Rescue Package for Fundamental Rights: Comments by DANIEL HALBERSTAM

I welcome the Heidelberg proposal! Several years ago – long before the Zambrano judgment confirmed the idea – I wrote a piece explaining that a “reverse Solange” idea could already be discerned from such early cases as Carpenter and Chen. Despite the doctrinal niceties that provided certain formal limits to those early cases, it was clear that the European Court of Justice had virtually plenary jurisdiction over fundamental rights throughout the European Union. With the adoption of the binding Charter of Fundamental Rights, that is even more evident today.

Since U.S. analogies have been bandied about, let me throw in a few others. First, just as U.S. plaintiffs have to buy a plane ticket to establish standing to complain of environmental damage along the Nile after Lujan v. Defenders of Wildlife (references perhaps only obvious to Americans), so, too, Mr. Kremzow, for example, could have gotten his fundamental rights review from the ECJ. Recall that the ECJ rejected Mr. Kremzow’s plea from jail to review his Austrian murder conviction. The Court said it was an entirely internal situation. Well, if Mr. Kremzow had just bought himself a train ticket and alleged that he was being prevented from exercising his free movement rights to buy a baguette in Paris, he could have gotten his review from the ECJ. He would have been rather in the same situation as Mrs. Carpenter whose presence in the U.K. was reviewable simply because it enabled her husband to engage in cross border activities in the EU.

And all that was without citizenship and the fundamental rights charter, which have only made these and similar arguments stronger. If the ECJ (and now the CJEU) has held back over the years from full “incorporation” of the bill of rights against states – to bring in a second US analogy – then this restraint was not a function of doctrinal necessities ...

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