The paper examines constitutional courts' responses to systemic or real risks encroaching upon judicial independence and other risks undermining the rule of law in the Member States. It will examine the CJEU's case law dealing with the principle of mutual trust between the Member States, particularly with regard to the area of freedom, security and justice, and the reactions from the national level (e.g. case law of constitutional courts). Should constitutionally protected rights always yield before the uniformity, effectiveness and primacy of EU law, under the principle of mutual trust, as the case of Melloni might be understood? Under what circumstances will the CJEU defer to the national level of protection and how do constitutional courts respond to the CJEU's case law? What are the ensuing implications for horizontal and vertical judicial cooperation based on mutual recognition?
The paper focuses on the role of national judiciary in the constitutionalisation of private law via the application of the Charter rights to horizontal legal relationships. National private laws did not remain immune to Europeanization, which has brought many elements to national legal systems that are not typical for private law. Since the Charter became legally binding, the question of how its provisions are affecting relations between individuals has been an open question. The CJEU recently clarified this issue and expressly confirmed that the provisions of the Charter may, in principle, have a horizontal direct effect. The paper explores the question of applicability of the Charter in horizontal disputes. How and to what extent are and should EU fundamental rights be integrated in legal reasoning in disputes between private parties? How do different approaches to square the conflict between social and economic policy contribute to trust or dissent at different levels in the EU?
The Treaty of Lisbon established the binding nature of the EU Charter, which became part of the primary law of the EU. The first paragraph of its Article 51 provides that the EU Charter is addressed to the Member States only when they are implementing Union law. The obligation has thus been imposed on national courts – the constitutional courts being no exception – to observe and apply the EU Charter accordingly. By analyzing several constitutional courts of EU Member States and their relevant case law, the paper elaborates on whether the existence of the EU Charter changes the human rights discourse led by the constitutional courts. Furthermore, it explores how trust and the sentiment of being an equal interlocutor play an important role in the process.