Von der Abgrenzung zur Vereinheitlichung: auf dem Weg zu einem funktionsfähigen Grundrechtsverbund?

Abstract

From delimitation to unification: on the way to a functional union of fundamental rights?

In its recent jurisprudence, the BVerfG deviates from its previous delimitation thesis and now states that, in the case of mandatory requirements of the EU law, its standard of review of fundamental rights may extend to the EU Charter of Fundamental Rights. As has been criticised in the literature, this new approach is likely to raise several competence concerns. However, its problem is not limited to this. As analysed in this article, the BVerfG’s strategies of expansion and amalgamation are still based on the assumption of several delimitations which, on closer reflection, prove to be untenable. In view of this, this article attempts to argue that a well-functioning European network of fundamental rights is based neither on the extension of the BVerfG’s standards of review nor on the amalgamation of fundamental rights of different legal levels, but rather on the division of competences between national and European courts, which is capable of reinforcing the reciprocal influence of national and European fundamental rights and in this way enables an optimal protection of fundamental rights not only in Germany, but also in the entire European Union.