The CJEU, National Constitutional Courts and the Charter: Trust and Distrust in Multilevel Fundamental Rights Protection

This paper detects signs of trust and distrust in the relationship between the CJEU and the constitutional courts of the EU Member States, using their case law on the Charter of Fundamental Rights as a case study. In the early days of the Charter, the CJEU affirmed that the Charter did not affect the primacy of EU law over domestic constitutional law. However, recent case law demonstrates that the CJEU now shows considerable trust in national fundamental rights protection. In its preliminary rulings, the CJEU tends to defer the final step of the fundamental rights review to the referring court. Moreover, it has allowed the Italian Constitutional Court to apply a higher national standard of fundamental rights protection in MAS. This increased trust is mirrored by domestic constitutional courts, even by those that are traditionally very defensive of national fundamental rights protection, such as the Italian Constitutional Court and the German Federal Constitutional Court.