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.

Environmental law has long been an area of concern in terms of correct implementation and enforcement. In this context, the Commission’s enforcement focus has been on “systemic” breaches of environmental law (that is, breaches that form part of a pattern of individual breaches that, taken together, because of their repeated or widespread nature, have a significant effect on the environment). Proving the existence of such breaches in environmental law presents a number of peculiar features, because of the scientifically–loaded questions which underlie environmental legislation. The aim of this article is to relate the established approach of the CJEU towards scientific uncertainty to the specific situation in which the Commission asserts that a breach of EU environmental law has a systemic nature. It will show that, while the CJEU has been sensitive to the systemic nature of the claims brought forward by the Commission by using some of the procedural tools at its disposal, its general reticence to engage with the substantive claims at stake might have the potential to reduce the effectiveness of the infringement proceedings as a tool to adequately pursue systemic breaches of EU environmental legislation.

This article explores the role which Member State-led infringement proceedings can play in overcoming the EU’s rule of law crisis, and hypothesizes 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 of the Treaty on European Union (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 Court of Justice of the European Union (CJEU) (Section 4). Finally, it explores the broader constitutional implications of relying on Article 259 Treaty on the Functioning of the European Union (TFEU) to overcome the rule of law crisis: It discusses Kochenov’s notion of “biting intergovernmentalism”, what Article 259 illustrates about the European Union’s (EU) hybrid constitution, and how intergovernmental legal instruments can facilitate further European integration (Section 5). It concludes by restating and summing up article’s hypothesis.

Non-execution of the judgments of the European Court of Human Rights is a matter of serious concern. In order to address it, the reasons for and dynamics of non-execution need to be fully considered. This paper engages with non-execution by sketching the underpinning issues that help to explain it and, we argue, must shape our responses to it. Through this engagement, we conclude that non-execution is properly understood as a phenomenon that requires political rather than legal responses. This calls into question the usefulness of the infringement proceedings contained in Article 46(4) of the Convention and which it has recently been suggested ought to be embraced in attempts to address non-execution. We argue that, even if the practical difficulties of triggering Article 46(4) proceedings could somehow be overcome, the dynamics of non-execution suggest that such proceedings would be both futile and counterproductive, likely to lead to backlash against the Court and unlikely to improve States’ execution of its judgments.