22. On ‘Rights Language’

With respect to allegations that the Court of Justice uses ‘rights language’ in order to justify intrusions into national legal orders and hence refers to rights wherever this is considered beneficial for such purposes, it is submitted that this seems a little exaggerated. At least since 1993/1994—when the Member State liability regime was established with the rights notion as one of its basic criteria—the Court seems to have been fairly consistent in speaking of individual rights where it has been faced with rules which are capable of being enforced by individuals via the Union law of tort and restitution. While one should not underestimate what has been coined as ‘the legitimating force and the integrating force’ of the ‘language of rights’ in Union contexts, ‘individual rights’ are often not much more than what might be labelled—somewhat more trivially—‘protected interests in tort’.