The Role of the European Court of Justice in the Protection of Fundamental rights - A Satisfactory System of Human Rights Protection ?

Abstract: The Court of Justice's ability to enforce a satisfactory system of human rights protection for the European Union has been questioned over the years and still is today. For, despite the changing and increasingly improved status of fundamental rights within the Community legal order, the development of the general principles doctrine and fundamental rights are subject to a number of criticisms. On the basis of these criticisms, the aim of this thesis is to make an evaluation of the performance of the European Court of Justice in the protection of fundamental rights within the Community legal order to see whether it provides for a satisfactory system of human rights protection. The concerns are rooted in the organisation's initial lack of a standard of human rights protection as well as the original focus on economic integration and the creation of the common market. On a philosophical level, the core issue of the thesis is the dilemma of whether the Court of Justice in its protection of fundamental rights gives preference to principles, i.e. the rights of individuals, or policy, i.e. the collective goals of the Community. On a preliminary note, a perspective that is always a burning issue when litigating human rights is the question of access to justice. In this respect, the ECJ is criticised for not providing adequate mechanisms for litigation fundamental right violations. The criticism is in particular levelled against the restrictive standing regulations for individuals. Notwithstanding the codification of the general principles doctrine, it has been contended that the jurisprudential and unwritten nature of the solution adopted by the ECJ is lacking in legal certainty as well as in democratic legitimacy. Further criticisms of the general principles doctrine concern the standard of protection in addition to the status of the general principles in the Community hierarchy of norms. The economical aspects of the criticisms that have been levelled against the ECJ include, in essence, scepticism regarding the Court privileging the economic integration goals of the Community at the expense of fundamental rights. The conclusions drawn from the examination of the subject matter of this thesis is that Court of Justice allows itself considerable freedom and flexibility in the definition and application of fundamental rights. Additionally, while the moral basis for the Community protection of rights is principles, the problem is that the Court of Justice actually deals with policy. In other words, while the high rhetoric of the Community fundamental rights protection is anchored in the individual and the rights of individuals, in practice it is the collective goals of the Community and the general interest of the society as a whole that steer the Court of Justice in its decisions. As a result, it can be concluded that the Court of Justice offers a satisfactory fundamental rights protection for Community purposes. However, it does not offer a satisfactory system for the protection of human rights.