Rescue Package For Fundamental Rights: Comments by ANNA KATHARINA MANGOLD

In their post on Verfassungsblog, the Heidelberg research team around Armin von Bogdandy proposes to enrich the “substance” of European citizenship with the essence of fundamental rights and to let the ECJ control the observance of this substance, upon request of national courts in the member states. However sympathetic one might be towards the cause, the proposal encounters several fundamental objections:

Juridification rather than politicisation as mode of integration?

The ECJ has promoted European integration within its case law. In fact, for the most part the Court has altogether enabled European integration. The ECJ has produced the ingredients for an ever deeper Europeanisation of the member states’ legal systems (and thereby for a deeper integration), often to the great astonishment of the contracting states. One need only think of direct effect (van Gend & Loos, 1963) and supremacy of Community law (Costa v ENEL, 1964), direct effect of directives (van Duyn, 1974) and liability of member states (Francovich, 1991), all of which saw the light of day due to ECJ case law solely.

It has been the approach of the Court to substitute political integration with legal integration. The approach worked unobservedly for a long time. It has, however, the serious disadvantage that member states are exempted from the duty to deepen the project of European integration politically since the member states do not have to struggle for compromises anymore – wherever doubt exists they can count on the ECJ to put the record straight and deepen integration.

The method of legal integration leads to the situation in which the project of European integration lacks support within the member states’ populaces. The failed referenda in the Netherlands and in France clearly show this lacking support ...

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