The Role of the German and Italian Constitutional Courts in the Rise of EU Human Rights Jurisprudence: A Response to Delledonne & Fabbrini

Abstract

The widespread understanding that the ECJ’s early fundamental rights jurisprudence in Internationale Handelsgesellschaft (1970) and other cases was developed in response to judgments of the German and Italian Constitutional Courts has recently been questioned. Delledonne and Fabbrini claim both that the conventional account is chronologically inaccurate – the European Court’s famous fundamental rights decisions came before those of the German and Italian courts – and that it relies on an understanding of postwar human rights leadership by these national constitutional courts which a closer look at their actual record does not support. This paper demonstrates however that there is substantially more evidence that the Court of Justice was responding to the concerns of the German and Italian constitutional courts than is frequently set out by either critics or supporters of the more conventional approach. The Court of Justice’s famous fundamental rights decisions did indeed come after this issue had been first highlighted in judgments of the German and Italian constitutional courts; the threat to the uniform application of European law posed by the fundamental rights aspect of these judgments was prominently noted in the writings of ECJ judges; and the caution shown by the German and Italian constitutional courts in reviewing postwar domestic legislation on human rights grounds is not in conflict with an active role in promoting the ECJ’s new human rights jurisprudence. In short therefore, there is considerable evidence that the ECJ was motivated to create its new human rights jurisprudence by the possible threat to the uniform application of European law posed by the German and Italian constitutional courts.