Protecting Values in the EU - The Role of European Courts

Matteo Bonelli

The on-going constitutional crises in Hungary and Poland are increasingly questioning the capacity of the European Union to protect its founding values: democracy, the rule of law and human rights. The mechanisms at disposal of EU institutions seem insufficient and not effective, even after the creation of the Commission Rule of Law Framework. Moreover, everyone seems to share the view that Article 7 TEU is a "nuclear option" and thus should never be used. What to do, then? Should the EU simply accept that it is unable to effectively safeguard the founding values in the Member States? Considering that national breaches of rule of law and other values deeply affect the legitimacy and the credibility of the EU, as well as the functioning of its legal order, this does not seem a feasible option. This paper aims thus to explore other avenues which could be use to safeguard values in the EU, and especially judicial avenues: can the Court of Justice contribute to protecting the rule of law? How can it be involved? And what is the role of national courts and of the European Court of Human Rights? Do "European courts" possess adequate instruments and sufficient legitimacy to intervene in these sensitive areas?Having introduced the topic and explained why current approaches are failing to protect EU values in the Member States, the paper discusses the role of courts at three levels: (a) EU; (B) ECtHR; (c) national, exploring how they can be involved, whether they can offer adequate remedies, and which questions are raised by the involvement of courts in this field. Finally, the paper aims to understand how legal and political avenues could be combined, ultimately with the aim to strengthen protection of democracy, the rule of law and human rights in Europe.

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