Locus Standi - Knocking on Heavens Door

University essay from Lunds universitet/Juridiska institutionen

Abstract: This thesis will clarify the notion of individual concern and its use by the ECJ, through an analysis of case law and a Lockean analysis of the EU. The thesis takes it outset in the case law of the ECJ and will show, through a thorough analysis of a selected part of the case law, that this is inconsistent and unstable, leaving individuals with legal uncertainty and little hope of accessing the CFI and the ECJ. What is certain about the case law is that it is restrictive. Even though the case law in recent years has developed to the benefit of the individual, with the abandoning of the abstract terminology test, individual still have to fulfil the requirements in the Plaumann test, i.e. the test for individual and direct concern. The notion of rights in the Community is analysed in order to establish certainty about the right to effective judicial protection, and that this right is in fact a fundamental right that requires a substantial protection in the Community legal order. In the process of determining the status of the right to effective judicial protection, the ECHR and CFR are used in connection with legal philosophical perspectives in order to prove the justification of deeming the right fundamental. Through a Lockean analysis of the Union and the importance of locus standi, the thesis stresses the importance for further protection of the right to effective judicial protection. In a Lockean perspective the right to effective judicial protection and the right to access to an impartial judge, form the corner stones of a political society. Without access to an impartial judge, the society dissolves itself since individuals are left with no way of safeguarding their natural rights, which they have in their capacity of being and existing, rights that also exist in the state of nature, and the key reason why individuals left the state of nature and signed a social contract, to obtain protection of their natural rights and the fundamental norm of human survival. If individuals are left with no remedy for legal protection, they have no appeal on earth and thus, individuals are left with appeal to heaven, which in the Lockean theory is revolt towards the arbitrary system. In a political society this revolt will usually take place in a democratic way, but if relief cannot be obtained through democratic means, then even brutal revolt can be justified. It is shown that the current position of locus standi is dissatisfactory, and that individuals for the time being, arguably, may be said to knock on the doors to heaven in order to obtain satisfactory safeguarding of their rights.

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