The uncertain terms of the dialogue on the level of protection of fundamental rights between Member States’ Constitutional Courts and the Court of Justice of the European Union
Résumé
Although the relationship between EU law and Member State law is generally
frictionless, it is regularly under strain in those hard cases where EU law clashes with
the Member States’ constitutions. In that instance, there is a conflict between two
equally legitimate claims: the supremacy claim of the constitution and the primacy
claim of EU law. That conflict has been especially salient with regard to fundamental
rights. Constitutional courts and the CJEU safeguard them to varying degrees depending
on the right at issue, but also on the logic and constraints of the respective legal orders
that they should protect. Constitutional courts are thus reluctant to give a blank cheque
to the CJEU and give up their fundamental rights review. Likewise, the CJEU is
reluctant to defer to national standards of protection. This chapter describes that
tension, how it has gradually been largely overcome and why the issue of the level
of protection of fundamental rights remains a bone of contention. It also takes a
normative approach based on constitutional pluralism and argues in favour of an
enhanced accommodation of higher national standards in EU law.