforcement of
values
Article 259 TFEU tends to be overlooked by commentators,36 if not viewed as an
outright unusable tool for at least four reasons concerning the history of the prior
deployment of this provision, its place in the law enforcement system shaped by the
Treaties and the perception of the negative influences it might have on the inter-state
relations in the Union, let alone the potential difficulties of triggering this provision in
34 Even if I actually agree with Christophe Hillion’s opinion that some of the criticism of Article 2 TEU-
based actions is legally unsound, as the article clearly boasts clear legal value and was meant to be
enforced, to which the very existence of the Article 7 TEU procedure abundantly testifies: Hillion,
‘Overseeing the Rule of Law in the EU’, op cit.
35 Bringing a case based on an allegation of inaction is of course not an option in such cases, as the
Commission enjoys full discretion under Art. 258 TFEU: Case 247/87 Star Fruit v. Commission [1989]
ECR 291 ECLI:EU:C:1989:58. Compare Prete and Smulders, ‘The Coming of Age’, op cit., 13–15.
36 To the best of my knowledge, not a single one of the key proposals related to the mechanics of the
enforcement of EU values was related to the use of Art. 259 TFEU to this end.
10
the first place. While the mechanics of how Article 259 TFEU could be deployed in
practice to police values compliance will be assessed in the part which follows, some
other technical as well as ideological objections will be addressed here individually, only
to demonstrate that the difficulties they are associated with, as well as their potential
ineffectiveness, might be somewhat overstated. This is particularly true in the case of
value enforcement as opposed to the enforcement of the black letter of the acqus.37
The fact that enforcement strategies based on Article 259 TFEU are not
frequently put forward is not surprising at all. This provision in the minds of many is
quite rightly associated with the futile attempts by the Member States to distort the
cogent functioning of the EU law enforcement system for internal political ends, as
opposed to empowering the expression of genuine concern about the enforcement of EU
law and the achievement of full compliance. The Article thus came to be associated, in
many quarters, with a leeway provision for merely channelling national political interest
and thus of small, if not quite non-existent, EU law value. A brief exploration of the very
few cases brought to the ECJ on the basis of this provision only reinforces the said
negative perception: virtually all of them in essence have little if nothing to do with the
enforcement of EU law.
Take two among the most recent examples. In Hungary v. Slovakia38 Hungary
invoked free movement of persons law to argue that Slovakia’s refusal to let the
Hungarian President cross the border to be present at the unveiling of a statute of Saint
Stephan, the founder of the Hungarian state, on the very sensitive anniversary of the
invasion of Czechoslovakia by Warsaw pact troops (including Hungarians) in 1968, was
in violation of EU law.39 Even in the context of the Slovak Republic’s own most
despicable behaviour, which institutionalised the humiliation of its citizens belonging to
minorities by expressly introducing the legal requirement that those accepting
Hungarian nationality be stripped of their Slovak citizenship40 – a move which is out of
37 On this essential distinction, see e.g., Kochenov, ‘Self-Constitution through Unenforceable Promises’, op
cit.
38 C-364/10 Hungary v. Slovakia [2012] ECLI:EU:C:2012:630.
39 Annotated by L. S. Rossi in (2013) 50 CMLRev., 1451.
40 J.-M. Araiza, ‘Good Neighbourliness as the Limit of Extra-territorial Citizenship: The Case of Hungary
and Slovakia’, in D. Kochenov and E. Basheska (eds.), Good Neighbouliness in the European Legal
Context (Leiden: Brill-Nijhoff, 2015); Kochenov, ‘The Internal Aspects of Good Neighbourliness in the
EU’, op cit.
Biting Intergovernmentalism: The Case for the Reinvention of Article 259
TFEU to Make It a Viable Rule of Law Enforcement Tool
11
tune with the whole context of the rising importance of EU citizenship41 and a growing
toleration of dual nationality in the EU,42 and which was done to target a particular
ethnic minority43 – it is difficult to argue that the free movement of citizens was
somehow breached as a result of the fact that Hungarian president was unwelcome. The
ECJ confirmed the absurdity of this artificially concocted case.
Similarly, in Spain v. UK,44 Spain purported to allege that the UK was not in full
sovereign control of Gibraltar,45 trying to use a rather artificial pretext in the context of
EU law to block the UK government’s compliance with the decision of the European
Court of Human Rights in Matthews v. UK,46 which obliged the UK to enfranchise the
inhabitants of Gibraltar for European Parliament elections.47 However carefully Spain
tried to make its moot point, questioning the enfranchisement of non-nationals in
particular,48 the goals of the Spanish action, as well as its illegal assumptions regarding
the undisputed legal position of Gibraltar (however much Spain pretends that this is not
the case)49 did not conceal the fact that the case was unrelated to instilling compliance
with EU law in a deviant Member State. Also Spain v. UK, very similarly to Hungary v.
41 For the particular effects of EU citizenship on the nationalities of the Member States showcasing the key
processes of importance in the Slovak context, see D. Kochenov, ‘Member State Nationalities and the
Internal Market: Illusions and Reality’, in N. Nic Shuibhne and L.W. Gormley (eds.), From Single Market
to Economic Union: Essays in Memory of John A. Usher (Oxford: Oxford University Press, 2012).
42 P. Spiro,Dual Citizenship as a Human Right (2010) 8 I-CON 111. See, also, D. Kochenov, ‘Double
Nationality in the EU: An Argument for Tolerance’ (2011) 17 ELJ 323 (providing an EU law perspective).
43 Kochenov, ‘The Internal Aspects of Good Neighbourliness in the EU’, op cit.; Araiza, ‘Good
Neighbourliness as the Limit of Extra-territorial Citizenship’, op cit.
44 Case C-145/04 Spain v. UK [2006] ECR I-7917.
45 For a general discussion in the context of EU law, see A. Khachaturyan, ‘Applying the Principle of Good
Neighbourliness in EU Law: The Case of Gibraltar’, D. Kochenov and E. Basheska (eds.), Good
Neighbourliness in the European Legal Context (Leiden: Brill-Nijhoff, 2015). The facts of Spain v. UK are
obscure and atypical enough to be fascinating and concerned a claim of violation of EU law through the
undue unilateral amendment of an ad hoc sui generis acquis instrument by the UK in order to ensure
compliance with an ECtHR judgment. See the annotation by L. F. M. Besselink in (2008) 45 CMLRev.,
787.
46 Matthews v. U.K. (application no. 24833/94). T. King, ‘Ensuring Human Rights Review of
Intergovernmental Acts in Europe’ (2000) 25 ELRev., 79; O. de Schutter and O. L’Hoest, ‘La cour
européenne des droits de l’homme juge du droit communautaire: Gibraltar, l’Union européenne, et la
Convention européenne des Droits de l’Homme’ (2000) 36 Cahiers de droit européen, 141.
47 For a detailed discussion, see F. Fabbrini, ‘The Political Side of EU Citizenship in the Context of EU
Federalism’, in D Kochenov (ed.), EU Citizenship and Federalism: The Role of Rights (Cambridge:
Cambridge University Press, 2016 (forthcoming)).
48 On the unnecessary connection between political rights and nationality, see H. Lardy, ‘Citizenship and
the Right to Vote’ (1997) OJLS, 75, 97–98.
49 K. Azopardi, Sovereignty and the Stateless Nation: Gibraltar in the Modern Legal Context (Oxford:
Hart Publishing, 2009).
12
Slovakia, is thus a covert attempt to abuse EU law50 to achieve internal political goals
which have nothing in common with the aim of the provision under which the case is
brought: the ECJ was clear in both cases that one cannot speak of an infringement of EU
law in the context of the factual situations at issue.
The aim of Article 259 TFEU is quite clear: the provision is there to ensure that
Member States enjoy the ability to bring their peers to the Court in cases when a failure
to comply with EU law is observed. The presumption behind the provision is that since
all the Member States are in the same boat, they have a vivid interest in ensuring
sustained compliance with EU law by their peers. Formally, however, the provision –
like Article 258 TFEU, of which is it a twin – does not require the demonstration of any
harm or concern on the part of the Member State bringing the suit: the mere fact of a
breach of EU law is sufficient.51 The systemic role of this provision is crucial in a context
where the Commission enjoys absolute discretion in bringing Article 258 TFEU cases.52
Any EU law textbook will explain how this noble goal lent itself to attempts to abuse EU
law in practice. Articles 259 and 258 TFEU naturally lend themselves to working in
tandem, so the first stage of the Article 259 TFEU procedure consists of approaching the
Commission. In the absolute majority of cases, as the story goes, the Commission will
simply start a case under Article 258 TFEU itself, leaving the initiator Member State
with no need to insist on Article 259 TFEU action. It goes without saying that a Member
State cannot oblige the Commission to take over. The Commission can only be
convinced by compelling evidence, which does not remove its full discretion, of course.
The connection between the two provisions explains why Article 259 TFEU has a
notorious reputation of channelling cases like to Hungary v. Slovakia and Spain v. UK
through to the Court: by making an honest assessment of the alleged violation of EU
law, the Commission for quite obvious reasons would never be inclined to support any
highly politicised action which invented a violation of EU law where, in reality, the
respondent Member State is fully in compliance with what EU law demands.
50 It is conceded that this is a somewhat atypical use of the term. For the general state of the art, see A.
Saydé, Abuse of EU Law and Regulation of the Internal Market (Oxford: Hart Publishing, 2014).
51 This is the case since Art. 259 – just like 258 TFEU – is not intended to protect the claimants’ rights.
Rather, the provisions aim to ensure general compliance with EU law: e.g. Case C-431/92 Commission v.
Germany [1995] ECR I-2189, para. 21. Compare Prete and Smulders, ‘The Coming of Age’, op cit., 13.
52 E.g. Opinion of AG Tizzano in Joined cases C-466 and 476/98 Commission v. UK et al. [2002] ECR I-
9741, para. 30. Compare Prete and Smulders, ‘The Coming of Age’, op cit., 14.
Biting Intergovernmentalism: The Case for the Reinvention of Article 259
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Importantly, while the above applies fully to cases of alleged acquis violations,
the situation could be quite different in the context of possible values enforcement
strategies, where the Commission would otherwise shy away from action, or would bring
cases on the basis of concrete provisions of secondary law, while ignoring the context of
a greater failure to comply with key values: democracy, human rights protection, the
Rule of Law, on the part of the respondent Member State. The reasons for this are
numerous but are mostly concerned, it seems, with the Commission’s unwillingness to
open the Pandora’s box of the federal question.53 This largely amounts to being over-
cautious with values and rights which are not entirely rooted in the supranational legal
order. Neither Article 2 TEU not the Charter have – not even cumulatively with other
provisions – figured among the triggers for Article 258 TFEU actions,54 no matter what
kind of violations the Commission was trying to prevent.55
In other words, in the context of acquis enforcement Article 259 TFEU would be,
as we have seen, mostly deployed by de facto abusive Member States seeking to reap
political benefit by instrumentalising an allegation of non-compliance with the acquis
not supported by the Commission. But cases of values compliance should be different: a
very valid set of arguments might fail to win the support of the Commission due to some
residual over-caution and institutional inertia (as demonstrated in practice by now,
especially with regards to the use of the provisions of the Charter),56 to say nothing of
trying to persuade a College of Commissioners with a commissioner from the offending
53 R. Schütze, From Dual to Cooperative Federalism (Oxford: Oxford University Press, 2009); D.
Kochenov (ed.), EU Citizenship and Federalism: The Role of Rigths (Cambridge: Cambridge University
Press, 2016).
54 Łazowski, ‘Decoding a Legal Enigma’, op cit.
55 This is what happened with the judicial retirement and the data protection cases involving Hungary: C-
286/12 Commission v. Hungary [2012] ECLI:EU:C:2012:687; Case C-288/12 Commission v. Hungary
[2014] ECLI:EU:C:2014:237. While the Commission won on paper, the victory was clearly a Pyrrhic one,
as it failed to drive compliance with the fundamental values of Art. 2 TEU. For a detailed explanation see
Scheppele, ‘Enforcing the Basic Principles of EU Law’, op cit.; U. Belavusau, ‘Case C-286/12 Commission
v. Hungary’, 50 CMLRev., 2013, 1145. For a somewhat more positive assessment of the Commission v.
Hungary cases, see an analysis by a lawyer who serves on the Commission: Hoffmeister, ‘Enforcing the
EU Charter in Member States’, op cit.
56 Łazowski, ‘Decoding a Legal Enigma’, op cit., 583–586. Indeed, that the Charter could and should be
used there is no doubt: Hoffmeister, ‘Enforcing the EU Charter of Fundamental Rights in Member States’,
op cit.
14
government sitting in the room.57 Another reason could be the lack of popularity of
values arguments in the eyes of the ECJ: even in the preliminary leading cases alleging
clear Article 2 TEU violations58 – such as the tweaking of the criminal law by the (then)
Prime Minister Berlusconi in order to avoid responsibility for his crimes, the Court was
not persuaded by the need to defend the Rule of Law in principle.59 We can only hope
that clearer examples of value violations appearing before the Court will help it develop
its practice to capture the core of the problem, thus solve the questions left outstanding.
All in all, while Article 259 TFEU has so far given rise to a handful of highly dubious
cases, this does not mean that this provision is not potentially useful in the context of
the new challenges which confront the Union.60
A similar point can be made with regard to the possible objections to the effective
deployment of Article 259 TFEU which arise from the context of the analysis of its
systemic place within the framework of provisions aimed at guaranteeing the effective
enforcement of the law. While the EU boasts an effective system of judicial protection,
numerous scholars have outlined gaps in this system in the context of values
enforcement.61 Although much can be done without Treaty change,62 effective
involvement of the institutions is difficult due to the high thresholds for the activation of
existing provisions,63 as well as the different nature of response required by values
violations compared with the acquis violations, as exemplified by Kim Lane Scheppele
in her analysis of the actual outcomes of the Hungarian judicial retirement case for the
Rule of Law in the Member State in question.64 Consequently, not all assumptions which
57 The ECJ clarified that the Commission is obliged by law to discuss the issue of bringing infringement
proceedings at the meetings of the college. See Prete and Smulders, ‘The Coming of Age’, op cit., 29, with
abundant references to case law.
58 On the enforcement of EU law through the use of the preliminary ruling procedure, see M. Broberg,
‘Private Enforcement through Preliminary Ruling Procedure’, in A. Jakab and D. Kochenov (eds.), The
Enforcement of EU Law and Values: Methods against Defiance (Oxford: Oxford University Press, 2016).
59 Case C-387/02 Berlusconi and others [2005] ECR I-3565, paras 68–69: Hoffmeister, ‘Enforcing the EU
Charter of Fundamental Rights in Member States’, op cit., 206–208.
60 For a broad analysis of this context, see e.g., J.-W. Müller, ‘Safeguarding Democracy inside the EU:
Brussels and the Future of Liberal Order’ (2013) Working Paper No. 3 (Washington DC: Transatlantic
Academy).
61 Müller, ‘Should the European Union Protect Democracy and the Rule of Law in Its Member States?’, op
cit.; von Bogdandy and Ioannidis, ‘Systemic Deficiency’, op cit. For an overview, see, Closa et al.
‘Reinforcement of the Rule of Law Oversight in the EU’, op cit.
62 Hillion, ‘Overseeing the Rule of Law in the EU’, op cit.
63 E.g. Sadurski, ‘Adding Bite to a Bark’, op cit.
64 Scheppele, ‘Enforcing the Basic Principles of EU Law’, op cit.
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TFEU to Make It a Viable Rule of Law Enforcement Tool
15
are true in the context of acquis enforcement are justified in the context of the value
enforcement machinery. Most importantly, while the very structure of the law-
enforcement provisions in the EU seems to beg the conclusion that Article 259 TFEU
enjoys a rather auxiliary place in the grand scheme, with the institutions taking over the
task of acquis enforcement from the individual Member States, the same does not seem
to be entirely true in the values enforcement context. Since the values declared in Article
2 TEU are shared between the EU and its Member States’ legal orders, it is impossible to
claim that the institutions of the Union are the key actors primarily responsible for their
enforcement. On the contrary, in the context of the complete interdependence of the
Union and its Member States in general Article 2 TEU compliance throughout the
Union, the Member States should by definition be allowed to play a much greater role
here compared to the ordinary context of acquis enforcement. The Article 7 TEU
procedure also supplies an argument in support of this statement, as the key provision
tailored for values’ enforcement is crucially political and relies to a great degree on the
will of the individual Member States (even if channelled via the institutions). Given that
a fundamentally different role needs to be played by the Member States in the
enforcement of values story, the potential importance of Article 259 TFEU rises to a
great extent: in a context where self-help is traditionally prohibited,65 this provision
acquires crucial importance if the institutions use their discretion either to be silent on a
matter of concrete violations – proposing some ephemeral procedures for future use
notwithstanding66 – or winning irrelevant cases which have no bearing on the actual
state of the Rule of Law in the non-compliant Member States.67 In other words, also
approached from the perspective of the global systemic assessment of the provisions
aimed at ensuring compliance, Article 259 TFEU acquires a new life – the one of much
65 Joined cases 90&91/63 Commission v. Luxembourg and Belgium [1964] ECR 625. For an analysis, see
W. Phelan, ‘Supremacy, Direct Effect, and Dairy Products in the Early History of European Law’ (2014)
IIIS Discussion Paper No. 455. This prohibition effectively bars Member States from deploying
‘horizontal Solange’ logic against each other. On ‘horizontal Solange’, see I. Canor, ‘My Brother’s Keeper?
Horizontal Solange: “An Ever Closer Distrust Among the Peoples of Europe”’ (2013) 50 CMLRev 384.
66 For an analysis of the Commission’s and the Council’s proposed solutions, see D. Kochenov and L. Pech,
‘Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality’ (2015) European
Constitutional Law Review (forthcoming).
67 Case C-286/12 Commission v. Hungary [2012] ECLI:EU:C:2012:687; Case C-288/12 Commission v.
Hungary [2014] ECLI:EU:C:2014:237.
16
greater importance – in the context of values’ enforcement as opposed to simply
guaranteeing acquis compliance.
That activating Article 259 TFEU is most likely impossible if its use appears likely
to provoke international scandals and political tensions is not really a sound argument
against deploying it in the struggle for the uniform observance of Article 2 TEU values
throughout the Union. The rich vista of state-versus-state litigation found within the
auspices of the Council of Europe, where largely similar – if not identical – values are at
stake,68 proves that direct state-versus-state actions in Europe can indeed be deployed,
albeit in quite extreme circumstances; those seem quite similar, however, to the crisis of
values the EU is expected to deal with right now. Moreover, in the context of the EU’s
own values crisis, a number of Member States have already emerged as the ones ready
to go further than the majority in enforcing compliance with the fundamentals of EU
integration. The most recent example of this is the ‘letter of the four foreign ministers’
signed by Denmark, Finland, Germany and the Netherlands. Crucially, the text of Article
259 TFEU does not seem to exclude actions brought by several Member States. In other
words, it would make the case of The Four Willing v. Hungary possible.69 Moreover, we
have seen examples of similar collective litigation in the context of the Council of
Europe.
Where the four Member States are clearly negatively affected by the fact that the
key fundamentals of the Union founded on the presumption of general compliance with
the values of Article 2 TEU cannot mobilise sufficient support for resolute action under
Article 7 TEU and face an over-cautious Commission, direct action under Article 259
TFEU emerges as an important opportunity to take action. Again, since such action will
not necessarily be supported by the Union institutions as such, it is infinitely more
appealing than Commission action under Article 258 TFEU would be, given the
68 See T. Altwicker, ‘Convention Rights as Minimum Constitutional Guarantees? The Conflict between
Domestic Constitutional Law and the European Convention on Human Rights’, in A. von Bogdandy and P.
Sonnevend (eds.), Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics
in Hungary and Romania (Oxford: Hart Publishing, 2015). The Union constitutional system fully
recognises this by accepting the ECHR rules among its sources of inspiration, in addition to the obligation
on the Union to join the Convention.
69 Garnering large numbers of initiating Member States is actually absolutely unnecessary, as all the
Member States would be able to submit observations anyway, once the case reaches the Court.
Biting Intergovernmentalism: The Case for the Reinvention of Article 259
TFEU to Make It a Viable Rule of Law Enforcement Tool
17
competence maze in which Article 2 TEU seems to be lost.70 What we are speaking
about in the context of Article 259 TFEU is thus not a power-grab by the Commission,
but a development akin to ‘biting intergovernmentalism’, where the Member States take
the enforcement of values into their own hands; without however breaking EU law, as a
horizontal Solange approach would demand,71 for instance, or moving the dispute
beyond the confines of EU law, as was done with Austria in the past.72 Article 259 is thus
the most sensitive way, in the context of EU federalism, to approach the values crises
and enforce Article 2 TEU, in a way that would be co-owned by the EU and the Member
States. Moreover, should Article 259 TFEU action be brought, it could supply the much-
needed momentum to push the Commission to take a somewhat more active stance on
the matter. It could thus be combined with the deployment of other measures available
in the EU’s values’ enforcement palette, such as the pre-Article 7 procedure for instance.
III. Systemic infringement actions brought by Member States
The last – and probably the most important – issue which arises in the context of the
potential deployment of Article 259 TFEU in values enforcement cases can misleadingly
appear as the trickiest one: the one of standing. How to persuade the ECJ to take the
case? In essence, the challenge of using Article 259 TFEU effectively to go after a
Member State in breach of the fundamental values of Article 2 TEU, including
democracy, the protection of human rights and the Rule of Law is in many respects
similar to the difficulties arising in the context of using Article 258 TFEU, which is
worded very similarly but depends on the Commission’s discretion.
Two points should be made clear before going into details. Firstly, the key values
on which the EU is based are clearly meant to be endowed with legal value, they are
more than just aspirational pronouncements. In the correct words of Jean-Claude Piris,
‘Article 2 TEU on the Union’s values in not only a political and symbolic statement. It
70 Editorial comments, ‘Safeguarding EU Values in the Member States – Is Something Finally
Happening?’ (2015) 52 CMLRev. 619; Hillion, ‘Overseeing the Rule of Law in the EU’, op cit.
71 Canor, ‘My Brother’s Keeper?’, op cit.
72 G. N. Toggenburg, ‘La crisi austriaca: delicate equilibrismi sospesi tra molte dimensioni’ (2001) Diritto
pubblico comparato ed europeo, 735; K. Lachmayer, ‘Questioning the Basic Values – Hungary and Jörg
Haider’, in A. Jakab and D. Kochenov (eds.), The Enforcement of EU Law and Values (Oxford: Oxford
University Press, 2016 (forthcoming)).
18
has concrete legal effects’.73 This is clear from the Union’s own constitutional make-up,
which obliges the Member States to presume each-others’ adherence to the values, thus
policing the common acceptance of the virtual values playing field.74 Simultaneously,
however, the substance of duties is not policed, creating a situation where the
presumptions about reality have a much higher value in the eyes of the law in this
crucial field than the reality – read ‘non-compliance’ – itself.75 The only exception from
focusing on presumptions while generally ignoring the actual rule of law compliance at
the Member State level was the context of the pre-accession promotion of democracy
and the rule of law by the Commission76 in the candidate countries. This process was not
a resounding success, to say the least.77
Secondly, while all the instruments in the Treaties can thus potentially be used to
shape the environment of full compliance, Article 258 TFEU, as deployed so far, has
clearly suffered from important drawbacks, limiting its effectiveness in the values
enforcement context: ‘perpetually grounded and unable to take flight’,78 in the words of
Melanie Smith. The deficiencies are exacerbated outside of the context of the acquis
sensu stricto, where values enter the picture. Given the essential systemic differences, in
the eyes of the institutions, at least, between the enforcement of the acquis and the
enforcement of values in the context of the current law in force, the same approaches
cannot be applied to both, equally effectively.79 Accordingly, in the oft-cited example
where the Commission won a case on age discrimination grounds against Hungary,
where the retirement age for the judges was significantly reduced; while booking a
victory for the Commission and eventually securing compensation for the retired judges,
it does not solve the problem of that state’s interference in judicial independence by
decapitating many local courts.80 The difference between the Article 2 TEU paradigm
and the acquis paradigm is thus overwhelmingly clear: by compensating the judges who
73 J.-C. Piris, The Lisbon Treaty (Cambridge: Cambridge University Press, 2010), 71. See for a detailed
analysis, Hillion, ‘Overseeing the Rule of Law in the EU’, op cit.
74 See, most recently, Opinion 2/13 (ECHR Accession II) [2014] ECLI:EU:C:2014:2454, para. 192.
75 Kochenov, ‘EU Law without the Rule of Law’, op cit.
76 M. Maresceau, ‘Quelques réflexions sur l’application des principes fondamentaux dans la stratégie
dadhésion de lUE, in J. Raux, Le droit de l’Union européenne en principes: Liber amicorum en
l’honneur de Jean Raux (Pairis: LGDJ, 2006), p. 69.
77 Kochenov, EU Enlargement and the Failure of Conditionality, op cit.
78 M. Smith, ‘The Evolution of Infringement and Sanction Procedures’, op cit., 351.
79 Kochenov, ‘Self-Constitution through Unenforceable Promises’, op cit.
80 Scheppele, ‘Enforcing the Basic Principles of EU Law’, op cit.
Biting Intergovernmentalism: The Case for the Reinvention of Article 259
TFEU to Make It a Viable Rule of Law Enforcement Tool
19
were forced to retire, Hungary made up for the wrong committed by retiring them,
rectifying the violation of EU law sensu stricto. Yet compensating the retired judges
obviously did not get to the heart of the problem: the national government’s successful
attempt to undermine the independence of the national judiciary by appointing
ideologically compatible judges. The Commission’s intervention under Article 258 TFEU
was therefore ineffective as regards the major breach of the Rule of Law this case
revealed.81 The first priority of any reform should therefore be to enable the Commission
to identify a possibility, based on the enforcement procedures in place, to challenge
systemic breaches of Article 2 TEU (in cumulation with other provisions) directly.
Currently, Article 258 TFEU is construed circumspectly, to force the Commission to win
pointless battles in infringement actions against narrow violations of the EU acquis. It is
clear, in this respect, that a more effective approach to tackling the value side of acquis
violations is thus indispensable. Indeed, the stance of the institutions on the matter is
scandalous, to say the least. This stance explains why Berlusconi can change criminal
law by passing de facto ad personam legislation to avoid prosecution for his crimes,82
why Hungary can attack its own judiciary,83 or the data-protection supervisor office84
and – once the cases come before the ECJ – the unhelpful presumption that the acquis
and the values of Article 2 TEU are the creatures of two different planets still holds, to
well-known results. Add to this the Commission’s failure to invoke the Charter of
Fundamental Rights in its Article 258 TFEU proceedings and the faithful picture of the
grim reality of values enforcement becomes complete.85 Again, the law in the books is
fine – Article 258 TFEU addresses itself to breaches of EU law and Article 2 TEU is part
of that law, as Piris, Hillion and numerous other scholars and practitioners read the
81 We could fear that the second case it is reported to have ‘won’ against Hungary is no different at all:
Case C-288/12 Commission v. Hungary [2014] ECLI:EU:C:2014:237. For an analysis see K. L. Scheppele,
‘Making Infringement Procedures More Effective’, EUTopia Law: http://eutopialaw.com/2014/04/29/
making-infringement-procedures-more-effective-a-comment-on-commission-v-hungary-case-c-28812-8-
april-2014-grand-chamber/. See also Scheppele, ‘Enforcing the Basic Principles of EU Law’, op cit.
82 Hoffmeister, ‘Enforcing the EU Charter of Fundamental Rights in Member States’, op cit., 206–208.
83 Sólyom, ‘The Rise and Decline of Constitutional Culture in Hungary’, op cit.
84 G. Polyák, ‘Context, Rules and Praxis of the New Hungarian Media Laws: How Does the Media Law
Affect the Structure and Functioning of Publicity?’, in A. von Bogdandy and P. Sonnevend (eds.),
Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and
Romania (Oxford: Hart Publishing, 2015).
85 Łazowski, ‘Decoding a Legal Enigma’, op cit.
20
Treaties. It is the unhelpfully narrow interpretation of the law – as is so often the case86
– which profoundly undermines the effectiveness of the provisions in question.
An important lesson can be learnt from the two considerations above: while
values can and should be enforced – and all the arguments listed in the previous parts
support the idea that this could also be done by Applying Article 259 TFEU – it would be
a bad idea to be inspired by the contemporary use of Article 258 TFEU, notwithstanding
the fact that the core clauses of the two provisions boast almost identical wording. In the
area of values, where Article 258 TFEU has never been used, as well as with regard to
the Charter, which the Commission seems to dissociate from Article 258 TFEU. It is
particularly clear that Smith might be right is suggesting that the decades-old provision
is an example of a ‘failure to launch’.87 There is no reason at all for the Member States to
be over-cautious, copying the Commission’s behaviour, instead of striving to ensure
their peers’ compliance with the spirit and the letter of the law. To transform Article 259
TFEU from being a valve for political dissatisfaction for internal consumption in the
Member States – which it was not intended to be, one must add – into a viable tool for
enforcing crucial considerations of importance to all the Member States and the
institutions alike, the approach to the deployment of the article should be altered to
meet the challenges posed by the differences between acquis and values enforcement. In
this context Kim Lane Scheppele’s proposal, focusing on the systemic infringement
action and introduced in the context of Article 258 TFEU could provide the crucial point
of inspiration, guiding the practical use of Article 259 TFEU as well.88 Moreover, that
proposal could be more helpful here than with Article 258 TFEU, as deploying it in this
86 E.g. L. W. Gormley, ‘Judicial Review: Advice for the Deaf?’ (2005) 29 Fordham International Law
Journal, 655.
87 Smith, ‘The Evolution of Infringement and Sanction Procedures’, op cit., 352.
88 Scheppele, ‘Enforcing the Basic Principles of EU Law’, op cit. Her proposal has been analyzed in the
Verfassungsblog in great detail. For the details of the proposal, see, K.L. Scheppele, ‘What Can the
European Commission Do When Member States Violate Basic Principles of the European Union? The
Case for Systematic Infringement Actions’ (2013), available at http://ec.europa.eu/justice/events/assises-
justice-
2013/files/contributions/45.princetonuniversityscheppelesystemicinfringementactionbrusselsversion_en
.pdf; for the proposal in brief, see, K. L. Scheppele, ‘EU Commission v. Hungary: The Case for the
“Systemic Infringement Action”’, Verfassungsblog, 22 November 2013, available online at
http://www.verfassungsblog.de/en/the-eu-commission-v-hungary-the-case-for-the-systemic-
infringement-action/#.Uw4mfPuzm5I. For the discussion, see, Verfassungsblog, ‘Hungary – Taking
Action, Episode 2: The Systemic Infringement Action’, available online at
http://www.verfassungsblog.de/en/category/focus/ungarn-vertragsverletzungsverfahren-
scheppele/#.Uw4m4Puzm5J.
Biting Intergovernmentalism: The Case for the Reinvention of Article 259
TFEU to Make It a Viable Rule of Law Enforcement Tool
21
new context will not require overcoming the Commission’s inertia against considering
the EU’s values (and the Charter, also) as worth enforcing. In this context, I would argue
that wise reliance on Article 259 TFEU could help change the practice of application of
Article 258 TFEU, which leaves much to be desired, if not help the ECJ to reassess the
systemic place of Article 2 TEU values within the edifice of EU law.
In a nutshell my proposal aims to ensure the most effective use of existing
infringement procedures, which have been used relatively successfully by the
Commission in the context of the enforcement of EU law since the founding of the
Communities analysed above. The proposal makes a sound attempt to address the
shortcomings of existing EU law enforcement machinery for addressing potential and
actual serious breaches of EU values. This is done in two fundamental steps.
Firstly, in the context of actions under Article 258 TFEU, Kim Lane Scheppele,
making a vital addition to the EU legal scholarship on the issue, which has recently been
characterised as ‘rather doctrinal and anæmic in nature’,89 suggests enabling the
bundling up of infringements so as to empower the Commission to present a whole
infringement package to the Court of Justice, rather than pursuing single instances of
non-compliance on a case-by-case basis. The crucial underlying assumption in this
approach is that pursuing numerous infringements simultaneously amounts to more
than just the sum of its parts, as it should enable the Commission to present a clear
picture of systemic non-compliance regarding Article 2 TEU, not merely the elements
of the well-tested acquis. In this way – especially if Article 2 TEU is coupled with the
duty of loyalty laid down in Article 4(3) TEU,90 the Court could for instance find that the
Rule of Law has been breached by a Member State on the basis of multiple single
breaches of EU law bundled together and submitted by the Commission in one go. This
‘bundling approach’ would not in fact be entirely new, although it has only been used so
far with respect to a systemic breach of the EU acquis.91 Scheppele’s proposal should
89 Smith, ‘The Evolution of Infringement and Sanction Procedures’, op cit., 353.
90 ‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual
respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take
any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the
Treaties or resulting from the acts of the institutions of the Union’.
91 E.g. Case C-494/01 Commission v. Ireland (Irish Waste) [2005] ECR I-3331.
22
therefore be commended for offering a creative route to enforcing Article 2 TEU on the
basis of an existing and proven procedure.92
The second part of Scheppele’s proposal is as important and is designed to deal
with the limited effectiveness of financial sanctions – the second step after finding a
breach under Article 258 TFEU is necessarily returning to the Court with a request to
impose a fine or a lump-sum, should non-compliance persist, thus using the Article 260
TFEU procedure. The proposal is simple: rather than imposing financial sanctions, the
EU should seek to subtract any EU funds which the relevant Member State would be
entitled to receive. Although some secondary legislation would probably be needed to
make this part of the proposal a reality, it is definitely an approach which merits serious
consideration. While this change might not work with countries which do not depend on
EU funds, it could be effective with Member States particularly dependent on EU funds,
such as Hungary.93
To summarise, Kim Lane Scheppele’s proposal creatively attempts to solve two
key problems which have prevented the effective use of the EU’s infringement procedure
against Member States guilty of violating Article 2 TEU values:94 the ignorance of the
essential difference between the ‘ordinary acquis’ and the values of Article 2 TEU
emerging from Article 258 TFEU jurisprudence, and the related incapacity of this
provision as currently interpreted to catch the most troublesome violations of the
essential systemic elements of the Rule of Law, democracy and human rights protection
lying at the core of the constitutional system of the Union, while simultaneously also
pertaining, at least in part, to national competences.
It is submitted that applying what Kim Lane Scheppele proposed to the direct
actions by Member States against other Member States will free the potential of Article
259 TFEU to play an active role in the system policing the values of the Union with
defiant Member States. Should systemic violation cases be prepared by individual
Member States or groups, they can rely on all of the arguments on numerous
infringements amounting to more than the sum of their parts as indicators of an
92 Scheppele, ‘Enforcing the Basic Principles of EU Law’, op cit.
93 Ibid.
94 For a more detailed assessment and criticism of this proposal, see Verfassungsblog, ‘Hungary – Taking
Action, Episode 2: The Systemic Infringement Action’, available online at http://www.verfassungsblog.de
/en/category/focus/ungarn-vertragsverletzungsverfahren-scheppele/#.Uw4m4Puzm5J. Closa et al.,
‘Reinforcing Rule of Law Oversight’, op cit.; Kochenov, ‘On Policing Article 2 TEU Compliance’, op cit.
Biting Intergovernmentalism: The Case for the Reinvention of Article 259
TFEU to Make It a Viable Rule of Law Enforcement Tool
23
ongoing breach of the Article 2 TEU values. Article 260 TFEU – however imperfect95
will then be fully applicable,96 should the Member State impeached fail to change its
behaviour once the ECJ declares the breach.
The argument here is a plea to reconsider the importance and usability of Article
259 TFEU – not a step-by-step guide. Even at the most general level of analysis,
however, it is absolutely clear that there are convincing arguments in the fabric of EU
law to ground the standing of the Member State or States initiating an action under this
provision. Importantly, the arguments for the specific deployment of Article 259 TFEU
reach beyond – albeit supported by – the standard oft-cited set of normative
considerations behind interventions on behalf of the Union’s values, as outlined for
instance by Carlos Closa.97 In addition to congruence and interdependence, as well as
the systemic coherence of the Union legal system, any Member State can point to the
essential presumption of general compliance with Article 2 TEU, which informs all the
reasoning underlying supranational law, through mutual recognition and the ever-closer
Union between the peoples of the Member States. Already, the attempts to enforce the
values of the Union in the pre-accession context has demonstrated with abundant clarity
that the Union is unlikely to work if some of its members are seriously deficient at this
most basic level.
The issue goes well beyond Jan Klabbers’ going ‘to bed with bad guys’:98 it
renders the whole architecture of the Union unsustainable, by demonstrating that the
key presumption underlying the integration construct does not hold.99 In the face of
such a challenge it is difficult to imagine the ECJ turning down a well-documented case
95 P. Wennerås, ‘Making Effective Use of Article 260’, in A. Jakab and D. Kochenov (eds.), The
Enforcement of EU Law and Values (Oxford: Oxford University Press, 2016 (forthcoming)); Smith, ‘The
Evolution of Infringement and Sanction Procedures’, op cit.; Brian Jack, ‘Article 260(2) TFEU: An
Effective Judicial Procedure for the Enforcement of Judgments?’ (2013) 19 ELJ, 420; Pål Wennerås,
‘Sanctions against Member States under Article 260 TFEU: Alive, but not Kicking?’ (2012) 49 CMLRev,
145; M. Smith, ‘Inter-institutional Dialogue and the Establishment of Enforcement Norms: A decade of
Financial Penalties under Article 228 EC (now Article 260 TFEU)’ (2010)16 European Public Law, 547.
96 Wennerås, ‘Making Effective Use of Article 260’, op cit.
97 Closa, ‘Reinforcing EU Monitoring of the Rule of Law’, op cit. See also Closa et al., ‘Reinforcing Rule of
Law Oversight’, op cit.
98 J. Klabbers, ‘On Babies, Bathwater and the Three Musketeers, or the Beginning of the End of European
Integration’, in V. Heiskanen and K. Kulovesi (eds.), Function and Future of European Law (Publications
of the Faculty of Law, University of Helsinki, 1999).
99 Kochenov, ‘EU Law without the Rule of Law’, op cit.
24
of systemic infringement brought by a Member State or a group of Member States.
There is no doubt that the fact of finding such an action admissible will necessarily
mean the profound rethinking of the European legal order as it stands, importantly also
of the role played by Article 259 TFEU in it. The unhelpful presumption of the rigid
distinction between the acquis and values is untenable in systemic infringement cases
and will have to be rethought, to give Article 2 TEU a chance of showing its full
potential. Given the compelling arguments for the need for values-inspired systemic
Article 259 TFEU action and particularly the fact that finding such action admissible will
most likely be easier for all kinds of reasons if the challenge came from the Herren der
Verträge rather than one of the institutions of the Union, looking at Article 259 TFEU
sufficiently creatively presents us with a viable possibility to improve seriously the
compliance machinery in the area of the EU’s foundational fundamental values.
Whether the Commission joins in is not the key consideration at this point. What is
crucial is not to allow the helping hand of the Commission, should it decide to play
along, to water down the core arguments, rendering systemic infringement into yet
another pyrrhic victory along the lines of the Commission v. Hungary cases. Ensuring
this is easy, however: it is long-established case law that Member States unhappy with
Commission’s arguments can proceed to Court on their own, unbound by the
Commission’s actions under Article 258 TFEU.100
The wording of Article 259 TFEU is truly broad with regard to its requirements
for standing: ‘A Member State which considers that another Member State has failed to
fulfil and obligation under the Treaties can bring the matter before the Court of Justice
of the European Union’.101 Adherence to general principles of law, or the failure thereof,
proved on the basis of a systemic analysis of an array of possible infringements
following Scheppele’s methodology will unquestionably fall within the scope of fulfilling
‘obligations under the Treaties’. Note the absence from the text of the provision of any
obligation on the Member State bringing the action to demonstrate direct and individual
concern with the violation in question. While it is quite obvious that the Member States
of the Union find themselves in a context of constant and far-reaching interdependence,
100 As demonstrated in Case 141/78 France v. UK [1979] ECR 2923 and accepted in the literature. For an
overview, see e.g., Prete and Smulders, ‘The Coming of Age’, op cit., 27 (and the references cited therein).
101 For an analysis see Lenaerts et al., EU Procedural Law, op cit.; Prete and Smulders, ‘The Coming of
Age’, op cit.; Łazowski, ‘Decoding a Legal Enigma’, op cit.
Biting Intergovernmentalism: The Case for the Reinvention of Article 259
TFEU to Make It a Viable Rule of Law Enforcement Tool
25
the text of the provision is very amenable to the idea of deploying Article 259 TFEU to
policing values, as it does not even require the Member State or States bringing the
action to restate the obvious.
Article 259 TFEU is thus perfectly suited for bringing infringement actions
against Member States which fail to adhere to the core principles and values on which
the Union is founded. This is particularly true if a systemic infringement action, as
proposed by Kim Lane Scheppele, is applied in this context. The deployment of systemic
infringement actions in the context of Article 259 TFEU would permit catching Rule of
Law violations which impact negatively on the very essence of the national
constitutional system of the non-compliant Member State, thus going beyond mere
acquis policing. This adds an additional important tool to the palette of the possible
available courses of action against the ideologically non-compliant Member States.
Conclusion
Direct actions under Article 259 TFEU can play an important role in enforcing
compliance with the EU’s values and core principles in defiant Member States. This is
particularly the case if systemic infringement actions are brought. The benefits of
deploying Article 259 TFEU as opposed to other Treaty provisions are clear: the Article
requires national as opposed to the EU-level institutional action, which solves the issue
of the high thresholds for using the other mechanisms and also respects the federal
sensitivities, by limiting the possibility of supranational power-grabs under the pretext
of values enforcement. The provision is deployable immediately and can develop into
the key element of biting intergovernmentalism, where the Member States themselves –
even when confronted by reluctance or indecision in the Union institutions – can call
upon the Court to enforce the values on which the Union is founded.
NYU School of Law New York, NY 10011
... However, one problem with this evaluative criticism is that there is no clearly specified and authoritative democratic basis for it. Almost all observers agree that the values in Article 2 TEU, cited earlier, are far too general to serve as a basis of critical evaluation, let alone material sanctions (Scheppele 2016;Kochenov 2015;Von Bogdandy et al. 2017;Schlipphak and Treib 2017;Sedelmeier 2017;Müller 2017;Bárd et al. 2016). Another often-invoked source, the Charter of Fundamental Rights (CFR), has been created for other purposes and has problematic scope conditions (Von Bogdandy et al. 2017). ...
... Most commentators agree that it would be infeasible to provide a specification of the EU values through a treaty change, while there is disagreement about whether it is possible to pass secondary EU legislation specifying what EU values mean in terms of rights and institutional standards (cf. Von Bogdandy et al. 2017;with Scheppele 2016;Kochenov 2015) All agree that objective standards applied by an impartial body would be most effective, since it would generate more acceptance and support in the general public, but there is disagreement on which bodies would be seen as impartial. ...
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... It would therefore be beneficial for the Commission to take up Scheppele's (2015) suggestion and bundle cases with similar root causes. Or, the Member States should be invited to do the same along Kochenov's (2015) biting intergovernmentalism theory, which suggests using direct actions by Member States against other Member States violating the rule of law. ...
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In this contribution, we propose that the Court of Justice of the European Union (CJEU) introduce ‘rule of law infringement procedures’, having both a fast-track and a freezing component, as part of a wider ‘EU rule of law toolbox’. We show rule of law infringement procedures’ great potential in tackling rule of law backsliding in the Member States, provided that the following rules are applied. First, the European Commission should identify the rule of law problem explicitly. Second, it should not waste time and postpone its legal actions, while a Member State openly violates the rule of law. Third, the CJEU should automatically prioritise and accelerate infringement cases with a rule of law element to avoid more harm being done by those in power. Fourth, interim measures should be used to put an immediate halt to rule of law violations that can culminate in grave and irreversible harm. Fifth, EU institutions should establish a periodic rule of law review. It should help them to determine if there is a systemic threat to the rule of law in a given Member State, and provide additional legitimacy to the European Commission for initiating rule of law infringement actions and to the CJEU for ruling on such matters.
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Court rulings and publications on constitutional identity have spread in a sort of viral way since the entry into force of the Lisbon Treaty in 2009. Accordingly, many scholars analyse the possible sources of the term and the risks associated with its use, including the fact that opponents of constitutional democracy can use it as a great weapon, as there is no objective standard in terms of its content. In this regard two different positions can be distinguished concerning the function of the constitutional identity clause and the determination of the content elements of the constitutional identity. The first perspective looks at the notion of identity as a manifestation of Euroscepticism, according to which the identity clause is in fact a possible form of derogation under obligations deriving from European integration. In contrast, the second perspective leads to a cooperative interpretation of the concept of identity, if you like, an integration-friendly dissolution of the concept of sovereignty in a sort of post-Westphalian meaning of identity, which can be linked to the concept of ‘unity in diversity’. Accordingly, Article 4 (2) TEU allows for the articulation of individual Member State specificities and establishes a mechanism in which different Member State and supranational perspectives can be harmoniously aligned with each other. This paper looks at Article 4 (2) TEU as an embodiment of the idea of ‘cooperative constitutionalism’ having the function of a ‘valve’ and presents all the relevant cases where constitutional identity as a legal standard has been raised in front of the Court of Justice of the European Union up to 2020.
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In recent times, the CJEU has started to develop its judicial response to the “rule of law crisis” in some Member States. On the one hand, this new trend has emerged also as a reaction to some national reforms concerning asylum and migration law. On the other hand, the CJEU in protecting the EU founding values has deployed its “traditional” competences attributed to it by the EU Treaties, namely the mechanisms of the preliminary ruling procedure and the infringement procedure. Against this background, this contribution aims at investigating this new CJEU’s jurisprudence through the lens of the Global Compacts on Refugees and Migration. This will lead us to reflect on how the CJEU’s caselaw could be seen as an effective tool to enhance the rule of law and protect third-country nationals, at least within the EU, and indirectly contributes to increasing compliance with some of the commitments laid down in the Global Compacts, regardless of the position taken by some recalcitrant EU Member States with respect to these documents.
... (http://eutopialaw.com/2014/04/29/making-infringement-procedures-moreeffective-a-comment-on-commission-v-hungary-case-c-28812-8-april-2014-grand-chamber/). infringements rises to the level of a systemic breach of basic values" 357 (also proposed by the DRF Resolution, Annex, Article 10).Dimitry Kochenov further developed this theory when introducing the concept of "biting intergovernmentalism".358 According to this suggestion, the Member States would be empowered to employ the systemic infringement procedure against their fellow countries as explained by Scheppele, extending their powers under Article 259 TFEU. ...
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The principle of mutual trust, whose fundamental importance is recognized by the CJEU, is not mentioned in the Treaties, but nonetheless, it plays an essential role for the EU integration process and has become a structural principle of the EU law. In addition to its role as a basis for a large set of EU rules in the areas such as the internal market and the area of freedom, security and justice, this principle is also closely related to the EU founding values including the rule of law. Having in mind that is not a “blind trust” but an assumption, it is applied through ensuring compliance with the Union law for which both the Member States and the European Commission share responsibility, inter alia, by means of the infringement procedure. Under Article 259 TFEU, Member States are also entitled to bring a direct action against another Member State for an alleged infringement of an obligation under the Treaties. However, it is extremely rare for a Member State to take action upon the Article 259 TFEU and its potential remains untapped till now. This contribution aims to answer why do Member States are inactive in terms of invoking the infringement procedure. It argues that infringement procedure initiated by a Member State against another Member State should not be perceived as a violation of the mutual trust between them but as a tool to uphold the mutual trust and to protect the Union’s founding values, including the rule of law.
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The rule of law backsliding in Hungary and Poland revealed the EU’s significant vulnerabilities in the face of the need to uphold the values that the whole system of EU integration presumes are in place. The lessons are revealing: respecting the acquis does not guarantee continuing adherence to Article 2 TEU values; economic success in the Union does not necessarily entrench democracy and the rule of law; the tools available to preserve the rule of law are largely inadequate, as they could go against the key assumptions of the internal market. Consequently, the lack of political will to deal with the values’ crisis is not at all irrational, which makes it even more worrisome. What stands out from the grim picture is the revolutionary case law of the Court of Justice on judicial independence and mutual trust, which bridges the available infringement procedures with the outstanding problems and offers horizontal and vertical empowerment to the EU’s decentralised judiciaries – now able to intervene – while also resolving the competences conundrum through a broad reading of the principle of judicial independence as a key element of the rule of law. However inspiring, recent case law developments are insufficient, we argue, to deal with the sociological legitimacy crisis in tackling illiberal democracies plaguing the EU: autocratic legalism cannot be fought with legalism alone. Designing a long-term systemic approach to a complex re-articulation of EU values is indispensable, as enforcement is not a panacea per se.
Chapter
This book provides the definitive reference point on all the issues pertaining to dealing with the 'crisis of the rule of law' in the European Union. Both Member State and EU levels are considered. Particular attention is paid to the analysis of the concrete legal bases and instruments that the EU may avail itself of for enforcing rule of law, and the volume clearly demonstrates that a number of legally sound ways of rule of law oversight are available. Contributors are leading scholars who assess the potential role to be played by the various bodies in the context of dealing with the EU's rule of law imperfections.
Chapter
This book provides the definitive reference point on all the issues pertaining to dealing with the 'crisis of the rule of law' in the European Union. Both Member State and EU levels are considered. Particular attention is paid to the analysis of the concrete legal bases and instruments that the EU may avail itself of for enforcing rule of law, and the volume clearly demonstrates that a number of legally sound ways of rule of law oversight are available. Contributors are leading scholars who assess the potential role to be played by the various bodies in the context of dealing with the EU's rule of law imperfections.
Chapter
This book provides the definitive reference point on all the issues pertaining to dealing with the 'crisis of the rule of law' in the European Union. Both Member State and EU levels are considered. Particular attention is paid to the analysis of the concrete legal bases and instruments that the EU may avail itself of for enforcing rule of law, and the volume clearly demonstrates that a number of legally sound ways of rule of law oversight are available. Contributors are leading scholars who assess the potential role to be played by the various bodies in the context of dealing with the EU's rule of law imperfections.
Chapter
This book provides the definitive reference point on all the issues pertaining to dealing with the 'crisis of the rule of law' in the European Union. Both Member State and EU levels are considered. Particular attention is paid to the analysis of the concrete legal bases and instruments that the EU may avail itself of for enforcing rule of law, and the volume clearly demonstrates that a number of legally sound ways of rule of law oversight are available. Contributors are leading scholars who assess the potential role to be played by the various bodies in the context of dealing with the EU's rule of law imperfections.
Chapter
This book provides the definitive reference point on all the issues pertaining to dealing with the 'crisis of the rule of law' in the European Union. Both Member State and EU levels are considered. Particular attention is paid to the analysis of the concrete legal bases and instruments that the EU may avail itself of for enforcing rule of law, and the volume clearly demonstrates that a number of legally sound ways of rule of law oversight are available. Contributors are leading scholars who assess the potential role to be played by the various bodies in the context of dealing with the EU's rule of law imperfections.
Chapter
This book provides the definitive reference point on all the issues pertaining to dealing with the 'crisis of the rule of law' in the European Union. Both Member State and EU levels are considered. Particular attention is paid to the analysis of the concrete legal bases and instruments that the EU may avail itself of for enforcing rule of law, and the volume clearly demonstrates that a number of legally sound ways of rule of law oversight are available. Contributors are leading scholars who assess the potential role to be played by the various bodies in the context of dealing with the EU's rule of law imperfections.
Chapter
This book provides the definitive reference point on all the issues pertaining to dealing with the 'crisis of the rule of law' in the European Union. Both Member State and EU levels are considered. Particular attention is paid to the analysis of the concrete legal bases and instruments that the EU may avail itself of for enforcing rule of law, and the volume clearly demonstrates that a number of legally sound ways of rule of law oversight are available. Contributors are leading scholars who assess the potential role to be played by the various bodies in the context of dealing with the EU's rule of law imperfections.
Chapter
This book provides the definitive reference point on all the issues pertaining to dealing with the 'crisis of the rule of law' in the European Union. Both Member State and EU levels are considered. Particular attention is paid to the analysis of the concrete legal bases and instruments that the EU may avail itself of for enforcing rule of law, and the volume clearly demonstrates that a number of legally sound ways of rule of law oversight are available. Contributors are leading scholars who assess the potential role to be played by the various bodies in the context of dealing with the EU's rule of law imperfections.
Article
This article is concerned with the system of enforcement of Member State obligations in the European Union (EU). It will focus upon the final limb of the enforcement system, the financial sanctions, and will evaluate its evolution since the initial judgment against Greece in 2000. The discussion will centre upon the behaviour of the two key institutions in the enforcement process, the Commission and the Court of Justice, by analysing the practice and policy of these institutions. It will argue that the Commission and Court have had to devise an enforcement policy in a unique regulatory system, which is a regulatory system where the legislator has provided no guidance to the institutions responsible for the execution of enforcement policy as to its objectives or methodology. This regulatory gap has produced some interesting inter-institutional dialogue between the Court and Commission that has not occurred in the earlier phase of the enforcement process, despite a similar lack of legislative guidance. The inter-institutional dialogue has increased the transparency and efficiency of imposing financial sanctions, which has moulded it into a potentially significant deterrent to non-compliance. Deploying this approach in the earlier phase of the enforcement process could significantly increase the transparency and efficiency of the macro system of enforcement.