The primacy of EU law as framed by the Court of Justice pre-empts substantive arguments of principle that originate in other legal orders. This was accepted and acceptable to the extent that the values EU law contained were at least normatively equivalent to values originated from the other legal orders. In this contribution it is argued that this is no longer the case and that the misuse of the Rule of Law rhetoric justifying the primacy of EU law renders the EU less accountable and undermines the dialogical pluralist essence of EU constitutionalism.

The aim of the present contribution is to assess how infringement proceedings under Articles 258 to 260 TFEU have dealt with ‘systemic’ breaches of EU law by the Member States’ authorities. It will be argue that two, or possibly three, strands of case-law appear to specifically concern systemic breaches of EU law.

The EU faces one of the deepest crises since its formation. A dangerous rule of law backsliding in several Member States undermines the Union’s common values and puts Europe to the test. This raises the question of how to substantially address violations of EU values in judicial proceedings before the Court of Justice. Unfortunately, relying on fundamental freedoms, EU secondary legislation and even the Charter will not help much to resolve this value crisis. This Article takes a different path and calls for engaging with Article 2 TEU itself. Yet this proposal rests on a crucial premise: The judicial applicability of the values enshrined in Article 2 TEU. Based on recent jurisprudential developments, this Article will elaborate a framework for the operationalization of Article 2 TEU values and demonstrate how their judicial applicability can be construed. The judgments of Associação Sindical dos Juízes Portugueses, Minister for Justice and Equality (“L.M.”) and Commission v. Poland will be at the heart of this proposal.