¹ Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306.

² This paper is updated to 21 April 2011.

³ The same is true of international human rights law, when a treaty creates a court with jurisdiction to interpret the human rights rules in question.

⁴ See the Commission’s communication on a strategy for the effective implementation of the Charter (COM (2010) 573, 19 October 2010) and its first annual report on implementation of the Charter (COM (2011) 160, 30 March 2011); the Council’s conclusions on the Council’s role in implementing the Charter (Council doc 6387/11, 11 February 2011); and the EP’s report on the situation of fundamental rights after the Treaty of Lisbon (T7-0483/2010, 15 December 2010).

⁵ From a huge literature on human rights as general principles of EU law, see de Witte, B, ‘Past and Future Role of the European Court of Justice in the Protection of Human Rights’ in Alston, P (ed), The EU and Human Rights (Oxford, Oxford University Press, 1999)Google Scholar; and Tridimas, T, The General Principles of EU Law 2nd edn (Oxford, Oxford University Press, 2006)Google Scholar with further references.

⁶ See the case law beginning with Case 222/84 Johnston [1986] ECR 1651.

⁷ [1997] OJ C340.

⁸ See case law beginning with Case C-13/94 P v S [1996] ECR I-2193.

⁹ See case law beginning with the PVC II case (Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P [2002] ECR I-8375, 274) and the discussion in Peers, S, ‘The European Court of Justice and the ropean Court of Human Rights: Comparative Approaches’ in Orucu, E (ed), Judicial Comparativism in Human Rights Cases (London, UKNCCL, 2003)Google Scholar.

¹⁰ Opinion 2/94 [1996] ECR I-1759.

¹¹ See particularly Case 5/88 Wachauf [1989] ECR 2609 (national implementation) and Case C-260/89 ERT [1991] ECR I-2925 (derogations).

¹² Case 12/86 Demirel [1987] ECR 3719. See also Cases: C-299/95 Kremzow [1997] ECR I-2629; C-328/04 Vajnai [2005] ECR I-8577; C-287/08 Savia [2008] ECR I-136*; C-535/08 Pignataro [2009] ECR I-50*; C-302/06 Kowalsky [2007] ECR I-11*; and C-333/09 Noel [2009] ECR I-205*.

¹³ Dir 2003/86 on the right to family reunification [2003] OJ L251/12; see Cases C-540/03 EP v Council [2006] ECR I-5769, C-578/08 Chakroun, judgment of 4 March 2010, not yet reported and C-155/11 Imran, pending.

¹⁴ Joined Cases C-20/00 and C-64/00 Booker Aquaculture [2003] ECR I-7411, para 68, quoting established case law.

¹⁵ See Peers, S, ‘Taking Rights Away? Derogations and Limitations’ in Peers, S and Ward, A (eds), The EU Charter of Rights: Politics, Law and Policy (Oxford, Hart Publishing, 2004)Google Scholar.

¹⁶ [2000] OJ C364.

¹⁷ Case C-540/03 above n 13, para 38.

¹⁸ See Cases: C-432/05 Unibet [2007] ECR I-2271, para 37; C-303/05 Advocaten voor de Wereld VZW [2007] ECR I-3633, para 46; C-438/05 Viking Line ABP [2007] ECR I-10779, para 44; C-341/05 Laval [2007] ECR I-11767, para 91; C-450/06 Varec [2008] ECR I-581, para 48; C-244/06 Dynamic Medien [2008] ECR I-505, para 41; C-402/05 P and C-415/05 P Kadi [2008] ECR I-6351, para 335; C-47/07 P Masdar [2008] ECR I-9761, para 50; C-385/07 P Der Grüne Punkt [2009] ECR I-6155, para 179; and C-12/08 Mono Car Styling [2009] ECR I-6653, para 47. However, see the stronger reference in C-275/06 Promusicae [2008] ECR I-271, para 64. This list only includes cases where the Court discussed the substance of the Charter. For a detailed overview, see Bazzocchi, V, ‘The European Charter of Fundamental Rights and the Courts’ in De Federico, G (ed), The EU Charter of Fundamental Rights: From Declaration to Binding Instrument (Dordrecht, Springer, 2011)Google Scholar.

¹⁹ For comprehensive information on the negotiation process, see www.coe.int/t/dghl/ standardsetting/hrpolicy/CDDH-UE/CDDH-UE_documents_en.asp. The treaty in question, once agreed, cannot come into force until the Council has concluded it unanimously with the consent of the E P, and also after approval by means of all Member States’ constitutional requirements (see Art 218(6)(a)(ii) and (8) TFEU). Furthermore, it will be necessary for all other ECHR signatories to ratify this treaty before it can come into force.

²⁰ On this issue, see also Protocol 8 and Declaration 2 to the Final Act of the Treaty of Lisbon. On the status of the EU in the meantime from the Strasbourg Court’s perspective, see the judgment in Bosphorus Airways v Ireland, judgment of 30 June 2005 (Reports of Judgments and Decisions 2005-VI).

²¹ Art 6(1) also differs from the approach followed by the drafters of the ill-fated Constitutional Treaty, who had decided instead to insert the Charter as Part Two of that Treaty.

²² [2004] OJ C310/01.

²³ [2007] OJ C303/01.

²⁴ See s IV below.

²⁵ Poland also made a unilateral Declaration concerning this Protocol (Declaration 63 in the Final Act of the Treaty of Lisbon).

²⁶ See Annex I to the conclusions of the October 2010 European Council meeting. The intention is to attach this Protocol to the Treaties in conjunction with the ratification of the next Treaty of Accession to the EU. This is likely to be a treaty for Croatia to join the EU, which will probably be agreed and signed in 2011 and enter into force in 2013.

²⁷ Declarations 53 and 62 in the Final Act.

²⁸ See Cases C-323/08 Mayor [2009] ECR I-11621; C-403/09 PPU Deticˇek, judgment of 23 December 2009; C-555/07 Kücükdeveci, judgment of 19 January 2010; C-175/08 to C-179/08 Abdulla and others, judgment of 2 March 2010; C-578/08 Chakroun, above n 13; C-570/07 and C-571/07 Blanco Pérez, judgment of 1 June 2010; C-31/09 Bolbol, judgment of 17 June 2010; C-188/10 and C-189/10 PPU Melki and Abdeli, judgment of 22 June 2010; C-407/08 P Knauf Gips, judgment of 1 July 2010; C-211/10 PPU Povse, judgment of 1 July 2010; C-271/08 Commission v Germany, judgment of 15 July 2010; C-149/10 Chatzi, judg ment of 16 September 2010; C-400/10 McB, judgment of 5 October 2010; C-162/09 Lassal, judgment of 7 October 2010; C-243/09 Fuß, judgment of 14 October 2010; C-92/09 and C-93/09 Volker and Schecke, judgment of 9 November 2010; C-232/09 Danosa, judgment of 11 November 2010; C-145/09 Tsakouridis, judgment of 23 November 2010; C-491/10 PPU Aguirre Zarraga, judgment of 22 December 2010; C-444/09 and C-456/09 Gaveiro Gaveiro, judgment of 22 December 2010; C-279/09 DEB, judgment of 22 December 2010; C-208/09 Sayn-Wittgenstein, judgment of 22 December 2010; C-236/09 Test-Achats, judg ment of 1 March 2011; C-372/09 and C-373/09 Peñarroja, judgment of 17 March 2011; C-221/09 AJD Tuna, judgment of 17 March 2011; and C-352/09 P Thyssenkrupp, judgment of 29 March 2011 (none yet reported, except where noted). This list does not include cases where the national court sent questions about the Charter, where the Charter was raised as a defence or where the Court quoted a reference to the Charter in EU legislation, but where the Court did not address the substance of the Charter as such (see respectively, for example, the judgments of 8 March 2011 in Case C-34/09 Ruiz Zambrano, 17 June 2010 in Case C-492/08 Commission v France and 29 June 2010 in Case C-28/08 P Bavarian Lager II, none yet reported).

²⁹ See Abdulla, Chakroun, Kücükdeveci, Melki and Abdeli, Knauf Gips, Commission v Germany, McB, Volker and Schecke, DEB and Test-Achats, all ibid. In Test-Achats, the Court did not refer expressly to Art 6(1) TEU. See also the order in C-457/09 Chartry, 1 March 2011 (not yet reported), para 24.

³⁰ In particular, the Court referred to the Charter reaffirming a right set out in the general principles in Joined Cases C-317/08 to C-320/08 Alassini, judgment of 18 March 2010, para 61 and Case C-409/06 Wetten, judgment of 8 September 2010, para 58, neither yet reported; also see Case C-550/07 P Akzo Nobel, judgment of 14 September 2010, not yet reported, para 54, where the Court states that the right to equality which forms part of the general principles is ‘enshrined’ in Arts 20 and 21 of the Charter.

³¹ See Kücükdeveci, above n 28 above, and the discussion of the legal effect of the Charter (s V below).

³² See, for instance, Case C-375/08 Pontini, judgment of 24 June 2010, not yet reported.

³³ The 10 judgments concerned are: Cases C-465/07 Elgafaji [2009] ECR I-921, para 28; C-308/07 P Koldo Gorostiaga Atxalandabaso [2009] ECR I-1059, para 41; C-421/07 Damgaard [2009] ECR I-2629, para 25; C-142/05 Mickelsson and Roos [2009] ECR I-4273, para 43; Der Grüne Punkt, aboven 18; Mono Car Styling (idem); C-322/07 P, C-327/07 P and C-338/07 P, Papierfabrik August Koehler AG [2009] ECR I-7191, para 143; C-115/08 CEZ II [2009] ECR I-10265, para 89; Deticek, n 28 above, para 34; and C-45/08 Spector Photo Group, judgment of 23 December 2009, not yet reported, para 40.

³⁴ Above n 28.

³⁵ See para 79 of the opinion in Commission v Germany and n 36 of the opinion in Akzo, aboven 30; but on the other hand, see n 37 of the opinion in Volker and Schecke, above n 28.

³⁶ In particular, all of the cases referring specifically to Art 6(1) TEU, above n 29 reached the Court of Justice before the entry into force of the Treaty of Lisbon, except for Melki and Abdeli and McB. In the latter case, the initial dispute pre-dated the Treaty of Lisbon in any event. Moreover, in Commission v Germany (ibid), the Court referred to Art 52(6) of the Charter, a provision which did not even exist at the time the relevant case was brought before the Court. See the explanation in n 62 of the opinion in Case C-499/08 Andersen, judgment of 12 October 2010, not yet reported.

³⁷ Cases T-181/08 Tay Za, judgment of 19 May 2010, para 141; T-111/07 Agrofert Holdings, judgment of 7 July 2010, para 75; and T-49/07 Fahas, judgment of 7 December 2010 para 59 and (more strongly) para 63 (none yet reported). This compares with three references to the Charter in the judgments of the Court of First Instance (as it was then) in 2009, namely Cases T-404/06 P ETF v Landgren [2009] ECR II-2841, para 148; T-437/05 Brinks Security [2009] ECR II-3233, para 75; and T-390/08 Bank Melli [2009] ECR II-3967, para 105.

³⁸ Cases T-117/07 and T-121/07 Areva, judgment of 3 March 2011, para 224 and T-461/07 Visa International, judgment of 14 April 2011, para 231 (neither yet reported).

³⁹ In the first few months of 2011, see Cases T-55/08 UEFA, judgment of 17 February 2011, para 179; T-385/07 FIFA, judgment of 17 February 2011, paras 138 and 139; T-68/08 FIFA, judgment of 17 February 2011, paras 142 and 143; T-589/08 Evropaïki Dynamiki, judgment of 3 March 2011, para 75; T-110/07 Siemens, judgment of 3 March 2011, paras 45, 50 and 187; T-122/07 to T-124/07, Siemens, judgment of 3 March 2011, para 232; T-378/06 IMI, judgment of 24 March 2011, para 41; T-262/09 Safariland, judgment of 13 April 2011, paras 79 and 83; and T-358/09 Sociedad Agricola Requingua Ltda, judgment of 13 April 2011, paras 79 and 83.

⁴⁰ The Court has been asked to address the issue of the legal effect of this Protocol in Case C-411/10 NS, pending. See further s V below.

⁴¹ Para 16 of the judgment, above n 28.

⁴² See the discussion of Art 51 of the Charter (s IV.B).

⁴³ Title VII of the Charter, the title of which is ‘General provisions governing the interpretation and application of the Charter’. See generally Alonso, R, ‘The General Provisions of the Charter of Fundamental Rights of the European Union’ (2002) 8 European Law Journal 450 Google Scholar.

⁴⁴ The limits on the EU’s competence and the obligation to give ‘due regard’ to the explanations to the Charter: see further Arts 51 and 52(7) of the Charter, discussed further below. Art 6(1) TEU also states that the explanations ‘set out the sources of’ the Charter provisions; this point is not specifically made in the text of the Charter.

⁴⁵ For implicit dismissals of a sufficient link with EU law to invoke the Charter, see Vajnai, above n 12, and Case C-361/07 Polier [2008] ECR I-6*. For an explicit dismissal of a sufficient link, see Case C-217/08 Mariano [2009] ECR I-35*, para 29, which referred expressly to Art 51(2) of the Charter.

⁴⁶ Mayor, above n 28, paras 58–59 (implicitly) and subsequently the orders in Cases C-339/10 Estov, 12 Nov 2010 (not yet reported) and Chartry, above n 29, which refer to Art 51(1) of the Charter as well as the relevant provisions of Art 6(1) TEU and (in Estov) the declaration in the Final Act to the Treaty of Lisbon.

⁴⁷ See above n 28. The Court also mentioned Art 51(1) of the Charter in para 30 of its judgment in DEB (n 28 above), without further elaboration, obviously (and correctly) assuming that the dispute in that case (concerning whether a legal person is entitled to legal aid in order to sue a Member State for damages liability for an alleged breach of EU law) fell within the scope of EU law. The reference to Art 51(1) was perhaps implicitly intended to make clear that not all disputes about access to legal aid fall within the scope of EU law. Art 51(1) is also mentioned (without further explanation) in the opinion of 10 February 2011 in Case C-272/09 P KME Europe, pending (para 10).

⁴⁸ The mother had taken the children to the UK. The relevant EU legislation is Reg 2201/2003 ([2003] OJ L338/1).

⁴⁹ It might also conceivably have been argued that the national law breached the right to equality (Arts 20, 21(1) and 23 of the Charter), on the grounds that it discriminated on grounds of sex, and also distinguished between married and unmarried parents, but that point was not referred to or discussed by the Court.

⁵⁰ Para 51 of the judgment.

⁵¹ Para 59 of the judgment (emphasis added).

⁵² It cannot be doubted, on the other hand, that discrimination on grounds of sex in conjunction with marital status is within the scope of the Charter non-discrimination rules if the dispute in question is clearly within the material scope of EU law. For instance, it can hardly be imagined that the Court of Justice would rule that a national law permitting employers to discriminate against unmarried mothers as regards dismissal from employment was outside the scope of EU law.

⁵³ See Art 65 EC (now Art 81 TFEU).

⁵⁴ On this rule, see for instance Laval and Viking Line, above n 18.

⁵⁵ In this example, the free movement right also falls within the scope of the Charter (Art 45), but the principle would apply even if that were not the case.

⁵⁶ For example, see respectively Case C-151/02 Jaeger [2003] ECR I-8389 and C-173/99 BECTU [2001] ECR I-4881. It is not clear whether there are limits to the Court’s jurisdiction in such cases if the EU lacks competence to harmonise the relevant national law.

⁵⁷ See the explicit link between Art 51(1) of the Charter and the case law on the scope of the general principles in para 25 of the Chartry order, above n 29.

⁵⁸ See Dougan, M, ‘In Defence of Mangold ?’ in Arnull, A, Barnard, C, Dougan, M and Spaventa, E (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Oxford, Hart Publishing, 2011)Google Scholar.

⁵⁹ Dir 1999/70 on fixed-term work ([1999] OJ L175/43); see para 75 of that judgment (Case C-144/04 [2005] ECR I-9981). Admittedly, the subsequent judgment in Bartsch (Case C-427/06, [2008] ECR I-7245) seems to support such an interpretation of Mangold.

⁶⁰ It should be emphasised that there was implicitly a sufficient link to EU law for the general principles to apply in Mangold merely because the dispute in question fell within the scope of the non-regression clause in that Dir, even though it did not breach that clause, and did not otherwise fall within the scope of the Dir. The subsequent case law on Dir 1999/70 has confirmed expressly that the non-regression clause does apply to the conditions of obtaining a first or only fixed-term contract: see Joined Cases C-378/07 to C-380/07 Angelidaki [2009] ECR I-3071, paras 108–21.

⁶¹ See further s V below.

⁶² This argument is developed in the opinion in Ruiz Zambrano, above n 28, paras 151–77.

⁶³ See ibid, paras 139–50.

⁶⁴ See the judgment in Ruiz Zambrano, above n 28, although the precise scope of this judgment remains to be clarified, in particular in light of the apparently contradictory judgment of 5 May 2011 in Case C-434/09 McCarthy, not yet reported. The judgment in this case is not expressly based on human rights considerations and so is not further considered in this paper—although it is likely to have implications for human rights protection, particularly as regards family reunion, in practice. See further the pending case of Iida (C-40/11).

⁶⁵ Case C-411/10 NS, pending.

⁶⁶ See ERT, above n 11, EP v Council, above n 13 and Test-Achats, above n 28.

⁶⁷ For an analysis of the issue of limitations of rights under the general principles of law and the Charter, see Peers, above n 15.

⁶⁸ Above, n 28 para 91.

⁶⁹ On this requirement, see further the opinion of 14 April 2011 in Case C-70/10 Scarlet Extended, pending.

⁷⁰ Above n 28, para 59.

⁷¹ See Peers, above n 15. For example, if a restriction on a Charter right satisfied the general limitations rule in Art 52(1), but was not consistent with the relevant specific ECHR rule on limitations of rights, pursuant to Art 52(3)—or vice versa—the restriction could not be accepted.

⁷² On the issue of conflicts of rights in EU law, see generally Pérez, A Torres, Conflicts of Rights in the European Union. A Theory of Supranational Adjudication (Oxford, Oxford University Press, 2009)CrossRefGoogle Scholar.

⁷³ On the other hand, the Court has recognised the continued tension between Charter rights and market freedoms: see Commission v Germany, above n 28.

⁷⁴ See Art 45 of the Charter. Remarkably, the free movement right in the Charter was referred to expressly in a judgment by the same chamber of the Court (featuring three of the same judges) only two days later (Lassal, above n 28).

⁷⁵ Test-Achats, above n 28.

⁷⁶ Before the entry into force of the Treaty of Lisbon, see the opinion in Case C-353/99 P Hautala [2001] ECR I-9565, para 85.

⁷⁷ Lassal, above n 28.

⁷⁸ Since the entry into force of the Treaty of Lisbon, see Bavarian Lager II, above n 29 and Cases: C-362/08 P, Internationaler Hilfsfonds, judgment of 26 January 2010; C-139/07 P TGI, judgment of 29 June 2010; and C-514/07 P, C-528/07 P and C-532/07 P API, judgment of 21 September 2010 (none yet reported).

⁷⁹ Para 53 of the judgment.

⁸⁰ The previous judgment in Varec, which the Court referred to, had simply stated that a particular interpretation of the right to private life ‘follows’ from the Strasbourg case law.

⁸¹ Again, there was no rationale offered for following the Strasbourg case law.

⁸² As discussed above, however, the Court then went on to apply the general rule in Art 52(1) of the Charter, with limited discussion of the specific rule on limitation set out in Art 8(2) ECHR.

⁸³ To be fair, the McB judgment a month earlier had already clearly stated the correspondence between the relevant provisions. The Court’s judgment in Volker and Schecke also implicitly justified the correspondence between Art 8 ECHR and Art 8 of the Charter (regarding data protection), stating that the Charter right to data protection is ‘closely connected with’ the Charter right to private life (para 47 of the judgment).

⁸⁴ Paras 32 and 35 of the judgment, aboven 28. Implicitly, in accordance with the explanations to Art 52(3) and the case law on the prior general principles, the Court of Justice did not however examine whether the dispute concerned ‘civil rights and obligations’, since Art 47(2) and (3) applies regardless of such a condition.

⁸⁵ See subsequently para 79 of the opinion of 17 February 2011 in Case C-120/10 European Air Transport, pending.

⁸⁶ See para 79 of the opinion in European Air Transport, ibid; this is also expressly stated in the explanations to Art 52, and follows logically from Art 53 of the Charter.

⁸⁷ Para 258 of the opinion of 14 April 2011 in Case C-109/10 Solvay, pending.

⁸⁸ See the pre-Lisbon judgment in EP v Council, above n 13, in which the Court of Justice held the EU legislature only to the standards which were set out in the ECHR and Strasbourg case law, except to the extent that the EU legislature had chosen to set higher standards. On the other hand, the general principles case law has insisted on a broader scope of the right to judicial review and effective remedies than the scope of Art 6(1) ECHR, and this is now enshrined in Art 47 of the Charter (see above n 84).

⁸⁹ For instance, see para 48 of the judgment in Varec, above n 18, as regards Art 8 ECHR as ‘restated’ in the Charter. The explanations to Art 52(4) state that this provision is based on Art 6(3) TEU (former Art 6(2)) and suggest a very general interpretation rule, although there is no list of Charter Articles subject to Art 52(4). However, the explanations to Arts 10(2), 14 and 49 state that the relevant provisions ‘correspond to’ or are ‘based on’ or ‘enshrined in’ national constitutional traditions, and the explanations to Arts 17, 20 and 37 state that the rights in question are ‘common to’, ‘included in’ or draw on national constitutions, without a cross-reference to Art 52(4). Some of these explanations also state that the rights in question correspond to the ECHR.

⁹⁰ See the opinions in KME Europe, above n 47, para 9, Akzo, above n 31, paras 92–96 ff and Bavarian Lager II, above n 28, para 100. See also the judgments of the General Court, above nn 37–39.

⁹¹ The opinion in Case C-75/08 Mellor [2009] ECR I-3799 referred to Art 52(5) (at n 13 of the opinion) without further explanation. On Art 52(5), see, inter alia, Hilson, C, ‘Rights and Principles in EU Law: A Distinction Without Foundation?’ (2008) 15 Maastricht Journal of European and Comparative Law 193 CrossRefGoogle Scholar.

⁹² See the opinion in European Air Transport, above n 85, para 78, as regards Art 37 of the Charter.

⁹³ For instance, as regards the Working Time Dir, see Cases: C-486/08 Zentralbetriebsrat der Landeskrankenhäuser Tirols, judgment of 22 April 2010, para 28; C-428/09 Isere, judgment of 14 October 2010, para 36; Fuß above n 28, para 33; and C-429/09 Fuß, judgment of 25 November 2010, paras 33 and 49 (none yet reported). The Court could instead have referred to Art 31(2) of the Charter.

⁹⁴ Above n 28, para 38.

⁹⁵ Para 43 of the judgment (ibid) ff. Cf the approach taken by the Court in Laval and Viking Line, above n 18, as regards limitations on the right to strike, as well as the opinion in Case C-515/08 Palhota, judgment of 7 October 2010, not yet reported, paras 51–54. See now Joined Cases C-297/10 and C-298/10 Hennigs, pending, on the conflict between Art 28 and the non-discrimination right in Art 21 of the Charter.

⁹⁶ DEB above n 28; see the discussion of Art 52(3).

⁹⁷ See the opinions in KME Europe, above n 47, paras 8 and 9 and European Air Transport, above n 85, para 79, which expressly follows the DEB judgment. So does (implicitly) the opinion in Case C-391/09, Runevic-Wardyn (pending; opinion of 16 December 2010), para 77, which also expressly refers to the explanations as regards consistency with the rules on limitations of rights in the ECHR. The opinion in Sayn-Wittgenstein above n 28 also confirms the latter point, at para 10. See also n 148 of the opinion in Ruiz Zambrano, above n 28.

⁹⁸ Volker and Schecke, above n 28; see the discussion of Art 52(3).

⁹⁹ On Art 53 generally, see, eg, J Liisberg, Does the EU Charter of Fundamental Rights threaten the supremacy of Community Law? Article 53 of the Charter: A Fountain of Law or Just an Inkblot? (Jean Monnet working paper 4/2001, available at http://centers.law.nyu. edu/jeanmonnet/papers/papersl).

¹⁰⁰ See also para 80 of the opinion in European Air Transport, above n 85, which claims that pursuant to Art 53, an interpretation of the ECHR by the Strasbourg Court ‘binds the European Union and must be taken into account by the Court of Justice’.

¹⁰¹ Volker and Schecke and Test-Achats both above n 28.

¹⁰² See the opinions in: Aguirre Zarraga, para 37; McB, para 54; Commission v Germany, para 79 and particularly n 36; Test-Achats, para 30; and Ruiz Zambrano, para 61, all above n 28.

¹⁰³ See Kadi, above n 18, in which the Court in effect held that the prior Art 6(2) TEU took priority over other Treaty provisions in the event of a conflict. Following this approach, it would not be necessary to find that any Treaty provision would be invalid in light of the Charter.

¹⁰⁴ For further discussion, see Peers, S, ‘The Future of EU Treaty Amendments’ (2011) 30 Yearbook of European Law (forthcoming)Google Scholar.

¹⁰⁵ EP v Council, above n 13.

¹⁰⁶ Para 19 of the judgment, above n 28 (emphasis added).

¹⁰⁷ Para 20, ibid.

¹⁰⁸ See further Peers, S, ‘Supremacy, Equality and Human Rights: Comment on Kücükdeveci ’ (2010) 35 European Law Review 850 Google Scholar.

¹⁰⁹ For more on this debate, see: Dougan, above n 58, Peers (ibid); and E Spaventa, ‘The Horizontal Application of Fundamental Rights as General Principles of Union Law’ in Arnull, et al (n 58 above).

¹¹⁰ Further questions on the legal effect of human rights rules are pending in Hennigs, above n 95. However, the Court of Justice appeared anxious not to rule on this issue in its judgment of 10 March 2011 in Case C-109/09 Deutsche Lufthansa (not yet reported).

¹¹¹ Solange [1987] 3 CMLR 225.

¹¹² cfCalleweart, J, ‘The European Convention on Human Rights and European Union Law: a Long Way to Harmony’ (2009) 6 European Human Rights Law Review 273 Google Scholar; Lawson, R, ‘ Ex Boreale Lux: On the Influence of the ECJ on the interpretation of the ECHR’, in Bulterman, M et al (eds), View of European Law from the Mountain (Dordrecht, Kluwer, 2009)Google Scholar.

¹¹³ See de Búrca, G, ‘The Evolution of EU Human Rights Law’, in Craig, P and de Búrca, G (eds), The Evolution of EU Law 2nd edn (Oxford, Oxford University Press, 2011)Google Scholar.

¹¹⁴ See also the judgment of 28 January 2011 of the European Court of Human Rights in MSS v Greece and Belgium (not yet reported), which is less a nudge than a shove in such a direction.

¹¹⁵ Cf the impact of the Test-Achats judgment on the proposed anti-discrimination dir (COM (2008) 426, 2 July 2008) There might of course be a similar impact on the derogations from other existing EU legislation, for instance the working time directive.

¹¹⁶ See de Búrca, above n 112.

¹¹⁷ Cf, N Rockwell: ‘The Problem We All Live With’, oil painting for LOOK Magazine, 14 January 1964, concerning the implementation of the obligation to desegregate schools as required by Brown v Topeka Board of Education.