The burden of protecting fundamental rights within the European Union falls primarily on the courts of member states rather than on EU institutions, according to Supreme Court judge Mr Justice Fennelly.
Mr Justice Fennelly is speaking today at a conference of the Academy of European Law in Trier, Germany, which is considering fundamental rights in the context of the Reform Treaty. He was formerly Advocate General of the European Court of Justice.
In his paper to the conference, he points out that the issue of fundamental rights in a European context began with the Maastricht Treaty. He stresses the importance of the courts in making these rights a reality.
"Purely political guarantees have no teeth . . . guarantees to protect fundamental rights are meaningless without effective judicial power of review of government action".
However, in practice the power of judges at European level to review certain decisions of government, particularly in the spheres of international relations and security matters, are limited, he says. Only if individuals are directly affected by a decision can they apply to the European Court of Justice.
The mechanism whereby an Act at EU level is challenged by an individual is cumbersome, and requires a person to go first to a court at national level.
This court cannot declare such an Act invalid, but can then ask the European Court for a declaration on the validity of the community Act.
"Individuals appear to have the right to challenge the validity of union measures, not in the Court of Justice, but in the national court, and to rely on his or her persuasive power to have that question referred," Mr Justice Fennelly says.
"In the real world the possibility of challenge of union legislative Acts at the suit of individuals would, in reality, be remote and rare." The national courts must undertake the burden of protecting the fundamental rights of those appearing before them, he concludes.