Rescue Package for Fundamental Rights: Comments by DANIEL THYM

The parallels between the emergency rescue operations for the Euro and the fundamental rights intervention of the ECJ in Hungary are evident: both cases reveal structural shortcomings of the EU Treaties and the advocates of “more Europe” support enhanced supranational supervision and control. This return to the method of integration of the 1970s is risky.

The shortcomings of the EU Treaties are obvious. The creation of the Euro has not been accompanied by a common EU economic policy and EU fundamental rights are characterized by asymmetry. It is unconvincing that the EU scrutinises the human rights compliance of accession candidates (such as Serbia) and third countries (such as Syria), but may criticise Hungary only indirectly with regard to the independence of the data protection commissioner.

Given these structural shortcomings, it is natural to look to the ECJ for a solution. After all, it is up to the courts to develop a coherent legal order from current inconsistencies. Why should the ECJ not become active and enforce the European values? There are three considerations against this: practicability; preoccupation for legal integration; and the hope for political solutions.

No Practical Solutions for Hungary

As a starting point, the proposal of Armin von Bogdandy and his team (at least in the long version) deals with a concrete problem: the Courts should cope with Hungary’s constitutional changes by linking Union citizenship with fundamental rights. This creates the impression that the proposal would be of practical help for Hungary – which is not the case. In particular the application of the reversed ‘Solange’-formula is not feasible. Why? The legal standards for assessing the ‘substance of rights’ benchmark remain vague.

The only thing that is certain is that the ‘substance of rights’ relates to a minimum level of protection ...

Zum vollständigen Artikel

Cookies helfen bei der Bereitstellung unserer Dienste. Durch die Nutzung erklären Sie sich mit der Cookie-Setzung einverstanden. Mehr OK