The application of the Charter of Fundamental Rights of the EU by the German Federal Constitutional Court with references to the other federal courts

Rainer Arnold,Lukas Cerny

doi:10.14712/23366478.2018.34

Abstract

The German Federal Constitutional Court (FCC) applies the Charter of Fundamental Rights of the EU (ChFR) if German law is “determined” by EU law. The interpretation of article 51.1 ChFR which regulates the applicability of the ChFR is narrower than that of the Court of Justice of the EU. The FCC which has recognized, with some reservations, the primacy of supranational over national constitutional law maintains its concept of constitutional identity defined according to the intangibility clause of article 79.3 Basic Law (BL). If human dignity (article 1 BL and the fundamental State structures as enumerated by article 20 BL) are concerned, the FCC does not apply the ChFR regardless of article 51.1FCh but the identity concept. Overall, the references of the FCC to the ChFR are relatively scarce.

Highlights

The Charter of Fundamental Rights of the EU, the basic text for the protection of the individual against the supranational power, has binding force for the institutions of the EU as well as for the member states when they execute EU law
In the judgement of May 31, 201645 concerning the sampling of music excerpts the Federal Constitutional Court (FCC) states the violation of article 5.3 Basic Law (BL) and remands the case back to be decided anew by the Federal Court of Justice (BGH) obliging it to interpret the provisions of the national law in conformity with the EU directive and to make an adequate balance of the various fundamental rights protected by EU law
In the Lisbon Treaty decision the court has elaborated the concept of constitutional identity which is defined in accordance with the limits for constitutional reform established by article 79.3 BL

Summary

INTRODUCTION

The Charter of Fundamental Rights of the EU, the basic text for the protection of the individual against the supranational power, has binding force for the institutions of the EU as well as for the member states when they execute EU law. 12 In some of the relevant FCC decisions the obligation to raise a preliminary question was taken into consideration but was not affirmed for the inapplicability of the ChFR: see BVerfG, Judgment of the First Senate of 24 April 2013 – 1 BvR 1215/07 – paras. In the FCC decision of April 24, 201316 concerning the anti-terror register and the question whether the collection and transfer of data collected from different security institutions on terrorist activities and networks to the police is compatible with the German constitution In this context the question of the applicability of the ChFR and with this the question of the necessity of a preliminary question to the Court of Justice of the EU on the interpretation of Charter rights arose. We can state that the text versions of article 51.1 ChFR are rather diverging and do not completely support neither the approach of the Court of Justice of the EU nor that of the FCC

GENERAL EVALUATION

SPECIFIC EVALUATION OF THE DIFFERENT FCC DECISIONS

FURTHER CASES

19. See for example the three judges decisions

OTHER COURTS THAN THE FCC

CONCLUSION