The Diagonality Problem of EU Rule of Law and Human Rights: Proposal for an Incorporation à l’européenne

Abstract

AbstractThe EU’s limited powers do not enable its institutions to effectively intervene in cases where Member State actions threaten fundamental values. The recent controversies emerging from some Member States’ human rights and rule of law backsliding turned this question to one of the core issues of the European project, calling for effective fundamental rights protection in the EU without suppressing national constitutional identities. Though EU law’s approach, at least at first glance, might appear to be idiosyncratic, it is far from unprecedented and, as far as multilevel constitutionalism is concerned, EU law may draw on the experiences of various regimes where centralized human rights protection and national or state constitutional identities coexist. This Article analyzes the current European approach as to the application of the federal bill of rights to states from a comparative perspective and explores the constitutional and jurisprudential patterns addressing the question of inquiry in a multilevel constitutional architecture. The Article analyzes the subject from a doctrinal, ontological, textual-conceptual, and institutional perspective with the aim of contributing to the current European debate with a new comparative perspective and fostering EU constitutional development with structural patterns. It submits that the currently prevailing paradigm of “scope” should be replaced or complemented with the paradigm of “core standards” and proposes a doctrine of European incorporation, arguing that the diagonally applicable rule of law and human rights requirements should be incorporated via Article 2 TEU to make them judicially applicable.