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Neither the Treaty of Paris nor the Treaty of Rome contained any allusion to the protection of fundamental human rights. And yet, once the European Court of Justice put in place its constitutional jurisprudence in cases such as Van Gend en Loos and Costa v. ENEL it became legally and politically imperative that a way be found to vindicate fundamental human rights at the Community level. How could one assert the direct effect and supremacy of European law -- vesting huge constitutional power in the political organs of the Community -- without postulating embedded legal and judicial guarantees on the exercise of such power? After all, the effect of direct effect and supremacy would be to efface the possibility of national legislative or judicial control of Community law. This imperative was all the more urgent given the notorious democratic deficiencies of European governance, in some respects more acute in the 60s than in the 80s and 90s. How could one expect the constitutional and other high courts of the Member States, especially of those Member States with national constitutional orders and judicial review such as, at the time, Germany and Italy, to accept the direct effect and supremacy of Community norms without an assurance that human rights would be protected within the Community legal order and, critically, that individuals would not lose any of the protections afforded under national constitutions?
Protecting human rights became a joined legal and political imperative.
The response to this imperative, the story of Stauder and Nold and all the rest has been told so many times as to obviate the necessity of recapitulation. Likewise, of equal tedium, is the investigation into the legal basis and formal constitutional legitimacy of this act of so-called judicial activism by the European Court of Justice whereby the Court put in a place, or discoved, an unwritten Bill-of-Rights against which to check the legality of Community measures.
It is the perspective of Rights-as-Values that is of interest to me in this essay. The issues can be drawn out at their sharpest by imagining the European Court's jurisprudence as a dialogue with, or a monologue at, its national counterparts.
Let us take the Hauer case as our basic factual matrix: Imagine (following Hauer) a Community measure, say a Regulation, which restricts the use of agricultural land, prohibiting its exploitation as a vineyard by its owner, a German national, and, thus, arguably compromising her right to "private property." States differ in the extent to which they will protect private property against governmental authority. Imagine therefore further, merely for the sake of argument, that in Germany the constitutional norm and practice affords greater protection to private property than, say, in Italy and that both offer more protection than the core guaranteed under the ECHR. Let us, finally, imagine that Germany affords protection of private property greater than any other Member State in the Community.
Direct effect and Supremacy mean that the national legal orders must uphold the Community measure restricting the use of agricultural land and potentially compromising the fundamental human right to private property. It therefore falls to the European Court of Justice to check the Community Regulation.
The potential conflict of values emerges, classically, in response to the question: Which standard of protection should the European Court of Justice adopt?
Given the legal and political imperatives I suggested above, there would seem to be a ready and easy answer: The Court should adopt the high, German, standard.
Several reasons argue for this "maximalist" approach. First, it may be argued with an idealistic turn, that the Community should always seek to adopt the highest standard of human rights around. If, in the field of property rights it is a German standard, so be it. After all, it is often asserted in the regulatory area that European political decision making creates the danger of a race to the bottom, of lowest common denominator choices. Why, then, not have in the field of human rights a race to the top? Idealism would, in this instance, be complemented by expediency: How would you expect the German Constitutional Court to accept less? From the German perspective, it would not be enough that the European Court undertake in principle to scrutinize Community legislation for violation of human rights. Its yardstick for scrutiny must be "up to standard" -- the German standard. It is only the combination of the procedural with the material, of the institutional with the constitutional, that will give the necessary assurances necessary to accept supremacy and all the rest.
The virtue of the maximalist apporach goes even further since, it is argued, while it would satisfy the German legal order, it would not disatisfy the other legal orders.
For, if the Court were to adopt the "high" German standard in this area -- what would be the reaction of, say, the Italian legal order and that of the other Member States? They, the argument goes, would not and should not object since the measure to be judged by the high German standard would be a Community measure. There own legislation would not be touched. And, in other areas the European Court would be looking to their standards, always choosing the highest around.
And yet, the maximalist approach does not work, cannot work and, for good reason, has been rejected by the Court. The maximalist approach would be satisfactory neither from and individual member State perspective nor from a Community or Union perspective. In some cases it is not achievable at all.
To explain why, consider first another hypothetical. Imagine a Member State like Ireland, with relatively little heavy industry. Imagine further that the Member State adopts a constitutional amendment which introduces a fundamental human right to clear air which was then interpreted by the domestic constitutional court as requiring a very high level of purity. To impose these standards on, say, heavy coal and steel industries would be to render them economically non viable, but this is a matter which need not concern the Irish political and legal policy maker since Ireland has no coal and steel industries. Imagine now that at some stage the Community adopts an industrial policy which in combination with its environmental protection policy allows certain levels of factory emissions which exceed the strict ("high") Irish standard. If, at this point, the European policy were challenged before the European Court, would it, under the maximalist approach be obliged to adopt the Irish standard for the entire Community and strike the policy down?
Let us now move beyond the hypothetical case and articulate in more abstract terms the high-low conundrum.
If, on the one hand, the Community's constitutional architecture which includes direct effect and supremacy should not compromise the protection of individual rights guaranteed in the various Member States; and if the Court is to secure and maintain the loyalty of its national counterparts to the EU constitutional structure, then, it would seem, the Court would have to adopt the maximalist approach -- in each case it would have to choose the highest level of human rights protection which exist among the Member States.
No wonder that the Court in Hauer said the following:
[F]undamental rights form an integral part of the general principles of the law, the observance of which it ensures; that in safeguarding those rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, so that measures which are incompatible with the fundamental rights recognized by the constitutions of those States are unacceptable in the Community; and that, similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law. (Recital 15, emphasis added)
If, on the other hand, the Court were to adopt in each case the highest standard of protection it would mean, as in our "Irish" hypothetical, that it would be subject to the constitutional dictate of individual Member States even when these national standards of protection may be considered as entirely unsuitable for the Community as a whole.
No wonder that in the same case the Court said as follows:
[T]he question of a possible infringement of fundamental rights by a measure of the Community institutions can only be judged in the light of Community law itself. The introduction of special criteria for assessment stemming from the legislation or constitutional law of a particular Member State would, by damaging the substantive unity and efficacy of Community law, lead inevitably to the destruction of the unity of the Common Market and the jeopardizing of the Cohesion of the Community. (Recital 14, emphasis added)
The problem is even more complex calling into question the very utility of using the "high" and "low", maximal/minimal nomenclature in this context.
Consider first the situation when at issue is a fundamental human right which seeks to protect rights as between individuals inter-se. No clearer is the case in relation to abortion as recently emerged in the Grogan case. Grogan provides a classic illustration why the maximalist approach was rejected and why it cannot both as a matter of policy and logic be accepted in this type of case. In Ireland there was a very "high" level of protection for the unborn. What if in another Member State, the "opposing" right of a woman to autonomy over her body was constitutionally guaranteed including the right to abort a foetus in certain circumstances? Which of the two rights would the Court choose to recognize as a Community right? Is there any meaning to a maximalist approach in this situation? In the case of abortion how can the Court recognize the near absolute right of the unborn in the Irish constitution and at the same time uphold a woman's right to self-determination, which, say, in another Member State permits abortion in some situations?
It could, however, be argued that the abortion situation is special, pitting as it were one individual against another. In most situations, it could be argued, the philosophy of rights pits the individual against public authorities. In those case, the vast majority, it still does make sense to talk about high and low standards of protection, and, consequently, the maximalist approach would be feasible and desirable. To understand the fallacy of this argument we have to recall the introductory remarks on human rights as an expression of a fundamental balance between rights of the individual and rights of public authorities. To say, as we did in our hypothetical case based on Hauer that Germany has the highest level of protection of private property among the Member States is also to say that Germany, in this area, places the largest number of restrictions on public authorities to act in the general interest. The rights of the public at large have the "lowest" level of protection. Even if this is so, we could still ask, why it would matter to the Italian legal order that in the area of private property rights the ECJ adopt the "high" German standard? After all, as we already mentioned, that choice does not interfere with the conduct of Italian socio-economic policies by Italian public authorities.
This very question represents a failure to grasp that what is fundamental in fundamental rights is the balance struck between individual and public interests.
If this is understood, surely the answer to the question is that it could and should matter to the Italian legal order that the Court adopts the German standard simply because it is the "highest". The fallacy rests in the unstated assumption that "higher" standards are always desirable. But we know better. We know that to adopt the "higher" German standard (or that of another Member State, as the case may be) is to adopt for the Community as a whole the societal Weltanschauung struck in a particular Member State between individual and the public at large. It is to adopt for the Community as a whole the fundamental values of a particular Member State.
At least two things are problematic with such an outcome.
The Community is comprised of many Member States and peoples. Its basic values should be an expression of that melange. The Maximalist approach would always privilege the core values of one Member State, the one which happened to accord the "highest" level of protection to the individual, the "lowest" level of protection to the public and the general interest.
Further, when applied across the board, the "maximal" approach could lead to an interesting result. In all Member States there would tend to be a balance among different human rights -- some privileging the individual others the public and the general interest, If the Court were to adopt a maximalist approach this would simply mean that for the Community in each and every area the balance would be most restrictive on the public and general interest. A Maximalist approach to human rights would result in a Minimalist approach to Community government. This, in the eyes of some, would be a fine choice of socio-economic values. It may be so, or may not. But it should not happen as the unintended consequence of a (non-workable) of protecting human rights.
How, then, can one solve, if at all, this conundrum? How can one square the need to ensure that the Union constitutional architecture not be bought at the expense of compromising individual rights hitherto protected by national constitutions which points to wards a maximal standard policy with the realization that such a policy is inherently flawed, and in some instances simply not workable?
How has the Court sought to square this vicious circle?
Again Hauer can provide the cues. Let us here move from the hypothetical to the actual Decision and see how the Court attempts to resolve the conundrum.
The Court first repeats it basic philosophy and methodology in this specific context:
The right to property is guaranteed in the Community legal order in accordance with the ideas common to the constitutions of the Member States, which are also reflected in the first Protocol to the [ECHR].(Recital 17) Whereas earlier it said that measures which are incompatible with the fundamental rights recognized by the constitutions of those States are unacceptable in the Community, there is now a subtle change -- the Court is insisting that the right to property will be guaranteed in accordance with ideas common to the constitutions of the Member State.
I interpret that as the Court itself edging away from the vocabulary of standards.
Interestingly, the Court deals first with the protection afforded through the ECHR. After citing Article 1 of the Protocol
Every ... person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment taxes or other contributions or penalties
The Court simply notes that the Council Regulation would come within the right of the State "to enforce such laws as it deems necessary to control the use of property in accordance with the general interest". Further, the provisions in the Convention, in the eyes of the Court, do not enable a sufficiently precise answer to be given to the question submitted by the German Court. (Recital 19).
It is clear that for the purposes of its decision the Court regards itself subject to the requirements of the Protocol despite the fact that the Community as such is not a signatory. Secondly, it is in my view evident that the Court regards the Convention and its Protocols as mere starting points, as the first and not most difficult steeplechase which the Community regulation has to pass. It is hugely important to note that although the Court regards the Community as bound by the Convention it does not regard the Convention as setting "The" standard of protection for the Community. Like a State, the Community may not violate the Convention but may go beyond it.
The Court then moves to define its own balance. Its starting point seems to respect the rhetoric employed earlier:
[I]n order to be able to answer [the question], it is necessary to consider also the indications provided by the constitutional rules and practices of the nine [as they then were] Member States. (Recital 20)
In practice the Court gives only three textual examples (from the German, Italian and Irish constitutions) but then goes on to declare that
In all the Member States, numerous legislative measures have given concrete expression to [the] social function of the right to property
[namely]
that those rules and practices permit the legislature to control the use of private property in accordance with the general interest.
[I]n all the Member States there is legislation on agriculture and forestry, the water supply, the protection of the environment and town and country planning, which imposes restrictions, sometimes appreciable, on the use of real property. More particularly, all the wine-producing countries of the Community have restrictive legislation, albeit of differing severity, concerning the planting of vines [etc.] ... [which is not] considered to be incompatible in principle with the regard due to the right to property.
This, in my view, is the most critical juncture in its decision. If all the Court was doing was to ensure that measures which are incompatible with the fundamental rights recognized by the constitutions of those States are unacceptable in the Community, it could have reached a rapid conclusion to its decision at this point. Surely the above analysis proves beyond doubt that the Community regulation in question is not incompatible with the fundamental rights recognized by the constitutions of the Member States.
But there would have been a huge price to pay had the Court ended its Decision at this point. The implication could have been that had it discovered that a similar measure were held unconstitutional in one of the Member States, than the Community measure too would have to be struck down. At a stroke we would be back to the Maximal Standard trap.
Instead, the Court reverts to the second strand in its reasoning, that the right to property is guaranteed in the Community legal order in accordance with the ideas common to the constitutions of the Member States. The constitutional practices of the Member States are not used by the Court as a test for the constitutionality of the Community measure but simply as a source for culling the "ideas" inherent in the right to private property.
This the Court defines, not surprisingly, as a requirement that interference with private property
correspond to objectives of general interest pursued by the Community
and, in a cumulative test (though the Court uses the word "or") the measure must not
constitute a disproportionate and intolerable interference with the rights of the owner, impinging upon the very substance of the right to property.
These two tests of substantive and procedural policy bona fide and proportionality are of course known in virtually all systems of administrative and legislative review. It is worth noting that in substance the Court has not really developed criteria which are in any way more precise than those enumerated in the ECHR and which it had earlier dismissed rather curtly as not enabling it to give an answer.
Since we are not interested in the substance of property law in the EU , it is not necessary to go into the detailed assessment by the Court of the aims of the agricultural policy at the basis of the contested regulation nor into its assessment of the reasonableness of the measure itself save to make some general comments on the method as a whole.
First it is clear that in assessing what is the "general interest" which the measure must serve the Court makes reference to the Community general interest and not to an aggregate or cumulative Member State interest. In adducing the general interest the Court looks at the preamble of the regulation and at the general objectives of the Common Agricultural Policy as enunciated in the Treaty.
Proportionality is also discussed in terms of the Community policy. The Court makes reference to the temporary nature of the regulation and the conjunctural situation of the Community as a whole suffering from a surplus in the vine sector. In the light of its analysis of these factors the Court concludes:
[T]he measure criticized does not entail any undue limitation upon the exercise of the right to property. Indeed, the cultivation of new vineyards in a situation of continuous over-production would not have any effect, from the economic point of view, apart from increasing the volume of the surpluses; further, such an extension at that stage would entail the risk of making more difficult the implementation of a structural policy at the Community level in the event of such a policy resting on the application of criteria more stringent than the current provisions of national legislation concerning the selection of land accepted for wine-growing.
[T]he restriction ... is justified by the objectives of general interest pursued by the Community and does not infringe the substance of the right to property in the form in which it is recognized and protected in the Community legal order.
What does this have to tell us on the way the Court addresses the issue of "high" and "low" standards? The following is my interpretation of this case and the general jurisprudence.
It is clear that the Court rejects the Maximal approach. To repeat:
[T]he question of a possible infringement of fundamental rights by a measure of the Community institutions can only be judged in the light of Community law itself. The introduction of special criteria for assessment stemming from the legislation or constitutional law of a particular Member State would, by damaging the substantive unity and efficacy of Community law, lead inevitably to the destruction of the unity of the Common Market and the jeopardizing of the Cohesion of the Community.
But the Court's move is even bolder. It rejects, in my view, any attempt at some mathematical averages approach to this issue. In its dialogue with its national counterparts its claim is jurisdictional: Only the European Court of Justice is in a position to make the determination on the compatibility of a Community measure with fundamental human rights.
I will explain this in two steps.
Assume first that the Court were to adopt the "German" Standard (or that of any other Member State). It would still have to apply that standard to the facts of the case and to the material, geographic, social and other matrix of the Community which is different from that of any Member State. Imagine that the German Government were to pass an identical measure restricting the growth of vineyards in its territory. Imagine further that on the German market planting such a vineyard would make economic sense. It is conceivable that German Constitutional Court would find that the State could not prove a sufficiently strong general interest to outweigh the interest of the individual in his or her unrestricted use of their private property. But in the Community geographic and socio-economic context it is possible that planting the vineyard in Germany could put someone out of work in Sicily. The Court's first claim is that only it, given its position, is able meaningfully to assess the claims of general interest and proportionality in the Community as a whole.
The second implicit claim in Hauer is even bolder. The language of the constitutional provisions it cites from the German, Italian and Irish constitutions are as bland as the text of the ECHR protocol. It is the respective Court in each of these systems which translates the bland language into the societal choice, the fundamental balance between individual and the general public. To the best of their ability judges will give expression to the constitutional ethos of the constitutional text and of the polity in those decisions. Why we should entrust such a fundamental choice to our judges is a different question, but that we do so entrust them with the task is beyond dispute. The care we take in choosing judges to constitutional courts is an acknowledgment of that function we give to them.