A new dawn for the Infringement Procedure - New possibilities to safeguard the rule of law under Article 258 TFEU

Sammanfattning: The 'rule of law crises' in Hungary and Poland have shown weaknesses in the European Union’s system of enforcing the values enshrined in Article 2 TEU after accession. Especially Article 7 TEU as well as the other enforcement procedures have proven to be incapable of forcing Member States back into compliance with the values enshrined in Article 2 TEU so far. However, this thesis contests the claim that the Commission has found two new approaches to use the infringement procedure under Article 258 TFEU that could make the infringement procedure more effective in enforcing these values in the ‘rule of law crisis’ in Hungary and Poland. The approaches identified in the Commission`s pending infringement proceedings C - 619/18 Commission v Republic of Poland, in which the Commission is relying on Article 19 TEU in connection with Article 47 of the Charter, and C-235/17 Commission v Hungary, where the Commission is relying on the Charter independently, are therefore at the centre of the thesis. However, before each case can be described, analysed and evaluated regarding its possible outcome and effect to the ‘rule of law crisis’, it must be analysed whether such an approach is possible under the current law and why such an approach has not been applied yet. Hence, more specifically in the second chapter, it is discussed why the Commission can use infringement proceedings even where Article 7(1) TEU has been invoked, why the infringement procedure cannot be based on Article 2 TEU directly, and how Article 19 TEU as applied in the case C-619/18 Commission v Republic of Poland in connection with Article 47 of the Charter fits into the picture. In the third chapter, the discussion starts with establishing how fundamental rights were developed and why there are problems in regard to the scope of application of fundamental rights towards Member States. This builds the foundation to understand why the Charter has not been used before case C-235/17 Commission v Hungary as a sole basis for bringing infringement proceedings against a Member State. On the basis of the knowledge acquired, it is argued the request of the Commission in C-619/18 Commission v Republic of Poland and in C-235/17 Commission v Hungary should be followed by the CJEU, and that this will make the rule of law enforcement in the European Union not only more visible and legitimate but also more effective.