Two Ways of Completing the European Fundamental Rights Union: Amendment to vs. Reinterpretation of Article 51 of the EU Charter of Fundamental Rights

Abstract

The aim of this Article is to show that the enforcement of Article 2 of the Treaty on European Union (‘TEU’) values vis-à-vis Member States could benefit from the application of the EU Charter of Fundamental Rights (‘CFR’) also in instances where the current interpretation of Article 51(1) CFR prevents this. This would be the case if the CFR were also applicable to purely domestic cases, eg—but not only—with regard to fundamental rights-relevant violations related to the values enshrined in Article 2 TEU. In this case, the European Court of Justice, which has already partly taken this path recently, could prevent the violation of core EU values. The most important historical challenge to those values in Europe today is the systematic dismantling of the rule of law and democracy in certain Member States. It is the very purpose of fundamental rights to provide answers to such dangers. When one speaks of the rule of law and democracy, one necessarily also means fundamental rights. This Article thus advocates an EU which perceives itself as a complete fundamental rights union. While the traditional interpretation of Article 51(1) CFR had a balanced division of competence between the EU and its Member States in mind, the disregard of Article 2 TEU values triggers a clausula rebus sic stantibus: the neat federal balance can only be upheld if both ends stick to the original promise made. It demonstrates two ways of completing the European fundamental rights union: treaty revision, on the one hand, and reinterpretation of Article 51 CFR, on the other hand. Both ways have in common that only a complete fundamental rights union can establish a system of fundamental rights protection that is uniform and thus equality-preserving in cases where national fundamental rights fail to provide sufficient protection.

I. INTRODUCTION: THE RULE OF LAW CRISIS IN THE EUROPEAN UNION HAS REACHED A NEW LEVEL OF ESCALATION

The conflict over compliance with the rule of law in some EU Member States has reached a new level of escalation with the decision of the Polish Constitutional Court on 7 October 2021. The Polish Constitutional Court has now clearly stated that Union law does not take precedence over (Polish) national constitutional law. On the contrary, the attempt of the European Court of Justice (‘ECJ’) to ‘interfere’ in the Polish judiciary would violate (according to the Polish Constitutional Court) the rule of supremacy of the Polish Constitution (in relation to Union law) and the rule that sovereignty must be preserved in the process of European integration.¹ Less noticed, however, not less problematic, the Hungarian Constitutional Court has reasoned, that the Hungarian government is constitutionally empowered to disapply EU law if it considers that EU law would violate Hungarian constitutional identity.² Due to these events and the preceding developments, ‘the functioning of the EU legal order itself is in jeopardy’.³

Similarly, recent events in Hungary and Romania have proven that it is by no means self-evident that once a state has joined the EU, it will follow the principles of the rule of law without external enforcement mechanisms.⁴ However, this Article is not about these three countries specifically, but about the general problem that was convincingly put forward by Jan-Werner Müller when he essentially stated that the Copenhagen criteria cannot be effectively enforced against Member States (and their enforcement even against candidate countries was poor).⁵ In particular, the Article focuses on the requirements of the concept of the rule of law, which are being systematically breached. So far, the European Union is apparently unable to sufficiently protect the value of the rule of law. However, if the EU does not want to lose its credibility, it has the duty to defend the rule of law (cf Article 2 of the Treaty on European Union (‘TEU’)) within the European Union.⁶ This tension between the EU's lack of enforcement capacity on the one hand, and the (implicit) legal obligation to strengthen the rule of law common to all Member States on the other, is the focus of this Article.

The majority of the methods available for the enforcement of the values contained in Article 2 TEU are based on political discretion (exclusion of the political party concerned from its European party family; Article 7 TEU, initiation of infringement proceedings by the Commission; the new rule of law mechanism) and therefore contribute, if at all, only to a limited extent and thus not sufficiently to securing the values mentioned.

European politicians, or rather politicians of EU Member States, find it difficult or are unwilling to intervene decisively. Often opportunistic considerations take hold, and conflicts are ignored or at least played down. Other issues, such as economic ones, seem to be more urgent than the admittedly elusive questions of constitutionalism and its dismantling in one of the Member States. However, we must also expect European politicians to believe in the fundamental values of the European Union (Article 2 TEU) and—if necessary—to defend them. ‘Fundamental values cannot be compromised’.⁷ And yet they are compromised to such an extent that one can seriously question whether these values will be complied with in all Member States without supranational support.⁸ A mechanism that places value enforcement in the hands of politicians is a useful mechanism but is not sufficient in itself. The potential of legal mechanisms is different to that of political ones. They are not accused of having an ideological agenda—or at least not to the extent that political processes are accused of having one—in spite of the currently inflated rhetoric of Polish politicians who have even—note the irony given the subsequent war of aggression of Russia against Ukraine—fantasised that the Commission would risk World War III as an accusation against EU institutions engaging in the rule of law crisis if it would not greenlight the Polish recovery plan.⁹ Judicially guaranteed mechanisms represent the most trustworthy mechanisms for enabling those who are affected to enforce these values. While the newly introduced rule of law mechanism¹⁰—recently triggered against Hungary—is an important step into the right direction, this mechanism alone is insufficient. Even though there is an obligation on the European Commission to launch the procedure if its preconditions are fulfilled, the Commission is unwilling to do so, most importantly against Poland.¹¹ This breach of EU law by the very organ which is supposed to be the guardian of EU law (Article 17 TEU) reconfirms again the constitutionalist suspicion that enforcement mechanisms need to be entrusted with judicial and not with political organs.¹² And this is exactly the solution that we are proposing here in this Article.

II. THE RULE OF LAW CRISIS AS A PROBLEM AND THE COMPLETE FUNDAMENTAL RIGHTS UNION AS A RESPONSE

The achievements of modern constitutionalism can be seen in several ways. For the purposes of our contribution, we understand them here as answers to societal challenges.¹³ Consequently, ideas such as the need to base fundamental rights interventions not only on a legal basis, but also on a proportionality test, can be explained as answers to societal challenges that have developed over the years.¹⁴

In line with Toynbee, we regularly see societies facing new challenges for which they try to find the right solutions.¹⁵ By challenge, we refer to a new circumstance or problem that requires a new method for its resolution.¹⁶ This can take many forms, for example through new inventions or the introduction of new ideas to deal with particular social (order) problems. Seen in this light, the idea of the rule of law can be understood as the original answer to absolutism.¹⁷ Over time, various definitions of the rule of law have developed.¹⁸ The one key element that has never been questioned is the restriction or combating of the arbitrary use of state power.¹⁹

In the following, we will argue in favour of a specific judicial enforcement of the rule of law against Member States in which governments have been hijacked by groups working to dismantle the rule of law.²⁰ We will argue that in order to overcome the crisis of the rule of law, an essential step would be to enable persons in affected Member States to invoke the application of the EU Charter of Fundamental Rights (‘CFR’) whenever a violation of Article 2 TEU values in Member States provides ground for fundamental rights violations and thus the scope of protection is applicable;²¹ in other words, even if the restriction of the scope of protection occurs exclusively through national measures. In this way, individuals could independently counter the erosion of the rule of law. While the traditional interpretation of Article 51(1) CFR had a balanced division of competence between the EU and its Member States in mind, the disregard of Article 2 TEU values in some Member States provides for the application of the clausula rebus sic stantibus: the neat federal balance of a full fundamental rights protection can only be upheld if both ends stick to the original promise. If this standard is violated in a Member State, the EU must close the lacunae in order to ensure the fundamental rights union in Europe.

This is what we mean when we speak of a complete European fundamental rights union. In most cases, the buzzwords ‘fundamental rights community’ (‘Grundrechtsgemeinschaft’ in German)²² or ‘fundamental rights union’ (‘Grundrechtsunion’ in German)²³ express nothing more (but also nothing less) than that the EU is ‘more than just a huge economic area’.²⁴ Common to this understanding is that fundamental rights simultaneously protect individuals from arbitrary exercise of state power and represent ‘the expression of a common European conviction of fundamental rights, a European value system’.²⁵ While the ECJ in its case law initially defined the concepts of legal community (‘Rechtsgemeinschaft’ in German)²⁶ and now the legal union (‘Rechtsunion’ in German),²⁷ in this Article we understand the concept of a complete fundamental rights union as the realisation of unrestricted, so-called ‘free fundamental rights’, ie fundamental rights that apply equally to all citizens of the Union also in purely national constellations if this is necessary due to a violation of Article 2 TEU values at the national level.²⁸

III. THE SCOPE OF APPLICATION OF THE CHARTER OF FUNDAMENTAL RIGHTS: ARTICLE 51(1) CFR AND THE PREVAILING DOCTRINE

Article 51(1) CFR is a central provision—the ‘keystone’, so to speak—of the CFR.²⁹ It standardises its scope of application and restricts it vis-à-vis the Member States. It applies to them, according to the wording of the norm, ‘only when they are interpreting Union law’.

Essentially, and quite briefly, three variants of interpretation of Article 51(1) CFR can be distinguished:

A literal and rather restrictive approach presupposes the actual existence of Union law in the area in question (‘implementation’) in order to invoke the application of the Charter.³⁰ Such a restrictive understanding of Article 51(1) CFR, which would limit the application of the fundamental rights of the Union exclusively to this kind of ‘implementation’ of Union law, does not only seem to contradict the underlying philosophy of the Charter,³¹ but is also more restrictive than the case law of the ECJ on the applicability of fundamental rights (conceived as general principles of law) before the entry into force of the CFR.³² This scepticism towards this restrictive interpretation is also fuelled by a look at the explanations to the CFR:³³

As regards the Member States, it follows unambiguously from the case law of the Court of Justice that the requirement to respect fundamental rights defined in a Union context is only binding on the Member States when they act in the scope of Union law (judgment of 13 July 1989, Case 5/88 Wachauf [1989] ECR 2609; judgment of 18 June 1991, ERT [1991] ECR I-2925); judgment of 18 December 1997 (C-309/96 Annibaldi [1997] ECR I-7493). The Court of Justice confirmed this case law in the following terms: ‘In addition, it should be remembered that the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules…’ (judgment of 13 April 2000, Case C-292/97, [2000] ECR 2737, paragraph 37 of the grounds). Of course this rule, as enshrined in this Charter, applies to the central authorities as well as to regional or local bodies, and to public organisations, when they are implementing Union law.

This interpretation is therefore not only contrary to the previous case law of the ECJ (as cited above in the explanations), but also contradicts the Charter itself, since Article 53 CFR explicitly states that the Charter may not lead to a lower level of protection of fundamental rights (than that guaranteed in particular by ‘Union law’, the European Convention on Human Rights (‘ECHR’) and the constitutions of the Member States).³⁴ If this interpretation were to be accepted,³⁵ this would lead to a reduced level of fundamental rights protection than was the case before the adoption of the Charter.³⁶

In Åkerberg Fransson ³⁷ the ECJ rebuked voices that advocated for the previously described restrictive interpretation of Article 51(1) CFR.³⁸ This judgment clarified the scope of application of the Charter through interpretation and adopted the widely held view in the literature:

Since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of European Union law, situations cannot exist which are covered in that way by European Union law without those fundamental rights being applicable. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter.³⁹

A similar, albeit—depending on the interpretation—somewhat more generous view was also previously held by AG Eleanor Sharpston in Ruiz Zambrano:

Transparency and clarity require that one be able to identify with certainty what ‘the scope of Union law’ means for the purposes of EU fundamental rights protection. It seems to me that, in the long run, the clearest rule would be one that made the availability of EU fundamental rights protection dependent neither on whether a Treaty provision was directly applicable nor on whether secondary legislation had been enacted, but rather on the existence and scope of a material EU competence. To put the point another way: the rule would be that, provided that the EU had competence (whether exclusive or shared) in a particular area of law, EU fundamental rights should protect the citizen of the EU even if such competence has not yet been exercised.⁴⁰

Also in the sense of this interpretation, the prevailing idea is that the application of the Charter were only given when there was a connection to the ‘scope of Union law’ (Fransson) or a ‘material Union competence’ (AG Sharpston in Ruiz Zambrano).⁴¹ This means that the application of the Charter continues to be seen as a safety net and its rights are not seen as ‘freestanding rights’.⁴² Subsequently, the ECJ—in a slightly weakened form compared to the opinion of AG Sharpston in Ruiz Zambrano quoted above—made a further clarification, which means that

the concept of ‘implementing Union law’, as referred to in Article 51 of the Charter, presupposes a degree of connection between the measure of EU law and the national measure at issue which goes beyond the matters covered being closely related or one of those matters having an indirect impact on the other.⁴³

Thus, there must be a ‘a certain degree of connection above and beyond the matters covered’ between the member states’ measure and a rule of European law for the Charter to be applicable. In the case law of the ECJ, a certain degree of connection means more than merely an indirect connection, as just cited.⁴⁴ The prevailing opinion in the literature probably also agrees with this.⁴⁵

IV. TWO WAYS OF COMPLETING THE FUNDAMENTAL RIGHTS UNION

A. Pursuing a Treaty Revision

A straightforward way to complete the fundamental rights union would be a treaty revision, which amends Article 51(1) and discharges 51(2) CFR.⁴⁶ The current German government, for instance, seems to be fond of such an endeavour when it explicitly states in its coalition contract: ‘We want the rights under the EU Charter of Fundamental Rights to be enforceable before the ECJ in future even if a Member State acts within the scope of its national law’.⁴⁷ A possible new formulation of Article 51 CFR could be the following: ‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States as far as necessary for the enforcement of the values enshrined in Article 2 of the Treaty on European Union’. This would clearly express the purpose of the amendment and would also conform to the principle of subsidiarity.

Treaty revisions, however, can be long-winded affairs.⁴⁸ Hence, while a reform, to be safe in this case according to an ordinary revision procedure (Article 48 TEU), would bring the benefit of an unquestionable methodological status, it provides no relieve in the short or mid-term future. It is also questionable why autocratising Member States would be ready to ratify such an amendment, and for a successful amendment the consent of all Member States is necessary.

We are, however, of the opinion, that there is also an alternative way to proceed. As Joseph Weiler convincingly demonstrated almost forty years ago when reconstructing the legal history of the European integration: whenever the political channels are under blockade, the ECJ is in the best position to give the necessary push to the process, sometimes with activist moves in its case law.⁴⁹ We think that we are exactly in such a situation.

B. A Different Take on Interpreting Article 51(1) CFR

We want therefore to reflect here on whether the interpretation referred to above is set in stone or whether the emergence of a further development of the interpretation of Article 51(1) CFR is possible.⁵⁰ The further development we have in mind aims to ensure that the ‘implementation of Union law’ is not understood formalistically, but rather factually. Contrary to initial intuition, there are also possibilities to justify such an interpretation in legal terms. It has already been argued that Union citizenship must include a final guarantee of fundamental rights in cases of systemic failure in a Member State.⁵¹ This was pointedly depicted in the image of a reversed Solange jurisprudence (however, explicitly outside of the scope of Article 51 CFR).⁵²

Even though this approach built upon a different doctrinal basis than our suggestion, it is important to address some of the criticism this approach has met in so far as this pertains the broader picture rather than the doctrinal basis: (1) it would throw the baby out with the bathwater and stigmatise the ‘affected’ Member States (and thus also contradict the principle of loyalty according to Article 4(3) TEU) instead of concentrating on the actual protection of fundamental rights. (2) A systemic failure of the protection of fundamental rights would in turn require procedures for its protection, the establishment of which necessarily presupposes a decision by a political body (which, however, places the protection of fundamental rights at the mercy of politics).⁵³ (3) The use of the Solange formula, in turn, is seen as a potentially face-saving excuse for inaction.⁵⁴ To avoid these objections, we will sketch a different approach in this Article:⁵⁵ an approach which, through a reinterpretation, would elevate the Charter to a genuine and fully fledged fundamental rights document in the European Union if at the national level the fundamental rights protection is hampered due to violations of Article 2 TEU.⁵⁶ We make the case for a reinterpretation of Article 51(1) CFR that ensures the application of the Charter in such cases which thus completes the European fundamental rights union.

V. FOR A REINTERPRETATION OF ARTICLE 51(1) CFR

If we strive for a fully fledged community of values from which all citizens would equally benefit, then the Charter should in any case, ie also in purely domestic cases, be fully valid at the domestic level and be applied by national courts, even if there is no systemic failure of fundamental rights protection but ‘only’ a violation of an Article 2 TEU value. Accordingly, Union fundamental rights protection would still depend on a certain degree of connection between the activity of the Member States and a norm of Union law; however, we understand this connection in such a way that no reduction of fundamental rights protection should occur due to specific competences. In other words, all Member States must always respect the fundamental rights of the CFR and cannot rely on an exclusive competence of a Member State to justify a violation of fundamental rights.⁵⁷ The certain degree of connection criterion would on the one hand be based on the fact that the EU has ubiquitous influence far beyond its competences. For example, subsidies do not only have an impact in the EU's area of competence. In Poland or Hungary, the dismantling of the rule of law is financed with EU taxpayers’ money.⁵⁸ It is therefore short-sighted if the certain degree of connection is seen in a formalistic way only ‘in all situations governed by EU law but not outside such situations’.⁵⁹ With this formalistic understanding of ‘implementation’, the Court of Justice ‘has no power to examine the compatibility with the Charter of national legislation lying outside the scope of EU law’.⁶⁰ On the other hand, the degree of connection would be established if a Member State violates a core value on which the EU is based, which includes any violation without the necessity of a systemic deficiency. This ensures respect for the principle of equality as not specific Member States are stigmatised but any Member State which violates core EU values faces the application of the CFR, not after a political evaluation of the situation, for instance, in the realm of the Article 7 TEU procedure, but according to judicial standards.

This means that a comprehensive fundamental rights-based judicial supervisory authority would be introduced throughout Europe. The type of judicial control envisaged would be decentralised in the sense of being exercised by the national courts, which—similar to the case law of the European Court of Human Rights (‘ECtHR’)—would have a margin of appreciation, whereby compliance with the core of fundamental rights would be monitored by the ECJ. However, their uniform application would be guaranteed by the preliminary ruling procedure.⁶¹ One could therefore also call a protection of fundamental rights understood in this way semi-centralised judicial control.

Such an approach would enable the European Union to become a complete fundamental rights union in which no one would be left behind. In this vein, no citizen would be excluded from the community of values due to violations of fundamental rights by a Member State in purely national constellations. This would be of no small significance, since fundamental violations of basic rights in Europe are a frightening and at the same time unacceptable denial of the European community of values. The citizens of the Member State excluded from the protection of fundamental rights are thus left behind with all the associated consequences, while the rest of Europe saves itself.

Standing up for these citizens is especially important when fundamental rights violations are enshrined in Member State constitutions in an almost sacrilegious manner and constitutional courts are staffed with party soldiers who do not care about constitutional arguments and values. Ordinary courts would have the advantage that there are many of them in each country, the personnel is therefore more difficult to replace in terms of party politics and only over a longer period of time, and also a single ordinary judge can ask the ECJ for help in the form of a preliminary ruling if Union fundamental rights are in some way unjustifiably restricted by national measures.

In the following subsections, we address possible objections, some of which concern efficiency (including alternative ways to better protect fundamental rights), and some of which concern (doctrinal) reasoning.

A. Articles 2 and 7 TEU (and to Some Extent also Union Citizenship or the Right to an Effective Remedy) Would Support a Generous Understanding of the ‘Certain Degree of Connection’ Formula Understood as an Unrestricted Application of Article 51(1) CFR

The interpretation put forward here contradicts both the literal meaning of Article 51(1) CFR, its current interpretation by the ECJ, and the majority of the literature.⁶² Consequently, it is necessary to present some solid arguments in support of it. There seem to be three parallel ways to justify such a broad interpretation of the scope of the Charter: first, the use of the concept of citizenship of the Union; second, taking Article 47 CFR seriously; and third, the use of Articles 2 and 7 TEU as connecting factors. Although these justifications are not mutually exclusive, we believe that the final option has most potential.

Union citizenship is generally seen as a set of rights⁶³ and, as an ‘autonomous’ legal status, also seems to replace the requirement of cross-border reference,⁶⁴ as the application of EU law is also affirmed in cases without a cross-border element and has evolved to protect citizens from their own Member States.⁶⁵ A further step in the same direction would be to state that Union citizenship triggers the application of the Charter.⁶⁶ This approach, however, differs greatly from the traditional approach, which considers the scope of the Charter as a delimited ratione materiae.⁶⁷

The right to an effective remedy enshrined in Article 47 CFR has a long tradition in EU law and is accepted as general principle of EU law ‘which underlies the constitutional traditions common to the Member States’.⁶⁸ It pre-dates the Charter of Fundamental Rights and has an accessory nature. Enforcing the compliance with fundamental rights necessitates an effective remedy.⁶⁹ This logic might drive a reinterpretation of the limits of competence allowing those limits to expand as part of an ‘inherent’ fundamental rights logic within the Charter. Hence, if a fundamental right of the Charter is violated by a Member State, and no effective remedy is provided in that Member State, Article 47 CFR could be interpreted to trump a traditional reading of Article 51(1) CFR, at least in cases of blatant fundamental rights violations. The reason against such a self-standing application of Article 47 CFR is similar to the reason mentioned before in relation to the first approach. Article 47 CFR in conjunction with, for instance, Article 19(1) TEU as applied by the ECJ, might, however, be a much stronger approach.⁷⁰

Another way to justify the broad application while maintaining the ratione materiae requirement would be to invoke Article 7 TEU.⁷¹ Article 7 TEU provides that a special procedure may be initiated in the event of a ‘serious and persistent breach’ of the fundamental values set out in Article 2 TEU (which also includes respect for human rights). The early warning procedure of Article 7 TEU regarding the determination of a ‘clear risk of a serious breach’ of Article 2 TEU values has so far been applied against both Poland (2017)⁷² and Hungary (2018)⁷³ but without any bite. However, if we take the formula developed in Fransson and subsequent case law,⁷⁴ then—with reference to Article 2 in conjunction with Article 7 TEU—the application of Article 51(1) CFR would basically be triggered in the case of any violation of fundamental rights.⁷⁵

B. A Reinterpretation of Article 51(1) CFR Is Inefficient

The solution described above could be objected to in terms of its efficiency from two opposing directions. The first objection would concern the fear that if the protection of fundamental rights would be placed in the hands of the courts of the Member States, this may not be an effective way to protect fundamental rights, as local courts may not be sufficiently trained or may simply be corrupt.⁷⁶ While this is a legitimate concern, it applies to the whole essence of the preliminary reference mechanism, which is considered one of the key mechanisms for the success of the ECJ and European law in general.⁷⁷ While the gatekeeping role of national courts could make the reinterpretation less than perfect, we nevertheless think that through this additional means many individuals would be empowered, and at least some courts and some judges would actually make use of this possibility. As long as there are at least some independent judges (which is typically the situation in hybrid regimes), this additional option would be helpful.

The second objection relates to concerns that the ECJ would not be able to cope with an increased workload, which would probably occur if an unrestricted application of Article 51(1) CFR were to be accepted.⁷⁸ This is also a justified concern, not only in the context of the topic under discussion. Nevertheless, it would be wrong to reject fundamental rights cases because the ECJ is overloaded with (other) cases. This is simply not a legal argument, which should be of little weight, especially when Article 2 TEU values are at risk. Furthermore, just like in all cases when EU law is applied, the bulk of the work would be done by national judges, and not by the ECJ.

In addition, even in those Member States in which we have witnessed a violation of Article 2 TEU values, not all fundamental rights are violated constantly. We suggest the application of only those CFR fundamental rights that in the concrete situations are necessary for the protection of Article 2 TEU values—ie solely as a subsidiary solution.

C. Member State Conflicts Against the Background of the CFR

When the EU takes action, it is often seen as an indicator that there are multiple conflicts between the interests and values of the EU and those of the Member States. However, an application of the CFR as proposed here would be different from most proposals to address fundamental rights problems in Member States,⁷⁹ since, in the context of what is being presented here, the conflict would arise between a government of a Member State and a court of a Member State (the ECJ would only intervene indirectly through the preliminary reference procedure). It is therefore unlikely (though not impossible) that such situations would be presented as a fight against the Brussels bureaucracy. Meanwhile, imposing formal sanctions from outside on a state to change domestic fundamental rights policy is largely ineffective, tends to reinforce the sense of siege within the Member State and ultimately only hits the wrong social groups.⁸⁰

D. Creeping Assumption of Competence

Critical voices could argue that the suggested interpretation is not covered by the typical methods of legal interpretation as it contradicts the explicit wording of Article 51(2) CFR stating that ‘[t]he Charter does not extend the field of application of Union law beyond the powers of the Union’.⁸¹ Some hold, in addition, that the rationale of Article 51(1) CFR is that all instances when Member States act as ‘agents’ of Union law shall be comprised by EU fundamental rights.⁸² However, instead of a fixation on a grammatical interpretation of what is covered by the word ‘implementation’, a teleological reading along the lines of the effet utile principle must not only take into account the historical intention of the drafters of this provision, but also the changed circumstances since then. Similarly, like the clausula rebus sic stantibus, the blatant disregard for fundamental values of EU law enshrined in Article 2 TEU, including fundamental rights violations in EU Member States these days, destabilises the entire Union legal order. For instance, a purely national violation of the fundamental rights of free media and free elections impact the autonomy of the EU legal order as national politicians become also European politicians and actors that undermine the liberal values of Article 2 TEU. Hence, a teleological reading of the term ‘implementation’ in Article 51(1) TEU ensures the unrestricted application of European fundamental rights in order to safeguard the unhampered implementation of EU law.⁸³

Another obvious objection is that, according to Article 6 TEU and Article 51(1) CFR, the Charter should not be used to extend the competences of the EU.⁸⁴ However, if both Article 6 TEU and Article 51(2) CFR are interpreted in the light of Article 2 TEU, this limitation cannot affect the judicial enforcement of the Charter. Furthermore, the principle of subsidiarity (also mentioned in Article 51 CFR) is only applicable with regard to legislative competence and therefore has no impact on judicial authorities.⁸⁵ Thus we would be at a further step in the direction of federalisation.⁸⁶ However, this would not be the actual justification, but rather a side effect (or a price we should be prepared to pay) of the reinterpretation of Article 51(1) CFR outlined here.

VI. WHAT THE ECJ HAS ALREADY DONE AND COULD STILL DO

The history of the ECJ is marked by activism, in which decisions were taken that—to say the least—were not directly apparent from the text of the Treaty.⁸⁷ How did the Court get away with it? What common features can be derived from these progressive decisions?

(1) The arguments used in these cases were mostly teleological in nature, based either on the main purpose of European integration or on the purpose of specific regulations/institutions. The same would apply to the interpretation of Article 51(1) CFR sketched here: the protection of fundamental rights is intended as a value under Article 2 TEU.

(2) Institutionally, it was usually the European Commission that initially adopted a certain position, which was then followed by the ECJ.⁸⁸ In our case, this would be the Commission's explicitly stated aim to abolish the limits of Article 51(1) CFR. This has already actually happened: Viviane Reding, then Commissioner for Justice, Fundamental Rights and Citizenship, explicitly proposed this in her speech in Tallinn.⁸⁹

(3) The third factor that makes dynamic decisions more likely is a malfunctioning legislative body.⁹⁰ This is also an obvious tick in the box: we see only the pretext of real action, eg in the form of the so-called rule of law framework ⁹¹—the necessary majority of Member States is obviously missing.

(4) A common method of developing jurisdiction is to establish it but not claim it, or to use it in a way that does not conflict with a government. This famously happened in Marbury v Madison, but also in Costa/ENEL, where ‘the ECJ declared the supremacy of EC law’ but ‘found that the Italian law […] did not violate EC law’.⁹² The first step here could probably also be a decision in the format of Costa/ENEL, in which the full applicability of the Charter would be established without proving an actual violation.

We have already seen a similar step—albeit limited in consequence to judicial independence—taken by the ECJ in the case of Associação Sindical dos Juízes Portugueses v Tribunal de Contas, where the ECJ held that the material scope of Article 19(1) second subparagraph TEU applies in the ‘“the fields covered by Union law”, irrespective of whether the Member States are implementing Union law, within the meaning of Article 51 (1) of the Charter’.⁹³ Albeit Poland was not a party in this case, the ECJ clearly had the Polish situation in mind when emphasising the importance of the principle of effective judicial protection enshrined in Article 19 (1) TEU in conjunction with Article 47 CFR.⁹⁴

(5) In a second step—after establishing jurisdiction in a case without a finding of a violation—a violation would have to be established. The more obvious a violation of fundamental rights is and the more isolated the ‘convicted’ Member State is, the more likely the judgement establishing the violation will be accepted by the Member States.⁹⁵ We do not have to be pessimistic to predict that such cases could easily reach the ECJ in the near future.

The ECJ then applied the principle laid down in the Associação case just mentioned also ‘against Poland’, stating that while it is for the Member States, under the second subparagraph of Article 19(1) TEU, to ‘establish a system of legal remedies and procedures ensuring effective judicial review in the fields covered by EU law’,⁹⁶ the ECJ went on to say that

[t]he principle of the effective judicial protection of individuals’ rights under EU law thus referred to in the second subparagraph of Article 19(1) TEU is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, […] which is now reaffirmed by Article 47 of the Charter.⁹⁷

With this, the ECJ has taken an important step in the right direction towards protecting the rule of law by standing up for the independence of the judiciary.

The scope of the problems that can be achieved by means of Article 19(1) TEU in conjunction with Article 47 CFR is, however, limited. While other fundamental provisions of the TEU, such as Article 10(1) TEU, could be activated to deal with further problem areas, we aim at a complete protection of fundamental rights, which would also have a spill-over effect on potential future violations, such as those of freedom of the press and media. The step taken by the ECJ in the Repubblika ruling is noteworthy.⁹⁸ In Repubblika v Il-Prim Ministru, the ECJ linked a preliminary ruling by a Maltese court on judicial independence to the promise made at the time of accession to the EU under Article 49 TEU that the Union would be founded on the Article 2 TEU values and thus the obligation of Member States (they ‘are thus required to ensure’) to avoid any violation of these values.⁹⁹ With this, the ECJ has made Article 2 TEU justiciable to a certain extent.¹⁰⁰

(6) In parallel to (4) and (5), the ECJ could also develop a discretionary doctrine similar to that of the ECtHR.¹⁰¹ This would lead to the ECJ only having to intervene in cases where the common minimum level of fundamental rights protection would be violated. Such a doctrine would be similar to the concept of ‘systemic deficiency’,¹⁰² since both provide a margin of manoeuvre, so to speak. The important difference, however, is that the decision on the limits of the margin of manoeuvre would remain with the judiciary and not with a political body, according to what has been argued here.

In summary, all the cards would be in the hands of the ECJ.¹⁰³ In all likelihood, the European institutions will not want to stop such a move by the ECJ. Rather, they appear paralysed and would probably be happy if someone other than themselves were to pull the coals out of the fire. The Member States, after all, have no possibility of doing so. Coalitions of Member States against ECJ rulings and threats of a judicial Armageddon are highly unrealistic. As Marcus Höreth put it:¹⁰⁴

non-compliance by Member States was not perceived as a threat by the European Justices but rather a welcome opportunity to develop their judicial regime even further. Member-State non-compliance generates legal actions, followed by new rulings; non-compliance with important new rulings again generates new litigation and new findings of non-compliance, and so on.

If the European integration process fails, it will not be because of stronger fundamental rights protection. It will fail either for purely economic reasons or because of anti-constitutional and illiberal attempts in some Member States.

With judicial statesmanship, patience for the right cases and a deliberate strategy, decisive steps towards a complete fundamental rights union could be achieved in the near future. To this end, the ECJ would have to live up to its responsibility both in promoting European integration and the values of the European Union. If we are looking for the right Toynbee-response to the current historical challenge of dismantling the rule of law in the Member States, this seems to be an essential component.

VII. CONCLUSION

Every society is held together by certain values that are, at least rhetorically, indisputable. Since the end of World War II in Western Europe and since the end of communism throughout Europe, the secular values of constitutionalism have had an integrative function. The twentieth century in Europe can also be seen as a time of experimentation and failure with the then new secular taboo systems such as nationalism or socialism. Democracy and the protection of fundamental rights seem to be the only credible options for shaping society in Europe today. Of course, there are endless debates about what these concepts actually mean.¹⁰⁵ But the difficulty of defining the values mentioned in Article 2 TEU should not lead to a situation where these values are simply ignored. There have been and will continue to be attempts to question these values, but if we want to believe that European integration has a chance, we must stop these attempts before it is too late. If it is allowed in one EU Member State, it will be allowed in another and in no time at all the European edifice that rests on these values will crumble surprisingly quickly. Inaction contributes to the erosion of the EU's moral and institutional capital. The apparent tension between the EU's enforcement weakness on the one hand, and its (implicit) legal obligation to strengthen the rule of law on its territory on the other hand, has serious consequences.

An application of the CFR if Article 2 TEU values are violated by Member States would give the European Union the possibility to put a stop to dangerous tendencies. The ECJ could thus enforce the values of European integration and, through the preliminary ruling procedure, turn all courts of the Member States into local actors that profess and enforce these values. An important part of the solution lies (as so often in the history of the Western constitutional state) with the judiciary. The judiciary is the traditional guardian of the rule of law, which should not be understood as blind adherence to the law, but as a powerful institution whose task is, among other things, to put a stop to the arbitrary use of state power. Under the current institutional circumstances, much of the responsibility lies with the ECJ, which could rise to the challenge by taking further steps towards completing the European fundamental rights union, which could ultimately make the Charter applicable in purely domestic cases if necessary.