Abstract
AbstractThe binding legal force that the Charter acquired with the Treaty of Lisbon has led some national constitutional courts to adopt an entirely new approach to EU fundamental rights. Most notably, the Austrian Constitutional Court, the Italian Constitutional Court, and the German Federal Constitutional Court have explicitly made the Charter a yardstick of constitutional review. This article compares and contrasts the approaches of these three courts to the Charter. It shows that the strategies of the Austrian and German Constitutional Courts have many characteristics in common, including that national constitutional rights are treated as a primary source and the Charter as a mere secondary benchmark in the majority of cases. The most distinctive feature of the Italian Constitutional Court's strategy is that it mainly aims to prevent ordinary courts from circumventing constitutionality refences by directly applying the Charter. The article concludes by arguing that it has many advantages when national constitutional courts adopt the Charter as a yardstick of constitutional review. It is for the constitutional courts and the CJEU to ensure that these benefits are not outweighed by some serious drawbacks of constitutional review in light of the Charter.
Highlights
The first three articles of this symposium focused on the impact that the binding Charter of Fundamental Rights of the European Union (‘Charter’) had on the case law of the Court of Justice of the European Union (‘CJEU’)
This article demonstrated that the binding legal force that the Charter acquired with the Treaty of Lisbon has had a profound effect on the approaches of the German, Austrian, and Italian Constitutional Courts to EU fundamental rights
The German and Austrian Constitutional Courts abandoned their previous approaches to EU law with regard to the Charter and made the latter a direct standard of constitutional review
Summary
The first three articles of this symposium focused on the impact that the binding Charter of Fundamental Rights of the European Union (‘Charter’) had on the case law of the Court of Justice of the European Union (‘CJEU’). It explicitly made the Charter a standard of constitutional review in 2012.5 In 2017 and 2019, respectively, the Italian Constitutional Court and the German Federal Constitutional Court followed the example of their Austrian counterpart and embraced the Charter in a series of landmark judgments. The Italian Constitutional Court’s main concern was to ensure that it is consulted by ordinary courts when they are faced with a national measure that potentially violates both a domestic constitutional right and the Charter The reason for this is that in the Italian legal order, unlike in the Austrian and German ones, individuals do not have direct access to the constitutional court. It argues that it depends on the attitude of the CJEU and the national constitutional courts whether the many benefits of constitutional review in light of the Charter can outweigh its drawbacks
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