Biblioteca PGR


PP982
Analítico de Periódico



AMALFITANO, Chiara
Il diritto non scritto nell’accertamento dei diritti fondamentali dopo la riforma di Lisbona / Chiara Amalfitano
Il Diritto dell'Unione Europea, n.1 (2016), p.21-69


DIREITO COMUNITÁRIO, CARTA DOS DIREITOS FUNDAMENTAIS

The article analyses the role of the EU general principles on the protection of fundamental rights within the European Union after the entry into force of the Lisbon Treaty, which recognized to the Charter of fundamental rights the same legal value as the Treaties. The analysis is divided into two sections. The first one (paragraphs IV-IX) focuses on the reasons why whereby the Court of Justice still invokes unwritten law in assessing fundamental rights of individuals. To that effect, it examines the case-law after December 1st 2009 which uses, or might use, as criterion of interpretation and/or legality, the provisions of the Charter which reproduce or crystallise a general principle. The second section (paragraphs X-XV) focuses on the functions that general principles might or must have today “beside” or “beyond” the Charter, because a written legal provision cannot apply “directly” as such. In these cases, the general principle concerned does not necessarily have a corresponding provision in the Charter. Similarly its interpretation and application do not necessarily evolve in parallel with the Charter provisions. Indeed, according to Article 6(3) TEU, these principles may also, or only, have independent significance and an autonomous “legal life “, not linked to the Charter. Through this analysis, the Author tries to demonstrate the fundamental role that EU general principles still have within the Union. This role is particularly (but not exclusively) marked when they emphasize the specificities characterizing the EU legal system, and thus contribute to ensure its autonomy.