Rescue Package for Fundamental Rights: Comments by MICHAELA HAILBRONNER

The Heidelberg proposal, with its suggestion of the adoption of a Reverse-Solange Doctrine by the CJEU, has sparked considerable debate. Much of this debate has focused on the question how such a doctrine would fit into the current body of European law and whether its adoption would represent a legitimate exercise of judicial power by the CFEU. What has been largely absent from this debate, however, is the question how we should imagine the real-life consequences of the adoption and application of the Reverse-Solange doctrine. Daniel Thym and Dimitri Kochenov have touched upon this issue, but the question deserves a closer look if we want to assess the value of adopting this doctrine. From this perspective, the Heidelberg proposal appears to be primarily a means of raising the political stakes. As such, it has only a slim chance of success, by which I mean producing an actual change in the human rights regime of the Member State concerned. At best, it might serve as an instrument to push European Member States into gear and adopt a political solution, possibly according to Art. 7 TEU. Why is this?

Already the adoption of a Reverse-Solange doctrine poses significant risks for the Court. It is almost certain to genuinely irritate Poland and Britain, who insisted in a Protocol attached to the Lisbon Treaty that the European Charter of Human Rights would not extend the jurisdiction of the Court beyond its current limits (which is also in tune with the language both in the treaties and the Charter). Whether or not the Heidelberg proposal sufficiently justifies Reverse-Solange as a permissible doctrinal innovation, a significant number of Member States and their courts are bound to disagree on this highly contested question. Presumably for this reason, the ECJ in Zambrano explicitly avoided connecting the theme of Union citizenship with fundamental rights, in spite of the invitation of the AG to do just that ...

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