What can the European Union – and in particular the European Commission – do about Member States that no longer reliably play by the most fundamental European rules? The question is now urgent because several Member States are already posing such challenges. Treaty reform could give the Commission new powers. But can the Commission act without waiting for the long and arduous process of treaty reform to provide new tools?

I propose a new approach, a simple extension of an existing mechanism: the infringement action. The Commission could signal systemic complaints against a Member State by bundling a group of individual infringement actions together under the banner of Article 2 of the proposal by the foreign ministers of Germany, Denmark, the Netherlands and Finland that the Commission find ways to cut the funds of Member States that are in persistent and serious violation of EU principles.  Allowing the Commission to stop the flow of funds following confirmation by the CJEU of both a systemic violation and continued noncompliance would ground this proposed sanction in a multi-institutional judgment like other current sanctions, giving the Commission a more »constitutional« basis for its actions.

This suggestion to withhold EU funds is the only part of my proposal that calls for any additional legal authority and such authority can be provided by secondary legislation rather than through treaty reform. The other parts of this proposal can be accomplished under existing authority. The systemic infringement action therefore gives the Commission a new tool to use now in the fight against democratic backsliding without the need for treaty reform.

A fully worked-out version of the proposal, explaining how a systemic infringement action would work, how assessment of compliance might follow and how fines might be assessed if there is continued noncompliance, can be found here.