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

Chiara Amalfitano


Chapter 3 deals with the case-law developed by the ECJ in the field of fundamental rights protection since the entry into force of the Lisbon Treaty. It analyses those judgments where written (i.e. the Charter of Fundamental Rights) and unwritten (i.e. general principles) sources of law have been interpreted and applied in parallel, or at least where they could be so interpreted and applied. The chapter moves on to consider cases where the ECJ could have invoked alternatively or jointly both sources in ensuring the protection of fundamental rights but instead chose self-restraint by refusing to use them as standards of constitutionality, thus sometimes denying the protection of certain rights. Lastly, the chapter analyses cases in which the ECJ, also by virtue of the homogeneity clause of the Charter (Article 52(3)), could have set a higher standard of protection than that set by the ECtHR but decided not to. Keywords: Case Law of Court of Justice of the European Union after the Lisbon Treaty; Court of Justice and General Principles on the Protection of Fundamental Rights; Court of Justice and the Charter of Fundamental Rights of the European Union

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