Armin Von Bogdandy and his team recently started a debate on the future of fundamental rights protection in the European Union. The link to the blog is available here. Also, updates to the blog are visible in the right column of this page. Here is an outsider's contribution to the debate.
Rescue Package for Fundamental Rights
Comments by Siniša Rodin
The core problem discussed by the authors of the Rescue Package is what to do with a situation where a Member State persistently violates one of the values of the European Union, notably, human rights. The problem divides into two separate issues. First, the adequacy of Art. 7 TEU mechanism as a corrective tool for national enforcement of human rights and, second, viability of evolution of the case law of the CJEU linking human rights with EU citizenship guarantees and thus, extending the scope of EU law beyond its well established functional reach. A possible solution regarding the first issue would be a more efficient triggering of the Art. 7 mechanism, possibly subject to control of the European Parliament and qualified majority vote in the Council, and regarding the second issue, the so-called reversed Solange approach, according to which the CJEU would recourse to EU standards and perform subsidiary review of human rights claims that arose before national courts. Such review would be necessarily universal, i.e. liberated from existing functional restraints, such as “economic activity” and “cross-border movement”. If implemented, both strands of reform would, apparently bring about more Europe into national systems of protection of human rights and constitute human rights as essential contents of EU citizenship. So far, so good.
Art. 7 TEU is in its nature intergovernmental. However, its main problem is not requirement of unanimity. It is legitimacy, in the defaulting Member State, of any solution that falls short of unanimity. Structurally, Art. 7 puts a defaulting Member State to be a judge in her own cause, what makes the triggering of the mechanism unlikely. Therefore, any solution that would do away with the unanimity requirement would necessarily change the character of the EU from intergovernmental to supranational, what requires a separate unanimity decision and national ratification. Such a Treaty amendment would, therefore, not only make the Art. 7 procedure more efficient, but also more legitimate. But even if Art. 7 procedure could be triggered more efficiently, a separate problem could arise. A Member State which is genuinely determined to continue with the serious and persistent breach of EU law, faced with Article 7 measures, might wish rather to withdraw from the EU subject to Art. 50. While such a choice may look surprising, it is not unthinkable that a national government, which has disregarded Art. 2 TEU values anyway, would be prone to seek legitimacy from the anti-EU national camp. A successful attempt to make Art. 7 more effective could result in its failure to ensure Art. 2 values.
The second prong of the proposal suggests unqualified incorporation of human rights, as defined by the CJEU into the legal orders of the Member States. As EU law stands today, the CJEU can, as a rule, exercise jurisdiction where a situation involves more Member States then one, and when it concerns an economic activity, or when an area of law is directly regulated by EU law, such as is the case with equal treatment directives. Despite of the well established case law according to which Member States have to respect general principles of EU law and must not infringe EU law even in areas of their exclusive competence, unless they legitimately depart from EU law on grounds of the newly adopted Art. 4(2) TEU, as witnessed in Sayn-Wittgenstein or Runevič-Vardyn, there still has to be a trans-border economic activity at stake. As it stands today, EU law is helpless in cases of e.g. corporal punishment of State’s own nationals in public elementary schools, or arbitrary dismissal of judges and public servants. The reversed Solange proposal suggests incorporation of EU-distilled human rights into national legal orders. Let us imagine, for a moment that the CJEU changed its practice in the way proposed. The enforcement would still depend on willingness of national courts to refer to the CJEU and to enforce its opinions and on that point I fully agree with Mattias Kumm that the proposal is highly dependent on ability/willingness of national courts to recourse to the 267 procedure. Why would a court in a genuinely non-democratic Member State wish to do that, unless some external coercion is applied? Failure to refer could be interpreted as an infraction on its own right, however, the ECJ has so far been extremely cautious in finding a failure on the side of national courts (see e.g. C-154/08 Commission v Spain).
In other words, the reverse Solange approach directly depends on effectiveness of Art. 7 TEU coercion. Daniel Halberstam rightly draws the parallel with the US reconstruction amendments which were, indeed, imposed on the recalcitrant States by coercion. However, while in the United States there are two tiers of courts – state and federal – in the European union enforcement of EU law is entrusted primarily to national courts. The message is clear. If reversed Solange incorporation is to work, it has to be imposed on the Member States by the Art. 7 stick. The stick has to addressed both the political and judicial branch and it has to confer rights on individuals in order to generate legitimacy.
Where can such a stick be found? I suggest that the problem has to be addressed by a Treaty amendment that would allow an avenue for individuals to trigger infraction proceedings against a defaulting Member State, without preempting their right to effective legal protection of their EU-based individual rights before national courts. This approach is a well established one since Van Gend en Loos and now could be extended to human rights cases. The system I am suggesting is the following. An individual who consideres that a Member State has infringed one of the Art. 2 TEU values, may bring the matter before the European Ombudsman. The European Ombudsman shall, after having paid due regard to the matter, decide whether to institute infraction proceedings before the CJEU. The right to seize the European Ombudsman with a case could be extended to other privileged applicants, such as the European Human Rights Agency, and possibly others. The European Ombudsman could recourse to the legal service of the Commission for technical assistance. This procedure would not depend on Art. 7 declaration and would include protection of fundamental rights guaranteed under the Charter of Rights of the EU.
The proposed solution would, admittedly, require a Treaty amendment. However, the strength of this proposal lies in the avoidance of possible ultra vires objections. As Jan Komarek recently showed, the Czech Constitutional Court started to play with fire. Let’s make sure it does not spread to start a forest.