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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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