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- Title
Active Guidance of Fundamental Rights Protection by the Court of Justice of the European Union: Exploring the Possibilities of a Positive Obligations Doctrine.
- Authors
Beijer, Malu
- Abstract
The protection of fundamental rights may, in addition to the primary obligation for states to refrain from interfering with an individual's rights, require positive action to be undertaken by public authorities. The development of positive obligations is well known from the case law of the European Court of Human Rights (ECrtHR). Could such a development also take place within the case law of the Court of Justice of the European Union (CJEU), considering that it must protect the same range of fundamental rights? If so, in which areas of European Union (EU) law does this occur? And how does this relate to the limits that have been placed on the protection of fundamental rights by the EU, especially on the basis of the principle of attributed powers? This article aims to discuss various procedural as well as some material positive obligations, which have been developed in the case law of the CJEU, that also amount to certain positive obligations. It will be examined how these obligations relate to the various limits laid down in EU law, particularly those which aim to prevent the expansion of EU powers. While there is a certain basis laid down in EU law for imposing procedural as well as material positive obligations, this article suggests that the CJEU may further draw inspiration from the case law of the ECrtHR in dealing with this concept.
- Subjects
CIVIL rights; COURT of Justice of the European Union; OBLIGATIONS (Law); EUROPEAN Court of Human Rights; EUROPEAN Union
- Publication
Review of European Administrative Law, 2015, Vol 8, Issue 2, p127
- ISSN
1874-7981
- Publication type
Article
- DOI
10.7590/187479815X14465419060424