Reverse Solange–Protecting the essence of fundamental rights against EU Member States

Abstract

This article presents an innovative approach to EU fundamental rights protection against the Member States. It draws on recent studies which have shown that the fundamental rights situation in a number of Member States is an increasing cause for concern, particularly with respect to media freedom. However, while the Union intensely scrutinizes the fundamental rights situations in candidate countries, there is scant action so far in case of serious problems in the Member States. Although the latter are comprehensively committed to "respect for human rights" according to Art 2 TEU and subject to the enforcement mechanism foreseen by Art 7 TEU this has proven to be of very limited practical impact. Therefore, the article suggests opening up "respect for human rights" for individual legal actions via Union citizenship. Its starting point is the recent jurisprudential development of the "substance" of Union citizenship in Ruiz Zambrano. This substance can and should basically be defined with reference to the essence of fundamental rights enshrined in Article 2 TEU. To put this into practice the article suggests a reverse Solange-doctrine, applied by the ECJ towards the Member States: outside the scope of the EU Charter of Fundamental Rights the Member States remain autonomous in fundamental rights protection as long as it can be presumed that they ensure the essence of fundamental rights enshrined in Article 2 TEU. However, should this presumption be rebutted, the "substance" of Union citizenship - within the meaning of Ruiz Zambrano - comes into play. On this basis Union citizens can seek redress before national courts and the ECJ.