Guillermo Íñiguez has posted The Enemy Within? Article 259 TFEU and the EU’s Rule of Law Crisis (German Law Journal (Forthcoming, 2022)) on SSRN. Here is the abstract:
This paper explores the role which Member State-led infringement proceedings can play in overcoming the EU’s rule of law crisis, and hypotheses that it can prove helpful in breaking the current impasse. It begins by understanding why the EU’s “traditional” rule of law enforcement mechanisms – such as Article 7 TEU and the recent rule of law conditionality regulation – have failed (Section 2), before exploring how infringement proceedings operate, what their shortcomings are, and why Scheppele’s proposed “systemic infringement proceedings” are important (Section 3). It then seeks to apply said findings to the rule of law crisis, using two recent developments as an example: the oral proceedings of Commission v Poland (Régime disciplinaire des juges) and a recent vote by the Dutch Parliament compelling its government to take Poland before the CJEU (Section 4). Finally, it explores the broader constitutional implications of relying on Article 259 TFEU to overcome the rule of law crisis: it discusses Kochenov’s notion of “biting intergovernmentalism”, what Article 259 illustrates about the EU’s hybrid constitution, and how intergovernmental legal instruments can facilitate further European integration (Section 5). It concludes by summing up the paper's hypothesis.