Instructional goals
The course aims to provide an overview of the key actors and instruments involved in the multi-level protection of fundamental rights, with particular reference to the European context. Drawing on an analysis of cases decided by supranational courts and national constitutional courts, it pursues two objectives: a) to equip students with the knowledge necessary to construct arguments that take into account the various relevant contexts (legal, institutional and cultural); and b) to understand and apply in practice the methods of adjudication used within a pluralist system of judicial protection.
Prerequisites
Subject to any prerequisite requirements, students should have a sound knowledge of public law, international law and EU law.
Intended learning outcomes
By the end of the course, students will be able to:
a) understand the fundamental legal and institutional aspects of multi-level rights protection;
b) analyse and critically assess the arguments used by judges in resolving cases concerning the protection of fundamental rights;
c) master the essential techniques required for the functioning of a multi-level system.
Course Contents
The course focuses on case studies and is structured in three parts, devoted respectively to the European Convention on Human Rights, the European Union (and the Charter of Fundamental Rights of the EU), and national constitutions.
The first part will analyse the ECHR system, with particular attention to: a) the contribution made by the judgments of the European Court of Human Rights to the definition of a European standard; and b) the relationship between this and national systems, through the analysis of specific interpretative techniques (margin of appreciation, evolutive interpretation, pilot judgments).
In the second part, the rights system within the European Union will be examined, with an emphasis on: a) the role of the Court of Justice of the EU in balancing rights and market exigencies; and b) the forms of dialogue with constitutional courts and other national courts.
In the third part, the role of national constitutional courts in the multi-level protection of rights will be examined in depth, analysing in particular the instruments of dialogue with supranational courts and the forms of adaptation to European fundamental rights law.
Reference Books
A. Facchi, S. Falcetta, N. Riva, An Introduction to Fundamental Rights in Europe, Edward Elgar, 2022, Part I (pp. 4-45) and Part II (pp. 46-95).
A. Buratti, Western Constitutionalism. History, Institutions, Comparative Law, Giappichelli-Springer, 2023, Chapter 7 (pp. 253-298).
Further readings will be indicated in class
Teaching Methods
The course is structured primarily around the analysis and classroom discussion of the judgments listed in the previous points. The analysis of the cases will provide an opportunity to explore the institutional and contextual aspects of the relevant system (the ECHR, the EU or national systems).
Assessment Method
The final examination will be conducted orally and will assess:
a) the study of the reference texts,
b) the analysis and discussion of case studies;
c) active participation in class discussions.
The mid-term assessment will consist of a multiple-choice written exam and two open-ended questions. Passing the mid-term assessment exempts students from the relevant part of the syllabus for the final exam.
Thesis assignment criteria
Minimum mark in the final exam (28)
Week 1
Part I: The ECHR system
Fundamental rights and constitutional democracy. The margin of appreciation doctrine.
Analysis of the case Hirst v. the UK
Week 2
Fundamental rights and positive obligations of states. The technique of evolutive interpretation.
Analysis of the case Hatton v. UK
Week 3
Fundamental rights and the tension between the majority and minorities.
Analysis of the case Lautsi II v. Italy
Week 4
Fundamental rights and tragic choices: the case of assisted suicide.
Analysis of the case Karsai v. Hungary
Week 5
Part II: Fundamental rights in the European Union
Fundamental rights and the uniform application of EU law (taking the European Arrest Warrant as a starting point).
Analysis of the Melloni case
Week 6
Fundamental rights and non-discrimination on the grounds of gender and the interpretation of national law by the ECJ.
Analysis of the Sabine Mayr case
Week 7
Fundamental rights, the international legal order and the constitutional identity of the EU.
An analysis of the Kadi judicial saga
Week 8
Fundamental rights and common constitutional traditions.
Analysis of the Omega Spielhallen case
Week 9
Part III: Fundamental national rights and dialogue between courts
Counterlimits doctrine and common constitutional traditions.
Analysis of the Taricco case (Italian Constitutional Court)
Week 10
Dialogue between courts: preliminary rulings by constitutional courts and ‘functional disobedience’.
Analysis of the Consob case (Italian Constitutional court)
Week 11
The Charter of Fundamental Rights of the EU and methods of incorporation into domestic constitutional law.
Analysis of the ‘Right to be forgotten’ cases I and II (German Constitutional Court)
Week 12
Preliminary rulings and interpretation in accordance with EU law.
Analysis of the Jeremy F. case (French Constitutional Council)