Reverse Solange – Protecting the essence of fundamental rights against EU Member States

By Armin von Bogdandy et al.


This article presents an innovative approach to the protection of EU
fundamental rights against Member States. It draws on recent studies which
have shown that the fundamental rights situations in a number of Member
States give increasing cause for concern, particularly with respect to media
freedom. However, while the Union intensely scrutinizes the fundamental
rights situations in candidate countries, there is scant action thus far in case of
serious problems in Member States. Although the latter are comprehensively
committed to “respect for human rights” according to Article 2 TEU and
subject to the enforcement mechanism established by Article 7 TEU, this has proven to be of very limited practical impact. Therefore, the article suggests
opening up “respect for human rights” individual legal actions via Union
citizenship. Its starting point is the recent jurisprudential development of the
“substance” of Union citizenship in Ruiz Zambrano. This substance can and
should basically be defined with reference to the essence of fundamental rights
enshrined in Article 2 TEU. To put this into practice, the article suggests a
“reverse Solange doctrine”, applied by the CJEU towards the Member States:
Outside the scope of the EU Charter of Fundamental Rights, Member States
remain autonomous in fundamental rights protection as long as it can be
presumed that they ensure observation of the essence of fundamental rights,
enshrined in Article 2 TEU. However, should this presumption be rebutted,
the “substance” of Union citizenship – within the meaning of Ruiz Zambrano
– comes into play. On this basis, Union citizens could seek redress before
national courts and the CJEU.