"The Language of Rights and European Integration"

de Burca, Grainne. (1995) "The Language of Rights and European Integration". In: UNSPECIFIED, Charleston, South Carolina. (Unpublished)

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Abstract

This paper examines the language of rights as it appears within Community law, and looks at the varying contexts in which it is used, since different observations may be made about these different contexts. I will focus not only on the "fundamental rights" declared and constituted by the Court of Justice as part of the general principles of Community law, but on the language of rights more widely as used throughout the Community legal system, by the institutions in the legislative process, and in the application of Community law to the Member States. This will include not just those rights which have been declared by the Court to have fundamental or "constitutional" status, but also those rights which are created, conferred or declared by Community legislative and other measures. Indeed, the legislative rights which are created at Community level generally acquire a form of constitutional status at the national level where they take priority over national law. This also entails consideration of those areas of Community law in which the language of rights has, perhaps surprisingly, not figured very largely or at all. What is particularly of interest is why the language of rights has come to be used so widely within these areas of Community law, and why it continues to be expanded and developed by the judicial and political institutions. Two partial explanations will be suggested, which focus on how that language is perceived as both a legitimating and an integrating force. Finally, I wish to consider what impact that language may have in reality, and whether a more critical or even sceptical approach is called for.

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