The standard of fundamental rights protection in the field of asylum: The case of the right to an effective remedy between EU law and the Italian Constitution

Abstract

Asylum is an example of multilevel protection of fundamental rights in the European legal space, where different standards apply at both national and European level. As far as EU law is concerned, the current standard of protection is mainly regulated by secondary legislation. However, the search for compromisebased solutions when adopting EU legislative measures nurtures a decreasing trend in terms of the level of protection guaranteed to the rights of asylum seekers or refugees. The result at the national level, at least in some Member States, is the decrease of the standard deriving from national constitutions in the name of European harmonization. The right to an effective remedy in the field of asylum is an example of this phenomenon, with poor obligations deriving from the relevant EU legislation and an approach of the CJEU that appears to be more restrictive than that of the ECtHR. In order to contain this perverse trend, the EU institutions involved in the law-making process and the Court of Justice should take seriously their duty – now firmly grounded on EU primary law provisions, notably in the Charter – to avoid conflicts with national standards and to ensure the coherence with the standard of protection guaranteed to the right to an effective remedy by the ECHR.