Techreport,
'Right to an Effective Remedy': Judicial Protection and European Citizenship
SSRN Scholarly Paper, ID 580783. Social Science Research Network, Rochester, NY, (August 2004)
Abstract
An individual's right to an effective remedy has long been seen as a fundamental right. Now entrenched in the Charter of Fundamental Rights and incorporated into the draft Constitution, this right is of necessity tied to the ongoing issue of individuals' access to the European Court of Justice and the Court of First Instance. In recent case law, notwithstanding arguments to the contrary from the CFI and Advocate General Jacobs, the ECJ was reluctant to take the concept of a 'right to an effective remedy' as a legitimation for expanding individual standing before the Court. The Convention addressed the issue, and the changes wrought by the draft Constitution - particularly the inclusion of Article I-28 and the rewording of Article III-270 - should improve the individual's situation in the EU legal system. However, the way in which these rights have been provided in the draft Constitution - by continued preference for the national legal systems - has negated the opportunities that many saw for expanding or redefining European citizenship through the reassessment of individual access and thus raises questions about judicial subsidiarity and the future of the ECJ as an integrationist influence within the EU.
