The time for Reverse Solange is now!

Monday 21 March 16:47

Written for The New Federalist, published on 22 January 2016

At the end of end of the Cold War, the EU was successful in fostering the rule of law and democracy in former Warsaw Pact countries, by ordering the compliance with the Copenhagen criteria in order to accede to the European Union. However, once in, there are no strict binding rules to these same criteria. This has enables the rise of the first illiberal regime in Hungary since the dissolution of the Soviet Union, and Poland might follow in its shadow. We need the European Court of Justice to protect EU citizens from their member states.

The void Article 7 of the Treaty of Lisbon

To safeguard the values of the European Union, as laid down in Article 2 of the Treaty of the European Union (TEU), member states agreed upon Article 7 TEU. This article enables the suspension of certain rights of Member States when it seriously and persistently breaches EU values, including the voting rights of a Member State in the Council. Determination that there is a clear risk of breaching EU values can be proposed by the European Parliament, one third of the Member States or the European Commission. Then, in consent by the European Parliament, the Council may determine by a four fifth majority that this risk is valid.

Hence, the problem emerges: The European Council may determine the existence of a serious and persistent breach by a Member states in unanimity. This unanimity is interpreted as unanimity, excluded the Member State in question. With Hungary and Poland (having the intention of) breaching EU values, this mechanism is disabled, as the criteria of determining a risk can be met, but both Hungary and Poland will back each other in disabling the European Council to suspend the rights of the other while serious and persisting breaches are happening.

Thus, concluding that defending article 7 is disabled, there are no articles left to defend EU citizens of member states’ breaches of EU values. In creating the Lisbon treaty, a forced exit has been discussed, but not included. In the shadow of such an article, it could have been possible to enforce compliance of these countries. Politically, the situation is stuck, and other problems in the Union distract countries’ attention from the backsliding into illiberalism of Hungary and Poland. Therefore, we need the European Court of Justice (ECJ) to interfere.

The Court of Justice as historical savior of the Union

When we focus on the political situation, we can see that, while national politicians have been stuck in defending their own hegemony, it was the Court of Justice who established a de facto federal European Union. According to Weiler, the ECJ in 1958 to the mid-1970’s disabled member states to selectively apply legal obligations under Community Treaties and laws. In creating its doctrine of direct effect and supremacy, EU law is binding law for member states and has supremacy over national laws. Its doctrine of implied powers state that if the Community was implied to do something, it should also have the power to do so.

Lastly, starting in 1969, the Court started to review Community measures on human rights violations. Hence, in the period from 1973 to mid-1980’s, the ECJ mutated Community jurisdiction and competences, effectively creating the base for the shared powers and supplementary powers as we now see them in the Treaty of Lisbon. It was this legal activism of the European Union that has led us to the inclusion the greater human rights dimension, and the Union as a whole, first established with the Treaty of Maastricht.

Establishing Reverse Solange to safeguard EU fundamental rights

With the emergence of a more political union after the Maastricht Treaty, the ECJ has become more reserved with its activism, partly limited constitutional courts being weary on the ECJ acting on the edge of it competences to expand it. On famous limitation is the Solange principle of the German Constitutional Court. As long as, Solange in German, the European Court of Justice respects the fundamental rights of German citizens, the German constitutional court will respect the supremacy and direct effect of EU law and judgments of the ECJ.

The time however, needs an activist ECJ to save Hungary and Poland from their own governments, and the Solange principle inspired Von Bogdandy and others to outline the Reverse Solange principle: as long as Member States respect the rights of EU citizens, laid down in the Charter of Fundamental Rights of the European Union (CFREU), will respect national sovereignty outside of EU law and its implementation. Human rights within EU law are already well defended by the Charter, and with the acceptance of the Reverse Solange principle of the Charter, Member States will finally be bound to human rights in general.

Poland and Hungary are still sliding back, and thus, the sooner the ECJ acts the better. We need them to safe EU citizens from among others media freedom violations, pressure on civil society before it is too late, as European politicians won’t. Contagious illiberalism rises and will affect more countries in the future if not stopped, causing the EU to backslide as a whole. My hope is that the ECJ saves us from authoritarianism in Hungary and Poland, stops illiberal movement in the Union as a whole, and by stating that Member States are obliged to respect the Charter’s Fundamental rights unconditionally, they secure human rights as non-negotiable for EU member states in the future. The time for Reverse Solange is now!