HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

the essence of fundamental rights enshrined in Article 2 TEU and be framed in reverse Solange doctrine. Outside the Charter’s scope it should be presumed that the Member States comply with their fundamental rights obligation arising out of Article 2 TEU. However, should that presumption be rebutted by systemic violations, Union citizens can rely on Article 20 TFEU to seek redress before national courts and the ECH ”. 42 Being this idea put into practice, it would mean an even more integrated EU, adding another federalistic element. 43 That is to say, the EU citizenship would become the real “ federal denominator ”, “ guiding the delimitation of powers between the EU and the member states ”. 44 It is apparent that Chavez-Vilchez did not go in the direction indicated above. Such a proposal would need approval from the Member States, or to be more precise: willingness to create a more unified area of law. That is if the proposal would be brought to life as a legislative act. The other possible path is to implement this idea through the judiciary, which would be very bold. I see both options as unrealistic, given the current state of discussion about EU citizenship, which has been shaped by major crises in the EU (the migration crisis, the Eurozone crises, the rule of law crisis, and Brexit), 45 and all the blind spots around it. Moreover, as some of its critics rightly pointed out, there are several issues that make “ Reverse Solange ” approach not as flawless as its proponents would have us believe. Firstly, the judges of national courts, who would be the one to initiate preliminary question procedure, are part of the state regime – is it imaginable that they would protect citizens against regime to which they are loyal? 46 Secondly, there is a threat of too many questions. 47 And finally, what if the ECJ judgment, stating that there was a systemic violation of fundamental rights, would not be implemented? 48 42 BOGDANDY, A. V.; KOTTMANN, M.; ANTPÖHLER, C.; DICKSCHEN, J.; HENTREI, S. et al. Reverse Solange. Protecting the essence of fundamental rights against EU Member States. Common market law review. [online]. 2012, edit. 49, no. 2, p. 489–519. Available at: https://doi.org/10.54648/ COLA2012018. p. 491. 43 As has been argued, the EU stands on “federal grounds”, the citizenship being one of the reasons that is so. SCHUTZE, R. On “federal” Ground: The European Union as an (Inter)national Phenomenon. Common market law review. [online]. 2009, edit. 46, no. 4, p. 1069–1105. Available at: https://doi. org/10.54648/COLA2009045. p. 1082 44 KOCHENOV, D. On Tiles and Pillars: EU Citizenship as a Federal Denominator. In: EU Citizenship and Federalism. Cambridge University Press, 2017, p. 3–82. Available at: https://doi. org/10.1017/9781139680714.003. p. 11. 45 YONG, A. The Future Of Eu Citizenship Status During Crisis-Is There A Role For Fundamental Rights Protection? Journal of International and Comparative Law. [online]. 2020, edit. 7, no. 2, p. 471–489. p. 476–485. 46 CROON-GESTEFELD, J. Reverse Solange: Union Citizenship as a Detour on the Route to European Rights Protection against National Infringements. In: Reverse Solange: Union Citizenship as a Detour on the Route to European Rights Protection against National Infringements. Cambridge University Press. [online]. 2017, p. 665–684. Available at: https://doi.org/10.1017/9781139680714.028. p. 681–682. 47 Ibid. p. 682–683. 48 Ibid. p. 683.

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