When It Comes to Fundamental Rights: Can the Court Be Too Active? Essay

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Essay “The Court of Justice of the European Union is taking fundamental rights too seriously” EU Constitutional Law Urte Armonaite 2014-01-19 Umeå University When It Comes to Fundamental Rights: Can the Court Be Too Active? It all started with an economic community. Treaty by treaty member states became more and more integrated, which made economic community develop into a sui generis (or, as one might argue, “supranational”) organization. Community, or now the Union, guaranteed basic (European) liberal freedoms such as free movement of goods, services, persons and capital, although treaties did not pay much attention to the protection of fundamental rights. These rights were developed mostly in the decisions of the Court of Justice of the European Union (CJEU). Currently, The Charter of Fundamental Rights of The European Union (CFR) provides the catalog of Union’s fundamental rights, which are becoming more and more significant inside the Union. Nevertheless, with more integration came more uncertainty (for Member States as well as for persons) regarding these rights, their application and interpretation. As a rule, basic human rights are primarily codified in the state’s constitutions and being interpreted by the constitutional courts (or by the equivalent courts). But if the Union is not formally a state and does not have a Constitution, it is not clear who has the last word when it comes to interpreting fundamental rights. Even if we agree on the role of the EU, its main treaties and institutions in protecting human rights, the more important question remains – can the courts be accused of being too active interpreting the rights, which are so nobly titled as being “fundamental”? There are a lot of debates on what the EU really is – a federal state, a federation of states, if a state at all1. How one defines the Union mostly depends on one’s point of view,

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