EU FUNDAMENTAL RIGHTS ADJUDICATION THROUGH THE INFRINGEMENT PROCEDURE AND CONSTITUTIONAL SCRUTINY OF THE ACTIONS OF THE MEMBER STATES

The Charter of Fundamental Rights is a parameter to measure the constitutionality of EU secondary law, of EU institutional action and, within the margins of article 51, of Member states' actions when they implement EU law. The preliminary reference procedure has already produced a sufficient amount of rulings in which EU fundamental rights apply to Member states. In this period in which some EU countries are defying democratic principles and removing constitutional guarantees, there is a renovated concern in EU fundamental rights adjudication through law. Political, institutional and academic debate is focused in such mechanisms, among which the classic Treaty infringement procedure has concealed especial interest. Infringement procedure is an available tool to enforce EU fundamental rights in Member states, with its double nature as a political and a legal instrument. The present study analyses the infringement procedure as federal enforcement, how it could be activated as a guarantee for EU fundamental rights in the Member states and its adequacy in situations out of EU law scope of application.