HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

notable that the ECJ did not integrate the Charter into its reasoning and conclusion, giving the Charter merely an ornamental function. However, it is fair to say that the case considered interpretation of Directive 2004/38 15 and that the ECJ was able to give a sufficient answer without widening its argumentative field. In Dereci the Charter played a more important role, becoming part of the actual legal reasoning. 16 The ECJ explicitly stated that one legal question to be solved was the right to family life, a right embedded in Article 7 of the Charter. The ECJ looked at the issue at hand from a “Charter-perspective”. Finally, in Iida the Charter was mentioned not only in the reasoning but also in the conclusion of the ECJ. 17 The ECJ faced a question of whether the fact that a third-country national was not granted a residence card of a family member of a Union citizen violated the right to respect for private and family life and the rights of the child, as laid down in Articles 7 and 24 of the Charter. The ECJ hold that this situation was not governed by EU law; thus, the Charter was inapplicable. 18 However, the important thing is not the conclusion reached, but the fact that the Charter was considered. Moreover, even the court asking the preliminary question did formulate its questions in relation to the Charter. So, it can be said that the Charter has made its way into the judgments of the ECJ. An interesting observation was made prior to these cases. Between 2009 and 2012 (that is from the moment that the Charter came into force) the ECJ referred to the Charter in 159 cases. 19 Although, as shown above, the Charter did not come into play in all significant citizenship cases, it has at least become a relevant legal document, whose applicability should be considered ( Iida ). This fact should be appreciated because it makes the ECJ arguments more complex and persuasive. Not only does it show a willingness to give due regard to human rights, thus not avoiding available human rights document, but it also adds another layer of legal argumentation. Even though I would assume that this opportunity has not been fully seized yet, I strongly believe that it can provide “value-based” legal reasoning. This has the potential to be an instrument that could connect the dots in the ECJ cases by bringing more legal certainty (so that the ECJ would not have to rely on legal principles alone, but also on written document, thus avoiding the fragmentary character of human rights 15 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. 16 Dereci, paragraph 70–72. 17 Iida, paragraph 78–81. 18 Iida, paragraph 81. 19 122 references were made by the Court of Justice, 37 references were made by the General Court. See DE BÚRCA, Gráinne. After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator? Maastricht journal of European and comparative law. [online]. 2013, edit. 20, no. 2, p. 168–184. Available at: https://doi.org/10.1177/1023263X1302000202. p. 169.

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