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dc.contributor.authorCOGHLAN, Niall
dc.identifier.citationMichael-James CLIFTON, Suzanne RAB and David SCOREY KC (eds), Building bridges in European and human rights law : essays in honour and memory of Paul Heim CMG, Oxford : Hart Publishing, 2024, pp. 153-182en
dc.descriptionPublished online: 29 January 2024en
dc.description.abstractTwo decades old and one decade in force, the Charter of Fundamental Rights of the European Union (CFR, Charter) remains in its infancy. The shape and effect of its provisions are still, for the most part, nascent. That is particularly true of the ‘new’ rights that are conventionally cited as proof of the Charter’s innovative nature, such as the right to data protection (Article 8) and the right to integrity of the person (Article 3). In this context, the Explanations to the Charter appear to provide much-needed clarity. Primary law requires that courts give ‘due regard’ to these Explanations in interpreting the Charter, and they seem to provide two things: a reliable map of the roots of the Charter rights, and a stake against which the drafters intended those sprouting saplings to grow. Writing in 2020, the President of the Court of Justice of the European Union (CJEU) and José A. Gutiérrez-Fons asserted that the Explanations’ interpretative value exceeded that of travaux préparatoires, that the authors of both the Lisbon Treaty and the Charter itself ‘insisted on their importance’ and that it would be ‘very difficult, if not impossible, for the Court to go against the Explanations’. This chapter will argue that, at least in some cases, the Explanations’ clarity is a mirage. It will do so by focusing on the right to integrity referred to above. Section II will sketch the history of the Charter and the claimed basis of the authority of its Explanations. Section III will critically analyse the interpretation of Article 3 in light of this claimed authority. It shows that the clarity the Explanations appear to provide is misleading in different ways as to the three points I consider: whether Article 3 contains principles; the roots and shape of the eugenics prohibition; and the shape of the commercialisation prohibition. Section IV will then revisit the history and legal status of the Explanations, arguing that they require critical analysis and are, at least in some cases, of limited weight. Lenaerts and Gutiérrez-Fons’s different view is premised on historical and legal misunderstandings. The Conclusion will briefly touch on broader questions as to the status and legitimacy of soft law in the Union legal order.en
dc.publisherHart Publishingen
dc.titleBridge to nowhere : the right to integrity and the accuracy and weight of the Charter explanationsen
dc.typeContribution to booken

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