On Policing Article 2 TEU Compliance Reverse Solange and Systemic Infringements Analyzed

Abstract

At this stage of development of EU integration the problems emanating from the ‘crisis of values’ and the poor enforceability of Article 2 TEU have come to the fore in Hungary and elsewhere. The Union is apparently powerless to ensure that it is indeed composed of democratic states based on the rule of law as the Treaties state. The crucial issue for the successful development of EU law in this context is to find an efficient and expedient way to remedy this situation. While a number of scholarly proposals of how to do this have been tabled (besides the Commission’s own ‘pre-Article 7 procedure’ communication), two among them stand out. This paper provides a systemic critical analysis of the two, most detailed and potentially far-reaching scholarly proposals currently available. The focus is on the ‘Reverse Solange’ proposal by Armin von Bogdandy et al. and on the ‘systemic infringement’ proposal by Kim Lane Scheppele. While both proposals for dealing with the crisis of the Rule of Law are of importance, as they provide valuable starting points in thinking about what to do at this troubling moment of EU integration history, neither of the two is likely to solve the crisis. Placing them in the context of numerous other options which are currently discussed is of key importance for solving the Union’s problems and bringing Hungary and eventual other deviant Member States back on track now and also in the future.