tal rights frameworks reflect factual differences between the Member States resulting
from various factors, including country-specific historical experiences.
It cannot be assumed that the Charter, insofar as uniform fundamental rights protection is to apply in all Member States to fully harmonised EU law, corresponds with
the Basic Law and is congruent with its guarantees in all details (cf. also BVerfG, Order of the First Senate also issued today - 1 BvR 16/13 -, para. 62). This holds true
all the more given that fundamental rights protection in Germany is based on a long
tradition of comprehensive case-law on fundamental rights that gives specific shape
to the fundamental rights on the basis of the broad procedural powers of the Federal
Constitutional Court within the German legal order. An interpretation of fully harmonised EU law in light of the fundamental rights of the Basic Law would thus run the
risk of prematurely applying to EU law the standards developed domestically – this
would then imply that these standards would also have to apply to the other Member
States.
45
Thus, in relation to the legal order under the Basic Law, EU fundamental rights and
domestic fundamental rights must be regarded as distinct regimes – irrespective of
how other Member States handle this issue. The Charter of Fundamental Rights is
the standard for the specific application of fully harmonised EU law by domestic authorities and courts.
46
bb) It is solely on the basis of the recognition of the precedence of application of EU
law that the German fundamental rights are not applied as the relevant standard of
review (cf. BVerfGE 123, 267 <398 et seq.>; 126, 286 <301 and 302>; 129, 78 <99>;
140, 317 <335 et seq. para. 37 et seq.> with further references); the validity of the
fundamental rights of the Basic Law as such remains unaffected. They remain in
force as the underlying dormant framework. In its established case-law, the Federal
Constitutional Court only recognises the precedence of application of EU law, which
rules out a review on the basis of the fundamental rights of the Basic Law, subject to
the reservation that the protection afforded by the EU fundamental rights that apply
instead must be sufficiently effective (cf. BVerfGE 73, 339 <376, 387>; 102, 147
<162 et seq.>; 118, 79 <95>; 129, 186 <199>; established case-law). The Basic Law
puts the individual and the individual’s fundamental rights at the centre of its order,
declares their essence and the core of human dignity to be inviolable (cf. Art. 19(2),
Art. 79(3) GG) and also guarantees this protection with regard to the EU Treaties (cf.
Art. 23(1) third sentence GG). Therefore, EU law can only prevail over the guarantees afforded by domestic fundamental rights if the protective guarantees of these
fundamental rights are upheld in substance. It is thus necessary that the level of protection under the Charter be essentially equivalent to the fundamental rights protection that is regarded as indispensable under the Basic Law and that the Charter guarantee the essence of the fundamental rights in general (cf. BVerfGE 73, 339 <376,
387>; 102, 147 <162 et seq.>; 118, 79 <95>; 129, 186 <199>; established case-law).
This examination of equivalence of the level of protection must be made on the basis
of a general assessment of the respective fundamental rights guarantee in question.
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