The application of the EU ‘federal bill of rights’ to states: European traits from a comparative perspective

The respect of fundamental (human) rights is one of the cornerstones of the European Union (EU): it is a precondition of membership and it is listed among the core values of the Union. Still, EU law contains no effective mechanism to compel Member States to respect fundamental rights and freedoms in general; the EU Charter of Fundamental Rights is, in principle, addressed to EU institutions; it applies to Member States only when they implement EU law. The recent controversies between the European Commission and some Member States revealed that the EU's limited powers do not enable the Commission to effectively intervene in cases where a Member State appears not to comply with the above requirements. Although these national measures triggered waves of protest, not infrequently, the Commission was left with very weak legal tools once political means failed.

It is not an exaggeration to say that these controversies recently turned the question of the application of the federal bill of rights to states 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 the above 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 experiences of various regimes where centralized human rights protection and national (state) constitutional identities coexist.

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