The shoe that does not drop – invalidity of State measures for breach of the Charter

Eleven years after it came into force, the Charter of Fundamental Rights is still on probation. It is used occasionally to annul EU acts and double-down on state measures that are already EU-illegal under other EU provisions. However, the Court of Justice has never used the Charter alone as a standard of review for state acts. What appeared as a latency problem hinging on the obscurity of Article 51(1) CFR now emerges as a more unsettling story. The Court has no intention to wield the Charter against member states. Conversely, domestic courts could use it to set domestic measures aside, but do not dare to do so. After a decade, the Court’s hesitation infected domestic courts, which are left without guidance. Does this scenario reflect a tacit understanding between the masters of the treaties or an accidental deadlock? The communication breakdown between Luxembourg and the member states could be a strategy or an accident, and is defusing the Charter’s effect on State measures.