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.
Highlights
The EU’s limited powers do not enable its institutions to effectively intervene in cases where Member State actions threaten fundamental values
Apart from some sporadically guaranteed human rights, such as equality between men and women,[32] the only general mechanism providing for genuine diagonal application is Article 7 TEU, which sets out a lightly regulated political mechanism to address cases involving a clear risk of a serious breach of core EU values by Member States
The Reverse Solange theory asserts that EU rule of law should have no application to a Member State as long as national law ensures a sufficient level of protection
Summary
The Status of a Missing Concept This section maps the missing diagonality of EU rule of law. As a matter of principle, the EU law requirement is concerned solely with the cases where courts apply EU law.[18] as a matter of practice, because EU law and national law are applied by the same organization, this implies that national courts must be independent in general Another important element of the EU’s constitutional puzzle is the concept that Member States may use the exceptions provided by the internal market only if the restriction justified by the local public interest complies with EU rule-of-law requirements. Apart from some sporadically guaranteed human rights, such as equality between men and women,[32] the only general mechanism providing for genuine diagonal application is Article 7 TEU, which sets out a lightly regulated political mechanism to address cases involving a clear risk of a serious breach of core EU values by Member States. While the established metaphor for Article 7 TEU is a nuclear or atomic bomb, in reality, it is just a bludgeon
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