Kim Lane Scheppele’s proposal on establishing a systemic infringement action on the unamended legal basis of Art. 258 TFEU is another genuine and creative attempt of improving not the present functioning of the European Union, but the failures in the rule of law and democracy in the Member States. Like Jan Komárek I am sympathetic to her idea and unlike him I am relatively convinced that Art. 258, as it presently stands, could very likely be used in the proposed way. After all, the law does always leave some room for creative reconstructions and use of legal remedies whose meaning has been pretty much settled.
My concern, however, lies elsewhere. This time not in my pluralist bias, as you might have anticipated, that has led me in my previous post to insist on the institutional limits and respect for jurisdictional boundaries between EU law and national law. What I am rather concerned with is a more profound dilemma. Can the values and objectives of Art. 2 really (or even at all) be systematically protected and ensured, not just on books but in practice, by legal means, and in particular by courts, let alone the supranational ones?
I believe the answer is no. In fact, the answer is in principle no with respect to normal states, where the values of Art. 2 are systematically internalized in practice and deviations are but exceptions that confirm the rules of normality. And the answer is never in the countries, in which such values are systematically breached or where such values are respected purely formally, whereby reliance on the form disguises much messier hard facts on the ground. While the former cases are, of course, rare in the European Union, the latter are not that exceptional as I intend to show in the next few lines.
However, before revealing my particular case-study, let me explain why the law is, at a certain point, inherently limited in its capacity to remedy the failure of democracy and rule of law lato sensu ...Zum vollständigen Artikel