Von Bogdandy’s ‘Reverse Solange’: Some Criticism of an Important Proposal

This brief contribution appeared in the Verfassungsblog in February 2012 in reaction to an important article published by Armin von Bogdandy et al. in 49 CMLRev., 2012, 489. While the approach taken by von Bogdandy is very fascinating and innovative, it can also be criticized on a number of grounds, including, inter alia, the presumption that Solange was good enough to be worth copying, that an approach designed for giving up power is likely to be effective in the context of acquiring new jurisdiction, and that abstract human rights protection at the most general level will actually change the situation where concrete rights are violated on the ground. The rich article by von Bogdandy et al. is an important starting point for a fundamental debate on the scope of the EU’s human rights jurisdiction which is long overdue and is becoming particularly acute in the light of the recent case-law of the CJEU, where the Court is using EU citizenship rights to claim jurisdiction and activate EU law in the fields previously deemed to be outwith EU’s reach.