Application of the EU Charter by National Courts in Purely Domestic Cases

András Jakab 

Max Planck Institute for Comparative Public Law and International Law, Heidelberg
October 21, 2014

András Jakab / Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (Oxford: Oxford University Press Forthcoming) 
Abstract:      

The European Union is not just a WTO-type community based on common interests but it is also a community of values. According to Art. 2 TEU, these values are human dignity, freedom, democracy, equality, the rule of law and respect for human rights (including the rights of persons belonging to minorities). If the EU does not want to lose its credibility, it has a duty to defend all of these values to the greatest possible extent, at least within Europe, and especially within the European Union. The different options of how to enforce these values do not exclude, but rather reinforce each other. Most of these enforcement mechanisms depend on political discretion (isolation of the political party concerned within its European party family, Art. 7 TEU, treaty infringement procedures initiated by the Commission), which makes the use of these methods unreliable as guarantees of the abovementioned values. European politicians might (and actually often do) behave in an opportunistic manner, they are interested in smoothening the conflicts or even in pretending that there are no conflicts. European politicians might have a tendency to turn a blind eye against such problems when faced with a major crisis within the EU which seems to them to be of more importance than issues of constitutionalism in one of the Member States. We should of course expect European politicians to believe in the values of constitutionalism, but liberty is based on distrust towards politicians. A mechanism which leaves the enforcement of constitutionalism in the hands of politicians is a useful, but unreliable mechanism. Reliable mechanisms are judicially guaranteed mechanisms, where those affected can enforce these values. In this paper I am going to argue that the most promising way to conceptualise the values of European constitutionalism in a judicially enforceable manner is to widen the application of the EU Charter of Fundamental Rights via a creative re-interpretation of its Art. 51(1).

Number of Pages in PDF File: 11

Keywords: EU Charter of Fundamental Rights, basic values, enforcement mechanisms, scope of application, reverse Solange, EU citizenship, competence creep, leading cases, European Court of Justice, constitutionalism

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2512865