CONSTITUTIONAL COURTS AND THE CHARTER OF FUNDAMENTAL RIGHTS

In states which have constitutional courts, these courts are traditionally responsible for the protection of the fundamental rights, that means for the protection of the basic rights of every human being that are enshrined in the constitution. However, the fundamental rights protected by the domestic constitution are not the only fundamental rights on which individuals can rely in the European Union. Most notably, since 2009, the EU has its own bill of rights: the Charter of Fundamental Rights. Although only constitutional courts can set aside legal provisions that infringe the fundamental rights of the constitution, every national court can disapply legislative provisions that infringe the fundamental rights guaranteed by the Charter. As a result, constitutional courts get competition from ordinary courts in their role as guardians of fundamental rights. The proposed research project will explore how this parallel responsibility of ordinary and constitutional courts for the enforcement of fundamental rights is addressed in different EU Member States. Its first contribution to the academic literature will consist in an examination of the enforcement of the Charter in Germany, Austria, Belgium and Italy. Further, these national approaches will be compared to each other and confronted with case law of the European Court of Justice in which the latter has restricted the responsibility of domestic constitutional courts. Moreover, the project is original because it combines traditional legal methods with the socio-legal method of qualitative interviewing.