Solange III? Fundamental rights protection under the national identity review

Abstract

In individual cases, the protection of fundamental rights by the Federal Constitutional Court may include review of sovereign acts of the European institutions if this is indispensable to protect the inalienable constitutional identity. This is the essence of the message conveyed by the German constitutional court in a case involving the execution of a European Arrest Warrant against a person convicted in absentia.

The court makes it clear that there are constitutional limits to the application of the principle of primacy of EU law that prohibit in all circumstances the lowering of the national standard of fundamental rights that form part of the inviolable constitutional identity. As a consequence, the constitutional court considers itself competent to protect the identity core of fundamental rights even in cases that are fully determined by EU law by means of full harmonisation measures.

Seen in this perspective, the constitutional court contests the Melloni case law and the application of the Charter as the sole instrument of fundamental rights protection in full determination cases. At the same time, it also seems to question indirectly the assumption of equivalent fundamental rights protection that its famous Solange case law is based upon.

Sweet and Maxwell: European Law Review http://www.sweetandmaxwell.co.uk/catalogue/productdetails.aspx?recordid=427&productid=6968

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