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

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.

Keywords: Rule of Law, EU Law, Enforcement, Values, Article 2 TEU, Hungary, Illiberal democracy, Article 259 TFEU, direct actions, systemic infringement