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©Copyright: Darcy S. Binder, 1995.
I.Fundamental Rights in the Community Legal Order
II.The Development of the Court's Jurisprudence on Reviewing
Member State Action for Compliance with Community Fundamental Rights
Standards
B.The Precedents for Expanding Judicial Review to Member State Actions
III.Review of Member State Actions Infringing on the Fundamental Rights of an Individual Exercising Free Movement Rights: The Case of Christos Konstantinidis
For several decades, the European Court of Justice has played an integral role in ensuring the protection of fundamental rights in the Community legal order, both by asserting its prerogative to and developing a methodology for the review of acts of the Community institutions for fundamental rights violations, despite the fact that the treaties establishing the European Community are for the most part silent on the issue of fundamental rights protection. Until relatively recently, however, the Court's fundamental rights jurisprudence has been limited to ensuring that individuals are protected from violations of their fundamental rights resulting from acts of Community institutions. This paper will examine how the Court has begun to assert a greater role for itself in this area by expanding the applicability of Community fundamental rights standards to certain types of action taken by the Member States, thus giving the Court the authority in some situations to invalidate Member State action where it falls short of the level of protection afforded to fundamental rights under Community law.
The assertion by the Court of Justice of the power to review Member State action in particular contexts raises a number of important issues both with regard to the way in which Community law and its sphere of applicability are and should be perceived and with regard to the possible consequences of expanded review -- namely, its potential advantages and disadvantages in terms of, for example, reaction from other Community actors, the Court's own legitimacy, and the goal of ensuring adequate fundamental rights protection. In attempting to examine recent developments in this area and their potential implications, I will first offer an introduction to the problem of protecting fundamental rights in the Community legal order, as well as a brief summary of the Court's early jurisprudence in this area -- highlighting those issues that I consider to be particularly relevant to the question of extending the applicability of Community fundamental rights standards to Member State action. In Section II, I will then provide the reader with an overview of the Court's jurisprudence in this area leading up to the particular developments which will form the focus of this paper. In this section, I will examine both several cases in which the Court was urged to expand its review by other actors in the Community but either refrained from addressing the issue or explicitly refused to accept their invitations, and other cases in which the Court did in fact assert its power to review action of the Member States where such action serves to implement Community law. I will then turn to a more detailed analysis of two cases, the first of which -- Elliniki Radiofonia Tileorasi - Anonimi Etairia v. Dimotiki Etairia Pliroforissis [1] - represents a further expansion of the Court's review of Member State action to national measures derogating from the Treaty's four fundamental freedoms, and the second of which -- Society for the Protection of Unborn Children Ireland Ltd. (SPUC) v. Grogan [2] - provides important insights into both the potential difficulties which the Court might face in expanding review in this area and the significance of the interplay between the Court of Justice on the one hand and the Advocats General and Commission on the other. Finally, in Section III, I will discuss the case of Christos Konstantinidis, [3] in which Advocat General Jacobs urges the Court to adopt a further, potentially far-reaching expansion of its jurisprudence in this area. In this section, I will analyze the potential scope and implications of the Advocat General's position, its advantages and disadvantages, the Court's response to it and the likelihood that the Court might move in the direction suggested by the Advocat General. By doing so, I hope to provide the reader with an understanding of both the current status of the Court's jurisprudence in this area and an insight into the questions which are likely to be the focus of new debate in the coming years on this issue.
The three founding treaties of the European Community do not contain a "bill of rights." [4] The lack of an enumerated set of fundamental rights guarantees in the Treaty of Paris, which established the European Coal and Steel Community ("ECSC"), can be traced in large part to the drafters' belief that the ECSC -- acting in the technical fields of coal and steel production -- would not be involved in activities that would interfere with an individual's fundamental rights. [5] The Treaty of Paris, which established the European Coal and Steel Community ("ECSC"), The European Economic Community, by contrast, was designed to operate in a much broader area than was the ECSC, and the drafters must have recognized that infringements of fundamental rights by Community institutions were more likely. The original Member States feared, however, that the inclusion of a "bill of rights" in the Treaty of Rome might have brought about an undesirable expansion of Community powers, since it could lead Community institutions to interpret their powers as extending to anything not explicitly prohibited by the enumerated guarantees. [6] Additionally, without the principles of direct effect and supremacy -- which were developed judicially only a little less than a decade after the Treaty was signed [7] -- it was logical for the drafters to believe that fundamental rights protection would remain the responsibility of national governments. The difficulty of reaching agreement on the content of human rights guarantees, moreover, proved to be a significant practical impediment to the inclusion of a bill of rights in the Treaty. [8]
Both the lack of a catalogue of fundamental human rights in the Treaty and the fact that the Court was not expressly given the power to review Community acts for infringements of such rights [9] contributed to the Court's early refusal to exercise such review. [10] The Court's main concern during this period lay in bolstering a nascent, fragile Community: the invalidation of Community acts, particularly on fundamental rights grounds, would have been detrimental to this aim. Moreover, the Court's perception of its own role as an international tribunal and not as a constitutional court made it more hesitant to employ a "teleological" approach to interpretation, under which it would have been easier to read fundamental rights guarantees into the Treaty.
It became increasingly apparent to the Court of Justice, however, that national courts were hesitant to accept the principles of supremacy and direct effect if Community institutions were not required to respect fundamental rights guarantees. [11] The Court thus took it upon itself to read such guarantees into the Treaty, [12] the content of which were to be "inspired by the constitutional traditions common to the Member States" [13] and distilled from "[i]nternational treaties on the protection of human rights in which the Member States have cooperated or to which they have adhered." [14]
The fear that the Court would provide an insufficient level of protection to individuals against fundamental rights infringements by the Community, however, provoked rebellion by both the German and Italian Constitutional Courts, the former of which reserved for itself the authority to disapply Community measures conflicting with national fundamental rights guarantees [15] and the latter of which declared that Italy might withdraw from the Community were such conflicts to arise. [16] Despite these decisions, the Court of Justice continued to assert its position as the only court with the authority to judge the validity of Community acts, asserting that its unique position as a "european court" gave it the sensibility to assess whether -- from the point of view of the Community as a whole -- particular measures struck the appropriate balance between protecting fundamental rights and meeting Community needs. [17] At the same time, the Court attempted to persuade its counterparts at the national level that it would be a strong guarantor of fundamental rights, through decisions which suggested, for example, that it would provide a greater level of protection to individuals than that guaranteed by the European Convention on Human Rights. [18] The German and Italian Constitutional Courts eventually capitulated, accepting the supremacy and direct effect doctrines, [19] although reserving to themselves the ultimate right to take action at the national level should the Court's protection for fundamental rights prove to be inadequate. [20]
The Court thus ultimately succeeded in its endeavor: indeed, with the exception of the German and Italian courts, the Court's assertion of its power to review Community acts for compliance with fundamental rights was for the most part welcomed by Community institutions and Member States alike. Why was this the case? Several reasons may be mentioned. First, opposition to judicial review typically stems from its counter-majoritarian nature, since it results in the invalidation of the acts of a democratically elected legislature by an unelected judiciary. In the Community, however, such a democratically elected legislature was, and to some degree still is, non-existent. [21] Judicial review of Community acts thus served to check the increasing power of an appointed executive branch. Second, because the Court's review extended only to acts of the Community institutions, it did not directly interfere with the power of the Member States. Third, the cases before the Court in which human rights issues were raised were economically oriented and often highly technical in nature. They did not involve issues that were highly sensitive to the majority of individuals in the Community, and thus the Court's human rights jurisprudence was not the subject of much debate or attention. [22] Significantly, the first two of these reasons for the acceptance of the Court's review of Community acts do not hold true when the review of Member State actions is at issue. The third reason, namely the lack of sensitive issues before the Court, may also lose significance as the Court is faced with more controversial claims to rights about which no consensus among Member States exists. These considerations give rise to substantial and well-justified reservations as to whether there may be a similar welcoming of judicial review by the Court over Member State actions for compliance with Community fundamental rights standards.
With this brief history in mind, I will now turn to a discussion of the Court's jurisprudence concerning the review of Member State actions in the fundamental rights area which lead up to its decisions in ERT, Grogan, and Konstantinidis. I will then provide an analysis of those cases, with particular emphasis on the opinion of Advocat General Jacobs in Konstantinidis.
Developments in this area, as in many other areas of Community law, have been characterized by a "push and pull" between the various relevant actors in the Community. In a number of important cases, the Commission and several Advocats General have taken positions espousing some type of review of Member State action under Community fundamental rights standards. The Court itself has suggested at times a willingness to embrace the invitations of those actors and at other times, explicitly or implicitly, has rejected them. This "push and pull" process came to a culmination with the Court's decision in ERT, but began again shortly thereafter in Konstantinidis. This paper will examine whether the "push and pull" process might result in the Court ultimately asserting a much more far-reaching competence to review Member State action than it has to date. Before discussing this case law, however, it might be helpful to offer some general remarks about precisely what the review of Member State action by the Court under Community fundamental rights standards would entail.
Asserting the authority to judge Member State actions against Community fundamental rights standards requires two steps of judicial activism. [23] The first of these steps -- the establishment of a Community "bill of rights" -- has already been undertaken by the Court. The second step would require the application of this "bill of rights" to the Member States. Two possible models of judicial review might result from such a process. The first might be akin to that found in the United States, where federally set fundamental rights standards bind both federal and state governments without regard to the substantive division of competences between those two loci of power. [24] The federal judiciary could thus review actions of the states for compliance with federally set fundamental rights standards even where the states' actions relate to an area over which the federal government has no competence. In the United States, this was accomplished through the selective incorporation of most of the guarantees contained in the Bill of Rights -- originally binding only against the federal government -- into the Due Process and Equal Protection clauses of the Fourteenth Amendment, thus making them applicable to the states. [25] The second model is also premised on centrally determined fundamental rights standards. However, under this model, these standards are applicable to actions of the states only in so far as those actions relate to an area of competence belonging to the central government, not when the state is acting pursuant to its residual powers. The substantive division of competences between the central government and its constituent parts is thus respected to a greater degree.
While the Court of Justice originally eschewed any power to review Member State actions, more recent developments in its jurisprudence demonstrate that it has moved toward the latter type of these two models. In Christos Konstantinidis, [26] Advocat General Jacobs seems to take a more far reaching position, espousing a system of review closer to that found in the United States. The implications of Advocat General Jacobs' position, and the likelihood that the Court might move in the direction suggested by him, will be the central questions addressed in Section III of this paper. Before turning to that issue, however, and indeed in order to fully understand it, it is necessary to look at the steps that the Court has taken thus far in asserting its power to review Member State actions.
Although the Court had successfully asserted its right to review Community acts for violations of fundamental rights, the notion that it lacked competence to review Member State actions for similar violations seemed to be well accepted. This orthodox view was clearly expressed in Gabrielle Defrenne v. Societe Anonyme Belge de Navigation Aerienne Sabena, [27] in which Advocat General Capotorti noted that "legal relationships which are left within the powers of the national legislature must be understood to be subject to the constitutional principle that human rights must be respected which applies in the State to which the relationship is subject, in so far as the internal provisions are not replaced by directly applicable Community provisions." [28] Indeed, to some "the prospect of a EC 'fourteenth' amendment seem[ed] dim." [29]
The first case which seemed to indicate a shift in attitude with respect to this issue was Rutili v. Minister for the Interior. [30] Mr. Rutili, an Italian national residing in France, was granted a residence permit by the French Minister of the Interior subject, however, to the condition that he not reside within certain areas of that country. The French government defended its action on the basis of the public policy derogation of Article 48(3), and thus the main issue before the Court was the proper interpretation of the phrase "subject to the limitations justified on grounds of public policy" found in that article. The Court determined that, although Member States have some discretion in giving content to the phrase "public policy," the scope of the derogation must nevertheless be subject to control by the Community. It then examined several provisions of secondary Community law which served to delimit that scope. These provisions mandated that any restrictions on free movement be based on the personal circumstances of an individual [31] and, furthermore, precluded a Member State from relying on the public policy derogation either to achieve economic ends [32] or in response to protected trade union activities. [33] Additionally, they conferred upon a national of any Member State the right to the same legal remedies afforded to nationals of the Member State relying on the derogation. [34] In addition to these particular provisions, the Court noted that Article 7's prohibition on discrimination on the grounds of nationality would preclude a Member State from placing territorial restrictions upon the areas in which a national of another Member State could reside unless identical restrictions could be imposed, under the same conditions, on nationals of the host State. [35] Because the Minister's decision in Mr. Rutili's case might have violated any one of these specific provisions, the Court could have concluded its opinion there. Instead, it noted that
[t]aken as a whole, these limitations placed on the powers of Member States in respect of control of aliens are a specific manifestation of the more general principle, enshrined in Articles 8, 9, 10, and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms . . . and in Article 2 of Protocol No. 4 of the same Convention . . . which provide, in identical terms, that no restrictions in the interests of national security or public safety shall be placed on the rights secured by the above-quoted articles other than such as are necessary for the protection of those interests 'in a democratic society.' [36]
This language -- although only obiter dictum -- suggested a possible willingness on the part of the Court to declare Member State actions derogating from the Treaty's fundamental freedoms to be incompatible with the Treaty on fundamental rights grounds alone, even if they did not otherwise run afoul of positive provisions of Community law. In other words,
[i]f the Community law is but a specific manifestation of a general principle it should follow that the general principle forms part of the Community regime which controls the practice of the Member States under the derogation. It further follows, that a national practice which violated this general principle without violating a specific rule of the Community regime, would violate Community law and, by virtue of the principle of supremacy, be inapplicable. [37]
While not actually applying fundamental rights principles to the Member State action in this case, Rutili thus provided some precedent for review by the Court of Member States actions derogating from the Treaty to ensure their compliance with Community fundamental rights standards. [38]
A similar but potentially broader position was espoused by Advocat General Trabucchi in his opinion in Lynne Watson & Allessandro Belmann, [39] a case involving a challenge to Italian legislation which required a national of another Member State and anyone offering board and lodging or employment to him or her to notify authorities within prescribed time periods of the entry of that individual into Italy. Violators were subject to fines and/or imprisonment and, in the case of foreign nationals, deportation. Ms. Watson, a British citizen, and Mr. Belmann, an Italian citizen who had offered her accommodation, were prosecuted for failing to make the required notifications.
In assessing the claim that this legislation violated Articles 8 and 14 of the European Convention on Human Rights, [40] Advocat General Trabucchi first looked to the Court's decision in Rutili. The novelty of that decision, he found, lay in the fact that the Court discussed fundamental rights principles in the context of a discretionary act of a Member State limiting an individual's right to an economic freedom secured by the Treaty. [41] From this he drew the conclusion that
respect for fundamental principles concerning the protection of the rights of man . . . may, within the sphere of application of Community law, also be of importance in determining the legality of a state's conduct in relation to the freedom which the Treaty accords to individuals . . . . [W]ithout impinging upon the jurisdiction of other courts, [42] this Court too, can look into an infringement of a fundamental right by a State body, if not to the same extent to which it could do so in reviewing the validity of Community acts, at least to the extent to which the fundamental right alleged to have been infringed may involve the protection of an economic right which is among the specific objects of the Treaty. [43]
Advocat General Trabucchi then suggested that a national measure enacted by a Member State which subjected nationals of other Member States to "greater intrusion into their private lives" than that State's own nationals might constitute an illegal interference with the right of those individuals to free movement guaranteed by the Treaty. [44] However, this would only be the case if the intrusion into the private lives of those individuals interfered with the substance of the right to privacy embodied in Article 8 and guaranteed by Community law. The reporting requirements at issue in this case, he concluded, did not constitute such an interference, since the right to privacy was not absolute but subject to some restrictions justified by the state's interests in supervising individuals. [45]
Advocat General Trabucchi's position here is potentially broader than that suggested by the Court in Rutili. In that case, the French legislation was found to constitute a prima facie violation of Article 48, thus making reliance on the public policy derogation found in Article 48(3) necessary for the measure to be valid. Community fundamental rights principles would have become applicable only in controlling the practice of the Member State under that derogation. In Watson & Belmann, by contrast, the Advocat General considered the Italian legislation not to be an exercise of "an exceptional power of derogation" under Article 48(3) but rather "the expression of a general power to keep track of the movements of a person on [a Member State's] national territory." [46] He noted that
unjustified intrusions by the States, even if they arise through the exercise of powers retained by them, into the privacy of individuals in their capacity as aliens or at least by reason of the relationship which may exist between a person and a foreign guest, may be contrary to Community law in as much as they infringe a principle governing respect for privacy and thereby for that very reason constitute unjustified interference with the actual exercise of a right of free movement. [47]
Advocat General Trabucchi thus seemed to be suggesting that Community fundamental rights principles might be applied to judge the validity of a Member State's exercise of its residual powers not involving an explicit derogation from the Treaty, even where the exercise of those powers would not otherwise violate a specific provision of Community law.
Like the Advocat General, the Commission called for an extension of the Court's fundamental rights jurisprudence, although it analyzed the Italian regulation as a derogation under Article 56, since it considered that Ms. Belmann was in Italy as a recipient of services. [48] It stated that "a measure which, although adopted on grounds of public policy, infringes other principles of Community law or conflicts with the fundamental rights of nationals of other Member States, is not 'justified' within the meaning of Article 56." [49]
The Court was less ambitious. Analyzing the measure as a derogation under Article 48(3), it stated only that, while the Italian requirements in and of themselves were permissible under Community law, they might be found to violate that law if either the period of time fixed for reporting was unreasonable or the penalties imposed upon violators were disproportionate to the offense committed. Arguably, the requirement of "reasonableness" might "be regarded as an imposition of a general principle of Community law." [50] Such general principles, as the Court has made clear, include fundamental rights guarantees, and the Court's language may therefore suggest that Member State action derogating from the Treaty must comply with Community fundamental rights standards. As in Rutili, however, the Court did not explicitly adopt this position.
The Court next considered the issue of reviewing Member State action on fundamental rights grounds in Cinetheque S.A. v. Federation Nationale des Cinemas Francais. [51] Cinetheque involved a challenge to French legislation prohibiting the marketing of videocassettes of a film for a period of one year following the showing of the film itself in movie theaters, on the ground that -- among other things -- it violated the principle of free expression enshrined in Article 10 of the European Convention. [52] Both the Advocat General and the Commission called on the Court to explicitly adopt the position it had hinted at earlier in Rutili. Advocat General Slynn took the position that "the exceptions in Article 36 and the scope of 'mandatory requirements' taking a measure outside Article 30 should be construed in light of the Convention." [53] The Commission's position was similar, although it explicitly included not only Article 36 but all derogations from the Treaty's fundamental freedoms. [54]
This time the Court explicitly rejected their position. While it found the French legislation to be a prima facie violation of Article 30, it considered the measure to be justified under the "mandatory requirements" formula. The legislation, the Court noted, was not aimed at the regulation of trade patterns but rather pursued the legitimate objective of encouraging cinematographic production. Moreover, its effects on intra-Community trade "did not exceed that which was necessary in order to ensure the attainment of th[at] objective . . . ." [55] On the fundamental rights issue, the Court then noted that
[a]lthough it is true that it is the duty of this court to ensure observance of fundamental rights in the field of Community law, it has no power to examine the compatibility with the European Convention of national legislation which concerns, as in this case, an area which falls within the jurisdiction of the national legislator. [56]
Despite its own hints in Rutili and Watson & Belmann and the invitations of Advocat General Slynn and the Commission in the case before it, the Court in Cinetheque thus explicitly refused to apply Community fundamental rights standards to Member State actions derogating from the Treaty.
One proposed explanation for the position taken by the Court in Cinetheque should be mentioned here since it will become relevant to the discussion of the Konstantinidis case in Section III of this paper. This explanation suggests that the Court was fearful of the consequences of adopting the Advocat General/Commission position expressed in Cinetheque. Article 30 is, after all, extremely broad in scope -- including any measure which directly or indirectly, actually or potentially, hinders intra-Community trade [57] -- and is therefore potentially applicable to a very wide variety of national legislation. The Court may thus have been wary of having to review every measure which a Member state might adopt in the exercise of its residual powers. However,
if this was the fear, it may easily be discarded. The plea of the Advocat General and the Commission is far more limited . . . [i]t is limited only to review of measures which constitute an exception. This could be rephrased as a claim for review of measures which satisfy a 'but/for' test: only in those cases where but for a recognized exception to a fundamental Community prohibition, a Member State measure would be in violation of Community law, should the Court also examine the compatibility of the national measure with Community human rights. [58]
An adoption of the "but/for" test, therefore, would not have forced the Court to judge all Member State action in -- for example -- the social, educational, or cultural fields, but only those measures constituting a prima facie violation of a Treaty article guaranteeing a fundamental Community freedom.
Even with the Court's narrow interpretation of its own competences in Cinetheque, however, that case did not necessarily foreclose all review of Member State action. Three ways of reading Cinetheque restrictively, to allow some room for the possibility of reviewing Member State actions, have been suggested. First, the French legislation at issue in Cinetheque did not have the purpose of regulating trade patterns and therefore did not seek to restrict directly the free movement of goods across borders. The measures at issue in Rutili and Watson & Belmann, by contrast, were specifically directed towards individuals crossing frontiers in exercise of their free movement rights. Cinetheque, therefore, may have precluded review of national measures only of the former type. [59] Second, since the Court analyzed the French legislation in Cinetheque under the "mandatory requirements" formula of Cassis de Dijon, Cinetheque may have left open the possibility of reviewing Member State action justified by reference to an explicit derogation from the Treaty, as were the national measures at issue in Rutili and Watson & Belmann. [60] Third, Cinetheque may have precluded review of Member State actions relying on derogations from the Treaty only in the context of Article 30 -- since Rutili and Watson & Belmann, which both suggested that such review might be available, involved Article 48. [61] Such a reading of Cinetheque might be justified on the grounds that questions concerning the free movement of goods and those concerning the free movement of persons should be treated differently with respect to the issue of fundamental rights protection. [62]
That a restrictive reading of Cinetheque on one or more of the above grounds might have been justified culls some support from the Court's opinion in Johnston v. Chief Constable of the Royal Ulster Constabulary ("RUC"), [63] decided one year later. Johnston involved a challenge to an Irish policy prohibiting women in the RUC reserves from carrying and being trained in the use of firearms. The Chief Constable in Northern Ireland refused to renew the contract of Marguerite Johnston, since -- pursuant to the Irish policy -- she was precluded from performing duties that required the carrying of firearms and her services were not otherwise needed. The Chief Constable's action was approved by the Secretary of State, who -- by authority of the Irish Sex Discrimination Order -- issued a certificate stating that the Constable's action was justified on the grounds of national security and the protection of the public order. The Sex Discrimination Order made the issuance of such a certificate conclusive evidence as to these justifications, thus depriving Mrs. Johnston of any remedy under national law.
In considering whether such a denial of judicial remedies was permissible under Community law, the Court looked to Directive 76/207, [64] which guaranteed equal treatment to men and women in access to employment. Specifically, Article 6 of that Directive required Member States "to ensure that their national courts and tribunals exercise[d] effective control over compliance with the provisions of the directive and with national legislation intended to put it into effect." [65] The Court then went on to note that
[t]he requirement of judicial control stipulated by that Article reflects a general principle of law which underlies the constitutional traditions common to the Member States. That principle is also laid down in Articles 6 and 13 of the European Convention for Protection of Human Rights and Fundamental Freedoms of 4 November 1950. As the European Parliament, Council and Commission recognized in their joint declaration of 5 April 1977 . . . and as the Court has recognized in its decisions, the principles on which that Convention is based must be taken into consideration in Community law. [66]
The Court concluded that the provision of the Sex Discrimination Order precluding judicial review was contrary to Article 6. Its reference to the requirement of an effective judicial remedy as a general principle of law, however, seemed to suggest that the requirement would have controlled the Member State's action even in the absence of a specific provision of Community law -- in this case Article 6 of the Directive -- incorporating it. Such a position would appear to mirror that suggested by the Court in Rutili. A less ambitious interpretation of the Court's judgment, however, is also plausible. The Court may have used the general right to an effective judicial remedy in interpreting Article 6 itself, and it was that article, rather than the general principle itself, which was applied to the Member State action. [67] The Court's position in Johnston was thus somewhat ambiguous, and the case did not present clear support for the proposition that Community fundamental rights standards should apply to Member State action.
The possibility of an extension in the Court's fundamental rights jurisprudence to review of Member State actions in the Cinetheque setting thus seemed to be "on hold" following that decision. The Court did, however, take a significant step in subjecting Member State actions to review in situations in which the Member State acted "on behalf of" or as an arm of the Community itself, rather than pursuant to its residual powers. The first case in which the Court took this position was Marthe Klensch v. Secretaire d'Etat a L'Agriculture et a la Viticulture, [68] in which it was faced with a challenge to Luxembourg's implementation of Community regulations requiring additional levies to be exacted on milk products produced above a certain quantity. The Community regulations afforded Member States discretion to choose from one of three years (1981, 1982, 1983) as the reference year for determining the quantity of milk that would be exempt from the additional levy. Luxembourg's choice of 1981 as the reference year for that country was challenged as a violation of Article 40(3) of the Treaty, which prohibits discrimination between producers and consumers in the establishment of the common agricultural market. In responding to this claim, the Court found that Article 40(3)
covers all measures relating to the Common organization of agricultural markets, irrespective of the authority which lays them down. Consequently, it is also binding on the Member-States when they are implementing the said common organisation of the markets. That finding is borne out by a consistent line of cases . . . in which the Court held that the prohibition on discrimination laid down in Article 40(3) of the EEC Treaty is merely a specific enunciation of the more general principle of equality which is one of the fundamental principles of Community law . . . . Consequently, where Community rules leave Member States to choose between various methods of implementation, the member-states must comply with the principle stated in Article 40(3). [69]
For the first time, the Court appeared to explicitly subject the action of a Member State to general principles of Community law, of which fundamental rights guarantees form an integral part. [70] The justification for review in such situations seems to be that, in implementing the Common Agricultural Policy -- responsibility for which lies primarily with the Community -- the Member State is acting under authority granted to it by the Community itself. Since the Community could take the particular action in question on its own but chooses instead to delegate its power to the Member State, the Member State -- in acting upon that power -- must respect the same fundamental rights standards that would have bound the Community institutions had they exercised the power themselves.
On this reasoning, Klensch cannot be regarded as either an express adoption of the position suggested in Rutili nor a reversal of Cinetheque, since those cases involved Member State action in an area of Community law mandating only the abolition of restrictions on free movement rights and not the implementation of a comprehensive Community policy. [71] Nevertheless, this reasoning might by analogy justify review also in the Cinetheque context, since the authority to derogate from the Treaty, like the authority to implement the Common Agricultural Policy, is also provided by Community law.
Even after Klensch, however, Cinetheque seemed at least temporarily to be the status quo with respect to Member State derogating measures. There even seemed to be somewhat of a retreat by other Community actors from a more aggressive posture with respect to this issue, as is evidenced in the opinion of Advocat General Mancini in Bond van Adverteerders v. Netherlands. [72] Bond van Adverteerders involved the compatibility with Community law of a Dutch regulation prohibiting both subtitling and advertising "aimed at the Dutch public" in foreign television programming supplied by a broadcaster in another Member State. Dutch broadcasters, by contrast, were permitted to include advertising in their programming provided that they obtain the approval of the Dutch advertising foundation "STER" and that they comply with certain time and content restrictions. Advocat General Mancini found that the Dutch scheme could not be justified either in the general interest or under the public policy derogations of Articles 56 and 66, since there was no objective justification for the differing treatment to which foreign broadcasters were subjected. In evaluating the fundamental rights claim, Advocat General Mancini relied on Cinetheque in noting that the legislation in question fell within the jurisdiction of the national legislature and thus could not be tested for compliance with Community fundamental rights principles, in particular the principle of free expression embodied in Article 10 of the European Convention on Human Rights. [73] He then noted that
one can only trust that there will be a "dialectical development" by which the legal orders of the member States will be influenced by the Court's case-law, since Community law is directly applicable in the domestic sphere it is unlikely that national courts will fall behind the "standards" established by the Court of Justice when interpreting domestic laws in the light of a fundamental freedom. [74]
The Community could not, according to the Advocat General, impose its standards of fundamental rights on Member States, even where one of the Treaty's fundamental freedoms was at issue. Rather, it would have to hope that Member States would be indirectly influenced by those standards in establishing their own levels of protection. The Court's position in Cinetheque thus seemed to be quite well-entrenched. [75]
Following these decisions, therefore, what can be said to have been the "status quo?" The Court had asserted the power to review Member State action implementing Community law, but had refused to do the same with respect to Member State actions derogating from Community law. Departing from this status quo, one might envision several ways -- not mutually exclusive -- in which the Court's jurisprudence might develop. First and most obviously, it might extend its fundamental rights review to cover Member State actions derogating from the Treaty. Second, it might take the more radical step of moving toward a system of review of Member State actions for compliance with Community fundamental rights standards akin to the American model, exercising such review over all Member State action regardless of the division of competences between the Community and the Member States. The next case to be discussed, Elliniki Radiofonia Tileorasi - Anonimi Etairia (ERT-AE) v. Dimotiki Etairia Pliroforissis, [76] involves the first of these possibilities. The second case, Society for the Protection of Unborn Children Ireland Ltd. (SPUC) v. Grogan, [77] also involves the issue of reviewing Member State derogating legislation but additionally raises important questions as to the extent to which an extension by the Court of its jurisprudence in this area will be accepted by Member States. Finally, the third case to be analyzed, Christos Konstantinidis, [78] concerns the second, more radical direction in which the Court's jurisprudence might develop, namely towards the American model of fundamental rights review.
Elliniki Radiofonia Tileorasi - Anonimi Etairia v. Dimotiki concerned the legality of a grant of a monopoly by Greece to a public radio and television company, Elliniki Radiofonia Tileorasi (ERT). Under Greek Law No. 1730/1987, ERT was granted exclusive rights to perform any activities necessary to attain the objectives for which it was established, [79] including the right to broadcast sounds and images of any kind, through any means, and the right to establish and operate television and radio stations. Article 16(1) of that law prohibited any other entity from undertaking these activities without ERT's authorization. [80] Despite this prohibition, Dimotiki Etairia Pliroforissis (DEP) and the Mayor of Thessaloniki established a television station in Thessaloniki from which they began broadcasting in late 1988. ERT instituted an action before the Thessaloniki District Court against DEP and the Mayor, seeking to enjoin them from further broadcasting and to have DEP's equipment seized and sequestered. In their defense, DEP and the Mayor claimed that the existence of the television monopoly and/or the manner in which it was operated violated the Treaty's provisions on free movement of goods and services and its rules on competition, as well as Article 10(1) of the European Convention on Human Rights. [81]
With respect to the fundamental rights claim, the Thessaloniki Court's questions were as follows:
Whether and to what extent the grant by law to a single broadcaster of a television monopoly for the entire national territory of a Member state, with a right to make television broadcasts of any kind, is compatible today with . . . the provisions of Article 10 of the European Convention . . . ; [and]
Whether the freedom of expression secured by Article 10 of the European Convention . . . impose[s] per se obligations on the Member States, independently of the written provisions of Community law in force, and if so what these obligations are. [82]
The latter of these two questions suggested a position similar to that alluded to by the Court of Justice in Rutili: namely, that the action of a Member State might be incompatible with Community law if it infringed on an individual's fundamental rights, in this case the right of free expression, even if that action did not violate a specific provision or provisions of Community law. [83]
In response to these questions, ERT, the Commission, and the French Government (intervening) all relied on Cinetheque in reaching the conclusion that the Court had no jurisdiction to rule on the compatibility of the Greek legislation with the European Convention. [84] DEP, by contrast, argued that the provisions of the Treaty "must be interpreted in the spirit of the provisions of the Convention . . . [and] [f]rom that point of view ERT's absolute monopoly cannot be justified by applying the derogation allowed in Community law." [85] DEP seemed to take the position, as the Commission and the Advocat General had done in Cinetheque, that national measures relying on derogations from the Treaty for their validity must not violate Community fundamental rights standards.
Advocat General Lenz declined to follow DEP's lead, taking instead a position similar to that of ERT and the Commission. He began by considering Council Directive 89/552/EEC on television broadcasting. [86] The preamble of that Directive recognized that Article 10(1) of the European Convention, as applied to television services, was a specific manifestation of the general principle of free expression recognized by Community law. As such, Advocat General Lenz noted, that general principle must "be recognized by the Community institutions." [87] However, he continued, it was "clearly established" under Cinetheque that the Court had no competence to judge the compatibility of Member State actions with such fundamental rights guarantees.
He did not, however, deny all relevance to fundamental rights principles in the context of the case. Instead, he noted that such principles might be relevant in interpreting Article 90(2) of the Treaty, which provides that the Treaty's rules on competition apply to undertakings "entrusted with the operation of services of general economic interest in so far as the application of such rules does not obstruct the performance . . . of the particular tasks assigned to them." [88] This general rule is subject to the condition that "[t]he development of trade must not be affected to such an extent as would be contrary to the interests of the Community." [89] According to Advocat General Lenz, the principle of free expression might be taken into account in assessing the "general interest" within the meaning of this provision of the Treaty. This position appears to be similar to the restrictive interpretation suggested supra of the Court's decision in Johnston -- namely, that fundamental rights principles could be used to interpret provisions of Community law which are then applied to Member State action, but not to control the Member state action directly. The Advocat General concluded, however, that Article 10(1) of the European Convention did not contain any additional criteria for judging the legality of the Greek television monopoly other than those that were found relevant to DEP's free services and competition claims, namely that such a monopoly might be found incompatible with Community law if it lead to de facto discrimination against foreign goods or services. [90]
The Court took quite a different approach. It repeated its by now well-established view that fundamental rights, derived from the common constitutional traditions of Member States and relevant international treaties, form an integral part of Community law, respect for which the Court has the duty to ensure. [91] The Court then reiterated the position it had taken in Cinetheque, stating that it had "no power to examine the compatibility with the European Convention on Human Rights of national rules which do not fall within the scope of Community law." [92] However, where the national rules in question do indeed fall within that scope, the Court noted that it had the duty to provide "all of the criteria of interpretation needed by the national court" [93] to determine whether the rules in question are compatible with Community fundamental rights guarantees. In the crucial passage of the judgment, which is worth quoting in full, the Court then held that
where a Member state relies on the combined provisions of Articles 56 and 66 in order to justify rules which are likely to obstruct the exercise of the freedom to provide services, such justification, provided for by Community law, must be interpreted in light of the general principles of law and in particular of fundamental rights. Thus the national rules in question can fall under the exceptions provided for by the combined provisions of Articles 56 and 66 only if they are compatible with the fundamental rights the observance of which is ensured by the Court.
It follows that in such a case it is for the national court, and if necessary, the Court of Justice to appraise the applicability of those provisions having regard to all the rules of Community law, including freedom of expression, as embodied in Article 10 of the European Convention on Human Rights, as a general principle of law the observance of which is ensured by the Court. [94]
Measures relying on the derogations provided for in Articles 56 and 66, therefore, are considered by the Court to fall within the scope of Community law and can be judged against Community fundamental rights guarantees. ERT thus represents the first time in which the Court requires a Member State action relying on a derogation from the Treaty to overcome the additional hurdle of complying with Community fundamental rights standards, although the measure in question may satisfy all of the other criteria necessary to establish a valid derogation. [95]
Does ERT reverse Cinetheque? The court does not say so explicitly: indeed, it cites Cinetheque for the proposition that it cannot review measures falling within the jurisdiction of the national legislator. The two cases might be distinguished on the ground that Cinetheque was analyzed under the "mandatory requirements" framework while ERT involved an explicit derogation from the Treaty. The rationale provided by the Court for reviewing Greece's action in ERT, however, suggests that this distinction ought not to be considered dispositive. The Greek legislation at issue in ERT, according to the Court, must comply with Community fundamental rights standards because it can be valid under Community law only by virtue of a derogation provided by Community law -- the "but/for" rationale. Community law also provides for the exception based on "mandatory requirements," although this exception is not explicit in the Treaty but rather has been judicially developed. The Court's logic thus suggests that justifications based both on explicit derogations and the mandatory requirements exception should be treated in the same fashion.
It would also be difficult to argue that Cinetheque survives ERT on the ground that Cinetheque was confined to Article 30 cases. Recall that one of the possible limitations on Cinetheque discussed supra suggested that the Court might have been establishing a distinction between the free movement of goods and the free movement of persons for fundamental rights purposes, and that on this ground Rutili and Watson & Belmann -- which both involved Article 48 -- might survive the Court's decision in Cinetheque. In ERT, however, the Court is not concerned with Article 48 but with Articles 59 and 60 governing the free provision of services, and thus the Court demonstrates its willingness to review Member State actions even outside the context of Treaty provisions dealing exclusively with the free movement of people.
While the Court thus did not explicitly reject its holding in Cinetheque, [96] its decision in ERT suggests that - were it to be confronted with the facts of Cinetheque after its holding in ERT - it would review the French legislation at issue in that case for compliance with Community fundamental rights standards. [97] The suggestions of the Commission in Watson & Belmann and of both the Advocat General and the Commission in Cinetheque appear to have finally found a sympathetic ear with the Court. [98]
In Society for the Protection of Unborn Children Ireland Ltd. (SPUC) v. Grogan, the Court was faced with a conflict between the right of free expression and Ireland's constitutional prohibition on abortion, as interpreted by the Irish Supreme Court. While the facts of the case are not complicated, some background is necessary for a proper understanding of the context in which it arose. In 1983, Ireland amended its constitution to provide that "[t]he State acknowledges the right to life of the unborn and, with due regard to the right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." [100] In Attorney General ex rel. Society for the Protection of Unborn Children (Id) Ltd. v. Open Door Counselling, [101] the Irish Supreme Court interpreted Article 40(3) broadly in finding that it prohibited individuals from assisting women in obtaining abortions either by helping them to make travel arrangements or by providing them with information about abortion services outside of Irish territory. [102] Despite the holding in that case, a group of students in Ireland continued to disseminate information about abortion services available in the United Kingdom. Considering these activities to be a violation of Article 40(3), the Society for the Protection of Unborn Children ("SPUC") applied to the Irish High Court to obtain an injunction against the students.
The Irish High Court found the facts in Grogan to be distinguishable from those in Open Door Counselling, noting that the latter case involved the provision of assistance to women in obtaining abortions, while the students' activities in Grogan were limited to disseminating information. Finding Open Door Counselling not to be dispositive, the Irish High Court decided to consider the merits of SPUC's claim for an injunction, but in order to do so it felt it necessary to refer several questions to the Court of Justice. SPUC appealed against this decision to the Irish Supreme Court, which disagreed with the lower court on the ground that Open Door Counselling did indeed govern the facts at issue in Grogan and that the lower court had therefore erred in refusing to grant an injunction. However, the Irish Supreme Court did not quash the lower court's preliminary reference to the Court of Justice. It was in this context that the Court of Justice was faced with ruling on the questions referred to it.
The Advocat General's opinion was delivered by Advocat General Van Gerven, who began by rejecting SPUC's claim that abortion could not be considered a service within the meaning of Article 60. [103] He then found that, as potential recipients of the service in question, Irish women had the corollary right to receive information about those services while in Ireland and that this right existed without regard to who provided them with such information. [104] The prohibition on the dissemination of information by the students, therefore, constituted a prima facie violation of Articles 59 and 60 of the Treaty. Nevertheless, the Advocat General found that the prohibition might be justified under the public policy derogation provided for in Articles 56 and 66, since it pursued a legitimate objective and was proportional to achieving that objective. [105]
He then turned to the question of whether Article 40(3) as interpreted by the Irish Supreme Court might nonetheless be incompatible with Community law if it infringed Community fundamental rights guarantees, in particular the freedom of expression. The Advocat General first examined the issue of whether the Court was competent to rule on such a question. The Advocat General's opinion in Grogan was delivered on June 11, 1991, seven days prior to the Court's judgment in ERT. Thus, he began by noting that "[o]ne question which has so far not been settled is to what extent [the Court] is competent to appraise national rules in light of the aforementioned general principles of Community law with regard to fundamental rights and freedoms." [106] Significantly, he came to the same conclusion as the Court had in ERT, and in so doing, provided a somewhat more thorough explanation of the rationale for reviewing Member State actions derogating from the Treaty. Citing Cinetheque, the Advocat General adhered to the proposition that the Court had no competence to review measures lying within the jurisdiction of the national legislator, but noted that the Court could exercise such review where the measures in question fall inside the scope of Community law. [107] Following from this, he reasoned that "a national rule which in order to show that it is compatible with Community law has to rely on legal concepts, such as imperative requirements of public interest or public policy . . . falls 'within the scope' of Community law." [108] The Advocat General considered this to be the case because, although the Member States had some discretion in defining the public interest or public policy concepts, the scope of these concepts were nevertheless subject to Community control and had to be "justified and delimited in a uniform manner for the whole Community under Community law and therefore taking into account the general principles in regard to fundamental rights and freedoms . . . ." [109] He then noted that
[o]n a strict view, that interpretation does not conflict with the view expressed by the Court in Cinetheque. In that case, it was stated that the Court's power of review did not extend to, 'an area which falls within the jurisdiction of the national legislator,' a statement which, generally speaking, is true. Yet once a national rule is involved which has effects in an area covered by Community law (in this case Article 59 EEC) and which, in order to be permissible, must be able to be justified under Community law with the help of legal concepts or principles of Community law, then the appraisal of that national rule no longer falls within the exclusive jurisdiction of the national legislator. [110]
As the Court did in ERT, the Advocat General -- while paying lip service to the Cinetheque formula -- implicitly suggests that Cinetheque should be reversed on this issue. According to Advocat General Van Gerven, two requirements are sufficient to bring a measure "within the scope of Community law:" first, that the national rule in question have effects in an area covered by Community law, and second, that the measure rely on legal concepts or principles of Community law for its justification. These requirements would have been satisfied also by the French legislation at issue in Cinetheque, since that legislation affected the free movement of goods such as to be a prima facie violation of Article 30 and could be justified only by reference to the Community concept of "mandatory requirements." Arguably, the Advocat General's formula in Grogan may be broader than that established by the Court in ERT, since the Court in ERT referred only to an explicit derogation from the Treaty while the Advocat General in Grogan includes review of Member State actions relying on any legal concept or principle of Community law, which would also include the Cassis de Dijon "mandatory requirements" principle. As noted above, however, the Court's rationale in ERT suggests that ERT should also be construed as applying to measures justified by reference to that principle.
On the merits of this issue, however, the Advocat General found that the Irish prohibition withstood scrutiny under Community fundamental rights standards. He argued that Member States must have a considerable margin of discretion in enacting measures with respect to the issue of protecting the life of the fetus, since no uniform moral consensus existed with regard to that issue in the Community. [111] Since Ireland's objective of protecting the life of the fetus should be considered legitimate, Ireland was entitled to take the view that a prohibition on the provision of information to women about abortion services was necessary to effectuate that aim. Moreover, the prohibition could not be considered disproportionate, as it was limited solely to the dissemination of information by way of assistance and was thus of a limited nature. A different conclusion might have been reached, he noted, if Ireland had -- for example -- prohibited women physically from going abroad to receive abortions or subjected them to physical examinations upon their return. [112]
The Court's approach was significantly different from that of Advocat General Van Gerven. It reasoned that, because the students disseminating the information in question had no economic link to the providers of abortion services in England, their right to disseminate such information was not protected as a corollary of the rights to provide and receive services within the meaning of Article 59. [113] Thus, the prohibition on the dissemination of information as applied to these students did not constitute a prima facie violation of Article 59. On the fundamental rights issue, the Court reaffirmed its position in ERT in noting that
[a]ccording to, inter alia, the judgment of 18 June 1991 in Elliniki Radiofonia Tileorasi, where national legislation falls within the field of application of Community law the Court . . . must provide the national court with all the elements of interpretation which are necessary in order to enable it to assess the compatibility of that legislation with the fundamental rights . . . the observance of which the Court is to ensure. [114]
However, since the Irish prohibition fell outside the scope of Community law by virtue of the fact that Article 59 did not apply to the students' activities, the Court determined that it had no jurisdiction to assess the compatibility of that prohibition with Community fundamental rights standards. [115]
Grogan is significant, for the purposes of this paper, in several respects. The first relates to the importance of the dialectic between the Advocats General and the Court. The opinion of Advocat General Lenz in ERT was delivered six months prior to the opinion of Advocat General Van Gerven in Grogan, which in turn was delivered only seven days prior to the Court's judgment in ERT. It seems likely that debate within the Court on the issue of reviewing Member State acts derogating from the Treaty was quite extensive during this period. Advocat General Van Gerven's opinion in Grogan may have finally convinced the Court to take the step it did in ERT with respect to reviewing Member State acts derogating from the Treaty. Alternatively, Advocat General Van Gerven may have been aware that the Court was considering asserting or had already decided to assert its competence to review derogating acts, and thus "jumped on the bandwagon," so to speak. Under either scenario, the string of events beginning with Watson & Belmann and Cinetheque and culminating in ERT demonstrates the mutually interactive influence which the Court, the Advocats General, and the Commission exert on each other.
Second, by establishing the requirement of an economic link between the distributor of information and the provider of services, the Court was able to avoid having to rule on which right -- free expression or the right to life of the fetus -- should prevail. It is not surprising that the Court would have chosen to avoid this question, [116] given the particularly sensitive nature of the abortion issue and the lack of consensus among Member States regarding it. [117] Imagine the reaction of the Irish Government were the Court to step in and tell it that it could not afford such a high level of protection to the life of the fetus, a principle of such importance to the State that it found it necessary to explicitly incorporate it into its Constitution. [118] While the Court succeeded in avoiding the issue in Grogan, however, it may not be able to do so for long. Should a case arise in which the information about abortion services was being distributed, for example, by the British clinics themselves or by individuals with economic links to those clinics, the Court's escape hatch would be closed. Grogan thus provides valuable insight into the problems that may arise for the Court in attempting to apply Community fundamental rights standards to Member State action involving both particularly sensitive rights about which there is no consensus in the Community and areas which have typically been left, even with the expansion of Community competences, within the Member States control.
Third, Grogan raises the further problem of possible conflicts between the European Court of Justice and the organs established to administer the European Convention on Human Rights. The defendants in the aforementioned case of Open Door Counselling had appealed that judgment to the European Court of Human Rights, claiming that the injunction issued by the Supreme Court in Open Door Counselling violated Article 10 of the European Convention. The European Court of Human Rights upheld their claim, finding that the injunction issued in that case was disproportionate to the aim to be achieved by Ireland. [119] In so finding, the Court noted that the injunction precluded the dissemination of information even to women who sought to have abortions either in Ireland or abroad under circumstances that were lawful and, moreover, that the same information was available in Ireland through other means, such as magazines and telephone directories. [120] Thus, the absolute prohibition on the dissemination of information mandated by the injunction was not a restriction which was "necessary in a democratic society" -- as required by Article 10(2) of the Convention -- in order to achieve the aim of protecting the life of the fetus. As discussed supra, the Court of Justice did not reach the merits of the students' claims in Grogan. If the Court had indeed considered the merits and concluded that the Irish prohibition was in fact justified -- as the Advocat General had -- a significant conflict would exist between its jurisprudence and that of the European Court of Human Rights. While it is unclear if the Court of Justice would in fact uphold the Irish prohibition if forced to rule on the issue, Grogan and Open Door Counselling demonstrate that there is at least a potential for conflict among the different judicial bodies involved in interpreting the Convention -- a potential that is likely to increase the more the Court of Justice involves itself in reviewing Member State actions.
I will return to these issues in Section III of this paper, as all they are all relevant in assessing the likelihood that the Court will expand its review of Member State actions beyond the ERT and Klensch situations. I will now turn to a discussion of Christos Konstantinidis, a case in which Advocat General Jacobs suggests that the Court should in fact undertake such a further expansion of its fundamental rights jurisprudence.
While the dialectic between the Advocats General, the Commission and the Court with respect to the review of Member State derogations from the Treaty for compliance with Community fundamental rights standards came to a culmination with the Court's decision in ERT, it was not long before the process was initiated once again in an opinion by Advocat General Jacobs in Christos Konstantinidis. [121] The Advocat General's opinion in Konstantinidis raises a myriad of interesting questions regarding its potential scope, the benefits and drawbacks of his approach, and the manner in which it reflects a changing vision of the Community. Implications can also be drawn from the Court's response to the Advocat General -- or lack thereof -- as to the Court's conception of the nature of the Community and the likelihood that it might in the future embrace the Advocat General's position. As will become apparent in the following discussion of this case, the issues which it raises are likely to become the focus of the next level of debate about fundamental rights protection in the Community.
Christos Konstantinidis was a Greek citizen working in Alstensteig, West Germany as a self-employed masseur and assistant hydrotherapist. Upon his marriage in 1983, his name was entered into the German marriage register as "Christos Konstadinidis," a spelling to which he objected on the grounds that it did not properly reflect the correct pronunciation of his name. He applied to the registry office to have this spelling changed to "Konstantinidis," which is how the name appeared in his Greek passport. The Amstgericht Tubingen, having the authority to authorize changes in the register, took the view that -- under German law -- the spelling of Mr. Konstantinidis' name in the marriage register must conform to that found on his birth certificate. It thus ordered a translation of that document, which was effectuated by applying a system of transliteration [122] adopted by the International Organization of Standardization. [123] The application of this system of transliteration resulted in Mr. Konstantinidis' name being written in latin characters as "Hrestos Konstantinides." The Amstgericht thus ordered that this spelling replace that originally recorded in the marriage register.
Mr. Konstantinidis objected to this latter spelling as well on the grounds that it deformed the pronunciation of his name, deprived his name of its ethnic and religious significance and -- given that he had been using a different spelling for numerous years -- would have the effect of creating confusion among his clients. The Amstgericht stayed its proceedings and referred two questions to the Court of Justice, seeking guidance on whether or not Mr. Konstantinidis could contest the transliteration of his name in the fashion described above by virtue of either Articles 5 and 7 or Articles 52, 59 and 60 of the Treaty of Rome.
Advocat General Jacobs began his opinion by noting that because Mr. Konstantinidis was a self-employed worker established in Germany, Articles 52 and 7 of the Treaty -- rather than Articles 48, 59 and 60 -- would determine his rights. Nevertheless, he argued, the legal situation would be "broadly similar" under Articles 48, 59 and 60. In considering Article 52, the Advocat General found that the German transliteration requirement subjected Mr. Konstantinidis to indirect discrimination, since Greek nationals -- whose names are not ordinarily written in latin characters -- were disproportionately affected by that requirement. This indirect discrimination would generally be sufficient to trigger Article 7, since Mr. Konstantinidis was in Germany by virtue of an exercise of his right of free establishment under Article 52 and thus fell within the scope of protection afforded by Community law, despite the fact that the establishment of a transliteration system for civil registers was left in principle to the Member States.
The Advocat General then dismissed the contention that Article 7 applied only to discriminatory treatment resulting in real or tangible injury: rather, he argued, that article also prohibited discrimination affecting interests such as an individual's psychological comfort. In this regard, he noted that
Community law does not regard the migrant worker (or the self-employed migrant) purely as an economic agent and a factor of production entitled to the same salary and working conditions as nationals of the host state; it regards him as a human being who is entitled to live in that State "in freedom and dignity" . . . and to be spared any difference in treatment that would render his life less comfortable, physically or psychologically, than the lives of the native population. [124]
He next rejected the claim that the German requirement would violate Article 7 only if it actually required that the transliterated version of Mr. Konstantinidis' name be used in his social or professional life. Even if Mr. Konstantinidis was required to use that version only with respect to civil certificates related to such events as marriage and birth, the Advocat General was of the opinion that this requirement might nevertheless violate Article 7 given the particular importance to the individual of the acts which those civil certificates represented.
Advocat General Jacobs then dismissed the German government's argument that the difference in treatment to which Greek nationals were subjected by virtue of the German requirements was objectively justified. While a Member State could in principle require that names be written in latin characters, he noted, there was no objective justification for using a system which greatly distorted the pronunciation of an individual's name and was thus offensive to the individual concerned.
Given the above conclusions, Advocat General Jacobs noted that it was not strictly necessary to address the fundamental rights issue. [125] He proceeded to do so anyway, however, because he considered the issue to be of "general importance." The Advocat General first addressed the question of whether the transliteration requirement violated any right protected by Community law. In this regard, he first examined the provisions of the European Convention on Human Rights, but concluded that that document did not protect -- at least expressly -- the right of a person to his or her name or personal identity. He then considered the International Covenant for the Protection of Civil and Political Rights, [126] Article 24 of which provides that "all infants must be registered immediately after their birth and must have a name." [127] From this provision, he argued that the right to have a name from birth should be considered to include the right to keep that name throughout one's life.
Advocat General Jacobs then examined in detail various provisions of the constitutions of several Member States, which included protections for, among other things, a right to free development of personality, a right to moral integrity, and a right to personal identity. Most notably, Article 22 of the Italian Constitution provided that an individual could not, for political reasons, be deprived of his or her legal capacity, citizenship or name. [128] From these constitutional provisions, the Advocat General concluded that "there exist[ed] a principle according to which the State must respect not only the physical well being of the individual, but also his dignity, his moral integrity and his sense of personal identity." [129] In light of these common traditions of the Member States, the Advocat General considered it possible to interpret Article 8 of the European Convention, guaranteeing a person the right to respect for privacy and family life as well as home and correspondence, broadly enough to encompass protection for the individual's right "to oppose unjustified interference with his name." [130]
The Advocat General then arrived at the crucial issue raised by the case. Could Mr. Konstantinidis -- as a matter of Community law -- challenge the German requirements as a violation of his fundamental rights solely by virtue of the fact that he was exercising his right of free establishment within the meaning of Article 52 of the Treaty? Advocat General Jacobs quoted at length from the Court's judgment in ERT, noting that it was representative of the present state of the Court's jurisprudence concerning the review of Member State actions under Community fundamental rights standards. While noting that ERT did not govern the precise issue raised by the case, Advocat General Jacobs nevertheless determined that the German requirements at issue could not be categorized as falling "entirely outside the scope of Community law," [131] since they were capable of disproportionately affecting Greek nationals when applied to migrants. He then noted that
. . . there are now at least two situations in which Community law requires national legislation to be tested for compliance with fundamental rights: namely, (a) when the national legislation implements Community law (paragraph 19 of the Wachauf judgment) and (b) when a Treaty provision derogating from the principle of free movement is invoked in order to justify a restriction on free movement (paragraph 43 of the ERT judgment). [132]
Thus, as prescribed by ERT, if the German regulations were indeed found to violate Articles 7 and 52 by virtue of their discriminatory effect, they could not be justified under Articles 56 and 66 unless they complied with Community fundamental rights standards.
This is a relatively straightforward application of the "but/for" formula set forth in ERT, and the Advocat General might have concluded his opinion there. Significantly, however, he went on to consider whether the situation would be any different if the German requirements were not in fact found to be discriminatory. Because this is the crucial part of the Advocat General's opinion, I quote it at length. He notes:
But let us suppose that the view is taken that the German authorities' treatment of Mr. Konstantinidis is not discriminatory. Does that mean that it cannot be contrary to Article 52, even though it infringes Mr. Konstantinidis' fundamental rights? The implications of that question are perhaps easier to see if a more dramatic example is considered. Suppose that a Member State introduces a draconian penal code under which theft is punishable by amputation of the right hand. A national of another Member State goes to that country in exercise of the rights of free movement conferred on him by Article 48 et seq. of the Treaty, steals a loaf of bread and is sentenced to have his right hand cut off. Such a penalty would undoubtedly constitute inhuman and degrading punishment contrary to Article 3 of the European Convention on Human Rights. But would it also be a breach of the individual's rights under Community law, even though it were applied in a non-discriminatory manner? I believe that it would.
In my opinion, a Community national who goes to another Member State as a worker or self-employed person under Articles 48, 52 or 59 of the Treaty is entitled not just to pursue his trade or profession and to enjoy the same living and working conditions as nationals of the host State; he is in addition entitled to assume that . . . he will be treated in accordance with a common code of fundamental values . . . . In other words, he is entitled to say "civis europeus sum" and to invoke that status in order to oppose any violation of his fundamental rights. [133]
The Advocat General thus considered that any national measure that infringed the fundamental rights of an individual exercising his or her free movement rights might on that ground alone be declared incompatible with Community law. [134] Note that, while the Advocat General is strictly considering only Article 52 of the Treaty, he refers as well in the above passages to the exercise of free movement rights under Articles 48 and 59.
Recognizing the fact that his position would represent a significant extension of the Court's jurisprudence, an issue to which I will return below, the Advocat General felt it necessary to address several possible objections which might be raised to it. He first dismissed the claim that his position should be rejected as inconsistent with the Court's prior case law on Article 52. While noting that the majority of cases in which the Court found Article 52 to have been violated in fact had involved discriminatory legislation, he concluded that non-discriminatory measures might also be caught by that article when those measures violated an individual's fundamental rights. In particular, he noted that "the proposition that a Member State may violate the fundamental rights of nationals of other Member States, provided that it treats its own nationals in the same way, is untenable." [135] Advocat General Jacobs also recognized that his position would afford greater protection to individuals of other Member States residing within a host Member State then it would to nationals of the host state itself. [136] However, he did not find this unacceptable, noting that
[t]he notion that the free movement provisions of the Treaty merely prohibit discriminatory measures was abandoned long since in relation to goods . . . . Once it is accepted that the Treaty requires more than the abolition of discrimination, it follows ex hypothesi that a Member State may in certain circumstances be obliged to treat producers or workers from other Member States more favourably than it treats its own producers and workers. [137]
Finally, the Advocat General addressed the claim that expanded review over national measures at the Community level would create a significant degree of jurisdictional overlap between -- and a risk of conflicting decisions among -- the European Court of Justice and the institutions established to administer the European Convention on Human Rights. On the jurisdictional issue, the Advocat General noted that expanded review by the Court of Justice would merely add an additional step to the Convention's requirement that national remedies be exhausted, and therefore would merely "increase the likelihood of a remedy being found under domestic law, without the need for an application to the organizations established by the Convention." [138] With respect to the risk of conflict in case law, the Advocat General cursorily dismissed this objection on the basis of the fact that little conflict had in fact arisen to date even though both the Court of Justice and the European Court of Human Rights were involved in interpreting the Convention.
The Court took a much more limited approach. It agreed that Mr. Konstantinidis' situation was governed by Article 52 of the Treaty. While noting that in principle a Member State could require Greek names to be written in latin characters in civil marriage registers, and that it was for the Member State to devise a system for this purpose, such a system might nevertheless violate Article 52 if -- in law or in fact -- it placed Mr. Konstantinidis in a more disadvantageous position than that of German nationals. The Court, however, found that such would be the case only if Mr. Konstantinidis was constrained to use the deformed spelling of his name in the exercise of his profession such that the use of such a spelling would create a risk of confusion among his clients. [139] The Court thus implicitly rejected the contention that intangible injury, such as psychological harm or discomfort, might be sufficient to violate Articles 7 and 52, requiring instead a much more direct connection between the right of establishment exercised by Mr. Konstantinidis and the discrimination to which he was subjected. On the fundamental rights issue, the Court was silent, neither explicitly embracing nor rejecting the notion that its jurisprudence should be extended in the manner suggested by Advocat General Jacobs. [140]
The Advocat General's opinion is of significance for several reasons, first and most evidently because it calls for a further, potentially far-reaching expansion of the Court's fundamental rights jurisprudence. The Advocat General-Court dialectic, which was so clear in the early cases and which came to a culmination in ERT, appears to have begun once again. What the ultimate outcome of this dialectical process will be -- whether the Court will embrace the Advocat General's position -- is a question which is likely to be the new focus of debate with respect to the Court's fundamental rights jurisprudence. Second, the position adopted by Advocat General Jacobs seems to represent a shift in thinking about the nature of the Community and the individuals who make it up. This change in conception can be described as a shift away from viewing the Community's primary purpose as lying in the forging of common economic interests among Member States -- and thus viewing individuals as primarily "economic beings" or factors of production (means to achieving that end) -- and toward envisaging the Community's goal as bringing together the peoples of Europe and thus viewing individuals first and foremost as human beings (ends in and of themselves).
In elaborating upon both of these aspects of the Advocat General's opinion, I will first analyze the opinion itself, its potential scope and implications, and the issues which it leaves open to further question. In this same section, I will discuss how the approach of the Advocat General appears to reflect a particular conception of the Community and its members which differs from those more traditionally held. I will then turn to a discussion of the approach adopted by the Court and the manner in which it differs from that of Advocat General Jacobs. Next, this paper will examine the implications of the Advocat General's opinion: namely, what are its benefits and drawbacks? What is the likelihood that an extension of the Court's jurisprudence would be accepted by other relevant actors in the Community? And what difficulties is the Court likely to encounter should it take such a position? Finally, I will offer some remarks about what role the Court ought to play in this area and the likelihood that it will move in the direction suggested by the Advocat General.
It appears possible to state the Advocat General's bottom line in the following manner: any individual who crosses a frontier in the exercise of his or her rights of free movement secured by Articles 48, 52 and 59 of the Treaty (as a worker, provider of services, or with the intent of establishing himself or herself in another Member State) [141] may, as a matter of Community law, contest a violation of his or her fundamental rights as guaranteed by the Community legal order. The national law, regulation or practice in question need not violate a specific rule of Community law (e.g. by virtue of being discriminatory): rather, the fact that it infringes Community fundamental rights standards alone provides a ground for contesting it. This is clearly an extension of ERT. In that case, the Greek legislation at issue was tested against Community fundamental rights standards only after it had already been found to be a violation of some positive provision of the Treaty (in that case, Articles 59 and 60), and thus could only be valid if it were justified as a derogation. By contrast, Advocat General Jacobs argues in Konstantinidis that the Court may review a national measure allegedly violating Community fundamental rights guarantees, even though the measure might be otherwise perfectly compatible with Community law.
The implications of Advocat General Jacobs' opinion appear to be relatively clear with respect to the free movement of workers under Article 48 and the right of establishment under Article 52. Consider, for example, the decision of the French Minister in Rutili to impose territorial restrictions upon an Italian national's right to reside in France. The Court found that the Minister's decision might violate Articles 48 and 7 of the Treaty if, among other things, it placed nationals of other Member States in a more disadvantageous position than French nationals: that is to say, if similar territorial restrictions could not be imposed under the same conditions on French nationals as they had been on Mr. Rutili. Under the reasoning of the Advocat General in Konstantinidis, however, Mr. Rutili would not have had to demonstrate that the French decision subjected him to discriminatory treatment because of his nationality in order to invoke Community fundamental rights protections. Rather, since Mr. Rutili was in France by virtue of an exercise of his free movement rights, the mere fact that the French restrictions might interfere with the fundamental rights guaranteed to him by Community law would be a sufficient ground for contesting those restrictions. Similarly, under the facts of Watson & Belmann, Advocat General Jacobs position in Konstantinidis suggests that Ms. Belmann, a British citizen who had apparently come to Italy for the purposes of working in that country, [142] should have been permitted to challenge the Italian regulations requiring her to register with local authorities within three days of her arrival as a violation of her right to privacy, even if those requirements did not otherwise violate a specific provision of Community law.
The implications of the Advocat General's opinion may be less clear with respect to the free provision of services under Articles 59 and 60. The Advocat General's position would extend to situations in which a provider of services crossed a national frontier to offer those services in another Member State. The Court, however, has also recognized the corollary right of a recipient of services to travel to another Member State to receive services being offered there. Whether the Advocat General would conclude that, while in that other Member State, the recipient of services would also be entitled to claim Community fundamental rights protection is less obvious. There seem to be two possible readings of the Advocat General's opinion with respect to this issue, each of which in turn can be interpreted in either a broad or narrow fashion. First, the Advocat General's opinion might be read as focusing primarily on the nature of an individual's activity while in another Member State as the determinative factor in deciding whether he or she is entitled to invoke Community fundamental rights protection. On the one hand, some of the language used by the Advocat General suggests that he might require some nexus between an individual's own "work" and Community fundamental rights protections. In several parts of the opinion, for example, he focuses on the situation of an individual "pursuing a trade or profession" or "earn[ing] a living" in another Member State. [143] Thus the individual as "worker or wage earner" would seem to be the trigger for Community fundamental rights protection. On the other hand, the Advocat General's example of the introduction by a Member State of a draconian penal code may indicate something different. Advocat General Jacobs might be unwilling to suggest that a recipient of services travelling to another Member State should be entitled to lesser protection from such a sanction than a worker or provider of services merely because he or she is there to receive services rather than actually being engaged in earning a living in the Member State in question. From this point of view, "economic activity generally" (the receiving of services) and not the individual's pursuit of a trade or profession might be the triggering factor. However, the use of the draconian penal code example also suggests a second possible reading of the Advocat General's opinion, one which focuses on the relationship between the national measure in question and the humanity of the individual. A severe criminal sanction mandating amputation of an individual's hand has very strong "human" dimensions in the sense that it affects the individual intimately and profoundly. The same might be said of, for example, other inflictions upon an individual of physical harms or deprivations of liberty, or perhaps even an individual's relationship with his or her doctor or psychiatrist. In situations with such a human element, Advocat General Jacobs might be willing to extend Community fundamental rights protection to the recipient as well as to the provider of services located in a host state. By contrast, such fundamental rights protection might not be available where such a human element is lacking -- for example, with respect to measures regulating the relationship between tourists and providers of banking, insurance or transportation services of which the tourist makes use while visiting the Member State in question. Under this reading, Community fundamental rights protection would be triggered not with respect to all possible measures that might affect a recipient of services but only those measures that involve a significant "human" dimension.
The narrower reading of both of these possible interpretations -- namely, that which restricts Community fundamental rights protection to situations which involve either the individual's own economic activity or a significant human element -- would result in fewer national measures being subject to Community fundamental rights standards, thus making Advocat General Jacobs' view of the extent to which Member State action should be subject to review by the Court of Justice for fundamental rights violations somewhat less "radical." However, whether the Advocat General's paramount concern lies in ensuring to the greatest degree possible either the effectiveness of the free movement provisions of the Treaty or the protection of individuals from fundamental rights violations by Member States, it would seem that the broader of either of the two interpretations suggested would better effectuate those aims. With respect to whether one interpretation of the Advocat General's opinion should be preferred over the other, it might be suggested that the Advocat General's focus throughout the opinion on the individual as a human being (evidenced in part by the notion of "civis europeus sum") -- rather than on the individual as a factor of production -- may support the latter interpretation, under which Community fundamental rights protection is linked to the national measure's effect on the "human" element rather than on the nature of the individual's economic activity in another Member State. The interpretation focusing on human considerations might thus appear more consistent with the Advocat General's opinion as a whole, although -- as noted -- it is not clearly evident from his opinion that this is in fact the approach which Advocat General Jacobs intended to take.
A further scenario, with respect to which the Advocat General's opinion appears even less well defined, can be envisioned. Assume that the Court in Grogan had taken Advocat General Van Gerven's position that Article 59 did apply to the students' activities, focusing on the right of the recipient of services to receive information rather than the economic link between the service provider and the disseminator of information. Could Advocat General Jacobs be suggesting in Konstantinidis that by mere virtue of the applicability of Article 59 to the activity of the students in disseminating information, Community fundamental rights standards would apply to any national measure infringing upon the fundamental rights of the recipient of that information, even if Article 59 were not otherwise violated? The implications of this position are far reaching: an Irish women residing in Ireland would be entitled to invoke Community law -- since she had the right to receive information in Ireland about abortion services in England -- to challenge Ireland's prohibition on the dissemination of information about such services. Further, since almost any individual is a potential recipient of services in another Member State, would this mean that any such individual could invoke Community fundamental rights principles to challenge his or her own State's legislation where such legislation falls within the scope of Article 59?
For two reasons, it seems untenable to think that Advocat General Jacobs meant to go this far. First, as noted supra, his focus is on the individual who leaves his or her own Member State and whose fundamental rights are infringed while residing in another Member State -- as, for example, in the draconian penal code example. Contrast this to the situation above, where the alleged violation of fundamental rights takes place in the national's own state. Second, he specifically addresses and recognizes the problem of reverse discrimination -- namely, that under his approach, a national of one Member State residing in another Member State would be entitled to invoke Community fundamental rights guarantees to contest actions by his or her "host" state and thus receive greater protection than a national of that host State. Such reverse discrimination would only exist if the national of the host state was not in fact entitled to Community fundamental rights protection (at least outside the Klensch and ERT contexts). The Advocat General's position may thus be more limited, extending only to situations in which an individual exercising his or her rights to free movement has actually crossed a national frontier and the alleged violation of his or her fundamental rights takes place in a Member State other than that of which he or she is a national. This would of course exclude, under the above scenario, the potential recipient of services -- e.g. the Irish woman in Grogan -- still located within his or her own Member State. [144]
Even under this more limited interpretation, the implications of the Advocat General's position are significant. Once the requirement that an individual be exercising a right to free movement under Article 48 et seq. of the Treaty is met, the Advocat General's position would permit that individual to challenge potentially any national measure -- regardless of the respective division of competences between the Community and the Member States with respect to the subject matter which the national measure in question addresses. Recall his "draconian" penal code example. Criminal law is clearly a subject matter that, at the present stage of development of Community law, is left in principle to the Member States. From Advocat General Jacob's point of view, however, this would not prevent the Court from applying Community fundamental rights standards to legislation in the field of criminal law. When one thinks of the fact that there is always likely to be -- at the very minimum -- at least one individual exercising his or her free movement rights in another Member State, Advocat General Jacobs' position might result in potentially any national measure being subjected to a fundamental rights challenge under Community law at any time.
In adopting this position, the Advocat General thus seems to posit a shift toward a United States-type model of judicial review, in which a federally set standard of fundamental rights may be applied to state actions even in areas in which the federal government itself has no competence. This shift is not a complete one, since the application of centrally determined fundamental rights guarantees is in the Advocat General's opinion contingent on the exercise of free movement rights, whereas in the United States no such precondition for federal review exists. However, Advocat General Jacobs's opinion does seem to represent a significant step away from the orthodox view that Community fundamental rights standards are inapplicable where a Member State is acting pursuant to its residual powers, [145] a view which in turn reflects the more basic vision of the Community and national legal orders as standing "independent of and side by side one another." [146] The Court itself espoused this notion in its decision in Van Gend & Loos, in which it established the principle that Community law was supreme, albeit in limited fields. [147] Indeed, the acceptance by national courts of the supremacy doctrine was premised on the existence of this limiting notion. The Advocat General's movement away from this more orthodox view thus appears to have the potential for engendering considerable backlash from the Member State governments and/or national courts. I will return to this possibility in more detail in Section III.B.3 of this paper. Before doing so, however, several additional comments should be made about the Advocat General's opinion.
As noted, Advocat General Jacobs' position would permit the court to review potentially any national measure for compliance with Community fundamental rights standards -- regardless of the division of competences between the Community and the Member States -- as long as the individual challenging the measure in question was in a Member State other than his home state by virtue of an exercise of his or her free movement rights. While the exercise of such a free movement right is a precondition to Community fundamental rights protection, the Advocat General does not require that the national measure itself have any real relationship to the individual's status as a migrant. A national measure imposing the punishment of having one's hand cut off for committing a particular crime, for example, has no direct relationship to the migrant qua migrant. It does not seek to control the individual's right to enter into, reside within, or work in the Member State in question and thus does not interfere with the particular group of rights which Community law grants to the individual under the free movement provisions of the Treaty. Rather, it affects the individual by mere virtue of the fact that he or she is present in the Member State enacting the measure, and it does so in precisely the same manner as it would a national of that Member State. This type of provision can be contrasted to, for example, a national measure providing for the deportation of foreign nationals upon their conviction of a particular crime. The Court, as I will discuss infra, at present appears willing to extend Community fundamental rights protection only to national measures of the latter type, which do in fact interfere with a right specifically provided by Community law. I would like to examine here, however, how the Advocat General's suggestion that review be extended to situations of the former type reflects a particular conception of the nature and purpose of the Community as a whole.
By not premising the application of Community fundamental rights standards on a direct link between the measure in question and the migrant qua migrant, the Advocat General seems to distance himself from the view that some have criticized the Court for taking in its early case law -- namely, a view that sees the Community as having as its main purpose the forging of common economic interests among Member States and thus that defines individuals in terms of the role they are to play in achieving that goal. In its early jurisprudence, for example, the Court appeared willing to take whatever steps were necessary to ensure the "effet utile" of the Treaty's fundamental freedoms. The doctrines of direct effect and supremacy can be seen as having this purpose. Similarly, some have argued that the Court, in asserting its power to review Community acts for fundamental rights violations, did so not because it saw fundamental rights protection as having an intrinsic value but because the exercise of such review was a means of ensuring both the uniformity of Community law and the acceptance by national courts of the supremacy and direct effect principles. [148] Even with its assertion in ERT of the power to review Member State actions derogating from the Treaty's provisions, the Court did not place fundamental rights concerns above other considerations but at most placed them on an equal footing. Compliance with fundamental rights in the ERT context exists as simply another hurdle -- like those of establishing a legitimate aim and demonstrating that the measure in question is proportional -- which the Member State must overcome to justify a particular law, regulation or practice. By contrast, Advocat General Jacobs does seem to give fundamental rights a higher position on the normative hierarchy, as the following passage seems to demonstrate:
It is perhaps not unreasonable that, as regards technical obstacles to the freedom of establishment, a person who moves to another Member State should in general have to comply with local legislation (e.g. a rule that restaurateurs should have several years' experience in the catering trade) . . . . But when a breach of fundamental rights is in issue, I do not see how the non-discriminatory nature of the measure can take it outside the scope of Article 52. Indeed, the proposition that a Member State may violate the fundamental rights of nationals of other Member States, provided that it treats its own nationals in the same way, is untenable. [149]
Regulations of a technical nature, applied in a non-discriminatory fashion, are acceptable to the Advocat General, despite the fact that they may hinder free establishment to some degree. By contrast, regulations which violate an individual's fundamental rights are unacceptable under any circumstances, even where they apply to nationals and foreigners alike. The Advocat General thus seems to view fundamental rights more in terms of their intrinsic rather than instrumental value and reserves to them a somewhat unique place in the legal order. If this is the case, it would seem to indicate a shift away from the treatment of individuals within the Community as means to an end in achieving the ultimate goal of economic integration -- as "factors of production" or "economic agents" whose importance lies in what they can contribute to that goal. Rather, the Advocat General seems to focus on the value of individuals as human beings -- ends in themselves -- a conception which in turn gives rise to the notion that the function of the Community lies in uniting those individuals on the basis of their common attributes, i.e. their humanity, rather than in creating common (economic) interests among the Member States. Thus he asserts that a member of the Community should be "entitled to say 'civil europeus sum' and to invoke that status in order to oppose any violation of his fundamental rights." [150]
If this can be considered a plausible interpretation of the Advocat General's position, it does seem to represent a shift in thinking with respect to the nature of the Community and the individuals who make it up. The ramifications of such a "shift" in thinking are numerous and diverse. One possible consequence of particular interest should be mentioned. If fundamental rights principles occupy a unique position on the normative hierarchy, could they in some circumstances take precedence over the four fundamental freedoms themselves? What if a national measure, for example, is enacted for the precise purpose of enhancing fundamental rights (and in fact has that effect), but in doing so interferes with the free movement provisions of the Treaty? At least one commentator has suggested that, under these circumstances, derogations from the Treaty's free movement provisions should not be construed strictly but rather should be read expansively so as to allow for advancements in fundamental rights protection even at the expense of greater interference with free movement. [151] Several difficulties with this position, however, might be suggested. First, it is unclear that the Court is not in fact willing to uphold as derogations from the Treaty national measures that enhance fundamental rights. It has, after all, established the mandatory requirements principle of Cassis de Dijon under which it has been willing to validate measures serving a wide variety of purposes despite their interference with the free movement of goods. The Court has found, for example, that national measures relying on justifications such as environmental protection, [152] consumer protection, [153] and even the promotion of French cinematographic production [154] can take precedence over the interest in the free movement of goods, suggesting that the requirement that a national measure have a legitimate justification in order for it to be validated under the mandatory requirements formula may not in fact be that difficult of a standard to meet. Moreover, the mandatory requirements formula, unlike Article 36, does not constitute a closed class -- that is to say, additional justifications for derogating measures may be accepted in the future. These factors suggest that the Court may not in fact construe derogations that strictly when reviewing national measures which have the purpose and effect of enhancing fundamental rights.
Second, the assertion that derogations should be construed broadly may not in and of itself provide a solution to the problem of finding a means for upholding national measures designed to enhance fundamental rights, since it does not take into account the effect that a broad reading of derogations would have in situations in which either two conflicting rights are at issue or where there is no consensus among Member States on how conflicts between two rights should be resolved. The Irish Constitutional amendment at issue in Grogan, for example, was enacted with the intention of promoting greater protection for the right to life of the fetus, and in fact had that effect. If the derogation from the Treaty's provisions on free movement of services were to be read broadly, thus allowing for an advancement in protection for the life of the fetus, such an advancement would come at the expense of greater interference with the conflicting right to free expression. Moreover, reading the derogation broadly so that the Irish provision might be upheld would not take into account the fact that other Member States in the Community may take a different view of the issue -- by affording higher protection either to the choice of the mother to terminate a pregnancy or to the right of free expression. Thus, reading derogations broadly may in and of itself be too simplistic of a solution. One might envisage instead a position such as that suggested by Advocat General Van Gerven in Grogan, in which a "margin of appreciation" would be left to Member States in enacting measures designed to protect fundamental rights in situations where there in fact exists no consensus among the Member States on the content of particular rights, [155] as long as the measure in question did not interfere with the "substance" or "core" of another fundamental right. In Grogan, for example, Ireland might be allowed to maintain its level of protection for the life of the fetus as long as the "substance" of the right to free expression was not affected. This might be the case even though, in reviewing acts of Community institutions, the Court might establish a higher or more "absolute" level of protection for the right to free expression than would be provided at the Member State level. The "margin of appreciation" doctrine would thus allow the Court to uphold measures designed to enhance fundamental rights within a particular Member State without requiring the level of protection established in one Member State for a particular right to be imposed on all other Member States. Whether Advocat General Jacobs might support a "margin of appreciation" doctrine with respect to reviewing Member State action -- while at the same asserting that the Court might provide more "absolute" protection for particular rights where Community measures are at issue -- is not clearly evident in his opinion in Konstantinidis. The adoption of such a position might be an appropriate method, however, for ensuring recognition of the intrinsic value of fundamental rights protection by allowing the passage of national measures which promote fundamental rights -- even if those measures interfere with free movement -- while respecting the differences that exist between Member States on what particular content should be given to such rights.
With the above attempt to elaborate upon the scope and possible implications of Advocat General Jacob's opinion, I will now turn to a discussion of the Court's response to the Advocat General and the conception of Community law embodied therein. Following this, I will attempt to highlight some of the possible benefits and drawbacks of the Advocat General's position and consider the likelihood of his position being accepted by the Court and other relevant actors in the Community.
As already noted, the Court -- while not explicitly rejecting the Advocat General's position -- declined his invitation to extend its fundamental rights jurisprudence. Although the Court did not specifically address the fundamental rights issue, its opinion offers some clues as to the Court's general conception of the scope of Community law, from which can be distilled some insight into the extent to which it might consider a further expansion in its exercise of fundamental rights review over Member State action.
In contrast to the Advocat General, the Court appears to view individuals within the Community more in terms of their economic functions rather than their "humanity," as it premises a violation of the Treaty on some direct connection between the national measure at issue and the individual's status as a migrant worker. Specifically, the Court found that the German transliteration requirement might violate Article 52 only if Mr. Konstantinidis was constrained to use the distorted spelling of his name in his professional life, thus making it more difficult for him to earn a living in Germany by virtue of the fact that it would create confusion among his clients. The German requirements, therefore, would be incompatible with Community law not because they interfered with just any aspect of Mr. Konstantinidis' life (e.g., his psychological comfort) but because they interfered with precisely one strand of the bundle of rights to which Mr. Konstantinidis was entitled as a Community migrant (in this case, the right to work in Germany). This interference, moreover, placed Mr. Konstantinidis in a more disadvantageous position than German nationals, whose names are ordinarily written in latin characters and thus who are not constrained to change the manner in which their names are spelled or pronounced. In the Court's view, Community law thus seems to become applicable to a particular situation only when a national measure interferes with one or more rights in the particular "bundle" of rights to which a national of a Member State is entitled under Community law such that he or she is subject to treatment which places that individual in a more disadvantageous position than nationals of the host State enacting the measure in question.
This conception of the scope of Community law was also apparent in the Court's judgment in ERT. In that case, one of the Community rights at issue was the right of an individual to provide services to recipients in other Member States. The Greek legislation granting a monopoly to ERT on the retransmission of foreign programs and giving that entity total discretion to decide what foreign programming -- if any -- to rebroadcast, directly interfered with the right to provide services in such a way that foreign service providers might be subject to discriminatory treatment. By contrast, the mere fact that a monopoly over television services had been granted did not in and of itself violate Community law. While such a monopoly would interfere with, for example, an individual's freedom to establish a television station within Greek territory, it would so in precisely the same manner for both Greek nationals and nationals of other Member States. A law establishing such a monopoly, therefore, would not affect nationals of other Member States because they came from other Member States but by mere virtue of their presence in Greece.
Once a national measure affects a right provided by Community law in the fashion described, it can only be justified under a derogation from the Treaty. The Court affirmed in ERT that it would judge Member State action in such circumstances against Community fundamental rights standards. Since in that context the Court must examine whether or not the measure seeking to be justified under a derogation pursues an aim that is legitimate under Community law and whether it satisfies the principle of proportionality, a refusal to determine as well whether the measure in question complies with Community fundamental rights standards would be "signifying that all that interests it is the economic integrity of the Common Market and not the individuals that make it up." [156] By exercising review under these circumstances, the Court can claim to place fundamental rights at least on an equal footing with other principles.
Its opinion in Konstantinidis suggests, however, that it is not prepared to go farther at this stage. A national measure which does not have the required connection to free movement rights described above would not in the Court's view violate a specific right provided by Community law to the migrant and hence Community law, including Community fundamental rights principles, would not have any relevance in determining that measure's legitimacy. Under this conception of the scope of Community law, the Court need not involve itself in reviewing potentially all of a Member State's criminal code or social policy, as adopting the Advocat General's position might have lead it to do. As discussed supra, the fear of having to undertake such extensive review was asserted as an explanation for the Court's refusal to review derogating legislation in Cinetheque, although in that context the fear appeared to have been unfounded. In this case, however, the same fear -- this time justified -- might have been the reason for the Court's refusal to adopt Advocat General Jacobs' approach. By declining to move in that direction, the Court may be attempting to preserve a clearer line between the respective competences of the Community and the Member States. The trade off is, however, that fundamental rights are not placed on as high a level in the normative hierarchy as Advocat General Jacobs seemed to suggest they should be.
The Court might have gone farther without fully embracing the position of Advocat General Jacobs. While the examples given above are ones in which the treatment afforded to nationals of other Member States was "discriminatory" in the sense of placing those nationals in a more disadvantageous position than nationals of the State enacting the measure at issue, the Court's conception of the scope of Community law might also be extended to situations in which the treatment was merely "differential" rather than "discriminatory." For example, a Member State might have a criminal provision providing for life imprisonment for its nationals and deportation for nationals of other Member States as a punishment for committing a particular crime. Such a provision is not discriminatory in the above sense (unless deportation is considered worse than life imprisonment). Nevertheless, it does subject the national of another Member State to differing treatment in a way which interferes with one strand of the bundle of rights provided by Community law -- the right to come to and reside within another Member State -- precisely because that individual is a migrant. [157] Similarly, one might imagine a situation similar to that in Watson & Belmann in which a Member State imposed different but not discriminatory reporting requirements on migrant workers. For example, it might require a national of another Member State to register with the particular authorities in charge of supervising aliens while requiring its own nationals to register simply on a local residents register. This requirement may not be discriminatory. Nevertheless, it might interfere with the Community-guaranteed rights to reside and work within another Member State under the same conditions as nationals of that State, and would do so precisely because the individual who is subject to the differential requirement comes from another Member State.
Extending the scope of Community law to measures involving differential treatment might provide somewhat of a middle ground between the view of Advocat General Jacobs and the view of the Court in Konstantinidis. Adopting such a position would expand the scope of national measures to which the Court would apply Community fundamental rights standards while avoiding a wholesale involvement by the Court in all exercises by the Member States of their residual powers, since the national measure in question would have to affect a particular right provided by Community law in such a way as to subject a migrant to differing treatment before being subject to review. It would by the same token minimize to a considerable extent the potential opposition from other actors in the Community that might result from the adoption of the more far-reaching position of Advocat General Jacobs, since review by the Court would extend only to situations involving particular rights provided by Community law. The Court does not rule out the possibility in Konstantinidis of taking this approach -- whether it will do so remains to be seen. Such a position might, however, provide the Court with the ability to ensure greater fundamental rights protection under Community standards while avoiding excessive involvement in subject matters which are left in principle to the Member States to regulate.
With these considerations in mind, I would now like to turn to the question of whether the Court should in fact have taken the more far-reaching position suggested by the Advocat General and to a discussion of what the potential benefits and drawbacks of taking such a step might be.
There are several potential benefits which might result from reviewing Member State actions in the manner suggested by the Advocat General, both in terms of intrinsic and instrumental goals. Most obviously, expanded review would ensure to individuals exercising their free movement rights within the Community an entitlement to a "common core of fundamental values," regardless of the level of protection for fundamental rights normally afforded by the Member State in which those individuals happen to be located. This would be true even if the Member State action challenged by the individual as an infringement of his or her fundamental rights, as protected by Community law, lay within an area in principle left within the control of the Member States. The notion that an individual should be able to invoke the status of "civis europeus sum" wherever he or she goes in the Community affirms the individual's value as a human being, rather than as just as "an economic agent and a factor of production." [158] The imposition of a centrally determined fundamental rights standard may also contribute, from a "procedural" point of view, to a more effective realization of those rights insofar as it reduces the burden of fighting for such rights, since an entitlement to a particular right need only be established once at the Community level rather than numerous times within each Member State. [159]
The imposition of a uniform, centrally determined set of guarantees may also serve to increase the overall level of protection for fundamental rights throughout the Community. The Court might, for example, provide a level of protection for the right to property which is "higher" than that provided in a particular Member State. [160] This is not necessarily the case, however, since the Court of Justice has never adopted a "maximalist" approach in defining the content of fundamental rights guarantees. [161] That is to say, the Court has refrained from merely adopting the standard existing in the particular Member State which provides the greatest level of protection to a particular right. Rather, it has rather defined the content of fundamental rights protected by Community law by reference to the common traditions of the Member States. Thus, in some instances, the Community standard of protection may indeed be "lower" than that provided in a particular Member State. [162] Where a Member State acts within its sphere of residual powers and there is only one right at issue, an individual will not lose that "higher" level of protection provided by the Member State in question. [163] The situation may be different, however, in a case involving a conflict between two rights. In such a case, a Member State's "higher" level of protection for one of the two rights at issue might not survive. In Grogan, for example, the Court was faced with a conflict between the right of free expression and the right to life of the fetus. If the Court were required to solve such a conflict, it might find that the nearly absolute protection for the life of the fetus provided by Ireland was "too" high in light of its interference with the right of free expression. In some situations, therefore, the imposition by the Court of a uniform fundamental rights standard on the exercise by a Member State of its residual powers might actually result in a lower level of protection for a particular right. As I will discuss below, this is likely to raise considerable concerns on the part of national governments. Nevertheless, the application of a uniform Community fundamental rights standard would at least ensure that the level of protection in Member States would not fall below a certain threshold.
As a corollary of the fact that the Advocat General's position, as noted above, would result in the affirmation of the humanity of the individual, the expansion of review in the manner suggested by Advocat General Jacobs would help to deflate the criticisms that the Court does not take fundamental rights claims seriously enough but instead privileges economics considerations. [164] Some have levied strong criticisms against the Court in this respect, noting that
it must be questioned whether the Court has ever been motivated by a concern for any supposed lack of adequate protection of fundamental rights within the European Communities . . . . [T]he Court has employed fundamental rights instrumentally, so as to accelerate the process of legal integration in the Community. It has not protected these fundamental rights for their own sake. It has not taken these rights seriously. [165]
The Court's decision in ERT may help to deflate such criticisms to some degree, [166] since that decision indicates at least that the Court will not turn a blind eye to fundamental rights considerations when it already must evaluate a national measure to determine whether it constitutes a valid derogation from the Treaty. In upholding such a national measure as a valid derogation, the Court will thus no longer be faced with the uncomfortable situation of giving its stamp of approval to the measure even though it infringed an individual's fundamental rights, as it would have been forced to do under the rationale of Cinetheque. The adoption of the Advocat General's position in Konstantinidis would, however, dispel to an even greater degree the notion that the Court gives inadequate consideration to fundamental rights, since that position reflects an approach to fundamental rights protection which views such rights more for their intrinsic rather than their instrumental value. Of course, to show that it was truly serious about protecting fundamental rights, the Court must not only be willing to assert its jurisdiction to review Member State actions but as well to actually strike down particular national measures on the grounds that they violate Community fundamental rights standards.
An expansion in protection for individual fundamental rights from infringements by the Member States might also contribute to strengthening the allegiance of individuals to the Community, thus ameliorating at least in part the problems of legitimacy with which the Community has struggled. One explanation for the existence of such legitimacy problems in the Community lies in the fact that "[p]eople accept the majoritarian principle of democracy within a polity to which they see themselves as belonging." [167] Such a sense of belonging is created by, among other factors, a shared culture, heritage, language, and value system -- factors which have not been present to bind the Community together as a whole. By extending its fundamental rights protection and thus ensuring to each individual within the Community the entitlement to be protected under a "common core of fundamental values," the Court may help to create a sense of shared identity among members of the Community such that the majoritarian principle may be accepted on the Community-wide level and the Community decision making process will be considered to be legitimate. As one commentator notes, a "population may find its identity in a catalogue of fundamental rights. Because the Community is developing into areas where it affects the population more and more, such an identification could well help to promote the legitimacy of the system as a whole." [168] In the same way, the creation of a uniform standard for fundamental rights protection may help to spur the integration process itself, in part by "contributing to the development of a Community consciousness of fundamental rights as an expression of a common legal system." [169] Of course, this consequence of expanded review can only be considered a "benefit" insofar as further integration is viewed as a desirable goal. Moreover, the possibility cannot be dismissed that, where disagreement about the proper level of protection for fundamental rights exists -- such as with the abortion issue -- attempting to resolve or even engaging in debate about such disagreements may in fact prove more divisive than unifying.
Lastly, expanded review over Member State action may take on particular significance in light of the Court's recent decision in Criminal Proceedings against Bernard Keck and Daniel Mithouard. [170] In Keck, the Court narrowed its prior interpretation of Article 30 in holding that "selling arrangements which apply to all affected traders within the Member State in question and which affect domestic and foreign producers in the same manner do not fall within the scope of article 30." [171] Since "selling arrangements" meeting the above criteria will not constitute prima facie violations of Article 30, the Court's "but-for" standard established in ERT for applying Community fundamental rights standards to Member State action will not be triggered. Thus, this narrowing in the applicability of Article 30 will in turn reduce the number of situations in which the Court, under its present jurisprudence, will review Member State actions for violations of Community fundamental rights standards. Since Keck is limited to Article 30 cases, expanding review in the manner suggested by Advocat General Jacobs -- to measures affecting people under Articles 48, 52 and 59 and not goods under Article 30 -- would not directly counteract Keck's effect on the number of situations in which the Court will review Member State actions under its present jurisprudence. The Court has not yet had the opportunity to clarify, however, what type of measures it will consider as falling within the concept of "selling arrangements." One might envisage a situation in which a non-discriminatory measure falling within that concept and therefore falling outside the scope of Article 30 might nevertheless infringe the fundamental rights of an individual located within the Member State enacting the measure in question by virtue of an exercise of his or her free movement rights. To take a somewhat extreme example, a Member State might enact a measure prohibiting the sale of pharmaceutical products at all times except for one hour on Sundays -- a measure which could conceivably be challenged as infringing the right of a migrant to pursue a trade or profession. The adoption of the Advocat General's position in Konstantinidis would give the Court the competence to review this measure under Community fundamental rights standards, even though it could not do so by virtue of ERT's "but/for" test.
Keck might be considered as having one of two possible effects on the Court's willingness to adopt the position of Advocat General Jacobs and thus to review national measures falling within the concept of "selling arrangements" where such measures are challenged as violating the fundamental rights of a migrant. On the one hand, Keck might signify that the Court simply does not want to involve itself in reviewing these types of national measures on any grounds, thus indicating that the Court would be quite unlikely to adopt the Advocat General's position, since that position would force it to review such measures under some circumstances. It might be possible, however, to read the Court's intentions in Keck somewhat more narrowly, particularly in light of the Court's statement that the change in its jurisprudence brought about by its decision in that case was necessary to halt the "increasing tendency of traders to invoke Article 30 of the Treaty as a means of challenging any rules whose effect is to limit their commercial freedom even where such rules are not aimed at products from other Member States." [172] This statement may suggest that the Court -- while generally wishing to refrain from reviewing national measures falling within the "selling arrangements" concept where Article 30 is invoked for reasons of economic self-interest -- may nevertheless be willing to exercise such review where the measures in question allegedly violate an individual's fundamental rights. Such a position would involve the Court in a fewer number of cases in this area, since the Court would not be required to review all national measures falling within the concept of "selling arrangements" but only those measures that can be challenged by a migrant as a violation of Community fundamental rights standards. The Court might be more willing to adopt such a position if the type of retrenchment evidenced in Keck spills over to the Treaty's other free movement provisions -- thus further reducing the number of measures subject to Community fundamental rights review under the "but/for" formula -- although whether this will happen is not clear. In any event, it remains to be seen whether Keck does in fact signify a "generally applicable" retreat away from review of Member State action in this context or whether the Court might be willing nonetheless to review such action where an alleged violation of fundamental rights is at issue.
Nevertheless, given the potential benefits and the possible justifications for expanded review described above, why would the Court hesitate to embrace the Advocat General's position? Any attempt to decipher the Court's true motivations would be, of course, speculation. Several plausible explanations, however, might be suggested, a significant one of which is that the Court may have feared potential backlash from Member State governments. The possibility that national governments would react quite strongly to Community fundamental rights principles being declared applicable even in areas normally considered as in principle left to the Member States cannot be dismissed lightly. The Community, after all, has typically been described as an independent legal order existing side by side with national regimes, with respect to which the principle of supremacy operates only in limited fields. Of course, the Court's assertion of the power to review exercises by the Member States of their residual powers for compliance with a Community fundamental rights standard would not result in the Community gaining original competence in these areas. Nevertheless, the imposition of a Community fundamental rights standard does amount to a substitution by the Court of Justice of its own judgment for that of the national legislature or executive and is, therefore -- unlike the Court's assertion of the power to review Community acts for fundamental rights compliance -- counter-majoritarian.
In this respect, it should be noted that violations by a Member State of an individual's fundamental rights are unlikely to be of an egregious nature -- Member States do not torture their citizens or enact penal codes mandating the amputation of one's hand for theft. [173] Most violations of Community fundamental rights standards by the Member States are likely to occur because the Member State in question has chosen to strike a somewhat different balance between competing claims than might have been struck by the Community. A decision on the level of protection to be afforded to a particular fundamental right is in this sense a value judgment. Indeed, the Court itself invoked this notion as a justification for reserving to itself the exclusive power to review Community acts for fundamental rights compliance. In Lisolette Hauer v. Land Rheinland Pfalz, [174] for example, the Court considered the validity of a Community regulation temporarily prohibiting the planting of new vines on certain lands, which was challenged on the ground that it violated the rights to property and to pursue a trade or profession as guaranteed by the German Basic Law. If allowed to rule on this issue, a German court might have invalidated the Community regulation either because German law provided greater protection for the individual rights in question or because such an absolute prohibition on planting was not necessary to curtail whatever wine surplus existed in Germany at the time. The Court of Justice insisted, however, that only it could rule on the validity of the Community regulation, since only it had both the sensibility to decide what "balance" between competing claims was appropriate for the Community as a whole and the information to determine whether the measure was necessary to curb the wine surplus existing throughout the Community. Where a Member State is acting within the sphere of its residual powers in such a way that does not interfere directly with the particular bundle of rights provided by Community law (i.e. by enacting a measure providing for the deportation of foreign nationals), the sensibility of the Court of Justice to the "situation" of the entire Community appears less relevant in deciding what particular balance to strike among competing claims. Were the Court to impose its own "balance" in these situations, it would therefore not be surprising if national legislatures and executives voiced their opposition.
Such opposition, moreover, might be particularly strenuous where rights of an especially sensitive nature -- such as the right to life of the fetus -- are at issue, or where more recently recognized rights -- such as consumer, educational or environmental rights -- are concerned. With respect to the former, recall that one of the reasons which explained the fact that the Court's jurisprudence with respect to reviewing Community acts was welcomed was that the fundamental rights claims which arose in early cases were not of a very controversial nature and, moreover, involved rights with regard to which a "common" tradition among Member States could legitimately be said to exist. Such may not be the case with respect to, for example, abortion -- an issue of great sensitivity with respect to which no strong consensus exists in the Community. [175] As noted supra, one need only consider the potential reaction of the Irish government were the Court to find that Article 40(3) of the Irish Constitution violated Community law to recognize the difficulties that the Court might encounter if it involved itself in such areas. [176] Indeed, one commentator has noted that should the Court attempt "to tackle questions such as divorce, contraception, abortion, blasphemy, surrogacy, etc., rights might no longer be handy tools for integration but vehicles of division and disintegration." [177]
Rights of the latter kind, unlike more traditionally recognized rights that merely proscribe certain government action, generally depend upon positive action by authorities for their realization. In such a situation, a "Community constitutional standard could to large extent dictate the outcome of the political processes of the Member States relating to the subject matters in question." [178] Involvement by the Court of Justice in situations involving rights of this type arguably would take the Court even beyond the United States-type model of federal fundamental rights protection, as the guarantees of the Bill of Rights which are held to be applicable to the states through the Fourteenth Amendment generally involve rights which do not require positive action by state governments. [179] In this regard, it has been argued that it should not be the Court of Justice to take this step: rather, "this kind of supervisory federalism must be organised unequivocally in the Community constitution before it can become operational." [180] The Court's involvement in such matters, at least without some type of express approval by the Member States, might significantly impair the Court's own legitimacy and credibility, [181] and thus to some extent might be counterproductive in the long run.
The potential for rebellion on the part of the national courts appears somewhat harder to evaluate. Past opposition from -- in particular -- the German and Italian Constitutional Courts [182] stemmed from the fear that the Court of Justice would provide insufficient protection for fundamental rights. Similar concerns would not necessarily arise in the case of an expansion of fundamental rights review of the type suggested by Advocat General Jacobs, since such review would in most cases have the effect of providing greater protection to individuals. Moreover, expanding the number of situations in which Community fundamental rights standards could be applied to Member State action would serve to increase the power of the national courts vis-a-vis their own executives and legislatures, since it would give them an additional ground for invalidating the acts of those branches. Indeed, this type of increased authority appeared to be one of the reasons that national courts accepted the Community legal system in the first place and indeed were induced into cooperating with the Court of Justice through the use of the Article 177 preliminary reference procedure. [183]
The possibility that national courts may voice opposition to an expansion of the Court's fundamental rights jurisprudence cannot, however, be entirely ruled out, particularly in light of the October 1993 decision of the German Constitutional Court on the validity of the Maastricht Treaty. [184] In that judgment, the German Constitutional Court reserved for itself the power to rule on whether a particular Community act should be declared invalid because it concerned a subject matter which was beyond the competences of the Community. [185] While not directly relevant to the issue of expanding fundamental rights review, the German Court's decision nevertheless suggests that national courts indeed may be concerned with enforcing the substantive division of competences between the Community and the Member States and thus with ensuring that Member States retain a certain amount of autonomy in acting within the spheres of their residual powers. The assertion by the Court of Justice of the authority to review actions taken by Member States within such spheres of power on fundamental rights grounds, even though not resulting in a transfer of original competences to the Community in those areas, would obviously interfere with the autonomy of Member States in exercising their residual powers. [186]
A further negative consequence that might result from expanded review is the impact that such review would have on the effectiveness of Article 177. The increase in the number of cases submitted to the Court of Justice for preliminary references raises significant concerns about the possibility of truly important cases being "lost in the shuffle" and, more generally, of dissatisfaction with the Community judicial system. As one commentator notes, requiring courts to decide "legions of cases brought to them, [may come] at the cost of overload and superficiality of decisions." [187] Even the creation of the Court of First Instance in 1989 has not significantly affected the work load of the Court. [188] With the recent conclusion of negotiations for the accession of three new Member States -- Austria, Sweden and Finland [189] -- and with possibly more new members to come, the number of preliminary references is likely to continue its upward ascent. The potentially far-reaching expansion in review of Member State actions suggested by Advocat General Jacobs may thus have a significant negative impact on the efficiency and effectiveness of the preliminary reference procedure, with a consequent reduction in the willingness of national courts to refer cases to the Court of Justice. Article 177 has played and will continue to play a crucial role in the Community judicial system, [190] and a significant reduction in its effectiveness would have important consequences not only with respect to fundamental rights issues but in all areas of Community law. On the other hand, however, one can legitimately argue that the proper solution for this potential problem lies not in the Court refusing to expand its fundamental rights jurisprudence but in providing the Court with an effective way to screen cases through a device akin to certiorari in the United States or through other adjustments to the Article 177 procedure. [191]
Aside from the above considerations, the expansion of review in the manner suggested by Advocat General Jacobs may have a detrimental impact on the legal order established by the European Convention on Human Rights and -- in a broader sense -- on fundamental rights protection throughout all of Europe. An assertion by the Court of Justice of the power to review potentially any national measure for compliance with Community fundamental rights standards -- which are based in significant part on the principles embodied in the Convention itself -- would deprive the Convention of much of its independent significance for Member States, as there would be little need to resort to the institutions established to administer it in order to remedy a violation of its provisions. In responding to this contention in Konstantinidis, Advocat General Jacobs did not consider this to be a problem, asserting that review by the Court of Justice would fit within the Convention's requirement that national remedies be exhausted and would merely increase the chance that a remedy would be found before resort to Convention mechanisms was necessary. Even if the fact that expanded review by the Court of Justice would decrease the number of cases referred to those mechanisms is not in and of itself considered objectionable, however, expanded review by the Court of Justice might also have the negative effect of
disjoining the EC Member States from an all-European supranational legal order enforcing a uniform fundamental rights standard throughout - eventually - all the countries of Europe. In order to remain credible . . . the ECHR legal order must have the authority to comprise all European States without exception. Membership of the European Community . . . should not make a difference in this respect. [192]
This latter objection to expanded review is not, of course, of a purely "Community" dimension but rather relates to the Community vis- a-vis the rest of Europe. Furthermore, neither the fact that expanded review would reduce resort to the Convention mechanisms or the fact that it might "disjoin" the Community from the rest of Europe would argue against the Court reviewing Member State actions where the rights involved in a particular situation were ones that were not in fact protected by the European Convention itself. Despite these qualifications, however, the question of the interrelationship between the legal order established by the Convention and the Community is an important one and should not be entirely disregarded.
Finally, it should be asked whether, as a normative matter, the Court ought to be involved in such extensive review of Member State action. One might justify such a role for the Court through one of two possible approaches. The first of these approaches would rationalize expanded review on the ground that the protection of fundamental rights serves as an instrument for achieving further economic integration. Guaranteeing to each individual a common code of fundamental values might, for example, serve to increase the effectiveness of free movement rights since it would eliminate the possibility that a national of one Member State would be deterred from moving to another Member State because of the latter State's lower level of fundamental rights protection. The second of these approaches would instead view the application of a uniform Community fundamental rights standard as an intrinsic good, independent of whether or not it promotes free movement. It is this "intrinsic" approach to fundamental rights protection that Advocat General Jacobs seems to take in Konstantinidis, as his notion that each individual should be entitled to invoke the status of "civis europeus sum" reflects a conception of individuals as human and not exclusively economic beings and of the Community as an entity serving the purpose of bringing those individuals together.
Several arguments, however, may be raised to justify the opposite conclusion that the Court ought not to play such an extensive role in controlling Member State action in the sphere of their residual powers. While recognizing that the Community is in fact evolutionary in nature, it nevertheless has been a standard proposition from the time of the signing of the Treaty of Rome that the Community is aimed at bringing about an "ever closer union among the peoples of Europe." [193] This concept of ensuring the preservation of the identity of separate "peoples" in Europe may be weakened by the degree of homogenization that might result if the Court were to be involved in reviewing all of a Member State's social, cultural, or educational policy for fundamental rights compliance. [194] It has often been argued that one of the benefits of a federal structure which preserves a large degree of autonomy for its constituent parts in particular areas is the diversity among the constituent parts resulting from such autonomy. [195] At least where possible violations of fundamental rights are not of the egregious type, it may be unlikely that an individual will refrain from moving to another Member State because that State strikes a slightly different balance than that individual's home State with respect to, for example, the level of protection afforded to property rights. Fundamental rights protection may thus form one element -- along with many others, such as educational benefits, levels of taxation, etc. -- in the "package" that a State provides for individuals residing within its borders. If the constituent parts of a federal structure are given the freedom to provide diverse packages, it may actually enhance individual liberty by giving individuals the right to choose the particular "package" which they happen to prefer. [196]
One might also contend that a greater degree of control over the actions of Member States in the fundamental rights area is not in fact necessary to ensure adequate protection for such rights in the Community. Even in the absence of review by the Court of Justice, both national courts and the institutions established by the European Convention have the jurisdiction to review acts of the Member States for fundamental rights violations. Moreover, it may be unlikely that the standards employed at least by the national courts in carrying out this task will diverge to a great degree from Community standards. As Advocat General Mancini noted in Bond van Adverteerders v. Netherlands, [197] and as Professor Frowein states,
[i]t is possible to foresee a dialectic development by which the legal order of a Member state will be influenced by the jurisprudence of the Court of the Communities. Since Community law is directly applicable in the domestic sphere it is rather unlikely that national courts will fall behind established Community standards when applying domestic fundamental rights even in matters which have nothing to do with Community law. To this extent there may be indirect integration through the jurisprudence of the European Court of Justice concerning fundamental rights and freedoms. [198]
Professor Frowein envisioned the possibility of this dialectical development even in the absence of any review by the Court of Member State actions. Indirect integration of this type may thus be even more likely now that the Court has asserted its power to review national implementing and derogating legislation. This argument does, however, have its critics. In particular, some have asserted that the national courts will not in fact safeguard Community fundamental rights principles in the same manner as would the Court of Justice. Arnull and Jacobs note in this regard that
[f]undamental rights are therefore capable of influencing the way in which the Community provisions on the free movement of persons are interpreted and applied by the Court of Justice. Where national judges are called upon to apply those provisions, they should clearly give the same weight as the Court of Justice to the protection of fundamental rights. In practice, however, they may be influenced by the status accorded to such rights in their domestic law. Judges in the United Kingdom, for example, where there is no constitutional guarantee of fundamental rights and where the European Convention on Human Rights does not have direct effect, may be less inclined to be swayed by arguments based on fundamental rights than judges in Member States where such rights are protected under their national constitutional law and where the European Convention is regularly applied by the national courts. [199]
Similarly, concern has been raised about whether the level of protection for fundamental rights provided by the European Court and European Commission of Human Rights would be as high as that guaranteed by the Court of Justice, particularly since the Convention itself is often regarded as establishing only minimum fundamental rights standards. One commentator notes in this regard that "the Strasbourg organs often operate as a last resort often reinforcing a point of principle and proclaiming a minimum standard, rather than stepping in to ensure effective immediate protection of individuals' human rights." [200] Whether or not expanded review in the manner suggested by Advocat General Jacobs is thus necessary to ensure adequate protection for fundamental rights throughout the Community seems, therefore, to be the subject of continuing debate.
What conclusions can be drawn from this elaboration of the possible advantages and drawbacks of expanded review? The compelling nature of the fundamental rights issue in and of itself makes it difficult to argue against expanded review by the Court of Justice if such review would indeed serve to secure to individuals a higher level of protection for such rights. Nevertheless, the question remains whether it should in fact be the Court of Justice to assume on its own the responsibility for ensuring such a level of protection where Member States are acting in areas which do not affect the rights of individuals specifically provided by Community law. In this regard, Article F(2) of the Maastricht Treaty provides that "[t]he Union shall respect fundamental rights, as guaranteed by the European Convention . . . and as they result from the constitutional traditions common to the Member States, as general principles of Community law." [201] The fact that this article refers only to the duty of the Union and not to a duty of the Member States themselves to respect such fundamental rights may lend some support for the claim that the Member States have not, at least at the present time, expressed their support for such a potentially far-reaching expansion of the Court's fundamental rights jurisprudence.
It may be unlikely that the Court itself will be willing to take such a step on its own in the near future, particularly given the sensitivity to the issue of competences evidenced in public debate, the principle of subsidiarity, the provisions of the Maastricht Treaty, and the October, 1993 decision of the German Constitutional Court, which all reflect the desire at a minimum to be more cautious than was the case in the past with respect to the expansion of Community powers and the interference with Member States' residual powers. Indeed, the Court's somewhat "less aggressive" stance in the Keck case may support the notion that the Court may generally be assuming a less activist stance now that the Community itself is so well-established. However, the possibility that the Court might take such a step cannot be ruled out. The likelihood that the Court would have taken the step it did in ERT after its decision in Cinetheque may have also seemed remote. Moreover, the court has often been portrayed as the Community institution spearheading the integration process. It is not, therefore, inconceivable that -- in an atmosphere of some skepticism about the Community -- the Court might see the expansion of its fundamental rights jurisprudence as a means of "re-energizing" the integration process and of bolstering the legitimacy of the Community itself.
I have attempted in this paper to provide the reader with an overview of the evolution of the Court's fundamental rights jurisprudence with respect to the review of Member State action and an insight into some of the important issues which are likely to arise in this area should the Court further extend the number of situations in which it will apply Community fundamental rights standards to Member State action. As discussed, the Court has at present asserted its prerogative to review Member State action in the contexts of implementing and derogating legislation. The opinion of Advocat General Jacobs in Konstantinidis encourages the Court to go further. As an examination of the Court's case law demonstrates, the Court has not categorically accepted invitations by other Community actors to extend its fundamental rights jurisprudence but rather has acted with some restraint in this area. Past refusals by the Court to extend the scope of its fundamental rights review have sometimes occasioned a retreat by other Community actors from more aggressive stances. As the line of cases extending from Watson & Belmann, Rutili and Cinetheque to ERT show, however, such a retreat may not be long-lived, and the Court may finally be moved to accept the reasoning and conclusions put forth by those actors. The opinion of Advocat General Jacobs in Konstantinidis appears to represent the first stage in this "push and pull" process with respect to a further extension of the Court's fundamental rights jurisprudence. By examining the opinion at length, I hope to have provided the reader with both an insight into those issues that are likely to be important in this area in the near future and some clues as to the direction in which the Court's jurisprudence may develop. Whether the Cinetheque - ERT pattern will repeat itself remains to be seen. At least, however, those interested in this area can look to the opinion of Advocat General Jacobs in Konstantinidis as providing a focus for debate and perhaps as an indication of things to come.