Principles and Challenges of a European Doctrine of Systemic Deficiencies

Abstract

European constitutionalism is facing the decision whether it comprises illiberal democracies or whether it fights them. This article explores the latter path, which might lead to a ‘tyranny of values’: a defence of values that destroys the very values it aims to protect. It first explores the constitutional horizon of the question of whether one should intervene at all. The article then expounds the expression systemic deficiency as a legal key concept that informs all systemic deficiencies instruments, developing it from the interrelatedness of the legal orders of the European legal space. Such instruments must be coordinated, effective, and, not least, legitimate to avoid a tyranny of values. For this purpose, the third step develops a legal frame for pertinent instruments of European law, Member States’ law and international law, consisting of the building blocks legal basis, procedure, standards, and control.

Keywords: European values, justiciability, systemic deficiencies, illiberal democracies, militant democracy, competence creep, fair proceeding