The application of the Charter of Fundamental Rights of the EU by the German Federal Constitutional Court with references to the other federal courts

Abstract

The German Federal Constitutional Court (FCC) applies the Charter of Fundamental Rights of the EU (ChFR) if German law is "determined" by EU law. The interpretation of article 51.1 ChFR which regulates the applicability of the ChFR is narrower than that of the Court of Justice of the EU. The FCC which has recognized, with some reservations, the primacy of supranational over national constitutional law maintains its concept of constitutional identity defined according to the intangibility clause of article 79.3 Basic Law (BL). If human dignity (article 1 BL and the fundamental State structures as enumerated by article 20 BL) are concerned, the FCC does not apply the ChFR regardless of article 51.1FCh but the identity concept. Overall, the references of the FCC to the ChFR are relatively scarce.