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[*] J.D. Candidate 1994, Harvard Law School.
[1] Case 260/89, Elliniki Radiofonia Tileorasi - Anonimi Etairia (ERT-AE) v. Dimotiki Etairia Pliroforissis, 1991-6 E.C.R. I-2925, [1993] CEC (CCH) 167 (1993).
[2] Case 159/90, Society for the Protection of Unborn Children Ireland Ltd. (SPUC) v. Grogan, 1991-8 E.C.R. I-4685, [1991] 3 C.M.L.R. 849 (1991).
[3] Case C-168/91, Christos Konstantinidis, March 30, 1993 (not yet reported).
[4] Some of the provisions of these treaties do imply protection for certain individual rights. For example, Article 7 of the Treaty of Rome prohibits discrimination on the grounds of nationality. TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY [EEC TREATY] art. 7. However, none of the three treaties contains a comprehensive catalogue of fundamental rights.
[5] See Manfred A. Dauses, The Protection of Fundamental Rights in the Community Legal Order, 10 EUR. L. REV. 398, 399 (1985). It is evident that the drafters of the Paris Treaty did not simply "forget" to include a catalogue of fundamental rights. See Steven A. Bibas, The European Court of Justice and the U.S. Supreme Court: Parallels in Fundamental Rights Jurisprudence, 15 HASTINGS INT'L & COMP. L. REV. 253, 255 n.8 (1992). Several of the original Member states, in fact, participated in the drafting of the European Convention on Human Rights, adopted November 4, 1950, simultaneously with the drafting of the Paris Treaty, which entered into force on July 23, 1952. Moreover, other proposals for European unification, such as the draft treaty for the establishment of a European Defense Community, contained fundamental rights guarantees. See W.R. Edelson & F. Wooldridge, European Community Law and Fundamental Human Rights: Some Recent Decisions of the European Court and of National Courts, 1976/1 LEGAL ISSUES EUR. INTEGRATION 1, 3 (1976). Nor was the exclusion of a bill of rights traceable to a general opposition on the part of Member States to a system of judicial review, since such a system was incorporated into both the Treaty of Paris and the Treaty of Rome. See Joseph H.H. Weiler, Methods of Protection: Towards a Second and Third Generation of Protection, in EUROPEAN UNION - THE HUMAN RIGHTS CHALLENGE 555, 572 (Antonio Cassese et al. eds., 1991) [hereinafter Methods of Protection].
[6] See G. Federico Mancini, The Making of a Constitution for Europe, 26 COMMON MKT. L. REV. 595, 608-09 (1989) (noting that the founders "were not eager to see the integration process speeded up by a central authority empowered to safeguard the civil liberties of the Community citizens first in Brussels and later perhaps, in the six countries concerned."). The fear of such an expansion of powers is reflected in the Treaty's system of judicial review, which was "intended in large measure to protect against encroachments by the Community on the rights of the Member State, rather than the rights of individuals." Weiler, Methods of Protection, supra note 5, at 573. An identical argument was put forth against the inclusion of a bill of rights in the American Constitution. The United States' solution was the Ninth Amendment, providing that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. CONST. amend. IX; see also Koen Leanaerts, Fundamental Rights to be Included in a Community Catalogue, 16 EUR. L. REV. 367, 369-70 (1991).
[7] See Case 26/62, Van Gend en Loos v. Netherlands Inland Revenue Admin., 1963 E.C.R. 1, [1963] 2 C.M.L.R. 105 (1963); Case 6/64, Costa v. ENEL, 1964 E.C.R. 585, [1964] 3 C.M.L.R. 425 (1964). Without the principles of direct effect and supremacy, individuals could not have directly invoked Community law to contest violations of their fundamental rights and Community measures contrary to national fundamental rights guarantees would have been held inapplicable by national courts. See Weiler, Methods of Protection, supra note 5, at 574-75.
[8] See Bibas, supra note 5, at 255 n.8. At the time of drafting, as well, civil and political rights -- and not economic or social rights -- were at the forefront of discussion, and these rights were less directly related to the sphere of Community activities.
[10] For example, in Case 1/58, Stork v. High Authority, 1959 E.C.R. 17 (1958), the Court dismissed a complaint alleging that a decision of the High Authority infringed certain fundamental rights guaranteed by the German Constitution. See also Joined Cases 36, 37, 38 & 40/59, Prasident Ruhrkolen-Verkaufsgesellschaft mbH v. High Authority, 1960 E.C.R. 423 (1960) (refusing to invalidate a decision of the High Authority dismantling a coal cartel on the ground that it violated rights protected under Article 14 of the German Constitution).
[11] See Russell M. Dallen, An Overview of European Community Protection of Human Rights, with Some Special References to the U.K., 27 COMMON MKT. L. REV. 761, 766 (1990) (noting that "Member States would be reluctant to recognize Community supremacy unless the protection of fundamental rights could be guaranteed."). It was during this period as well that attention to fundamental rights increased significantly, as evidenced both by the signing of the two United Nations International Covenants on Human Rights and the social revolution that swept Europe in 1968. See International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3; International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
[12] See, e.g., Case 29/69, Stauder v. City of Ulm, 1969 E.C.R. 419, [1970] 19 C.M.L.R. 112 (1970) (upholding a challenge to a Commission decision providing for the sale of butter at reduced prices to beneficiaries of certain welfare schemes on the ground that the decision at issue contained "nothing capable of prejudicing the fundamental rights enshrined in the general principles of law and protected by the Court."). The Court has never been explicit about the precise source of its authority to review acts of Community institutions in this manner. Most agree that this authority derives from Article 164, which provides that the Court must ensure that in the application of the Treaty "the law" is observed, and from Article 173, which provides that the Court must review Community actions for infringements of "any rule of law relating to the application of the Treaty." EEC TREATY arts. 164 & 173; see also Pierre Pescatore, The Context and Significance of Fundamental Rights in the Law of the European Communities, 9 COMMON MKT. L. REV. 295, 296-97 (1972).
[13] Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle fur Getreide und Futtermittel, 1970 E.C.R. 1125, 1134, [1972] C.M.L.R. 255, 283 (1972). In Internationale Handelsgesellschaft, the Court rejected the possibility that a national court might review and declare invalid a Community regulation on the basis of specific national provisions, noting that "recourse to the legal rules and concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse affect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in light of Community law." Id.
[14] Case 4/73, J. Nold, Kohlen-und Baustoffgrosshandlung v. Commission, 1974 E.C.R. 491, 507, [1974] 2 C.M.L.R. 338, 354 (1974). Apparently, the Court included in this formula international treaties that Member States had participated in drafting but had not yet ratified because of the fact that France had ratified the European Convention only a week before the Court rendered its decision in the case. See M.H. Mendelsohn, The European Court of Justice and Human Rights, 1 Y.B. EUR. L. 125, 133 (1981).
[15] See Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle Fur Getreide und Futtermittel, Case 2 BvL 52/71, 37 BVerfGE 271, [1974] 2 C.M.L.R. 540 (1974) (finding that Article 24 of the German Basic Law did not permit the transfer to a supranational organization of the power to violate or de facto amend the unamendable provisions of the Basic Law guaranteeing fundamental rights, and reserving to the German Constitutional Court the authority to "disapply" Community acts which infringed those guarantees).
[16] See Frontini v. Ministero delle Finanze, [1974] 2 C.M.L.R. 372 (Corte Cost. 1974) (Italy) (holding that in the event of conflict between Community law and the Italian Constitution's fundamental rights guarantees, Italy reserved the right to declare the Treaty of Rome to be incompatible with the Italian Constitution and thus, in effect, to withdraw from the Community itself). For a lengthy discussion of both the Frontini and Internationale Handelsgesellschaft cases, see Edelson & Wooldridge, supra note 5.
[17] See, e.g., Case 44/79, Liselotte Hauer v. Land Rheinland Pfalz, 1979 E.C.R. 3727, [1980] 3 C.M.L.R. 42 (1979) (upholding a challenge to a Community regulation which prohibited the planting of new vines on certain lands against claims that the regulation violated the landowner's rights to property and to pursue a trade or profession guaranteed by the German Constitution).
[18] Id. at 3745-46, [1980] 3 C.M.L.R. at 64-65. In Hauer, the Court found that the relevant provision of the European Convention was insufficiently precise to determine whether the individual's fundamental rights had been infringed, and looked beyond that document to the constitutional traditions common to the Member States. This suggested that the Court would in some situations view the European Convention as providing only a minimum level of fundamental rights guarantees.
[19] In Re Wunsche Handelsgesellschaft, Case 2 BvR 197/83, 73 BVerf GE 339, 3 C.M.L.R. 225 (1987), the German Constitutional Court held that it would no longer review Community acts for fundamental rights violations, noting both the development of the Court of Justice's jurisprudence on the subject and the 1977 Joint Declaration by the Council, Commission and European Parliament pledging respect for such rights. See Joint Declaration of the European Parliament, the Council and the Commission, 1977 O.J. (C 103) 1. In S.p.a. Granital v. Amministrazione delle Finanze dello Stato, 21 COMMON MKT. L. REV. 756 (Corte Cost. 1984) (Italy), the Italian Constitutional Court accepted the proposition that national courts may themselves declare inapplicable provisions of national law that conflict with pre-existing provisions of Community law and need not refer the matter to the Constitutional Court before directly applying Community law.
[20] Some debate has centered on the issue of whether the Court was truly concerned with protecting individuals from infringements of their fundamental rights by Community institutions or whether the Court's assertion that it would protect fundamental rights was seen only as a necessary quid pro quo for the Court's imposition of the supremacy and direct effect doctrines on the Member States. See Joseph H.H. Weiler, Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Rights within the Legal Order of the European Communities, 61 WASH. L. REV. 1103, 1118-19 (1986) [hereinafter Eurocracy and Distrust].
[21] The European Parliament originally was provided only with a consultative role in the Community's decision-making process, and direct election to the Parliament was introduced only in 1979. See Mancini, supra note 6, at 607.
[22] See Mancini, supra note 6, at 597 (noting that the Court was aided in the "constitutionalization" of the Treaty of Rome by the "combination of being . . . out of mind by virtue of its location in the fair-tale Grand Duchy of Luxembourg and the benign neglect of the media.").
[23] See Joseph H.H. Weiler, Eurocracy and Distrust, supra note 20, at 1137.
[24] See Leanaerts, supra note 6, at 371.
[25] See generally GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 777-86 (1991); Steven J. Wermeil, Rights in the Modern Era: Applying the Bill of Rights to the States, 1 WM. & MARY BILL RTS J. 121 (1992).
[26] Case C-168/91, Christos Konstantinidis, March 30, 1993 (not yet reported).
[27] Case 43/75, Gabrielle Defrenne v. Societe Anonyme Belge de Navigation Aerienne Sabena, 1978 E.C.R. 1365, [1978] 3 C.M.L.R. 312 (1976).
[28] Id. at 1384, [1978] 3 C.M.L.R. at 321.
[29] See Bibas, supra note 5, at 295.
[30] Case 36/75, Roland Rutili v. Minister for the Interior, 1975 E.C.R. 1219, [1976] 1 C.M.L.R. 140 (1975).
[31] Council Directive 64/221, 1964 O.J. (L 563) 850.
[33] Council Regulation 1512/68, 1986 O.J. (L 257) 2.
[34] Council Directive 64/221, 1964 O.J. (L 563) 850.
[35] While the issue of whether the French measure satisfied this last condition was left for the national court to decide, the Court did note that French law apparently permitted such territorial restrictions to be imposed on its own nationals only as additional penalties for certain criminal conduct or after a declaration of a state of emergency -- neither of which applied to Mr. Rutili's situation. See Rutili, 1975 E.C.R. at 1233, [1976] 1 C.M.L.R. at 156.
[36] Id. at 1231, [1976] 1 C.M.L.R. at 155.
[37] See Weiler, Methods of Protection, supra note 5, at 610-11.
[38] At least one commentator has asserted that Rutili's importance lies in the fact that the "Member State action did not violate specific provisions of Community law, as France's derogation could have been allowed under the public policy terms of Article 48(3) of the Treaty." See Dallen, supra note 11, at 778. This interpretation suggests that the Court actually applied Community fundamental rights principles to the French Minister's action. While the Court did refer to these fundamental rights principles in its judgment, however, it seemed to do so only as a means of providing additional support for the interpretation given by it to the positive provisions of Community law in question. Other commentators agree that the language of the Court with respect to fundamental rights was obiter dictum. See, e.g., Jason Coppel & Aidan O'Neill, The European Court of Justice: Taking Rights Seriously?, 29 COMMON MKT. L. REV. 669, 674 (1992) (noting that while the Court did consider fundamental rights with respect to Member State action, "[i]t did not, however, apply them directly, or indeed hold them applicable, to the Member State action.").
[39] Case 118/75, Lynne Watson & Allessandro Belmann, 1976 E.C.R. 1185, [1976] 2 C.M.L.R. 552 (1976).
[40] Article 8 of the Convention provides in relevant part that "[e]veryone has the right to respect for private and family life, his home and his correspondence." Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 8, 213 U.N.T.S. 221. Article 14 provides that "[t]he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." Id. art. 14.
[41] Watson & Belmann, 1976 E.C.R. at 1207, [1976] 2 C.M.L.R. at 564.
[42] The Advocat General is referring here to national courts and to the European Court of Human Rights, both of which exercise review over Member State actions for compliance with fundamental rights principles.
[43] Watson & Belmann, 1976 E.C.R. at 1206-07, [1976] 2 C.M.L.R. at 564.
[44] Id. at 1208-09, [1976] 2 C.M.L.R. at 565-66.
[45] Id. at 1209, [1976] 2 C.M.L.R. at 566.
[46] Id. at 1200-01, [1976] 2 C.M.L.R. at 557.
[47] Id. at 1211, [1976] 2 C.M.L.R. at 569.
[48] There was some uncertainty as to whether Ms. Belmann was in Italy as a tourist or for the purposes of working in that country. Id. at 1202, [1976] 2 C.M.L.R. at 558.
[50] Weiler, Methods of Protection, supra note 5, at 612.
[51] Joined Cases 60 & 61/84, Cinetheque S.A. v. Federation Nationale Des Cinemas Francais, 1985 E.C.R. 2605, [1986] 1 C.M.L.R. 365 (1985).
[52] Article 10 provides in relevant part that "[e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 10, 213 U.N.T.S. 221.
[53] Cinetheque, 1985 E.C.R. at 2616, [1986] 1 C.M.L.R. at 379. "Mandatory requirements" refers to the principle set forth by the Court in Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung fur Branntwein, 1979 E.C.R. 649, [1979] 3 C.M.L.R. 494 (1979), better known as the Cassis de Dijon case. The mandatory requirements principle permits a Member State to derogate from the provisions of Article 30 on grounds other than those listed in Article 36, as long as the measure in question is indistinctly applicable, in the general interest, is such as to take precedence over the free movement of goods, and is proportionate to the objective to be achieved.
[54] Cinetheque, 1985 E.C.R. at 2615-16, [1986] 1 C.M.L.R. at 378.
[55] Id. at 2626, [1986] 1 C.M.L.R. at 385.
[56] Id. at 2627, [1986] 1 C.M.L.R. at 386 (emphasis added).
[57] Case 8/74, Procureur du Roi v. Benoit & Gustave Dassonville, 1974 E.C.R. 837, [1974] 2 C.M.L.R. 436 (1974).
[58] See Weiler, Methods of Protection, supra note 5, at 609.
[61] See 1 ANDREW CLAPHAM, EUROPEAN UNION - THE HUMAN RIGHTS CHALLENGE 38 (1991).
[62] See Joseph H.H. Weiler, Thou Shalt Not Oppress a Stranger: On the Judicial Protection of the Human Rights of Non-EC Nationals - A Critique, 3 EUR. J. INT'L L. 65, 81 (1992) (suggesting that "perhaps a distinction could, and should, be drawn, especially in relation to fundamental human rights, between provisions dealing with the situation of real living human beings and that dealing with goods.").
[63] Case 222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary, 1986 E.C.R. 1651, [1986] 3 C.M.L.R. 240 (1986).
[64] Council Directive 76/207, 1976 O.J. (L 39) 40.
[66] Johnston, 1986 E.C.R. at 1682, [1986] 3 C.M.L.R. at 262 (citations omitted).
[67] See Weiler, Methods of Protection, supra note 5, at 612.
[68] Joined Cases 201 & 202/85, Marthe Klensch v. Secretaire d'Etat a L'Agriculture et a la Viticulture, 1986 E.C.R. 3477, [1988] 1 C.M.L.R. 151 (1986).
[69] Id. at 3507, [1988] 1 C.M.L.R. at 164-65 (citations omitted).
[70] See Weiler, Methods of Protection, supra note 5, at 676. The position taken by the Court in Klensch was confirmed in Case 5/88, Hubert Wachauf v. State (Bundesamt Fur Ernahrung und Forstwirtschaft), 1989 E.C.R. 2609, [1991] 1 C.M.L.R. 328, 349 (1989), a case which also involved Community regulations concerning the milk and milk products sector, this time as implemented by Germany. The Court held in that case that
Community rules which . . . had the effect of depriving the lessee, without compensation, of the fruits of his labor and of his investments in the tenanted holding would be incompatible with the requirements of the protection of fundamental rights in the Community legal order. Since those requirements are also binding on the Member States when they implement Community rules, the member-State must, as far as possible, apply those rules in accordance with those requirements.
Id. at 2639-40, [1991] 1 C.M.L.R. at 349 (emphasis added). The Court is even more explicit in Wachauf then it was in Klensch. Indeed, some have argued that Wachauf and not Klensch represents the first time that the Court actually applied Community fundamental rights standards to Member state implementing legislation. See Coppel & O'Neill, supra note 38, at 676.
[71] How far the Court will extend the scope of the Klensch category -- for example, beyond areas of exclusive Community competences to those of preemption -- is not yet clear. See Weiler, Methods of Protection, supra note 5, at 601-06.
[72] Case 352/85, Bond van Adverteerders v. Netherlands, 1988 E.C.R. 2085, [1989] 3 C.M.L.R. 113 (1988).
[73] Id. at 1988 E.C.R. at 2122, [1989] 3 C.M.L.R. at 143.
[75] The Advocat General might have adhered to the Court's position in Cinetheque but nevertheless applied Community fundamental rights standards to the Dutch legislation. If Cinetheque is read restrictively as governing only those cases in which national regulations are not "aimed" at controlling the entry of goods into a Member State, Bond van Adverteerders arguably could have been distinguished on the ground that the Dutch legislation was specifically directed at "programming supplied from abroad," completely prohibiting any advertisements aimed at Dutch viewers and thus directly interfering with the free provision of services.
[76] Case 260/89, Elliniki Radiofonia Tileorasi - Anonimi Etairia (ERT-AE) v. Dimotiki Etairia Pliroforissis, 1991-6 E.C.R. I-2925, [1993] CEC (CCH) 167 (1993).
[77] Case 159/90, Society for the Protection of Unborn Children Ireland Ltd. (SPUC) v. Grogan, 1991-8 E.C.R. I-4685, [1991] 3 C.M.L.R. 849 (1991).
[78] Case C-168/91, Christos Konstantinidis, March 30, 1993 (not yet reported).
[79] ERT's objectives were to "organize, exploit and develop radio and television broadcasting and to contribute thereby (a) to the information, (b) the culture and (c) the entertainment of the Greek people." ERT, 1991-6 E.C.R. at I-2927, [1993] CEC (CCH) at 170.
[80] The Greek Government later amended its law to permit local television stations to be established with the authorization of relevant government officials. Id. at I-2928-29, 1993 CEC (CCH) at 170. This law was passed, however, after both the institution of the proceedings and the preliminary reference to the Court of Justice.
[81] Article 10(1) provides that:
[e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 5, 1950, art. 10, 213 U.N.T.S. 221.
[82] Id. at I-2931, [1993] CEC (CCH) at 172.
[83] The Court's second question also appears to suggest that the Convention itself should be considered binding in the Community legal order. The Court of Justice, by contrast, has always taken the view that the Convention can provide guidelines for defining the content of Community fundamental rights guarantees but does not in and of itself form a binding part of the Community legal order. See infra note 98.
[84] ERT, 1991-6 E.C.R. at I-2937-38, [1993] CEC (CCH) at 177-78.
[85] Id. at I-2937, [1993] CEC (CCH) at 177.
[86] Council Directive 89/552, 1989 O.J. (L 298) 23.
[87] ERT, 1991-6 E.C.R. at I-2948, [1993] CEC (CCH) at 186 (emphasis added).
[90] In relation to the claim that the monopoly violated Article 59's guarantee of the free provision of services, the Advocat General found that the combination of the exclusive right to distribute domestic broadcasts and to retransmit foreign programmes "calls for reservations in light of art. 59 of the EEC Treaty" because of the possibility that the exercise of those rights would lead to de facto discrimination against foreign broadcasters. ERT, 1991-6 E.C.R. at I-2949, [1993] CEC (CCH) at 187. With respect to the Treaty's rules on competition, Advocat General Lenz determined that the grant of exclusive powers over both transmission and retransmission might create an abuse of a dominant position within the meaning of Article 86, since the risk of discrimination created by the exercise of such powers might result in a limitation of production. If this were the case, the Greek State's grant of such monopoly powers would violate Article 90(2) of the Treaty, since that article prohibits Member States from taking actions which encourage undertakings to violate Article 86. Id. at I-2946, [1993] CEC (CCH) at 184-85.
[91] Id. at I-2963, [1993] CEC (CCH) at 193.
[92] Id. at I-2964, [1993] CEC (CCH) at 193-94.
[95] The Court, unlike the Advocat General, did not refer in its decision to Council Directive 89/552/EEC. The Court might have used the language of the Directive's preamble to constrain the action of the Member State, as Advocat General Lenz suggested, rather than explicitly holding that Community fundamental rights standards were directly applicable to that action. That it opted not to do so perhaps indicates that the Court consciously chose to use this case to extend its jurisprudence.
[96] This is not surprising, as the Court has rarely explicitly reversed itself.
[97] See Weiler, Non-EC Nationals, supra note 62, at 82 (noting that it "would seem that on this narrow issue ERT actually reverses Cinetheque, or comes close to such a reversal.").
[98] At least one commentator suggests as well that ERT "is a development of Rutili in that it uses the European Convention on Human Rights as an additional standard on the basis of which to judge Member State action, rather than, as in Rutili, merely a declaration which happens to echo general principles of existing Community law." See Coppel & O'Neill, supra note 38, at 678. This interpretation suggests that the Court considers the Convention to be directly binding in the Community legal order. While the Court does state that Member State action relying on Articles 56 and 66 of the Treaty must be judged in light of the "general principle of freedom of expression embodied in Article 10 of the European Convention," the Court appears to judge the Member State action against the general principle of free expression rather than Article 10 itself. Indeed, the Court later states that derogations under Articles 56 and 66 must be "interpreted in light of the general principles of law and in particular of fundamental rights," a statement made without reference to the Convention. ERT, 1991-6 E.C.R. at 2964, [1993] CEC (CCH) at 194. The difference in interpretation is significant since the former interpretation would render the entire Convention directly binding in the Community legal order, and thus on Member States in the ERT and Klensch contexts. The latter interpretation, by contrast, would require that before fundamental rights principles are considered to be part of the Community legal order, the Court must declare them to be among the general principles of Community law. There are others, however, who appear to agree with the former interpretation -- namely, that which suggests that the Convention is directly binding in Community law. See Piet Jan Slot, Case 260/89, Elliniki Radiofonia Tileorasi (ERT) v. Dimotiki, 28 COMMON MKT. L. REV. 964, 987 (1991) (noting that "according to the Court in p.44, the ECHR is part of Community law."). For a good discussion of the relationship between the Community and the European Convention, see Nigel Foster, The European Court of Justice and the European Convention for the Protection of Human Rights, 8 HUM. RTS. L.J. 245 (1987) and S. Ghandi, Interaction Between the Protection of Fundamental Rights in the European Economic Community and Under the European Convention of Human Rights, 1981/2 LEGAL ISSUES EUR. INTEGRATION 1 (1981).
[99] Case 159/90, Society for the Protection of Unborn Children Ireland Ltd (SPUC) v. Grogan, 1991-8 E.C.R. I-4685, [1991] 3 C.M.L.R. 849 (1991).
[100] IR. CONST. art. 40.3.3. Prior to the adoption of this amendment, abortion had been prohibited in Ireland both under the common law and by statute. However, supporters of the constitutional amendment feared -- with recent social changes in Ireland and the legalization of abortion in the United Kingdom -- that existing protection for the right to life of the fetus would not be sufficient. See Cathleen M. Colvin, Society for the Protection of Unborn Children (Ireland) Ltd. v. Grogan: Irish Abortion Law and the Free Movement of Services in the European Community, 15 FORDHAM INT'L L.J. 476, 492-94 (1991-92).
[101] Attorney General ex rel. Society for the Protection of Unborn Children (Id) Ltd. v. Open Door Counselling Ltd., 1988 I.R. 619 (Ir. S.C.) (1988).
[102] Id. Following this judgment, the defendants in that case filed an application with the European Commission on Human Rights, arguing that the judgment of the Irish Supreme Court violated Articles 8, 10 and 14 of the European Convention. The European Commission of Human Rights agreed with Open Door Counselling. Having thus decided, the Commission sent the case to the European Court of Human Rights for a decision on the merits. Before the European Court had rendered its decision in that case, however, SPUC initiated the action in Grogan.
[103] Grogan, 1991-8 E.C.R. at I-4707-08, [1991] 3 C.M.L.R. at 860-61.
[104] Id. at I-4712-15, [1991] 3 C.M.L.R. at 866-69.
[105] Id. at I-4718-21, [1991] 3 C.M.L.R. at 871-75.
[106] Id. at I-4722, [1991] 3 C.M.L.R. at 876.
[107] Id. at I-4722-23, [1991] 3 C.M.L.R. at 876-77.
[108] Id. at I-4723, [1991] 3 C.M.L.R. at 876-77 (emphasis added).
[110] Id. at I-4723, [1991] 3 C.M.L.R. at 877-78 (emphasis added).
[111] Id. at I-4727-28, [1991] 3 C.M.L.R. at 882-83.
[112] Id. at I-4729-30, [1991] 3 C.M.L.R. at 884-85.
[113] Id. at I-4739-40, [1991] 3 C.M.L.R. at 891-92. This reasoning has been the subject of strong criticism. In a prior decision, Case 362/88, GB-INNO-BM v. Confederation du Commerce Luxembourgeois Asbl, 1990 E.C.R. 667, [1991] 2 C.M.L.R. 801 (1991), the Court had held that a restriction on advertising within one Member state about products for sale in another Member State interfered with the free movement of goods. The Court emphasized the right of the consumer to receive information about the products in question, not the fact that the person distributing the information might have had an economic link to the seller of those products. By analogy, and as the Advocat General had reasoned, the focus in Grogan should have been on the right of the woman to receive information about abortion services regardless of the identity of the person disseminating it or his or her relationship to the provider of those services. Grogan, 1991-8 E.C.R. at I-4712-15, [1991] 3 C.M.L.R. at 866-69; see also Slot, supra note 98, at 595-98; Colvin, supra note 100, at 509-11.
[114] Grogan, 1991-8 E.C.R. at I-4741, [1991] 3 C.M.L.R. at 892.
[116] Another option might have been available to the Court which would have still allowed it to avoid a judgment on the substance of the rights in question but would not have forced it to hold that Article 59 was inapplicable to the students' activities. The protection for the life of the fetus provided by Article 40(3) is not absolute. Abortions are lawful in Ireland under some circumstances, for example, where necessary to save the life of the mother. The Court might have thus found that the Irish Supreme Court's interpretation of Article 40(3) as prohibiting the dissemination of information under any conditions was disproportionate to the aim to be achieved by that article, since Irish women seeking abortions under circumstances in which abortions are lawful even in Ireland should not have been absolutely precluded from receiving information about abortion services. A lesser restrictive alternative might have been, for example, to allow members of the medical profession to distribute information about such services, thus ensuring that the information reached only those women considering lawful abortions. See Colvin, supra note 100, at 515.
[117] In all other Member States, abortion is lawful under some circumstances even when not necessary to save the life of the mother. See Colvin, supra note 100, at 493-94 n.112-13.
[118] The Irish Government, in fact, considered the issue so important that it succeeded in having a protocol included in the Maastricht Treaty, which provides that "[n]othing in the Treaty on the European Union, or in the Treaties establishing the European Communities, shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland." TREATY ESTABLISHING THE EUROPEAN UNION [MAASTRICHT TREATY] prot. 17. Some commentators have argued, however, that the fact that this protocol refers to the application in Ireland of Article 40(3) may indicate the Irish government will not be able to apply that article to Irish women seeking to have abortions in other Member States. See Deidre Curtin, Case C-159/90, Society for the Protection of Unborn Children Ireland Ltd. v. Grogan, 29 COMMON MKT. L. REV. 585, 603 (1992); see also Coppel and O'Neill, supra note 38, at 688.
[119] Case of Open Door & Dublin Well Woman v. Ireland, 246 Eur. Ct. H.R. (ser. A) at 30-31 (1993).
[121] Case C-168/91, Christos Konstantinidis, March 30, 1993 (not yet reported).
[122] A system of transliteration requires each character in a name that is normally spelled in a non-Roman alphabet to be replaced by the corresponding latin character, without taking into account fidelity to pronunciation. A system of phonetic transcription, on the other hand, attempts to respect to the greatest degree possible the correct pronunciation of the name.
[123] This system was also prescribed by the Convention on the Representation of Names and Surnames in Registers of Civil Status of September 13, 1973, to which both Greece and Germany were signatories.
[124] Konstantinidis, Opinion of Advocat General Jacobs, at Recital 24.
[125] The issue of whether or not the German transliteration requirement might violate Mr. Konstantinidis' fundamental rights was not raised directly in the questions referred to the Court, but the Amstgericht had apparently alluded to it in its Order of Reference. Id. at Recital 32.
[126] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
[129] Konstantinidis, Opinion of Advocat General Jacobs, at Recital 39.
[133] Id. at Recitals 45-46 (emphasis added).
[134] The Commission appeared to take a similar position, although the summary of the parties' submissions does not elaborate upon the Commission's rationale. It merely notes that the Commission considered that a national measure which compelled an individual to use a spelling or pronunciation of his or her name that differed from that used in the individual's home country might in some circumstances violate that individual's fundamental rights, in particular where the national measure had adverse effects on the individual's exercise of his or her right of free movement.
[135] Konstantinidis, Opinion of Advocat General Jacobs, at Recital 48.
[136] This is commonly referred to as the problem of "reverse-discrimination."
[137] Konstantinidis, Opinion of Advocat General Jacobs, at Recital 49.
[139] Konstantinidis, Judgment of the Court, at Recital 18.
[140] The fact that the Court did not explicitly reject the Advocat General's position -- as it had done in Cinetheque -- is significant since it leaves open the possibility that the Court could move in the direction suggested by Advocat General Jacobs at some point in the future without having to explicitly reverse its prior jurisprudence, something which it has done only on limited occasions in the past.
[141] While the Advocat General deals specifically only with the right of establishment under Article 52, he mentions repeatedly Articles 48 and 59 as well in his opinion and, as noted supra, considers the situation with respect to those latter articles to be similar to that under Article 52.
[142] As noted supra, the reasons for Ms. Belmann's presence in Italy were unclear. See Case 118/75, Lynne Watson & Allessandro Belmann, 1975 E.C.R. 1185, 1202, [1986] 2 C.M.L.R. 552, 558 (1976).
[143] Konstantinidis, Opinion of Advocat General Jacobs, at Recital 46.
[144] Some tension appears to exist in the Advocat General's opinion between his acceptance of reverse discrimination and his espousal of the notion that an individual should be entitled to invoke the status of "civis europeus sum" wherever he or she might go in the Community. The concept of "civis europeus sum" and the idea that individuals should be protected under a common code of fundamental values cannot exist as truly "generally applicable" principles if nationals of the particular Member State which has enacted a measure allegedly violating fundamental rights are not also entitled to invoke the status of "civis europeus sum" and to be protected by the same code of values. While the Advocat General is constrained in his position by the notion that the Community has never been thought to possess the power to involve itself in relations between a Member State and its own nationals where those relations are purely internal and do not in any way implicate Community law, his acceptance of the notion that reverse discrimination can exist does not easily coexist with his reliance on the concept of "civis europeus sum," which presupposes European-wide applicability, regardless of an individual's relationship with a particular Member State.
[145] See Leanaerts, supra note 6, at 371-72.
[146] Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle Fur Getreide und Futtermittel, Case 2 BvL 52/71, 37 BVerfGE 271, ___, [1974] 2 C.M.L.R. 540, 549 (1974).
[147] Case 26/62, Van Gend en Loos v. Netherlands Inland Revenue Admin., 1963 E.C.R. 1, 12, [1963] 2 C.M.L.R. 105, 129 (1963).
[148] See, e.g., Weiler, Eurocracy and Distrust, supra note 20, at 1118-19. One commentator notes that:
[e]vidently it is economic integration, to be achieved through the acts of the Community institutions, which the Court sees as its fundamental priority. In adopting and adapting the slogan of protection of human rights the Court has seized the high moral ground. However, the high rhetoric of human rights protection can be seen as no more than a vehicle for the Court to extend the scope and impact of European law.
Coppel & O'Neill, supra note 38, at 692.
[149] Konstantinidis, Opinion of Advocat General Jacobs, at Recital 47.
[151] See CLAPHAM, supra note 61, at 40-41.
[152] See, e.g., Case 240/83, Procureur de la Republique v. Association de Defense des Bruleurs d'Huiles Usagees (ADBHU), 1985 E.C.R. 531 (1985).
[153] See, e.g., Case 76/90, Sager v. Dennemeyer & Co. Ltd., July 25, 1991 (not yet reported).
[154] See, e.g., Joined Cases 60 & 61/84, Cinetheque S.A. v. Federation Nationale Des Cinemas Francais, 1985 E.C.R. 2605, [1986] 1 C.M.L.R. 365 (1985).
[155] See Grogan, 1991-8 E.C.R. at 4728-29, [1991] 3 C.M.L.R. at 883-85.
[156] See Weiler, Methods of Protection, supra note 5, at 616.
[157] The Court was faced, in fact, with this type of situation in Case 30/77, Regina v. Pierre Bouchereau, 1977 E.C.R. 1999, [1977] 2 C.M.L.R. 800 (1977), in which a British court had recommended that a French national residing in the United Kingdom be deported after pleading guilty to unlawfully possessing drugs. British nationals convicted of the same offense, by contrast, would have been subject to a period of imprisonment rather than deportation.
[158] Konstantinidis, Opinion of Advocat General Jacobs, at Recital 24.
[159] See Weiler, Methods of Protection, supra note 5, at 596 n.45.
[160] I place the word "higher" in quotation marks because, with respect to some situations, it is impossible to define what in fact constitutes a high level of protection. A notable example is abortion. A high standard in one Member State might mean the greatest protection for the right to life of fetus, while in another Member State it might mean the greatest protection for the freedom of the mother to terminate a pregnancy.
[161] The Court has shied away from such a "maximalist" approach, as it creates the problem of binding the Community to a particular level of fundamental rights protection which may be inappropriate for the Community as a whole. See generally Dauses, supra note 5, at 408-09; Mendelsohn, supra note 14, at 154-56.
[162] For example, in Case 44/79, Lisolette Hauer v. Land Rheinland Pfalz, 1979 E.C.R. 3727, [1980] 3 C.M.L.R. 42 (1979), the Court refused to strike down a Community regulation on the ground that it violated the right to property as guaranteed by Community law even though the regulation infringed upon that right as protected by the German Basic Law.
[163] Assume, for example, that a national of one Member State has moved to Germany and is subjected to a national regulation which is alleged to violate his or her right to property. If German law provides a higher level of protection for that right than does Community law, and no conflicting fundamental right is at issue, the German regulation in question could be invalidated by a German court even though it might have been upheld under Community fundamental rights standards.
[164] See Coppel & O'Neill, supra note 38, at 681-92; Mendelsohn, supra note 14, at 152 & 162.
[165] Coppel & O'Neill, supra note 38, at 670.
[166] Even after ERT, however, some commentators have continued to criticize the Court's treatment of fundamental rights. While Coppel & O'Neill, for example, assert that under the Court's approach in ERT "fundamental rights reclaim their position at the peak of the normative hierarchy," Coppel & O'Neill, supra note 38, at 684, they nonetheless take the view that the Court continues to use fundamental rights in an instrumental way and to treat them, "and in particular their place in the normative hierarchy, in a confused and ambiguous way." Id. at 692.
[167] Joseph H.H. Weiler, The Transformation of Europe, 100 YALE L.J. 2403, 2471 (1991) [hereinafter Transformation].
[168] Jochen Abr. Frowein, European Integration Through Fundamental Rights, 18 U. MICH. J.L. REF. 5, 26 (1984); see also Dauses, supra note 5, at 419; CLAPHAM, supra note 61, at 10.
[169] Dauses, supra note 5, at 419.
[170] Joined Cases 267 & 268/91, Criminal Proceedings against Bernard Keck and Daniel Mithouard, Nov. 24, 1993 (not yet reported).
[173] See, e.g., Mancini, supra note 6, at 612 (noting that "no Member State is comparable with Noriega's Panama or, for that matter, Huey Long's Louisiana.").
[174] Case 44/79, Lisolette Hauer v. Land Rheinland Pfalz, 1979 E.C.R. 3727, [1980] 3 C.M.L.R. 42 (1979).
[175] The problem of distilling some type of consensus from the traditions of the Member States with respect to rights of this kind appears to be difficult enough at present and may become even more so should the Community continue to expand. See, e.g., Paul W. Butler & David L. Gregory, A Not So Distant Mirror: Federalism and the Role of Natural Law in the United States, the Republic of Ireland, and the European Community, 25 VAND. J. TRANSNAT'L L. 429, 439 (1992) (noting that "[f]inding a common theme among these remarkably diverse legal systems sufficient to give meaningful protection to implied natural law rights may strain the interpretive powers of law and create doubt as to the legitimacy of the process.").
[176] Consider the highly charged controversy in which the United States Supreme Court has become involved with respect to this issue. See, e.g., Butler, supra note 175, at 431 (noting that "[l]ike the controversial United States Supreme Court decisions of the past two decades regarding abortion, this recent Irish case highlights the complex jurisprudential issues surrounding intimate personal rights and the role of natural law in federal systems.").
[177] CLAPHAM, supra note 61, at 15.
[178] Leanaerts, supra note 6, at 389; see also Mary F. Dominick, Towards a Community Bill of Rights: The European Community Charter of Fundamental Social Rights, 14 FORDHAM INT'L L.J. 639, 648 (1990-1991) (noting the view of Member States that "economic and social rights [are] programmatic, more aspirational than constitutional in nature" and that "implementation of social rights is considered better left to each individual Member State's discretion.").
[179] See Leanaerts, supra note 6, at 389.
[181] The Court has already been the subject of strong criticism for its judicial activism. See Hjalte Rasmussen, Between Self-Restraint and Judicial Activism: A Judicial Policy for the European Court, 13 EUR. L. REV. 28 (1988); see also Mancini, supra note 6, at 612-13 (discussing the negative aspects of judicial activism including the possible loss of a court's most important resource -- its independence). Others, however, have disagreed with Rasmussen's views. See Mauro Cappelletti, Is the European Court of Justice Running Wild?, 12 EUR. L. REV. 3 (1982). Cappelletti notes in particular that Rasmussen's use of comparisons between the Court's judicial activism in "constitutionalizing" the Treaty of Rome and the pro-federalist activism of the United States Supreme Court as a means of condemning such activism fails to take into account that the doctrines established in the United States during the period of such activism in fact served to enhance the Supreme Court's power rather than to damage its credibility.
[182] See Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle Fur Getreide und Futtermittel, Case 2 BvL 52/71, 37 BVerfGE 271, [1974] 2 C.M.L.R. 540 (1974); Frontini v. Ministero delle Finanze, [1974] 2 C.M.L.R. 372 (Corte Cost. 1974) (Italy).
[183] See, e.g., Weiler, Transformation, supra note 167, at 2403 (noting that "the constitutionalization of the Treaty of Rome, with the principles of supremacy and direct effect binding on governments and parliaments, meant an overall strengthening of the judicial branch vis-a-vis the other branches of government.").
[184] Decision from Oct. 12, 1993, 2 BvR L134/92 & 2159/92, Neue Juristische Wochenschrift 1993, 3047.
[186] Similar concerns were raised in the United States with respect to applying the Bill of Rights to the States. See, e.g., The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) (Bradley, J., dissenting) (noting that construing the Fourteenth Amendment as incorporating the guarantees found in the Bill of Rights might "lead to enactments by Congress interfering with the internal affairs of the [States and] . . . lead the federal courts to draw to their cognizance the supervision of state tribunals on every subject of judicial inquiry.").
[187] Cappelletti, supra note 181, at 15.
[188] See Tom Kennedy, First Step Towards a European Certiorari?, 18 EUR. L. REV. 121, 126-27 (1993).
[189] Tyler Marshall, Sweden, Finland, Austria OK Terms for EU Membership, L.A. TIMES, Mar. 2, 1994, at A4.
[190] One commentator notes that
by referring to Luxembourg sensitive questions of interpretation of Community law [national courts] have been indirectly responsible for the boldest judgments the Court has made. Moreover, by adhering to those judgments in deciding the cases before them, and therefore by lending them the credibility which national judges usually enjoy in their own country, they have rendered the case-law of the Court both effective and respected throughout the Community.
Mancini, supra note 6, at 597.
[191] For a discussion of such alternatives, see Kennedy, supra note 188, at 126-29.
[192] Leanaerts, supra note 6, at 375; see also Henry G. Schermers, The European Communities Bound by Fundamental Human Rights, 27 COMMON MKT. L. REV. 249, 252 (1990) (noting that "the splitting of human rights protection in Europe over two different bodies may do more harm than good.").
[193] EEC TREATY pmbl.; MAASTRICHT TREATY pmbl..
[194] But see CLAPHAM, supra note 61, at 15 (arguing that the "Community is unlikely to attempt a unification of moral values . . . [but rather] it will continue to leave a "margin of appreciation" to Member States on certain issues.").
[195] See generally GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 134-35 (2nd ed. 1991) (discussing the notion that federalism encourages experimentation and promotes individual choice); CLAPHAM, supra note 61, at 12 (recognizing the argument that it is the "differences in Europe which will lead to innovation, creativity, mobility and prosperity.").
[196] See, e.g., STONE, supra note 195, at 135 (noting that federalism allows people to move from one area to another in order to select the kind of government policies they prefer); Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416, 418 (1956) (noting that an individual considering relocation to another community will choose that community "which best satisfies his or her preference for public goods.").
[197] Case 352/85, Bond van Adverteerders v. Netherlands, 1988 E.C.R. 2085, [1989] 3 C.M.L.R. 113 (1988).
[198] J. Frowein, Fundamental Human Rights as a Vehicle of Legal Integration in Europe, in INTEGRATION THROUGH LAW: EUROPE AND THE AMERICAN FEDERAL EXPERIENCE 300, 302 (M. Cappelletti et al. eds., 1986), quoted in CLAPHAM, supra note 61, at 39; see also Mancini, supra note 6, at 612.
[199] A. Arnull & F.G. Jacobs, Applying the Common Rules on the Free Movement of Persons; The role of the national judiciary in the light of the jurisprudence of the European Court of Justice, in FREE MOVEMENT OF PERSONS IN EUROPE 272, 274-75 (Henry G. Schermers et al. eds., 1993); see also Weiler, Non-EC Nationals, supra note 62, at 71 (suggesting that national courts may not in fact be as vigilant in protecting human rights as the Court of Justice might be); CLAPHAM, supra note 61, at 40 (noting that "most systems of constitutional protection are not designed for effective protection of individual complaints but for deciding 'big issues'.").
[200] CLAPHAM, supra note 61, at 40.
[201] MAASTRICHT TREATY art. F(2).