Fundamental Rights and the New Battle over Legal and Judicial Supremacy: Lessons fromMelloni

Abstract

The recognition of the legally binding force of the Charter brought back to the fore the question of the legal relationship between the EU and the constitutional standard of protection of fundamental rights. In Melloni , the European Court of Justice relied on an absolute understanding of supremacy that essentially precludes the application of more protective constitutional standards of fundamental rights in all cases where the unity and effectiveness of EU law is at stake. It is nevertheless submitted that this concept of unreserved supremacy impacts adversely on the national constitutional traditions and may eventually lead some constitutional courts to consider that fundamental rights are no longer effectively protected under EU law, thus reviving a conflict that seemed to be long resolved. That this is not a remote possibility is exhibited by the follow-up ruling of the Spanish constitutional court in Melloni . Coupled with some relevant pronouncements of the German constitutional court, this ruling implies that there are limits to the capacity of national constitutional courts to reconsider their traditional understanding of fundamental rights in order to give effect to the requirements of EU law and to their interpretation by the Court. Arguably then, the Court needs to qualify its Melloni case law and to leave some actual space to the application of more protective constitutional standards of fundamental rights. Such a balancing approach is particularly warranted as concerns constitutional interpretations of fundamental rights that form part of the national identity of the Member States.