New Rules of Procedure of the European Union Court of Justice: what’s new?

dr. Agne Limante 

MA candidate in EU Law, King’s College London; PhD in EU law, Vilnius University; Post-Graduate Diploma in EU Law, King’s College London

 

On 1 November 2012 the New Rules of Procedure of the European Union Court of Justice[i] (“Rules”) will enter into force, introducing both, material and structural changes to the work of the Court. Below, a try is given to take a closer look at the changes. For ease of reference, the structure of analysis follows the new structure of the Rules.

Reasons for changes

According to the preamble of the Rules and the Press release of the Court, in recasting its Rules, the Court seeks primarily to adapt to the changes in its caseload. The former Rules of Procedure, the structure of which has remained fundamentally unchanged since their original adoption in 1953, reflected a preponderance of direct actions. However, the judicial reality revealed it is references for a preliminary ruling that nowadays form the main part of cases brought before the Court[ii].

A second reason relates to the Court’s intention to dispose of the cases within a reasonable period of time[iii]. The new Rules introduce a number of measures that should encourage cases to be dealt with swiftly and efficiently.

Furthermore, the Rules should clarify existing rules and practices and make it easier to use them. A clearer distinction is drawn between the rules that apply to all types of action and those that are specific to each type (references for a preliminary ruling, direct actions and appeals).

Finally, recasting of the Rules simplifies the existing rules, both on a substantive and formal aspect, either by repealing certain rules that are outdated or not applied, or by revising the procedure for dealing with certain cases.

Title I. Organisation of the Court

This Title has not introduced material changes and the main rules remain the same. There were some changes in relation to composition of the Grand Chamber and creation of the function of the Vice-President of the Court (Articles 8, 10 and 27), however, they just reflect recent amendments of the Statute of the Court[iv].

The Rules to some extend simplified the rules on the registry (Article18-22) and brought within a single chapter (Articles 36-42) the rules on languages.

Title II. Common procedural provisions

This is a new Title and it covers all stages of the procedure before the Court, starting from introduction of a case before the Court and until the adoption of Court’s final decision.

One of the new measures include the possibility of the Court to adopt a decision with a view to limiting the length of written pleadings or observations lodged before it. Such decision shall be published in the Official Journal (Article 58).

The new rules also contain several significant innovations in relation to the oral part of the procedure dedicating to it a special chapter (Articles 76-85). If the Court considers on reading the written pleadings or observations lodged by the parties that it has sufficient information, it will, as a rule, no longer be obliged to hold a hearing (saving time). Where a hearing is organised, the Court is given right to invite the parties to concentrate in their oral pleadings on one or more specific issues. Moreover, the Court may organise joint hearings for two or more cases due to their similarity.

The Title also lays down more specific rules on the measures of organization of procedure that can be prescribed by the Court, Judge-Rapporteur and the Advocate General (Article 61-62) as well as sets new rules on the content, signature and service of the orders of the Court (Articles 89-91).

It is interesting to note, that the new Rules kept an article on extension of procedural time limits on account of distance (Article 51, providing that the procedural time-limits shall be extended on account of distance by a single period of 10 days). Though the Court was eager to remove such provision, claiming that nowadays the distance within the EU loses its significance and procedural time limits should not take the distance into account, the Member States were of different opinion strongly supporting such extension.

Title III. References for a preliminary ruling

In relation to preliminary ruling proceedings a separate title was introduced recognising the significance of such type of cases.

The rules of procedure now include a provision setting out the minimum essential content of any request for a preliminary ruling (Article 94; previously contained in Information note on references from national courts for a preliminary ruling[v]) and a rule on anonymity (Article 95), which should assist national courts and tribunals in the formulation of references.

New provision simplifies the procedure leading to the adoption of reasoned order, particularly where the answer to the question referred for a preliminary ruling admits of no reasonable doubt (Article 99). In such cases the Court may at any time, on a proposal from the Judge – Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.

Furthermore, the Rules provide for the possibility for the President of the Court to submit a reference for a preliminary ruling to an expedited procedure on his own motion, when the nature of the case requires that it be dealt with within a short time (Article 105). Expedited procedure until now was only possible at the request of the referring court or tribunal.

There also were some amendments to the urgent preliminary ruling procedure, related to assigning of the case which connected with a pending case to a Judge-Rapporteur (Article 108), and participation in a procedure of a Member State other than that from which the reference is made (Article 109).

In addition, Article 97 clarifies the concept of “party to the main proceedings”, while Articles 115-118 clarifies and simplifies the rules on legal aid.

Title IV. Direct actions

The Title on direct actions mainly targets regulating infringement proceedings against Member States. However, it also applies to the other types of direct actions.

There are several changes and novelties in this area. Firstly, the new Rules from one to two months increased the time limit for lodging the defence (Article 124). Secondly, it granted the President of the Court with a right to specify the matters to which the reply or the rejoinder should relate (Article 126), as well as with a right in exceptional cases to decide on his own motion that a case is to be determined pursuant to an expedited procedure (Article 133). Moreover, as regarding disputes concerning the costs, the Rules provide for assigning of such disputes to a chamber of three or, if the Judge-Rapporteur is not a member of a Chamber of three judges, five judges (Article 145).

The Rules also simplified the provisions relating to the intervention of Member States and European Union institutions (Article 131), as well as clarified the rules on requests and applications relating to judgments and orders (Article 153-159).

Title V. Appeals against decisions of the General Court

In relation to appeals, the new Rules contain a number of new provisions seeking to clarify lodging of appeals and proceeding with such cases

The Rules draw a clearer distinction between the appeal and cross-appeals lodged in response to an initial appeal, and clarify the rules for cross-appeals (Article 176-178). Cross-appeals will now always have to be introduced by a separate document, which is expected to facilitate their subsequent handling by the Court. Furthermore, the Rules clarify that a cross-appeal shall be deemed to be devoid of purpose in case the appellant discontinues his appeal or an appeal is declared manifestly inadmissible due to listed grounds (Article 183):

Article 182, again, seeking to reinforce the efficiency of the Court, provides for a possibility to declare the appeal or cross-appeal is manifestly well founded. This relates to the situations where the Court has already ruled on one or more questions of law identical to those raised by the pleas in law of the appeal or cross-appeal and considers the appeal or cross-appeal to be manifestly well founded.

Additionally, the Rules clarify the conditions on submission of a reply or a rejoinder in appeals (Article 175) and cross-appeals (Article 180), and, as in other titles, rules on legal aid (Article 184-189).

Title VI. Review of decisions of the General Court

With the view to simplify the current review procedure, the Rules provide for the designation, for one year, of a Reviewing Chamber that will consist of a Chamber of five Judges responsible for review cases (Article 191). The proposal to review a decision of the General Court may be made by the First Advocate General (Article 192).

It is worth noting, that the Reviewing Chamber will decide both, on the proposal made by First Advocate General, as well as will rule on the substance of the case after the decision to review (Article 195).

Title VII. Opinions

Just two changes in respect of the requests for opinions under Article 218(11) TFEU (whether the envisaged agreement is compatible with the provisions of the Treaties and to whether the European Union or any institution of the European Union has the power to enter into certain agreement) should be noted here. Firstly, according to Article 197, one, instead of eight, Advocates General, assigned by the First Advocate General, will be taking part in proceedings. Secondly, opinions will be delivered not in closed session, but in open court (Article 200).

Title VIII. Particular forms of procedure

As regarding this last title one would note that all the particular forms of procedure that we previously regulated in separate titles, are now brought under single heading. This should serve for the ease of reference and help to simplify the Rules. The title also inserts a new provision, under the Article 206 – requests under Article 269 TFEU.

Conclusions

To what extend the new Rules will assist the Court to deal with case load and clarify existing rules and practices, shall be seen in the near future as new statistics on Court’s practice will be available. Present, as states the Press release of the Court, the Court nevertheless remains convinced that they offer the best means of enabling the Court to continue to fulfil its task of ensuring that the law is observed in the interpretation and application of the Treaties within a reasonable period of time.

In any case, as for clarification of rules and practice, we have to admit that the structure and organization of the new Rules is much more clearer and easier to use than its predecessor’s. The names were given to articles, provisions are grouped under umbrella headings, the importance of preliminary ruling procedure in the Court’s practice is highlighted by regulating it in separate title.

As regards the dealing with case load, however, the change of Rules of Procedure might not have any material impact. The procedural changes intended for less time consuming dealing with cases that were presented by the Rules are often just a codification of practices that the Court used and before revision of Rules. One might have noted, that the CJEU constantly calls for an increase of judges in the General Court, hoping that more people could handle work quicker and more effective. Thus, the structural, not only procedural changes are probably inevitable in the future – but let’s see what the time brings.


[i]  The Rules of Procedureof the Court of Justice were adopted on 25 September 2012 and published in the Official Journal of the European Union on 29 September 2012 (OL L 265/1).

[ii] In 2011, references for a preliminary ruling accounted for more than 60% of the Court’s caseload.

[iii] The average time taken to deal, for example, with references for a preliminary ruling was 16.4 months in 2011.

[iv] Regulation (EU, Euratom) No 741/2012 of the European Parliament and of the Council of 11 August 2012 amending the Protocol on the Statute of the Court of Justice of the European Union and Annex I thereto. OL L 228.

[v] OJ 2009/C 297/01.

Developments in the case law of the CJEU (2010-2011): Human Rights and the Scope of EU Law

Eleni Frantziou, LLM 

LLM, College of Europe; LLB, King’s College London

Stagiaire, Chambers of Judge Schiemann, Court of Justice of the European Union

 

Introduction

The solemn proclamation of the Charter of Fundamental Rights a decade ago sparked an interesting debate on whether the European Union was or could be an organisation that respected and protected fundamental rights in its own right[i]. In that regard, von Bogdandy had influentially argued that

“the human rights jurisprudence is the least “autonomous” part of the supranational legal order. […] Major changes in Union law must occur if it is to change into a legal order that places human rights or the citizen at its center.”[ii].

The two years following the entry into force of the Lisbon Treaty witnessed a number of judicial developments in EU law. It will be argued that the seeds have now been sown for the Union to move away from its ‘market values’ construction towards a more complete constitutional system, where fundamental rights play an active role.

By drawing on three main themes, starting from equality in section II and moving to citizenship and the right to family life (section III) and immigration (section IV), this paper seeks to demonstrate how the Court’s case law in 2010-2011 has extended the scope of EU law to encompass the autonomous protection of fundamental rights. In other words, it will attempt to evaluate to what extent fundamental rights have become part of the Union’s own “constitutional charter”[iii] in the post-Lisbon era.

Equality

The principle of equality – the ‘holy grail’ of EU fundamental rights case law – was given an interesting twist in one of the first eye-catching cases of 2010, Kücükdeveci v Swedex[iv].  The case concerned discrimination on grounds of age. Ms. Kücükdeveci had been dismissed by Swedex, a private company, on a month’s notice after ten years of service. Although the German Civil Code (GCC) would normally have provided for four months’ notice before dismissal, periods of employment before the age of 25 were excluded from this calculation (622(2)GCC). Ms. Kücükdeveci claimed discrimination on grounds of age, contrary to Article 1 of the Framework Equality Directive[v].  It is elementary EU law that directives do not enjoy horizontal direct effect[vi]. Nevertheless, in sweeping constitutional terms, the CJEU proclaimed:

“it is the general principle of European Union law prohibiting all discrimination on grounds of age, as given expression in Directive 2000/78, which must be the basis of the examination of whether European Union law precludes national legislation such as that at issue in the main proceedings.”[vii]

As  Advocate General Bot remarked, the Court was faced with the question of “whether the designation of rights guaranteed by directives as fundamental rights does or does not strengthen the right to rely on them in proceedings between private parties.”[viii] The case suggests that the Court is eager to assume a wider jurisdiction where the Union’s constitutional commitments as regards the protection of fundamental rights are concerned, even in situations which would have otherwise fallen outside the scope of EU law[ix]. Thus, Kücükdeveci extends the scope of application of EU law at least to secondary legislation which is rooted in the general principles jurisprudence and reaffirms the primacy of the ‘Union standard’ in the field of fundamental rights[x]. The implications are striking.  As Peers persuasively puts it:

“it would be absurd to privilege one particular aspect of the right to non-discrimination over other aspects of that right, other social rights, or other human rights, and so the principle should logically apply whenever any general principle of EU law, as regards human rights protection, is sufficiently connected to the application of an EU Directive. The rationale for privileging human rights as a whole over other rules and principles as regards their legal effect is simply that […] human rights have primacy in the hierarchy of the primary law of the European Union.”[xi]

Indeed, the ‘Kücükdeveci effect’, as one commentator called it[xii], has not (yet) come to an end. The Court has reaffirmed its validity in a recent case decided by the Grand Chamber[xiii]. Finally, its Advocates General have made a strong case for the constitutionalisation of the ruling insofar as it calls for the effective use of new Treaty provisions and the Charter[xiv].

Citizenship and the right to family life

In March 2011, the Court rendered one of the most controversial judgments in its recent history, Zambrano[xv]. The Court was faced with the situation of a Colombian asylum seeker who had been refused refugee status as well as a permanent work permit in Belgium. Two of his children were Belgian nationals, therefore enjoying Union citizenship. Mr Zambrano argued that the refusal of his work permit would force him to emigrate, which, in turn, would deprive his children of effective use of their EU citizenship and violate their fundamental rights, contrary to Articles 18, 20 and 21 TFEU[xvi] and Articles 7, 21 and 24 of the Charter[xvii].  The Court agreed:

“article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union (see, to that effect, Rottmann, paragraph 42[xviii]). A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect”[xix].

Thus, the Court reaffirmed that “citizenship of the Union is intended to be the fundamental status of nationals of the Member States”[xx]. In addition, the citizenship rights of Mr. Zambrano’s children were found to be potent enough to keep their parents in the Union even though the citizens themselves had never exercised their free movement rights. Thus, the Court essentially decided that citizenship of the Union is capable, in and of itself, under certain circumstances, of founding (and winning) a claim before the Court.

Zambrano can be seen as representing ‘a permanent move beyond the confines of “market citizenship”’[xxi] and towards the concept of ‘EU citizenship as such’ as a trigger for the application of EU law[xxii]. As AG Sharpston put it:

“from the moment that the Member States decided to add, to existing concepts of nationality, a new and complementary status of ‘citizen of the Union’, it became impossible to regard such individuals as mere economic factors of production. Citizens are not ‘resources’ employed to produce goods and services, but individuals bound to a political community and protected by fundamental rights” [xxiii].

Nonetheless, the Court, perhaps alarmed by the degree of disapproval following its ruling, was sceptical about applying it in the follow-up cases of McCarthy[xxiv] and Dereci[xxv], holding that the mere fact that a citizen may prefer that his family members should stay in the Union cannot constitute sufficient proof, if their stay is refused, of an effective deprivation of citizenship or of a violation of fundamental rights[xxvi]. It therefore seems that, for the time being, Zambrano has been restricted from a factual perspective. However, the decision that lack of an inter-state element can no longer ipso facto disqualify citizenship cases from falling within the scope of the Treaty, remains good law.

Asylum and immigration – N.S.: the Court’s swan song for 2011

In December 2011, the Court of Justice rendered its ruling in the long-awaited case of N.S.[xxvii] The case concerned a number of illegal immigrants who had applied for asylum in the UK. When the authorities attempted to send them back to the country of first entry, Greece, in order for their applications to be processed in accordance with the Dublin II Regulation[xxviii], the applicants claimed that, if returned, they would likely be subjected to inhuman and degrading treatment as well as a series of other human rights violations. The CJEU was asked, inter alia, to determine whether the general principles of European law and the rights enshrined in Articles 1, 4, 18 and 47 of the Charter of Fundamental Rights[xxix] offer a protection wider than that afforded by Article 3 ECHR[xxx]. The case differs from Kücükdeveci and Zambrano in that the applicability of EU law was not challenged. However, it is important as regards the lens through which the Court looks at human rights claims and their place in the Union’s constitutional hierarchy.

The Court decided that the interpretation of the rights in question under the Charter would not be different than that of the ECHR in the case at issue[xxxi]. However, and quite strikingly, it employed its own standard of protection[xxxii]. The Advocate General, who was followed by the Court, argued in clear terms that the Court is free, under the Charter, to provide more extensive protection than the ECHR[xxxiii]. Although she stressed the importance of the Convention in the interpretation of Union rights under the Charter, she went on to argue that this cannot undermine the intellectual autonomy of the CJEU regarding the reach of Union rights, particularly in view of the fact that ECtHR judgments:

“essentially constitute case-specific judicial decisions and not the rules of the ECHR themselves, and it would therefore be wrong to regard the case-law of the European Court of Human Rights as a source of interpretation with full validity in connection with the Charter[xxxiv].”

As to the substance, the Court held that an individual assessment of potential human rights violations is required by primary Union law, even if that would essentially contravene the mutual recognition rules agreed by the Member States under Dublin II[xxxv]. Thus, the N.S. case is a clear indication to the effect that a) the standard of protection of fundamental rights under the Union’s Charter is changing into a non-negotiable obligation for the Member States, even in the most sensitive areas of EU law, and b) the CJEU will only accept unchanged the standards set by the ECtHR as long as it considers them acceptable for the Union legal order, rather than the other way around. Although the judgment still awaits further development through the case law, it is in harmony with the trend of placing increasing protection on fundamental rights and is heavily reminiscent of the Kadi saga[xxxvi], where the Court emphasised that:

“the Community judicature must […] ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law”[xxxvii].

It remains to be seen whether the Court will eventually proclaim the independence of the Union’s fundamental rights system, thus answering the “federal question” in the affirmative[xxxviii]. To that end, it is worth noting that the CJEU recently ruled against the direct application of ECHR provisions in the EU[xxxix], suggesting that the only human rights list enjoying Treaty status and, consequently, direct effect in the Member States is the Charter of Fundamental Rights[xl].

Concluding remarks: Two years of reform?

The three cases cited in this paper have illustrated the willingness with which the CJEU has assumed a wider scope for adjudicating in the vast spectrum of human rights claims. Fundamental rights have gradually become part and parcel of European Union law, initially respected, then protected and nowadays even asserted, qua general principles and through the Charter, against market values. As some commentators have argued, in a time of crisis for the Union’s ‘old ideals’, strong liberal democratic principles and an express commitment to the protection of human rights now form an integral part of the EU’s normative foundations[xli].

The care that the Court has taken in the last two years to ensure the uniform and autonomous application of fundamental rights throughout the Union, irrespective of the existence of a traditional EU law setting, signals a ‘constitutionalisation’ of rights which is single-handedly carrying through the polity-building process initiated by the Lisbon Treaty[xlii]. The Union has come a long way from the debate this paper started with. Time will show whether the edifice will ever be completed.

 


[i] See for example J. Enninger, “Menschenrechte und Staatsaufgaben – ein europäisches Thema” (1996) JZ, 585; I. Pernice, “Eine Grundrechts-Charta für die Europäische Union” (2000) DVBl. 847; P. Eeckhout, “The EU Charter of Fundamental Rights and the Federal Question” (2002) 39 CMLRev.,945.

[ii]A. von Bogdandy, “The European Union as a human rights organization? Human rights and the core of the European Union” (2000) 37 CML Rev., 1307, 1333.

[iii] Case 294/83 Les Verts v Parliament  [1986] ECR 1339, paragraph 23

[iv] Case C-555/07 Kücükdeveci v Swedex GmbH [2010] ECR I-00365.

[v] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16.

[vi] Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 20.

[vii] Kücükdeveci, supra n. 4, paragraph 27 (emphasis added).

[viii] Opinion of Advocate General Bot, delivered on 7 July 2009, in Kücükdeveci, supra n. 4paragraph 90.

[ix] Editorial Comment,  “The Scope of Application of EU law. An Even Expanding Union?” (2010) 47 CMLRev.,1589, 1593.

[x] M. Dougan, “When Worlds Collide! Competing visions of the Relationship between direct effect and supremacy” (2007) 44 CMLRev 931.

[xi] S. Peers “Supremacy, Equality and Human Rights: Comment on Kücükdeveci (C-555/07)” (2010) E.L.Rev., 849, pp.855-6 (emphasis added).

[xii] E.Muir, “Of Ages In – And Edges Of- EU law” (2011) 48 CMLRev 39, 60.

[xiii] Case C-447/09 Prigge and Others v Deutsche Lufthansa, judgment of 13 September 2011, nyr, paragraph 38; Joined cases C-297/10 and C-298/10 Hennigs v Eisenbahn-Bundesamt, Land Berlin v Mai, judgment of 8 September 2011, nyr, paragraph 47.

[xiv] Opinion of AG Cruz Villalòn in Prigge, ibid., delivered on 19 May 2011, paragraph 26; See also: Opinion of Advocate General Cruz Villalòn, delivered on 5 may 2010 in Case C-515/08 Santos Palhota, judgment of 10 October 2010, nyr, paragraph 53; Opinion of Advocate General Kokott, delivered on 30 September 2010, in Case 236/09 Association Belge des Consommateurs Test-Achats and Others, paragraphs 26-28.

[xv] Case C-34/09 Zambrano v Office national de l’emploi, judgment of 8 March 2011, nyr.

[xvi] No discrimination on grounds of nationality, Union citizenship and citizens’ right to move and reside freely in the Union, respectively.

[xvii] Respect for private and family life, non-discrimination and the protection of children, respectively.

[xviii] Case C-135/08 Janko Rottmann v. Freistaat Bayern, judgment of 2 March 2010, nyr.

[xix] Zambrano, supra n. 15, paragraphs 42-43 (emphasis added).

[xx] Zambrano, supra n. 15, paragraph 41; Case C-184/99 Grzelczyk [2001] ECR I‑6193, paragraph 31; Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 82; Garcia Avello, ibid., paragraph 22; Cf. Case C-200/02 Zhu and Chen [2004] ECR I‑9925.

[xxi] K. Hailbronner and D. Thym, “Annotation of Case C-34/09” (2011) 48 CMLRev 1253., 1269

[xxii] Ibid., at 1263

[xxiii] Opinion of AG Sharpston, delivered on 30 September 2010, in Zambrano, supra n. 18, paragraph 128.

[xxiv] Case C-434/09 McCarthy v Secretary of State for the Home Department, judgment of 5 May 2011, nyr.

[xxv] Case C-256/11 Dereci and others v Bundesministerium für Inneres, judgment of 15 November 2011, nyr.

[xxvi] Ibid., paragraphs 66-68.

[xxvii] Joined Cases C-411/10 and C-493/10 N.S. and others, judgment of 21 December 2011, nyr. (The case is  also commonly referred to as “Saeedi” in the UK).

[xxviii] Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.

[xxix] Right to dignity, right not to be subjected to torture and inhuman or degrading treatment or punishment, right to asylum and right to a fair hearing, respectively.

[xxx] Right not to be subjected to torture and inhuman or degrading treatment or punishment.

[xxxi] N.S., supra n. 29, paragraph 115.

[xxxii] Ibid., paragraphs 111- 113. The ECtHR had reached a very similar decision earlier in 2011 in M.S.S v Belgium and Greece (Application no. 30696/09), where, under similar circumstances, Belgium had returned an asylum seeker to Greece. Contrary to previous rulings in that regard, the ECtHR held that Article 3 ECHR had been violated.

[xxxiii] Opinion of AG Trstenjak, delivered on 22 September 2011, in N.S., supra n. 29, paragraphs 142-148.

[xxxiv] Ibid., paragraph 146. See also: Opinion of Advocate General Maduro, delivered on 9 September 2008 in Case C-465/07 Elgafaji [2009] ECR I-921, paragraph 23.

[xxxv] N.S., supra n. 29, paragraph 94. It is worth noting that the Court also emphasised the constitutional nature of human rights in the EU and affirmed that the Charter is applicable in the UK.

[xxxvi] Joined Cases C-402/05 P & C-415/05 P Kadi and  Al
Barakaat International Foundation v Council and Commission
[2008] ECR I-6351.

[xxxvii] Ibid., paragraph 326.

[xxxviii] Eeckhout, supra n. 1.

[xxxix] Case C-571/10 Kamberaj, judgment of 24 April 2012, nyr, paragraph 63.

[xl]  L. Ankersmit, “Case C-571/10 Kamberaj: the Charter and not the ECHR has effect in Member States’ legal orders”, European Law Blog, 26 Aprill 2012, available at: http://europeanlawblog.eu/?tag=c-57110-kamberaj (accessed on 26 April 2012). Of course, the Convention will be applied to the extent that the Charter adopts and extends the rights enshrined therein (Article 52(3) Charter).

[xli] T. Chopin and C. Lequesne, « 20 ans après la chute du mur de Berlin, la liberté, nouveau récit commun de l’Europe?», in M. Foucher and T. Chopin (eds), Rapport Schuman sur l’Europe: L’Etat de l’Union européenne 2010, Paris: Lignes de Repères, 2010, 43, pp.47-50; Opinion of Advocate General Sharpston delivered on 30 September 2010 in Zambrano, supra n. 15, paragraph 165.

[xlii] P.Maduro, ‘The Double Constitutional Life of the Charter of Fundamental Rights of the European Union’, in T.K. Hervey and J. Kenner (eds.), Economic and Social Rights under the EU Charter of Fundamental Rights, Hart Publishing: Oxford, 2003, 269.