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6 JEMIE 1 (2007)

handle is hein.journals/jemie2007 and id is 1 raw text is: Fit for Purpose or Faulty Design? Analysis of the Jurisprudence of the European Court of Human Rights and the European Court of Justice on the Legal Protection of Minorities Anneleen Van Bossuyt1 Abstract This paper examines whether the European Court of Justice (ECJ), even in the absence of explicit competences, could play a role in the creation of a European Union policy promoting the protection of minorities and thus preventing their social exclusion. Comparison is made with the jurisprudence of the European Court of Human Rights (ECtHR) because of the cross-fertilisation between the two Courts. The author argues that there is a conspicuous absence in ECJ jurisprudence on the rights of minorities to their culture and identity, whereas the jurisprudence of the ECtHR in this regard is progressive. In contrast, the ECJ takes the fore when it comes to the protection of the linguistic rights of minorities. In conclusion, the author argues that the ECJ is not fit for purpose, but that to speak of a faulty design is taking a step too far. I. Introduction Europe is the Europe of minorities.2 The EU can indeed be thought of as a patchwork of minorities. The Rome Treaty paid no attention to minority protection. However, it is my assertion that the EU should develop an efficient policy for minority protection, not only to fulfil its role as defender of human rights on the international scene but also to maintain stability within the EU itself. Neglecting the minority problem could be a destabilizing factor. In spite of this, the member states did not assign any explicit competence to the EU to take action on this sensitive issue in the Nice Treaty. This paper will examine to what extent the EU has, even in the absence of explicit competences, developed a policy for minority protection. This will be effected through an analysis of the jurisprudence of the European Court of Justice (ECJ). The choice to analyze the case law of the ECJ is not arbitrary. The ECJ has played a pioneering role in the sphere of protection of human rights by qualifying them as general principles of Community law The author would like to thank Stanislas Adam, Kirstyn Inglis and Peter Van Elsuwege for their comments on an earlier version of this article. The usual disclaimer applies. 2 Romano Prodi quoted in Hungarian News Agency, 15 April 2001 (emphasis added).

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