Malu Beijer, Limits of Fundamental Rights Protection by the EU. The Scope for the Development of Positive Obligations, INTERSENTIA, 2017
The concept of positive obligations is familiar to various legal systems which seek to protect fundamental rights. This concept means that states are required to take active measures to protect fundamental rights, such as, for example, adopting a general legal framework to regulate same-sex relationships in order to ensure protection of the right to private life. In Europe, positive obligations have, in particular, been developed in the case-law of the European Court of Human Rights (ECtHR) from the 1970s onwards. The ECtHR has explained that positive obligations are necessary to ensure that fundamental rights are of practical value and effective for everyone.
The ECtHR is not the only supranational court in Europe that protects fundamental rights. The Court of Justice of the European Union (ECJ) also protects fundamental rights within the scope of EU law. So far, no concept of positive obligations has been developed by this Court, and the question has been asked whether such a development can indeed occur under EU law. After all, the EU is a rather special international organisation which has specific, mainly economic, interests to protect. It is also unclear whether the EU has competence to undertake regulatory action to actively protect fundamental rights.
Based on the insights obtained from the development of positive obligations by the ECtHR, this volume analyses whether and how positive obligations could be incorporated into EU law. The relevant provisions laid down in the EU Treaties and the EU Charter, the case-law of the ECJ and the specificities of the EU system are studied to find out where there is scope for recognition of the concept of positive obligations under EU law, and what limitations would apply to this.
Chapter 1. Introduction (p. 1)
PART I: THE CONCEPT OF POSITIVE OBLIGATIONS WITHIN THE CONTEXT OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
Chapter 2. The System of Fundamental Rights Protection Under the European Convention on Human Rights (p. 19)
Chapter 3. The Development of Positive Obligations Under the European Convention on Human Rights (p. 37)
Chapter 4. A Critical Appraisal of the Development of Positive Obligations Under the European Convention on Human Rights (p. 71)
Chapter 5. Part I – Conclusions (p. 99)
PART II: THE SCOPE FOR THE DEVELOPMENT OF POSITIVE OBLIGATIONS WITHIN THE CONTEXT OF EU LAW – AN ANALYSIS OF THE SPECIFIC PARAMETERS OF THE EU LEGAL ORDER AND THE EU SYSTEM OF FUNDAMENTAL RIGHTS PROTECTION
Chapter 6. Main Principles of the EU System of Fundamental Rights Protection (p. 109)
Chapter 7. The Institutional Characteristics and Judicial Culture of the ECJ (p. 137)
Chapter 8. EU Competences and Subsidiarity in Fundamental Rights Protection (p. 179)
Chapter 9. The Limited Scope of Application of EU Fundamental Rights (p. 221)
Chapter 10. Part II – Conclusions (p. 247)
PART III: SYNTHESIS
Chapter 11. The Development of Positive Obligations within the Context of EU Law: Overview and Evaluation of the Case-Law of the ECJ (p. 263)
Chapter 12. Conclusions and Recommendations (p. 295)
Bibliography (p. 319)