Systemic Infringement Actions: How to Enforce EU Values without Treaty Change

The European Union is a club of democracies sharing the common values of the rule of law and protection for human rights, as entrenched in Article 2 TEU.    But recent developments, most spectacularly the rise of “illiberal democracy” in Hungary, challenge this basic premise.   Most proposals to address the problem lack a clear legal basis in the treaties and thus require treaty change.  But, of course, if there are rogue regimes within the EU already, they can easily act to block treaty modification, which still requires unanimity.    How can the EU ensure its basic values are realized under current law?  The Commission has the power under Art. 258 TFEU to bring infringement procedures against Member States for violations of EU law and it could change the way it formulates these actions.   The Commission could bundle together a set of laws passed and actions carried out by an offending Member State into a “systemic infringement action.”    The Commission would argue that the pattern of infringements does not just violate particular elements of EU law, but also challenges basic values under Article 2 TEU or blocks the realization of EU law within the Member State under Article 4(3) TEU.  If the Court of Justice confirms the violation, a systemic infringement action would call for a systemic remedy.  With new secondary legislation that could be adopted without unanimity, the infringement could eventually result in suspending the flow of EU funds to the offending state as a sanction under an Art. 260 TFEU procedure.