'Effective Judicial Protection' of Human Rights after Lisbon: Should National Courts Be Empowered to Review EU Secondary Law?
University of Oxford - Faculty of Law
June 26, 2010
European Law Review, Vol. 35, pp. 326-348, 2010
Oxford Legal Studies Research Paper No. 52/2010
The article carries out a structural assessment of the EU system of protection of human rights after the entry into force of the Treaty of Lisbon. It compares the method of protecting human rights in EU law before and after Lisbon, and argues that the question of whether amendments introduced by the new Treaty ensure that the system of protection is complete cannot be answered unequivocally. It is only when the Court of Justice has had the opportunity to interpret art.275 TFEU that we will be able to determine whether all gaps in protecting human rights have been filled. Thus, the article advocates a return to the proposition made by A.G. Mengozzi in Gestoras and Segi as a solution to the potential problem of “incompleteness” of remedies. It explains that recognition of national courts’ power to review EU secondary-law not only complies with the existing doctrine but also improves the status of human rights in EU law and, despite suggestions to the contrary, leaves the position of the Court of Justice as the sole judicial arbiter of Union law intact.
Number of Pages in PDF File: 35
Keywords: Effective Judicial Protection, EU Law, Human Rights, European Court of Justice, National Courts, Supremacy of EU LawAccepted Paper Series
Date posted: June 27, 2010 ; Last revised: October 31, 2011
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