Countering the Judicial Silencing of Critics – Article 2 TEU Values, Criminal Liability and Reverse Solange

Abstract

When a government instrumentalises subdued judges to silence critics, fundamental rights in the EU face a truly deep-seated problem. Yet, the Union has ways to confront such abuses. First, this contribution shows novel ways of how to respond under Union law and even beyond the scope of the EU Charter: a duty of value-oriented interpretation of national law, a duty of referral and – as a last resort – the criminal liability of disobeying judges. Second, it justifies these ways via the Reverse Solange doctrine which protects essentials of fundamental rights against authoritarian tendencies while maintaining the federal balance between the EU and its Member States. At its heart, it consists of implementing the framers’ decision of Article 2 TEU via a systematic, value-oriented interpretation of all primary law.

Keywords: Article 2 TEU, EU values, rule of law crisis, Reverse Solange, freedom of speech, preliminary reference, consistent interpretation