scholarly journals National Constitutional Courts as Guardians of the Charter: A Comparative Appraisal of the German Federal Constitutional Court's Right to Be Forgotten Judgments

2020 ◽  
pp. 1-21
Author(s):  
Clara RAUCHEGGER
Keyword(s):  
Primary Source ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Federal Constitutional ◽  
Eu Fundamental Rights ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

Abstract The 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.

scholarly journals The Constitutional Status of Karlsruhe’s Novel “Jurisdiction” in EU Fundamental Rights Matters: Self-inflicted Institutional Vulnerabilities

2020 ◽  
Vol 21 (S1) ◽  
pp. 19-26
Author(s):  
Karsten Schneider
Keyword(s):  
Fundamental Rights ◽  
Constitutional Court ◽  
The Novel ◽  
Eu Law ◽  
Binding Effect ◽  
Basic Law ◽  
Federal Constitutional ◽  
Eu Fundamental Rights ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

AbstractThe First Senate of the German Federal Constitutional Court (FCC) has recently introduced the express promise that where EU fundamental rights take precedence over German fundamental rights, the Court itself could directly review, on the basis of EU fundamental rights, the application of EU law by German authorities. There are, however, differences between the Basic Law as the relevant standard of review and other standards of review that are dangerous to ignore. The constitutional status of the FCC’s jurisdiction depends crucially on whether the Court relies on the constitution or on EU fundamental rights. If the constitutional status of the novel jurisdiction covered any binding-effect, and that is a big if, the FCC still would not safeguard the unity and coherence of Union law. Leaving aside the fact that the First Senate is confined to reversing and remanding (unable to enforce anything directly), no beneficial effect on legal certainty grows apparent. Any binding-effect of the novel jurisdiction only provides for consistency without finality. And to venture further into the question: Even if anyone welcomed this novel kind of consistency without finality (virtually “provisional consistency”), this oddish consistency would still be a localized consistency, i.e. in German courts only.

Judicial Review of Economic (and Monetary) Policy: The National Courts

2020 ◽  
pp. 245-285
Author(s):  
Menelaos Markakis
Keyword(s):  
European Central Bank ◽  
National Level ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Economic Rights ◽  
Social Challenges ◽  
National Courts ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

This chapter examines the jurisprudence of national courts on crisis-related measures. The material presented in this chapter will be divided into two parts. First, this chapter will examine some of the most important judgments delivered by courts in lender states during the Euro crisis, the emphasis being on the jurisprudence of the German Federal Constitutional Court. These cases primarily focus on the effects of financial assistance mechanisms and revised EU fiscal governance rules on the principle of democracy, parliamentary prerogatives, and national budgetary powers. A further strand of case law focuses on the measures adopted by the European Central Bank. Second, this chapter will look at review by national courts in borrower states, the principal focus being on social challenges brought by austerity-hit litigants in Greece. The comparative analysis sheds light on the different types of challenge facing courts in borrower and lender states, as well as the different starting points and the subtle differences in the reasoning provided by courts in their judgments. As regards borrower states in particular, the twin challenge is to examine to what extent litigants had any success in challenging in national courts the bailout conditions; and the extent to which arguments about civil or socio-economic rights had purchase at national level. The chapter further looks at review by national courts in other jurisdictions, as well as review by supranational and international courts or bodies. Last, it puts forward a number of ideas on fundamental rights adjudication in times of economic crisis.

scholarly journals Backlash against the Court of Justice of the EU? The Recent Jurisprudence of the German Constitutional Court on EU Fundamental Rights as a Standard of Review

2020 ◽  
Vol 21 (S1) ◽  
pp. 1-18
Author(s):  
Dana Burchardt
Keyword(s):  
Fundamental Rights ◽  
Constitutional Court ◽  
Rights Protection ◽  
Constructive Dialogue ◽  
Federal Constitutional ◽  
Individual Decisions ◽  
First Time ◽  
The Relationship ◽  
Eu Fundamental Rights ◽  
German Federal Constitutional Court

AbstractThis article discusses two landmark judgements by the German Federal Constitutional Court (CC) on the relationship between domestic and EU fundamental rights protection (Right to be forgotten I and II). In these judgements, for the first time, the CC uses EU fundamental rights as a standard of review. In addition, the CC establishes a novel framework of “parallel applicability” of EU and domestic fundamental rights for subject matters that are not fully harmonized by EU law. The article first presents the new approach, showing that it structurally changes the parameters of the relationship between the CC and the CJEU. Second, the article assesses the legal-political tendency reflected in this change: is this constructive dialogue or rather pushback against the CJEU? The article argues that this new jurisprudence should be characterized as an instance of resistance. The CC resists against the CJEU in its function as fundamental rights court, attempting to reduce the authority of the CJEU and reversing a development that it considered to be unfavourable to its own authority. This is structural pushback aimed at the CJEU’s function rather than at individual decisions or norms - however, without rejection the CJEU as an institution altogether.

Much Ado About Human Rights: The Federal Constitutional Court Confronts the European Court of Human Rights

2005 ◽  
Vol 6 (5) ◽  
pp. 869-894 ◽  
Author(s):  
Matthias Hartwig
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Constitutional Court ◽  
Council Of Europe ◽  
Constitutional Courts ◽  
European Court ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
German Court

On October 14, 2004 the Bundesverfassungsgericht (BVerfG – German Federal Constitutional Court) delivered a judgment which gave rise to vivid reactions in the mass media and to a dispute between the European Court of Human Rights (ECtHR) and the German Federal Constitutional Court. In interviews, members of the Strasbourg court spoke about their disappointment in the German Court's unwillingness to implement decisions of the ECtHR while members of the German court referred to the necessity to respect national particularities. Whereas, normally, the ECtHR and the constitutional courts of the Member States of the Council of Europe are fighting side by side for human rights and, therefore, consider themselves as natural allies, this time their decisions, which seem to be incompatible, led to a dispute which attracted as much public interest as a film or theatre premiere.

scholarly journals Some Kind of Right

2020 ◽  
Vol 21 (S1) ◽  
pp. 40-44
Author(s):  
Jud Mathews
Keyword(s):  
German Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Eu Member States ◽  
Right To Be Forgotten ◽  
Federal Constitutional ◽  
The Right ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
Specific Reason

AbstractThe Right to Be Forgotten II crystallizes one lesson from Europe’s rights revolution: persons should be able to call on some kind of right to protect their important interests whenever those interests are threatened under the law. Which rights instrument should be deployed, and by what court, become secondary concerns. The decision doubtless involves some self-aggrandizement by the German Federal Constitutional Court (GFCC), which asserts for itself a new role in protecting European fundamental rights, but it is no criticism of the Right to Be Forgotten II to say that it advances the GFCC’s role in European governance, so long as the decision also makes sense in the context of the European and German law. I argue that it does, for a specific reason. The Right to Be Forgotten II represents a sensible approach to managing the complex pluralism of the legal environment in which Germany and other EU member states find themselves.

Balancing and judicial self-empowerment: A case study on the rise of balancing in the jurisprudence of the German Federal Constitutional Court

2015 ◽  
Vol 4 (1) ◽  
pp. 49-80 ◽  
Author(s):  
NIELS PETERSEN
Keyword(s):  
Judicial Power ◽  
Constitutional Court ◽  
Argumentation Framework ◽  
Constitutional Review ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
The Relationship ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

AbstractMany critics of the proportionality principle argue that balancing is an instrument of judicial self-empowerment. This contribution argues that the relationship between balancing and judicial power is more complex. Balancing does not necessarily create judicial power, but it presupposes it. This argument is confirmed through a case study of the German Federal Constitutional Court. The analysis shows that the German Constitutional Court was very reluctant to base decisions, in which it overturned legislation, on balancing in the first two and a half decades of its jurisprudence. However, in the late 1970s, once the Court had strengthened its own institutional position, it increasingly relied on balancing when declaring laws as incompatible with the constitution. Then, balancing developed into the predominant argumentation framework of constitutional review that it is today in the Court’s jurisprudence.

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