Participación e interacción profesorado-alumnado en el análisis de los derechos fundamentales en un contexto de constitucionalismo multinivel

Résumé

Frequently, the learning on Spanish Constitution’s fundamental rights (namely Title I) consists in studying the theory and the Constitutional Court’s jurisprudence about the matter, without looking into the synergies with the rights that other constitutional realities contemplate, beyond a mere theoretical point. This traditional methodology does not allow students to question themselves about possible conflicts between Title I and other normative instruments on fundamental rights, in particular, the Charter of Fundamental Rights of the European Union. Fundamentally, because the thesis adoptedis that there is no contradiction between systems, but the alternation of legal models depending on the involvement of the Union law in conflicts between rights. As an alternative to this formalist method,it proposes a proactive approach, consisting on a theoretical and practical participation of students in order to reflect on the relationships between the two normative texts and their corresponding rights. In order to do this, in the first place, the European Charter links to the framework of a new constitutionalreality whose contents are defined by opposition and rupture with those of the fundamental texts of the post second world war period. The integration project dissociates from the processes of a newdemocratic legitimation of the public powers in the internal rights. The market and its prerogatives, economic link and competitiveness, have an absolute centrality at the Union law. These prerogativesare present in the Treaty on European Union and in the Treaty on the Functioning of the European Union. The student should identify those elements of rupture through practical exercises. Secondly, acomparative analysis of the rights regulations in one and another legal system. The aim is to discuss whether the Union Charter’s fundamental rights have the same nature, effectiveness and guarantees as the Spanish Constitution’s rights. To distinguish between rights and principles, to analyse the types of guarantees present in one and another Law, to question the parameters that determine the validity of national and supranational fundamental rights. Finally, the student should achieve her/his own conclusions on the following issues. A) Is it possible to move to European law the Constitutional Science’s concept of fundamental rights? B) How to make compatible the national and supranational fundamental rights if they answer to different constitutional structural principles? C) Are we in a new evolutionary state that requires to national constitutional rights to understand fundamental rights from different constitutional coordinates? D) What legal reasoning mechanisms must be use for abetter understanding of the conflicts between rights? Proportionality? Essential content? Primacy? E) Which are the Spanish fundamental text’s limits-guarantees against a regressive transnational regulationof fundamental rights? F) Is there really a dialogue between the Spanish Constitutional Court and the European Union Court of Justice on the relationships between internal and European rights? G) Is a reform of Title I necessary to integrate the new constitutional realities about fundamental rights?