![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
Abstract
The development of a corpus of fundamental rights at the EU level has accentuated the constitutional pluralism that existed within many national legal systems. Illustrating the dynamic, the adjudication of the age discrimination provisions of the 2000 Framework Directive on Employment Equality in Germany produced two major outcomes. First, interactions between the ECJ and the German labour courts served to upgrade rights protections afforded to workers, relative to national constitutional standards. Second, the structural position of the German Federal Constitutional Court, as a privileged locus of rights protection, was weakened, while the authority of the labour courts was enhanced. Looking ahead, we are entering a new era of rights-based legal integration that will further serve to Europeanize national law, while undermining the (supposed) unity and coherence of national legal orders.
Notes
For a recent review of the social science literature on these topics, see Stone Sweet Citation(2010).
In many European legal orders, three such sources – national constitutional rights, EU fundamental rights, the EU Charter of Rights, and the European Convention on Human Rights– co-exist and, in some areas, substantively overlap. Individuals have a choice of which source to plead; and judges have a choice of which right to enforce.
We take no normative view in this article on whether the constitutional rhetoric is appropriate, or whether developments in this domain of law are normatively defensible.
Marshall I (152/84); Dori (C-91/92). This gap in protection was partly closed by the emergence of the doctrine of state liability, holding that national judges can order state officials to compensate private parties for compliance failures; see Francovich (C-6 & 9/90); Brasserie du Pecheur (C-46/93 and C-48/93).
Jenkins (96/80); Bilka (170/84); Rinner- Kühn (171/88); as consolidated in Enderby (C-127/92).
The lone exception being the United Kingdom.
On constitutional pluralism more generally, see Stone Sweet Citation(2009).
Bundesarbeitsgericht [1954], BAGE 1, 185.
Bundesarbeitsgericht [1957], BAGE 4, 274.
Bundesverfassungsgericht [1958], BVerfGE 7, 198.
Bundesarbeitsgericht [1956], BAGE 3, 180.
Bundesarbeitsgericht [1986], BAGE 53, 161. Körner (Citation2001: 1046) notes that the GFLC went further than the ECJ, making justification of discriminatory effects more difficult for employers.
Bundesverfassungsgericht [1992], Neue Zeitschrift für Arbeitsrecht 10(5): 213–15.
Bundesverfassungsgericht [1997], BVerfGE 97, 35.
More generally, German labour law has always been regulated through a style of relatively autonomous judicial law-making that resembles practices found in the common law, as well as in ECJ decision-making, which has facilitated these dialogues. We thank an anonymous reviewer for emphasizing this important point.
This fact scandalized specialists, including Bauer Citation(2005).
Arbeitsgericht München 2004, Neue Zeitschrift für Arbeitsrecht-Rechtsprechungsreport 10(1): 43–47.
Däubler Citation(2001) argued that the provision violated the Directive, while Koberski Citation(2005) disagreed.
The Court derived the right from ‘various international instruments and … the constitutional traditions common to the Member States’.
Including Bauer and Arnold Citation(2006), Hailbronner (2008) and Preis Citation(2006).
Bundesverfassungsgericht [1993], BVerfGE 89, 155. In that ruling, the GFCC warned that it would invalidate any EU act having the effect of depriving German legislative organs of their control over legal norms created at the EU level. Private parties thereby possessed the right to plead the ultra vires nature of Community acts before all German judges, and to bring constitutional complaints alleging the same to the GFCC.
Bundesarbeitsgericht [2006], BAGE 118, 76.
Bundesverfassungsgericht [2010], BVerfGE 126, 286. English translation available online at: www.bundesverfassungsgericht.de/entscheidungen/rs20100706_2bvr266106en.html (accessed 7 September 2011).
Landesarbeitsgericht Berlin-Brandenburg [2007] found a violation of EU law, Neue Zeitschrift für Arbeitsrecht-Rechtsprechungsreport 13(1): 17–19, whereas Arbeitsgericht Lörrach [2007] did not, Arbeit und Recht 3: 184.
From the perspective of the ECJ's case law on supremacy, the question is a version of one that has already been decided; see Simmenthal II (106/77). The member states only formally accepted the ECJ's doctrine of supremacy in 2007, in Declaration 17 ‘Concerning Primacy’. Declarations Annexed to the Final Act of the Intergovernmental Conference which Adopted the Treaty of Lisbon, available online at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0335:0359:EN:PDF (accessed 7 September 2011).
Landesarbeitsgericht Düsseldorf [2010], Zeitschrift für Wirtschaftsrecht 31(12): 596.
The evolution of the European Convention on Human Rights, as a body of directly effective, supra-legislative (if infra-constitutional) rights, has also generated dynamics that are rapidly consolidating constitutional pluralism as a general, structural feature of European law (Keller and Stone Sweet Citation2008: 682–89).