The EU Charter of Fundamental Rights as the Most Promising Way of Enforcing the Rule of Law against EU Member States

Abstract

The ambition of this paper is to show that the best method to enforce the rule of law against Member States is a creative re-interpretation of Article 51(1) of the EU Charter of Fundamental Rights (Charter, CFR), whereby the fundamental rights of the Charter shall be applicable also in purely domestic cases. In order to support our point, we will embed the argument in a Toynbeean approach, i.e. in a 'challenge and response' scheme: the rule of law should be perceived as a tool which is a response to the arbitrary use of state power (originally developed against absolutism). The concept's inherently anti-sovereigntist nature should prevail whenever we interpret a legal document (like the Charter) which was enacted in order to promote key aspects of the rule of law such as the promotion of fundamental rights. Currently, the most important historical challenge to the rule of law in Europe is the systematic dismantling of the rule of law (and democracy) in certain Member States for which the present paper attempts to offer a partial cure.

Why and How Should the European Union Defend its Values?

“…This also points towards problems with seeing, for example, the CFR and European Convention of Human Rights (ECHR) as concrete interpretations of European values (see Jakab 2016 ; Scheinin 2016 ). First, the CFR explicitly does not apply to member states acting within the remit of their remaining national competences (see van Bogdandy and Spieker 2019 for an opposing view).…”

The Systemic Implications of the Supranational Legal Order for the Practice of the Rule of Law

“…The fundamental nature of rule of law leads the discussion about the EU problems in this field to question the credibility of the EU in respect to values-internally and externally. 100 The main principle of the possible responses is that EU institutions, and the European Commission in particular, should first of all use tools which are already available. In July 2019 the European Commission presented its 'Blueprint for Action' 101 which offered a list of such short-term responses to the rule of law crisis in EU Member States.…”

Augmenting the Charter’s Role in the Fight for the Rule of Law in the European Union: The Cases of Judicial Independence and Party Financing

“…57 After all, Article 51 CFR still stands, all the literature on the need to move on from this competence block notwithstanding. 58 In any event, we are learning that 19(1) TEU is good enough. 59 A range of tools from pecuniary 60 to interim measures with backfiring force 61 can now be deployed to freeze at least some of the attempts of backsliding governments to undermine the independence of their judiciaries even further.…”