Ironies in Human Rights Protection in the EU: Pre‐Accession Conditionality and Post‐Accession Conundrums

Abstract

In the wake of the extensive scrutiny of the human rights credentials of the new Member States under the EU pre-accession conditionality, which itself was riddled with paradoxes, this article considers a rather unexpected irony thrown up by the accession of these countries. It is that the post-communist constitutional courts, which have been applauded for vigorous protection of fundamental rights after the fall of the Communist regime that was marked by nihilism to rights, have come rather close to having to downgrade the protection standards after accession, due to the new constraints of supremacy of EC law. The article will consider the sugar market cases of the Hungarian and Czech Constitutional Courts and of the Estonian Supreme Court, which appear to add weight to the concerns that have been voiced in some older Member States about the fundamental rights protection in the EU. Indeed such concerns were recently also addressed in the concurring opinions to the Bosphorus judgment of the European Court of Human Rights.

Governance Transfer by Regional Organizations

“…Unsurprisingly, EU member states have been criticized for using double standards, being 'very willing to police human rights and democracy in their eastern backyard -but less interested in having European institutions nosing about in their own affairs' (Sadurski 2010: 395;cf. Heidbreder and Carrasco 2003: 16;Albi 2009;Johns 2003).…”

“…For example, the inclusion of respect for minority rights, set by the CoE but not universally recognized within the EU-15, in the EU's accession conditions quickly led to charges of double standards and hypocrisy (Sadurski 2010: 395;cf. Heidbreder and Carrasco 2003: 16;Albi 2009;Johns 2003).…”

Layered Global Player

“…Unfortunately, the dividing lines between the various regimes are hardly sharp and solid. 49 See further Kochenov (2008); Albi (2009). Policies and structures such as the ENP, the UfM and the EaP have been zealously propelled by the Commission, but operate in a legal limbo or normative no man's land.…”

The European Union's Fundamental Rights Myth*

“…Not only does such unequal treatment appear rather hypocritical, it may also be based on the wrong assumption that fundamental rights protection in third countries is by definition less guaranteed than in the EU and that once these countries entered the EU they would again loosen their fundamental rights guarantees. Ironically, new Member States from central and eastern Europe, which have been strongly scrutinized before accession, often look at the respect of their modern constitution with much diligence, and in relation to certain fundamental rights, such as property or legal certainty, some of these countries even have to fight the supremacy of Community law in order to retain their higher standard of protection (Albi, 2009).…”