Exploring the Potential and Political Feasibility of 'Biting Intergovernmentalism' in the EU

The paper explores the potentials and political feasibility of intergovernmental measures aiming at the protection of democracy and the rule of law in the European Union. It pays special attention to the potential application of Article 259 of the Treaty on the Functioning of the European Union (TFEU) that allows autocratizing Member States to be referred to the Court of Justice of the European Union (CJEU) by another Member State (‘biting intergovernmentalism’).

Using an explorative, theory building approach based on the analysis of semi-structured stakeholder interviews, the paper concludes that ‘biting intergovernmentalism’ is subject to a collective action trap that withholds even the most committed ‘friends of rule of law’ countries from its application. According to the stakeholders’ ruling perception of ‘biting intergovernmentalism’, Article 259 TFEU provides a secondary, complementary legal venue for Member States to protect the common good of EU law and uphold European values if the European Commission is unable to live up to its role as guardian of the treaties. Hence, due its perceived complementary role, the legal potentials enshrined in Article 259 TFEU cannot be fully realized under the given political conditions. Nevertheless, ‘biting intergovernmentalism’ can serve as a leverage over the European Commission through which Member States can influence the Commission’s litigation strategy in direction of a more committed protection of democracy and the rule of law in the EU.

Based on the case studies of The Netherlands, Denmark, Belgium, Finland, Germany, and Sweden, the paper investigates the main variables that determine the approach of ‘friends of rule of law’ countries to ‘biting intergovernmentalism’ and argues that the protection of democracy and the rule of law by Member States is primarily a domestic bottom-up political process highly dependent from the existence and level of agenda setting and political entrepreneurship at the domestic stage.