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ANALYSIS OF THE EXISTING LEGAL INSTRUMENTS FOR STRENGTHENING THE RULE OF LAW – „NUCLEAR OPTION“ OR INFRINGEMENT PROCEDURE?

Nadezda Siskova

Abstract

This article is focusing on the analysis of the current EU legal instruments which can be used for the protection of the rule of law, their effectiveness and certain limits, as well as proposals de lege ferenda. Especially the procedure contained in Article 7 TEU is designated to deter Member states from the violation of principles of rule of law by a mechanism, which can amount to even the suspension of their voting rights in the Council. Although the fact, that this instrument doesn’t imply the judicial procedure, but political mechanism, nevertheless the impacts of its application can be so crucial and devastating towards the state concerned, that this procedure is often described as a “last resort mechanism” or even “nuclear option”. Recent developments in some Member States have shown that the preventive and sanctioning of Article 7 TEU are not always appropriate to quickly respond to threats to the rule of law in a Member State. As a certain alternative to a ponderous political procedure can be used a judicial proceeding under Article 258 TFEU. But this solution, nevertheless, has its great limits, given by the fact, that infringement procedures can be launched by the Commission only where these concerns constitute, at the same time, a breach of a specific provision of EU law.

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