Brevi note sulla giurisprudenza sull’art. 52, par. 1 della carta dei diritti fondamentali dell’ue in materia di limitazioni ai diritti fondamentali …con uno sguardo in avanti

Article 52(1) of the Charter of fundamental rights of the EU lays down strict requirements for the admissibility of limitations to the rights and freedoms recognized thereby. The Court of Justice of the EU has started to deal with this issue already before the advent of the Charter and before it acquired, with the Lisbon Treaty, the force of primary law in the EU legal order. The Luxembourg Court has refined its approach over time moving from the first pioneering cases, which essentially regarded limitations of fundamental rights in the context of the functioning of the internal market, to new problems arising out of the exercise by the EU of more recently acquired competences. The reasoning framework regarding restrictions to fundamental freedoms has been adapted for the analysis of limitations to fundamental rights, while the latter have been recognized as providing grounds for restrictions to freedoms of movement. This interplay has originated an interesting case-law, paving the way for more recent developments related to EU competences other than the internal market. Legal certainty on the guarantees enshrined in Article 52(1) of the Charter of fundamental rights cannot be intended strictly. In fact, a case-by-case approach, although with reference to a sound elaboration on the basic criteria, is the best-suited to deal with limitations for fundamental rights. Furthermore, judges should always be granted room for manoeuvre to carry out a balancing exercise in particular when the protection of different fundamental rights is at stake. However, legal certainty in this field also depends on the clarity of the case-law regarding the interpretation of the criteria laid down in the provision at issue. While the Court of Justice can rely on a good experience in the application of criteria like the respect of proportionality and it has started to explore issues like the relevance of national procedural rules in the context of limitations of fundamental rights, further elaboration seems to be needed as far as the application of other criteria is concerned. Actually, the issue of the respect of the essence of rights and freedoms, required by Article 52(1) of the Charter of fundamental rights, has just been touched upon by the Luxembourg Judges and it deserves more attention by the legal doctrine, too, with a view to provide a reliable guarantee. This and other issues will have to be addressed in the upcoming jurisprudential production of the Court of Justice, which is increasingly called upon to state on the admissibility of limitations to fundamental rights, especially by national judges via preliminary references, and a new strain of case-law is promising to come out of questions raised with reference to limitations imposed to fight the COVID-19 pandemic.