Diritti fondamentali e incorporation: i diversi percorsi di Stati Uniti e Unione Europea

This article examines the application of the EU Charter of Fundamental Rights to Member States in light of the U.S. incorporation doctrine. To this end, it first outlines the development of the U.S. incorporation doctrine, through which selected provisions of the Bill of Rights have been made applicable to the states. It then focuses on what has been termed the "European incorporation doctrine," analyzing the case law in which the European Court of Justice has held that EU fundamental rights are binding on Member States in certain situations. In the next section, the article compares the American and European experiences. In both legal systems, fundamental rights established at the federal or supranational level have been progressively and selectively applied to individual states. However, the two incorporation models differ significantly. In the United States, the incorporation of a right depends on the nature of the right itself, whereas in the European Union, it depends on whether a Member State is acting within the scope of EU law. Finally, the article explores some of the underlying reasons why these two legal systems have followed different paths.