Paper Titles & Abstracts

This paper explores in how far the legal peculiarities of Member States' legal orders (national legal identities) help to extend or restrict the scope of fundamental rights which have a European dimension. The paper is based on a comparative study of decisions by English and German courts on religious freedom and religious discrimination. Even though both religious freedom (protected in Art. 9 ECHR and Art. 10 CFR) and religious discrimination (outlawed under the Framework Directive), are (also) protected by European law, the paper shows that currently the decisions of domestic courts is largely determined by the set-up of the domestic legal system and domestic traditions. This is so despite the European framework in existence would suggest that the rules are applied equally throughout. Yet the paper reveals that despite this common framework current practice in the two Member States under scrutiny is very much influenced by domestic tradition. It is shown that the level of protection differs between the two countries and that in the United Kingdom cases dealing with individual beliefs were in the past more likely to succeed as non-discrimination cases whereas in Germany such cases were more likely to succeed as freedom of religion cases. The paper then discusses whether these national legal identities are likely to continue to exist or whether they will be reined in by the European Courts.