Internal Market Derogations in Light of the Newly Binding Character of the EU Charter of Fundamental Rights

Abstract

This chapter tackles the ever increasing need for EU institutions to reconcile fundamental rights with the fundamental freedoms set by the founding treaties. The tendency to subordinate the former to the latter is apparent from the case-law of the Court of Justice in which, notwithstanding the development of a system of protection of fundamental rights, there is a general failure to grant them hierarchical priority. On the other hand, the transformation of the EU Charter of Fundamental Rights from a mere political declaration to binding primary law is believed to grant constitutional force to fundamental rights, placing them on a par with the fundamental economic freedoms enshrined in the Treaty on the functioning of the European Union. The author suggests that the Charter may lead the ECJ to a revirement jurisprudentiel triggering the development of case-law based on an equal balancing of fundamental rights and economic freedoms.