The Court of Justice of the European Union as a Fundamental Rights Tribunal: Challenges for the Effective Delivery of Fundamental Rights in the Area of Freedom, Security and Justice

CEPS Papers in Liberty and Security in Europe, No. 49, August 2012

29 Pages Posted: 15 Sep 2012

See all articles by Sergio Carrera

Sergio Carrera

Centre for European Policy Studies

Marie De Somer

Independent

Bilyana Petkova

University of Graz - Faculty of Law; Yale University - Yale Information Society Project

Date Written: August 29, 2012

Abstract

This paper reflects on the challenges facing the effective implementation of the new EU fundamental rights architecture that emerged from the Lisbon Treaty. Particular attention is paid to the role of the Court of Justice of the European Union (CJEU) and its ability to function as a ‘fundamental rights tribunal’. The paper first analyses the praxis of the European Court of Human Rights in Strasbourg and its long-standing experience in overseeing the practical implementation of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Against this analysis, it then examines the readiness of the CJEU to live up to its consolidated and strengthened mandate on fundamental rights as one of the prime guarantors of the effective implementation of the EU Charter of Fundamental Rights. We specifically review the role of ‘third-party interventions’ by non-governmental organisations, international and regional human rights actors as well as ‘interim relief measures’ when ensuring effective judicial protection of vulnerable individuals in cases of alleged violations of fundamental human rights. To flesh out our arguments, we rely on examples within the scope of the relatively new and complex domain of EU legislation, the Area of Freedom, Security and Justice (AFSJ), and its immigration, external border and asylum policies. In view of the fundamental rights-sensitive nature of these domains, which often encounter shifts of accountability and responsibility in their practical application, and the Lisbon Treaty’s expansion of the jurisdiction of the CJEU to interpret and review EU AFSJ legislation, this area can be seen as an excellent test case for the analyses at hand. The final section puts forth a set of policy suggestions that can assist the CJEU in the process of adjusting itself to the new fundamental rights context in a post-Lisbon Treaty setting.

Keywords: JHA, AFSJ, CJEU, EU Charter of Fundamental Rights, The Court of Justice of the European Union, fundamental rights, freedom, security, justice

Suggested Citation

Carrera, Sergio and De Somer, Marie and Petkova, Bilyana, The Court of Justice of the European Union as a Fundamental Rights Tribunal: Challenges for the Effective Delivery of Fundamental Rights in the Area of Freedom, Security and Justice (August 29, 2012). CEPS Papers in Liberty and Security in Europe, No. 49, August 2012, Available at SSRN: https://ssrn.com/abstract=2145891

Sergio Carrera (Contact Author)

Centre for European Policy Studies ( email )

1 Place du Congres
B-1000 Brussels, 1000
Belgium
+32 2 229 39 26 (Phone)

Marie De Somer

Independent

Bilyana Petkova

University of Graz - Faculty of Law ( email )

Austria

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

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