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La garantie juridictionnelle des droits fondamentaux communautaires – La Cour de justice face à la Communauté de droit

Abstract : As European construction has not resulted in a single European State, the judicial guarantee of fundamental rights can only be original: its foundation does not obey state-centric behaviour. If the Court of Justice was able to identify the existence of a Community of law, the elements of this Community remain singular by reason of inferred surjection of "communitarity" between national and EU norms of application. Moreover, as they are not a systematic feature of a Rule of law, fundamental rights have not been considered as an attribute of this Community of law. The Court was therefore under no obligation to recognize such rights. It has nevertheless acquired the legitimacy to do so, under the influence of national judges, later confirmed by the member states. Although concerned about respecting its mission, even enriched, the Court cannot take the place of EU “constitutive power” to compensate for its shortcomings.
However the Court was not at fault to balance the guarantee of fundamental rights. On the one hand, it has adopted a constructive behaviour by developing both aspects of rights protection. As our statistical trends show, rights have been enlarged. Their guarantee has also been optimised by the dialogue process between judges undertaken by the Court. On the other hand, the Court was able to suggest constructive perspectives to support its efforts. The European Constitution treaty project also contains some major revolutions: the insertion of fundamental rights into the foundations of EU construction, and the adaptation of the place of the individual in adequacy with deeper construction. For the time being, some evolutions remain possible. Their success is nevertheless conditional on the corresponding adaptation of mentalities – especially those of national judges – which has already been stimulated by the preparation of the aforementioned treaty project. The dialogue between judges promises to remain fascinating...
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Contributor : Emilie Deal <>
Submitted on : Thursday, April 10, 2008 - 4:18:18 PM
Last modification on : Friday, January 15, 2021 - 9:21:04 AM
Long-term archiving on: : Thursday, May 20, 2010 - 11:14:33 PM


  • HAL Id : tel-00271970, version 1



Emilie Deal. La garantie juridictionnelle des droits fondamentaux communautaires – La Cour de justice face à la Communauté de droit. Droit. Université de droit, d'économie et des sciences - Aix-Marseille III, 2006. Français. ⟨tel-00271970⟩



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