Separation Versus Fusion – or: How to Accommodate National Autonomy and the Charter? Diverging Visions of the German Constitutional Court and the European Court of Justice

Abstract

Dozens of articles and monographs have been written about a potential conflict between the German Federal Constitutional Court (hereinafter FCC) and the European Court of Justice (ECJ), which has so far been limited to shadow-boxing. Karlsruhe relied upon dissuasive tactics and was quite successful. Its warnings encouraged the ECJ to develop reliable human rights standards, restrained an expansive reading of Union competences and fostered judicial respect for national constitutional singularities. Recently, however, power games escalated when the FCC fired a forceful warning shot towards Luxembourg and pronounced that the latter’s Åkerberg Fransson ruling might have been ultra vires. Arguably, this hand-wringing about the precise delimitation of the Charter of Fundamental Rights (hereinafter the Charter) reveals deeper conflicts about how to resolve jurisdictional overlap. This contribution starts off with a presentation of the background, trigger, contents and context of the German decision. It will proceed with an explanation why the dispute about the Charter will be difficult to resolve, since both courts pursue different visions of the relative autonomy of national decision-making in the field of human rights. While the FCC propagates a dualist 'separation thesis', the ECJ focuses on reflexivity and fusion. The third section will indicate theoretical implications of divergent approaches which, arguably, reflect deeper conflicts about the pluralist interaction of legal orders. This contribution will conclude with a positive turn demonstrating the potential for pragmatic appeasement despite fundamental disagreement.

Keywords: Charter of Fundamental Rights, European Union, Constitutional Law, ECJ, Åkerberg Fransson, Melloni

JEL Classification: K10