Why National Constitutional Courts Should Not Embrace EU Fundamental Rights

Abstract

In this paper I argue against national constitutional courts’ welcoming approach to EU fundamental rights. This more recent development is inextricably linked to the broader phenomenon of the displacement of these courts from law and politics in Europe. The paper builds on previous work concerning the place of constitutional courts in the EU, which sought to provide a theoretical basis for what is argued here with regard to the more specific issue concerning EU fundamental rights. In the first part, I will briefly present the background argument, based on a Habermasian idea of the European constitutional democracy. Then I sketch the understanding of fundamental rights, which builds on it. On that basis I finally discuss national constitutional courts’ engagement with EU fundamental rights.