By Malu Beijer, researcher Radboud University Nijmegen
The concept of positive obligations has become a regular feature of the case law of the European Court of Human Rights (ECtHR) ever since the classic cases of Marckx v. Belgium, Airey v. Ireland and X. and Y. v. the Netherlands. The ECtHR has made very clear in this case law that the full and effective protection of fundamental rights requires states to take active measures. States cannot simply remain passive by complying only with their negative obligations.
In other systems of international human rights law and under national law, a similar concept of positive obligations can often be recognised. The same does not hold true for the protection of fundamental rights under EU law. The EU’s (relatively) more recent system of fundamental rights protection so far mainly has had a focus on negative obligations. Can it be established by the European Court of Justice (ECJ) that the EU institutions and the member states must fulfil positive obligations as well? In this post I will briefly explain some of my thoughts on this specific question which formed the topic of my PhD research. Continue reading