Principles of a systemic deficiencies doctrine: How to protect checks and balances in the Member States

Abstract

This article studies European reactions to the most troublesome instance of systemic deficiencies in EU Member States: the undermining of checks and balances. It begins by surveying the various institutional options and constitutional grounds for action.To understand the problem better, it then unfolds the concept of systemic deficiencies as a specific form of illegality and inter-systemic conflict. The third step develops a legal framework to coordinate the panoply of systemic deficiency instruments in the European legal space, but also to assess critically any respective EU action; the building blocks of this framework are competence, procedure, standards, and control. The article shows that red lines can be drawn that respect constitutional pluralism, and that legitimacy of any action is enhanced if many institutions undertake it jointly, so that Europe speaks with a single and principled voice.