Topics: European Union, Treaty of Lisbon, European Parliament Pages: 19 (5447 words) Published: April 4, 2014




he concept of fundamental rights
protection according to the modern
political thought is considered as setting
boundaries to the political power. The establishment of the European Union as a sui generis creation that goes beyond the boundaries of the
traditional concept of the nation-state has created
a new challenge: how to protect the fundamental
rights in a community whose priorities are dominantly economic. The necessity to provide proper protection for the fundamental rights in the EU
has gradually transformed the priorities from
economic into political ones.
In the beginning the European Court of Justice had a key role to provide fundamental rights protection by its judicial activism because the
Founding Treaties did not contain any provisions
on this issue. Later, as a result of the active role of
the Court, the fundamental rights were declared
as general principles of the EU law. By resolving

The author is a teaching
assistant at the Faculty of
Law “Iustinianus Primus”
and a PhD candidate in
Constitutional Law



different cases, the ECJ has creates a catalogue of human rights that later was included in the EU Charter of Fundamental Rights.
The Charter of Fundamental Rights, although adopted at the Nice European Council in December 2000, it became legally binding for the first time when the Treaty of Lisbon entered into force in December 2009. The need to adopt its own, legally binding catalogue of fundamental rights of the European Union was doubtless. The enforcement of the Charter has resulted with benefits for the EU citizens. Today, the public interest for the Charter is increasing, together with its practical application. Pre-Lisbon Treaty Fundamental Rights Protection

in the European Union: Judicial Activism
The European Union Treaties signed in the 1950’s did not contain any provisions that in particular concerned the fundamental rights protection of the citizens of the Union. It took more than fifty years before the Union adopted a legally binding document that strengthened and enhanced the protection of the fundamental rights. In the meantime, the mechanism for fundamental rights protection of the Union was slowly developed by the European Court of Justice (ECJ). The Court, in its judgments, began to monitor the respect for fundamental rights shown by the Community institutions and Member States when acting in the areas covered by the Community law. By that, the judicial activism of the ECJ has been developed. The concept of “judicial activism” has been introduced in the common law legal system of the U.S. and its definition has been controversial and never clearly précised by the beginning. The term “judicial activism” was introduced for the first time by Arthur Schlesinger Jr. in Fortune magazine article published in January 1947, although the idea has been present many years before. The article referred to the Supreme Court activity in the U.S. and by then the term has been used in many different publications. According to U.S. Legal, judicial activism is the views that the Supreme Court and other judges can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges’ own visions regarding the needs of contemporary society. This common law concept refers to the role of judges that has been changed and goes beyond ordinary interpretation of the legal norms. By the creative interpretation of the existing legal norms, the judges make law and create legal basis for certain decisions. The most striking examples of judicial activism by the U.S. Supreme court are Brown v. Board of Education (1954) when the Court ordered desegregation of public schools in the U.S. and Roe v. Wade (1973) case when the Supreme Court

Protection of fundamental rights in the EU: the binding EU...


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Williams, A. (2004).‘The Invention of Human Rights in the Commu���������������������������������������������������
nity’, in EU Human Rights Policies, A Study in Irony
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Protection of fundamental rights in the EU: the binding EU...
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