Volume 46 (2009) / Issue 4
Armin von Bogdandy, Jochen von Bernstorff, 'The EU Fundamental Rights Agency within the European and international human rights architecture: The legal framework and some unsettled issues in a new field of administrative law' (2009) 46 Common Market Law Review, Issue 4, pp. 1035–1068
With the establishment of the Fundamental Rights Agency, an important development might come full circle. The European administration by the Commission and the Council in the 1970s and 1980s entailed a process of constitutionalization of the European Communities, in particular through fundamental rights protection. Now the developed constitutional law of the Union might usher a new field of administrative law if the potential of the Fundamental Rights Agency is realized. The increasing influence of specific human or fundamental rights institutions in numerous States is calling into question an understanding of fundamental rights protection that is mainly focused on judicial review. Under the approach taken here, administrative rights promotion is conceived of as a significant instrument supplementing legal protection by the courts and therefore an important field of administrative activity: European administrative law scholarship should move accordingly into this field. To contribute to this end, the relevant developments in the Union are recapitulated in order then to present the Agency’s activities and tasks as a specialized agency for the promotion of fundamental rights where numerous unsettled issues lurk, in particular in light of the UN model of specialized independent institutions promoting human rights. Thereafter, the Agency’s possible impact on the constitution of Europe is analysed, while the last part of the article recalls the main findings and discuss the prospect of human and fundamental rights promotion as a new area of administrative law.
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