No longer gatekeeper: Why the European Commission provides access to justice for civil society organisations

Hofmann, Andreas (2015) No longer gatekeeper: Why the European Commission provides access to justice for civil society organisations. [Conference Proceedings] (Submitted)

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Abstract

Introduction: One of the characteristic features of European Union law is its emphasis on rights. Over time, the EU has steadily evolved to become a distinctly rights-based polity. The origin of this development was the founding members’ focus on the four ‘market freedoms’, which were interpreted as fundamental rights: a right to free movement of goods, persons, services and capital. More recently, additional rights have been particularly pronounced in the area of non-discrimination. The foundational principle, the prohibition of discrimination based on nationality (now art. 18 TFEU), was first extended to equality between men and women, and later to all discrimination based on sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation racial or ethnic origin, religion or belief, disability, age or sexual orientation (art. 21 of the Charter of Fundamental Rights). Other rights have been formulated in areas like environmental or consumer protection. Increasingly, measures pertaining to social policy have been incorporated in this “rights revolution” (Mabbett 2011). ! 1 By virtue of its superiority and direct effect, EU law now vests its subjects with a wide array of rights that are directly enforceable – individual citizens can use EU law against their own national authorities. That rights are enforceable does of course not mean that they are self-enforcing. Rights have to be activated – claimed – in face of alleged infringements, and their nature is frequently in dispute. The EU provides a comprehensive system for rights vindication and dispute resolution, based on its own judicial bodies and the judicial systems of the member states. This enforcement mechanism has frequently been identified as the major source of the expansion of EU rights: private litigants claim rights derived from EU law against their national authorities before national courts who refer such questions to the Court of Justice of the European Union (CJEU). The CJEU, in turn, has again and again signaled its openness to such rights claims, interpreted EU statutes broadly and developed novel rights even were they had not been specifically mentioned in the legal texts.

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