The Role of the German and Italian Constitutional Courts in the Rise of EU Human Rights Jurisprudence: A Response to Delledonne and Fabbrini

Abstract

Delledonne and Fabbrini have recently criticised widely held understandings of the rise of EU human rights jurisprudence, claiming both that the conventional account is chronologically inaccurate—the European Court’s famous fundamental rights decisions came before those of the German and Italian courts—and that it relies on an understanding of post-war human rights leadership by these national constitutional courts which a closer look at their actual record does not support. This article demonstrates however that the European Court of Justice (ECJ)’s famous fundamental rights decisions did indeed come after this issue had been first highlighted in judgments of the German and Italian constitutional courts; the threat to the uniform application of European law posed by the fundamental rights aspect of these judgments was noted in the writings of ECJ judges; and the caution shown by the German and Italian constitutional courts in reviewing post-war domestic legislation on human rights grounds is not in conflict with an active role in promoting the ECJ’s new human rights jurisprudence.