The Charter and the Court of Justice
As already mentioned, the ECJ took a more cautious approach to the Charter maintaining for a long time a sort of self restraint and refusing to mention the Charter even when the latter was invoked by the Advocates General.
This silence, which might be perceived as a sort of ‘distrust’, has been reconsidered in Parliament v. Council52 of 2006 where the Court, operating a significant revirement jurisprudentiel, 53 ruled that the Charter is not a legally binding instrument, but nonetheless acknowledged its importance. Furthermore, the Court claimed that: the principal aim of the Charter is to reaffirm rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the [ECHR], the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court and of the European Court of Human Rights.54
After this judgment the Charter was referred to on a few other occasions, without a specific focus on its legal value. In the Unibet case55 the ECJ invoked the principle of effective judicial protection affirmed in the Charter, without calling into question other sources of EC law. An analogous solution was reached in Advocaten voor de Wereld VZW56 where the Court ruled that the principle of legality and the principle of equality and non-discrimination are included in the general principles of Community law, and are also reaffirmed in Arts. 49, 20, and 21 CFR.
In the Varec SA v. Belgium case, 57 as well as in the recent Kadi58 and Mono Car Styling SA59 judgments, the Court referred to the Charter as an instrument which merely acknowledges the fundamental rights which flow from the common constitutional traditions of the Member States and are already included in the ECHR, whereas in Dynamic Medien60 the Charter was mentioned amongst the various sources of law. In the Viking61 and Laval62 judgments, Art. 28 (“Right of collective bargaining and action”) of the Charter is listed among the instruments developed by Member States at a Community level or in the context of the European Union, together with the Community Charter of the Fundamental Social Rights of Workers.63 The Laval case is particularly noteworthy since the Charter was used a contrario to circumscribe the scope of the right enshrined therein, namely to highlight the limits deriving from the Community and National legal order. In particular, the Court ruled that: although the right to take collective action must therefore be recognized as a fundamental right which forms an integral part of the general principles of Community law the observance of which the Court ensures, the exercise of that right may none the less be subject to certain restrictions. As is reaffirmed by Article 28 of the Charter of Fundamental Rights of the European Union, it is to be protected in accordance with Community law and national law and practices.64
Similarly to what has happened in cases pending before the CFI, the Court has sometimes failed to take the Charter into account despite the fact that it had been invoked by the applicants.65 By contrast, in the context of preliminary rulings the ECJ has consistently answered the questions dealing with Charter related issues. In Promusicae, 66 for instance, the national court asked whether Directives 2000/31, 2001/29 and 2004/48, read in the light of Arts. 17 and 47 of the Charter must be interpreted as requiring Member States to lay down, in order to ensure effective judicial protection of copyright, an obligation to communicate personal data in the context of civil proceedings. The Court of Justice, responding to this question, ruled that in order to provide the national court with a useful answer “it will have to be examined, starting from the national court’s reference to the Charter, whether in a situation such as that at issue in the main proceedings other rules of Community law might require a different reading of those three directives”.67
The Court, referring to the right to property and to the right to an effective remedy, set out in Arts. 17 and 47 of the Charter, considered that the situation called into question yet another fundamental right, namely the protection of personal data and hence of privacy. For this reason, the Court referred to Directive 2002/58 that aims at ensuring full respect of the rights set out in Arts. 7 and 8 of the Charter. Focusing on these provisions, the ECJ explained that: Article 7 substantially reproduces Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (. . .) and Article 8 of the Charter expressly proclaims the right to protection of personal data.68
The European judges concluded therefore that: the present reference for a preliminary ruling thus raises the question of the need to reconcile the requirements of the protection of different fundamental rights, namely the right to respect for private life on the one hand and the rights to protection of property and to an effective remedy on the other.69
Quite interestingly, in the case at hand the ECJ felt no need to refer to the legal value of the Charter and simply used this document as a source for fundamental rights protection.
As demonstrated, it is only in recent times that the ECJ has started to mention the Charter in its judgments and the cases in which this occurs are still limited in number. Nevertheless it should be noted that the Charter has sometimes been intended as a text merely recognizing existing rights and with no legal force, whilst on other occasions it has been referred to as a source of law that enables the judiciary to establish the scope of application of fundamental rights.
52. Case C-540/03 Parliament v. Council  ECR I-5769. See A. Arnull, ‘Family reunification and fundamental rights’, (2006) European Law Review 611.
53. See A. Spadaro, ‘Verso la Costituzione europea. il problema delle garanzie giurisdizionali dei diritti’, in A. Pizzorusso, R. Romboli, A. Ruggeri, A. Saitta, G. Silvestri (eds.), n. 21 above, 147.
54. Case C-540/03 Parliament v. Council, n. 52 above, para 38.
55. Case C-432/05 Unibet Ltd v. Justitiekanslern  ECR I-2271, para 37.
56. Case C-303/05 Advocaten voor de Wereld VZW, n. 21 above, para 46.
57. Case C-450/06 Varec SA v. Belgium, n. 9 above, para 48.
58. Joined cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat InternationalFoundation, n. 25 above, para 335.
59. Case C-12/08 Mono Car Styling SA, accessible at http://curia.europa.eu.
60. Case C-244/06 Dynamic Medien, accessible at http://curia.europa.eu, para 41.
61.Case C-438/05 Viking  ECR I-10779, para 43.
62.Case C-341/05 Laval  ECR I-11767, paras 90 and 91.
63. S. Coppola refered
64.Ibid., para 91. The Court reached an analogous position in the Viking case, n. 61 above,
65. Case C-76/06 P Britannia Alloys & Chemicals Ltd, n. 26 above; Case C-305/05 Ordredes barreaux francophones et germanophone and Others, n. 30 above.
66.Case C-275/06 Promusicae v. Telefónica de España SAU  ECR I-271, para 64.
67.Ibid., para 46.
68.Ibid., para 64.
69.Ibid., para 65.