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.