The Diagonality Problem of EU Rule of Law and Human Rights: Proposal for an Incorporation Àl’Européenne

German Law Journal (2020), 21, pp. 838–866 doi:10.1017/glj.2020.44

ESSAY

The Diagonality Problem of EU Rule of Law and Human Rights: Proposal for an Incorporation àl’européenne

Csongor István Nagy*

(Received 14 May 2019; revised 23 September 2019; accepted 01 October 2019)

Abstract The EU’s limited powers do not enable its institutions to effectively intervene in cases where Member State actions threaten fundamental values. The recent controversies emerging from some Member States’ human rights and rule of law backsliding turned this question to one of the core issues of the European project, calling for effective fundamental rights protection in the EU without suppressing national constitutional identities. Though EU law’s approach, at least at first glance, might appear to be idiosyncratic, it is far from unprecedented and, as far as multilevel constitutionalism is concerned, EU law may draw on the experi- ences of various regimes where centralized human rights protection and national or state constitutional identities coexist. This Article analyzes the current European approach as to the application of the federal bill of rights to states from a comparative perspective and explores the constitutional and jurisprudential patterns addressing the question of inquiry in a multilevel constitutional architecture. The Article analyzes the subject from a doctrinal, ontological, textual-conceptual, and institutional perspective with the aim of contributing to the current European debate with a new comparative perspective and fostering EU constitutional development with structural patterns. It submits that the currently prevailing paradigm of “scope” should be replaced or complemented with the paradigm of “core standards” and proposes a doc- trine of European incorporation, arguing that the diagonally applicable rule of law and human rights requirements should be incorporated via Article 2 TEU to make them judicially applicable.

Keywords: Article 2 TEU; Article 7 TEU; Charter of Fundamental Rights; comparative federalism; constitutional identity; deferentialism; diagonality; EU law; Federal Bill of Rights; Fourteenth Amendment; Incorporation Theory; Reverse Solange; rule of law; Solange

A. Introduction It is out of question that nowadays the European competence to defend rule of law and human rights1—hereafter jointly referred to as rule of law—against Member States became one of the core issues of the European project. In the last decade, EU institutions, in particular the European

*LL.M., Ph.D., S.J.D, dr. juris, professor of law and head of the Department of Private International Law at the University of Szeged,researchchair and thehead of the Federal Markets “Momentum” ResearchGroupof the Hungarian Academyof Sciences, recurrent visiting professor at the Central European University (Budapest/New York), the Riga Graduate School of Law (Latvia) and the Sapientia University of Transylvania (Romania). The research for this article was supported by the project nr. EFOP-3.6.2-16-2017-00007, titled Aspects on the development of intelligent, sustainable and inclusive society: social, techno- logical, innovation networks in employment and digital economy. The project has been supported by the European Union, co-financed by the European Social Fund and the budget of Hungary. The author is indebted to Professor Paul Craig, Professor Gábor Halmai, Professor Dimitry Kochenov, Professor Niamh Nic Shuibhne, Professor Alexander Tsesis and Professor Floris de Witte for their comments. Of course, all views and any errors remain the author’s own. 1In this Article, in accordance with the parlance of the Charter of Fundamental Rights, the terms “human rights” and “fundamental rights” will be used interchangeably. Although the latter may also embrace rights that are considered