Francesco Bestagno

The Relationship Between the Charter and the EU Secondary Law in the Jurisprudence of the European Court of Justice

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Keywords: Charter of Fundamental Rights of the European Union; Court of Justice; Sources of EU law; Consistent Interpretation; Validity of EU Acts; Recitals of EU Acts.

This article focuses on the impact of art. 6.1 TEU on the jurisprudence of the European Court of Justice. Introduced in the EU legal order by the Lisbon Treaty, this provision states that the EU Charter of Fundamental Rights «shall have the same legal value as the Treaties». The Charter has therefore become a legally binding text and a source of primary law of the EU. As pointed out in the contribution, the introduction of this norm has led the Court to adopt a new approach - in cases in which issues concerning fundamental rights are at stake - centred more on the Charter than on general principles of EU law. In this respect, one can observe a twofold tendency in the case law of the ECJ: first, the Court has been making wider use of the Charter as legal parameter for assessing the validity of EU provisions; second, it has been answering to requests for a preliminary ruling by interpreting the EU norms at issue «in the light of the Charter». Against this backdrop, the study (also) highlights the importance of the duty of EU and national judges to interpret EU secondary norms in conformity with the Charter. This duty of consistent interpretation arises from the status of primary law enjoyed by the Charter and does not stem from references to the Charter in the recitals of EU acts. According to this general principle of interpretation, acknowledged by the ECJ, every judge must give preference - as far as possible - to the interpretation that avoids discrepancies between the provisions contained in secondary law and the primary law (including the Charter), preserving the validity of the EU acts.

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