Human rights, democracy and the role of the court of justice in European integration

Although political scientists have acknowledged the role of the European Court of Justice (ECJ) in European integration for some time, it has been rare for that acknowledgement to result in discussion of the ECJ; there is a tendency to leave analysis of the Court to the legal experts. The legal literature on European integration typically allocates disproportionate, even dominating, power to the Court. According to the conventional legal wisdom, the Court has manufactured a federal-type constitution for Europe more or less on its own out of the unpromising material of an international treaty.1 Very few legal scholars have questioned the legitimacy of the Court's pro-integration activism. This article challenges these assumptions. It illustrates the contribution of political institutions to the development of a crucial part of that 'constitution' - the protection of fundamental human rights. But it also points out the limits of that contribution, set by the undemocratic character of the Community's institutional structure. Finally it questions the legitimacy of the ECJ's role in the protection of human rights and, drawing on recent evidence from the case law of the Court, suggests that problems of legitimacy may undermine the authority of the Court and the supremacy of Community law.