In Schrems II, Advocate General Oe, wrote that “The ‘essential equivalence’ test should be applied in such a way as to preserve a certain flexibility in order to take the various legal and cultural traditions into account”. During the EU-US negotiations about Privacy Shield several areas of tension appeared between the constitutional constraints of US law and EU fundamental rights requirements, including for standing to sue in U.S. federal court, and the role of the President in national security. The panel examines what happens when a third country’s constitution operates differently from the expectation of EU law, in light of the high standards of EU law. Drawing on the jurisprudence of the Strasbourg and Luxembourg courts, the panel seeks to generate a profound discussion on the concept of “essential equivalence” as applied to possible constitutional conflicts of law.
• What if any are U.S. constitutional doctrines that may conflict with EU fundamental rights law?
• How might EU law generally address conflicts of constitutional law?
• How might “essential equivalence” be interpreted in the face of constitutional differences with third countries?
• What options would exist for next steps if the requirements of EU law would require constitutional change in a third country?