European Dialogue between Luxembourg and Karlsruhe: a discussion with the two Court Presidents

On Thursday, 4 March 2021, ​the EU Fundamental and Human Rights Society Europe hosted a panel with the Presidents of the European Court of Justice and the German Federal Constitutional Court (“Bundesverfassungsgericht”)Koen LENAERTS and Stephan HARBARTH. 

Article by Leon Züllig and Julia Jacoby

Together with our moderator Professor Robert SCHÜTZE, Visiting Professor at the College of Europe, we discussed the relationship between the two courts. The discourse focused on the latest developments regarding the protection of fundamental rights in the European system, as well as competences, constitutional identity, and the rule of law. 

The idea for an event on the relationship between national constitutional courts and the ECJ, a topic that is nearly omnipresent in the classes of the law department, came up during one of the very first meetings of our society. 

The creation of our student group, however, was preceded by discussions in which many of our soon to be members shared the observation that the law curriculum of the College focuses on competition law and economic aspects of EU law. Against this background, we wished to raise awareness for the field of fundamental and human rights, since they constitute the very basis of the European Union. It is in this area that the EU faces many of its biggest challenges: recall President von der Leyen's State of the Union address, in which she emphasized minorities' rights, the humanitarian crisis of refugees, the rule of law, and social rights. The absence of a student society focusing on this topic in the last years further illustrates this gap. Our purpose was therefore to change this for the better and to provide increased attention for fundamental and human rights at the College.

Our past events have included online discussions with Gilles KEPEL, a French expert in Islamic sciences, on freedom of religion and expression and with Paul NEMITZ from the European Commission and Christian THÖNNES from the German NGO Gesellschaft für Freiheitsrechte (Society for Civil Rights) on strategic litigation in the field of fundamental rights and data protection. We organized a movie screening of the documentary on the life of the late US Supreme Court Justice Ruth Bader Ginsburg, followed by a discussion on the protection of fundamental rights in the US and gender equality within the judiciary in general. Last but not least, we invited our fellow students to an informal, online pub quiz on fundamental and human rights. 

The panel with President LENAERTS and President HARBARTH was certainly the highlight of our year so far. Considering the planning started in November last year, we were both happy and honoured that both Presidents accepted our invitation in late January to join our panel – especially given that this was the first meeting of its kind between the newly designated President of the Bundesverfassungsgericht and his counterpart at the ECJ. Given that the relationship between the two courts is dynamic and multi-faceted, drafting the programme for the event was quite a challenge. Over the course of several society meetings, we drafted an agenda containing a selection of topics that we considered interesting to discuss. These meetings were not only inspiring on an academic level, but were also a great group exercise as students from different legal backgrounds and cultures offered different perspectives on the topic at hand. In the end, our moderator Professor Robert SCHÜTZE supported us in putting the finishing touches on our programme. 

Our final outline was quite ambitious, covering questions related to the protection of fundamental rights and the relationship between the two courts, especially in the context of the recent ‘Right to be Forgotten’ judgments and their contextualization within 47 years of jurisprudence since Solange I. We also touched upon the role of the famous Weiss judgment (which was rendered by the Bundesverfassungsgericht under President HARBARTH’s predecessor, Andreas Voßkuhle), ideas for new platforms for judicial dialogue between the ECJ and national constitutional courts, and how the concept of constitutional identity effects the relationship between the two courts. All of these topics were addressed by both Presidents in their introductory keynote speeches. It was interesting to see the different approaches the Presidents chose: while President HARBARTH’s presentation of the development of the Bundesverfassungsgericht’s jurisprudence was rather technical, President LENAERTS used more figurative language and put recent developments in a broader European context. All in attendance could not help but to be impressed by President LENAERTS’ intricate knowledge of German jurisprudence. Despite their different outlooks on certain topics (for example, the principle of primacy of EU law) the leitmotiv of both speeches was the spirit of mutual respect, appreciation, and cooperation between the courts. The interplay between the Bundesverfassungsgericht and the ECJ was identified as an important driver for European integration. Both Presidents agreed that national impulses make important contributions to the development of Union law. This foundational relationship between the two courts is even more important today, as Europe faces overt challenges to the rule of law. Each President, therefore, underlined the importance of preserving the judicial dialogue to achieve a Europe united in peace, freedom, diversity, and routed in the rule of law.

Given the breadth of topics covered in the keynote speeches, the ensuing Q&A was understandably brief. Professor SCHÜTZE nevertheless sparked a lively discussion around the challenges the courts will face in future judgments regarding the protection of fundamental rights in the multi-layered European system, and the application of the Charter of Fundamental Rights. The discussion was compelling and provided what was essentially a whistle-stop tour of fifty years of jurisprudence. The active engagement from the over 160 attendants confirmed that impression. 

We hope very much that students of future promotions will keep the EU Fundamental and Human Rights Society alive and will further contribute to the cause of fundamental and human rights at the College! 

Further information about the event and the EU Fundamental and Human Rights Student Group can be found on Twitter and Instagram

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