This article examines the evolving interaction between free movement law and the Charter of Fundamental Rights in ‘derogation situations’ where Member States must comply with fundamental rights when justifying restrictions on free movement. It shows that the recent case law of the Court of Justice of the European Union reveals two significant trends: the increasing cumulative application of substantively overlapping norms, leading to normative layering, and a growing autonomy of fundamental rights review, particularly through the identification of separate infringements in infringement proceedings. The article addresses two central questions: when, and how, should free movement provisions and fundamental rights be applied cumulatively in such situations? It argues that cumulative application is justified only where the norms are substantively distinct and fulfil a genuine diagnostic function, in line with the lex specialis logic reflected in Article 52(2) of the Charter. It also highlights the emergence of a more symbolic use of EU law provisions, notably Article 2 TEU. The article concludes by proposing a more structured methodological framework to guide the Court’s reasoning, particularly as regards the scope of ‘derogation situations’ under Article 51(1), the conduct of justification and proportionality review, and the formulation of findings of infringement.
Common Market Law Review