The analysis we have carried out clearly shows that the binding nature of the Charter has not altered the status of general principles of EU law on the protection of fundamental rights, the latter continuing to be ‘an integral part of judicial methodology’.1 Indeed, these principles to this day serve an essential function in the ECJ’s case law, beside the Charter and beyond it, when the latter cannot be applied ratione temporis or ratione personae, or when it lacks the provisions needed to protect new rights. The unwritten source of law can thus be used to fill gaps in the legal system, preventing it from ossifying and allowing the Union’s acquis to keep evolving. Hence, it is possible to claim that the unwritten source of law ‘ensure[s] ideological continuity between the EU and the national legal orders and enhance[s] the legitimacy of the EU judiciary’.2
Post-Lisbon, the ECJ continues to play an essential role in the process of European integration, and has persisted in upholding fundamental rights even after the negative Opinion it delivered in 2014 on the Union’s accession to ECHR.
Indeed, Opinion 2/13 postulated the need to protect the autonomy of the EU legal system, as well as the ECJ’s exclusive competence in interpreting EU law, and on subsequent occasions it reiterated this tenet in bold letters. Central to this statement is the view that the ECJ need not necessarily align its own case law to that of...
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