Why Article 53 of the Charter Should Ground the Application of National Fundamental Rights in Fully Harmonised Areas

Millet, François-Xavier

doi:10.5040/9781509940943.ch-0023

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“…Because of their hybrid character as EU law provisions with a national law content, both provisions may be seen as embodying constitutional pluralism and trigger outcomes that are favorable to national law concepts or interpretations. For further development, see Millet (2020) It should be noted that the Court of Cassation itself referred to this expression as early as in 1975 in its famous judgment in Société des cafés Jacques Vabre (C. Cass, ch. mixed, 24 May 1975, Soc.…”

Section: B) the French Constitutional Councilmentioning

confidence: 99%

Has constitutional pluralism ever been tried out? •

Millet

2022

HJLS

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Constitutional identity has been viewed with suspicion by a number of orthodox EU law scholars. That suspicion is understandable in the light of the German approach to the issue of constitutional conflicts. The Bundesverfassungsgericht, which often sets the tone among constitutional courts in Europe, indeed tends to solve those conflicts on the sole basis of the Basic Law, with little consideration for EU law, thereby discrediting constitutional identity. This paper aims to show, against a background of comprehensive constitutional pluralism, that the German approach is not exclusive of more reasonable approaches by other constitutional courts, as witnessed in relation to the French and the Italian courts. It is on the basis of a pluralist reading of Article 4(2) TEU, as the EU law provision on the basis of which certain core elements of the national constitutions can be reasonably accommodated, that those constitutional courts have either devised constitutional identity or engaged with the CJEU within a shared constitutional framework that defines both the argumentative and substantive limits of constitutional identity. In so doing, far from representing a failure of constitutional pluralism, those constitutional courts stretch the latter to its ultimate limits in a way that has not yet been experienced.

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Section: B) the French Constitutional Councilmentioning

confidence: 99%