How European Legal Mechanisms Contribute to a Lowering of Protection of Rights and the Rule of Law

Europe is built on, woven together and fueled by law. However, it is law which diverges in several regards from an idealtypical understanding of law. Even though European law comes from above, it is mediated in application by national authorities and courts, and relies on intra-European comparison in interpretation in crucial areas, such as fundamental rights and constitutional institutions. Europe is constrained internally by the very cement which holds it together: the nature of legal integration. The paper will show on particular examples that the European Union and the Council of Europe legal construct most of the times cannot remedy even obvious violations of applicable legal standards, and sometimes simply rubberstamps and thereby legitimizes the disregard of fundamental rights and the rule of law. It will argue that contrary to received wisdom, European legal mechanisms, especially because of their comparative aspect, might in fact create a race to the bottom in terms of fundamental rights, rule of law, and democracy. Simply, in many regards, "old Europe" has not reached the level of strong institutional protection Hungary has in the 1990s. Now that high level protection is dismantled by reference to European legal standards. It is high time to raise those standards before the Hungarian disease reaches other member states.