Edited by Mark Dawson, Bruno De Witte and Elise Muir
Chapter 5: The Court of Justice: a fundamental rights institution among others
The timing of the conference at which the contents of this chapter was presented coincided with an extraordinary meeting of the Council of Europe’s Steering Committee for Human Rights (CDDH) on the shape of the novel system for the protection of fundamental rights in Europe. The CDDH examined the draft agreement for the accession of the European Union (EU) to the European Convention on Human Rights (ECHR), prepared in informal meetings of some of its members with the European Commission. Among the key questions at the core of this proposal lies the future position of the Court of Justice of the European Union (CJEU) in the system hereby designed. The role of the Court of Justice for the protection of fundamental rights in the EU legal order is not a novel topic. It has been much discussed, and for many years. If one defines judicial activism as judicial decisions going beyond the legal framework created by ‘political institutions’, the Court’ traditional case law on fundamental rights is a prime example of judicial activism. It is indeed largely accepted that the Court asserted the constitutional importance of fundamental rights in the EU legal order despite the original will of the Treaty makers. The Court thereby shaped its institutional profile in two ways. It confirmed its position as a guardian of the ‘constitutionality’ of EU acts thereby enhancing its authority over other EU institutions.
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