Rescue Package for Fundamental Rights: Comments by WOJCIECH SADURSKI

The Hungarian debacle is both a challenge and an opportunity for the EU.

It is a challenge, because for the first time the EU faces the situation of one of its member states so blatantly and clearly violating certain principles of democracy and human rights protection, taken for granted as part of the moral values upon which the EU is built. (The first time, because the “Haider affair”, often invoked in this context, cannot be seen as a precedent, for reasons mentioned below.)

But it is also an opportunity. An opportunity for the EU to demonstrate that it takes its values seriously, and to use the tool-kit that it has provided itself with for precisely such occasions. By doing so, the EU will show that the enhanced Article 7 mechanism (which, after Nice, and as reaffirmed in Lisbon treaty, includes also the preventive measures) is not a dead letter, and is a device which may be applied, when necessary. It is also an opportunity for us, lawyers, to think hard about how the EU should react to such breaches by nation states, when they cannot be seen as committed in the process of implementation of the EU law but rather violate the vague values of “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights”.

Vague – but not meaningless. Their vagueness makes them probably an insurmountable obstacle for employing a purely judicial response; hence the problems with the “Heidelberg” proposal of “reverse Solange” made by Armin von Bogdandy and his team.

I share the misgivings of a number of commentators, including Peter Lindseth, Daniel Thym and Anna Katharina Mangold about trying to find a purely legal remedy to an essentially political problem. But it should not be an obstacle for a fundamentally political action by the EU, as envisaged by Article 7. In fact, this is precisely what the Article 7 mechanism is for ...

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