I’d like to thank Alexandra, Max, and Christoph for inviting me to participate in this fascinating exchange. As an American, I feel like the outsider here. Moreover, I have just written a book (in part from an American perspective, but also deeply grounded in integration history) that argues that the EU is best understood as ‘administrative, not constitutional’. So it should perhaps be unsurprising that I am reluctant to endorse the deeply constitutionalist ‘reverse Solange’ proposal of Armin von Bogdandy and his team. I generally join in the cogent reservations already expressed by several commenters (notably by Pál Sonnevend, Anna Katharina Mangold, and Daniel Thym), but allow me to add a few additional thoughts.
The ‘reverse Solange’ proposal undoubtedly constitutes a creative way of augmenting the role of the CJEU as a commitment mechanism in the area of fundamental rights beyond the implementation of Union law, i.e., by circumventing the limitation specified in Article 51 CFREU via a teleological linkage to Union citizenship. To argue against the proposal would seem, in American parlance, like arguing against ‘mom and apple pie’—and who wants to do that? Particularly in view of the deep concerns we all share over the current Hungarian regime (about which my colleagues Kim Scheppele and Jan-Werner Müller have been struggling mightily to highlight), I am deeply sympathetic to the desire to develop effective mechanisms to combat any member state’s descent into authoritarianism. But I have reservations about whether this proposal is even necessary as a tool against the disturbing slippage of the Hungarian regime. What it will accomplish, rather, is a potentially profound change in the nature European public law, while adding only marginally to the legal arsenal in the struggle to vindicate fundamental rights ...Zum vollständigen Artikel