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General Principles of EU Law and the Protection of Fundamental Rights

Chiara Amalfitano

This insightful book analyses the role that EU general principles have taken in the protection of fundamental rights within the EU since the Lisbon Treaty. In particular, the author focuses on the relationship between written law (the Charter of Fundamental Rights) and unwritten law (the general principles) within the institutional framework of the EU. The book demonstrates that due to their complementary and autonomous function toward the protection of fundamental rights, the general principles still play a key role within the Union despite the binding force of the Charter.
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Contents

Chiara Amalfitano

Introduction

1    The current system of fundamental rights protection in the European Union

1.1  Article 6(1) TEU: the recognition of binding legal value to the Charter of Fundamental Rights of the European Union

1.2  The content of the Charter of Fundamental Rights

1.3  Article 6(3) TEU: the general principles of law concerning fundamental rights

1.4  The Convention for the Protection of Human Rights and Fundamental Freedoms as a source of inspiration for the development of general principles of law concerning fundamental rights

1.5  The relevance of the ‘constitutional traditions common to the Member States’ for the assessment of general principles of law concerning fundamental rights

1.6  The other means for the Court of Justice to elaborate general principles of law: (i) the influence of sources of international law; (ii) the inductive process from other provisions of the EU law; (iii) solicitation by other institutions, bodies, offices and agencies of the Union

1.7  Article 6(2) TEU: the provision of the accession of the European Union to the ECHR

1.8  Opinion 2/13 of the Court of Justice and the current relevance of the ECHR in the legal systems of the European Union and of the Member States

1.9  The impasse of the accession process and the relevance of the ECHR in the legal systems of the European Union and of the Member States in the event of accession

1.10  The possible alternatives to the accession

2    The relationship between the sources of fundamental rights protection in the EU legal order

2.1  The relationship between the Charter of Fundamental Rights and the ECHR. The relevance of the ECHR in the Union through the so-called homogeneity clause

2.2  The tendency of the Court of Justice to follow the European Court of Human Rights

2.3  The Court of Justice and the enhancement of the level of protection guaranteed under the ECHR

2.4  Real or apparent discrepancies between the jurisprudences of the two courts

2.5  The relationship between general principles of law and the ECHR. The relevance of the ECHR in the European Union through the general principles

2.6  The relationship between the Charter of Fundamental Rights and the general principles of law

2.7  The coordination between the rights and the principles of the Charter and the general principles of law

3    The role of the general principles of law concerning fundamental rights in the post-Lisbon case law of the Court of Justice

3.1  The substantial continuity of the interpretative approach of the Court of Justice before and after the Lisbon Treaty

3.2  The Charter and the general principles of law as interchangeable sources

3.3  The use of the Charter and general principles to ascertain the fundamental rights

3.4  The exclusive use of the Charter of Fundamental Rights

3.5  The exclusive use of general principles of law

3.6  The self-restraint approach of the Court of Justice

3.7  The possible extensive and/or evolutive interpretation of the written and the unwritten source

4    The role of the general principles of law beside and beyond the Charter

4.1  The autonomous role of the unwritten source of fundamental rights protection with respect to the written one

4.2  The application of the general principles of law when the Charter is not applicable ratione temporis

4.3  The complementary role of the general principles of law when the Charter cannot be applied ratione personae

4.4  The complementary role of the general principles of law when the Charter may not apply with respect to certain Member States

4.5  The integrative role of the general principles of law: the development of the acquis of the European Union

4.6  The reference to the legislation of the Member States as a limit to the integrative role of the general principles of law

4.7  The conservative role of the general principles of law to guarantee the specificities of the EU legal system

4.8  The survival of the conservative role of the general principles of law in the event of accession of the European Union to the ECHR

Final remarks

Bibliography

Index