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My starting point here is the well-known development in the jurisprudence of the Court from a practice which focussed on Community measures to a jurisprudence which is willing to scrutinize some Member State measures too.
Here too the general story is well known. The material landmarks are Rutili, Cinetheque, Klensch, Wachauf, A.G. in Grogan, ERT. I do not consider it necessary to recapitulate fully the facts of these cases or their principal holdings. Briefly stated, the Court who regards its duty to ensure the protection of fundamental rights within the field of Community law has construed that field to include Member State measures implementing Community law as well as Member State measures adopted in derogation from the prohibition on restricting the free movement of the four factors of production.
In the first part of this essay we saw how even the review of Community measures may create a tension with fundamental values of the various Member States. Here the "assault" is more direct since at issue are Member State measures normally thought to be subject to the scrutiny and control of Member State courts.
And, to return to the issue of standards. In relation to Community measures we saw the possible concern of Member State Courts was that the Community standards not be high enough thus letting stand Community measure which, but for the doctrine of supremacy would be struck down by national courts. In relation to Member State measures the principal concern would be reversed. That in reviewing Member State measures, the ECJ strike down acts authorized by the domestic jurisdiction and possibly even sanctioned by the ECHR.
There first and most pressing issue that has to be addressed in this context is the very justification for review of Member State measure by the European Court. If, as I argued in the introduction to this essay, constitutionally protected human rights express core societal choices as to the balance between individual and community interests (and visions), an "encroachment" by the European Court of Justice would be a direct challenge to the fundamental boundaries of the member State. There already has been some considerable protest in this regard.
What then is the justification for this jurisdictional drive?
The Court has extended, so far, the exercise of its human rights jurisdiction to Member State measures in two types of situation: a. The Agency situation -- when the Member State is acting for and/or on behalf of the Community and implementing a Community policy (Klensch Wachauf); and b. When the State relies on a derogation to fundamental market freedoms (ERT). How is this to be evaluated from a narrower "legal" point of view?
All of us often fall into the trap of thinking of the Community as an entity wholly distinct from the Member States. But of course, like some well known theological concepts, the Community is, in some senses, its Member States, in other senses separate from them. This, as two thousand years of Christian theology attest, can at times be hard to grasp. But in one area of Community life it is easy. In the EC system of governance, to an extent far greater than any federal state, the Member States often act as, indeed are, the executive branch of the Community. When, to give an example, a British customs official collects a Community imposed tariff from an importer of non-Community goods, he or she are organically part of the British customs service, but functionally they are wearing a Community hat. If the Court's human rights jurisdiction covers, as it clearly does, not merely the formal legislative Community normative source, but its mise-en-úuvre, is it not really self evident, as Advocate General Jacobs puts it in Wachauf, even on a narrow construction of the Court's human rights jurisdiction, that it should review these "Member State" measures for violation of human rights. In this case the very nomenclature which distinguished Member State and Community acts fails to capture the reality of Community governance and the Community legal order. Not to review these acts would be legally inconsistent with the constant human rights jurisprudence and, from the human rights policy perspective, arbitrary: If the Commission is responsible for the mise-en-úuvre review will take place but if it is a Member State, it will not?
The development in ERT, foreshadowed by the Opinion of the Advocate General in Grogan is more delicate.
The Treaty interdicts Member State measures which interfere with the fundamental free movement provisions of the Treaty. This interdiction applies to any Member State measure, regardless of its source. The mere fact that the interference may emanate from a constitutional norm is, in and of itself, irrelevant. Likewise, the fact that the constitutional measures may be an expression of a deeply held national societal more or value is, in and of itself, irrelevant. If, say, a Member State, even under widespread popular conviction and support, were to adopt a constitutional amendment which, 'in the interest of preserving national identity and the inalienable fundamental rights of our citizens' prohibited an undertaking from employing foreigners, including Community nationals, ahead of Member State citizens or to purchase foreign goods ahead of national products, such a constitutional provision would be in violation of Community law.
Community law itself defines two situations which may exculpate such a national measure from the Treaty interdiction. First, the national measure itself must be considered as constituting an illegal interference with the market freedom. The Treaty is very vague on this and the Court has developed a rich case law in this regard. Not every measure which on its face seems to interfere will necessarily be construed as a violation of one of the market freedoms. Second, even a national measure which on its face constitutes a violation of the interdiction may, under Community law, be exculpated if it can be shown to fall under derogation clauses to be found in the Treaty. Article 36, for example, speaks of measures "justified" on grounds of public morality, health etc.
The crucial point is that defining what constitutes a violation of the basic market freedoms is, substantively and jurisdictionally, a matter of Community law and for the Court to decide, as is the exculpatory regime. Substantively the Court will interpret the language of the Treaty -- often opaque: What, for example, does (or should) "justified" mean? or "public order" etc. Jurisdictionally, the Court (in tandem with national jurisdictions) will supervise that the Member States are in fact fulfilling their obligations under the Treaty.
One way of explaining the "extension" of human rights jurisdiction to Member State measures in the ERT situation is simple enough. Once a Member State measure is found to be in violation of the market freedoms, but for the derogation it would be illegal. The scope of the derogation and the conditions for its employment are all "creatures" of Community law, Treaty and judge made. Now, it could be argued in opposition, and I would not consider this a specious argument, that one should look at the derogations as defining the limit of Community law reach. I am not persuaded. Even from a formalist perspective, the very structure of, say, Article 30 - 36 indicates the acceptance of the Member States that the legality or otherwise of a measure constituting a prima facie violation of the prohibition on measures having effect to quantitative restrictions becomes a matter for Community law. From a policy perspective it could hardly be otherwise. Imagine the state of the common market if each Member State could determine by reference to its own laws and values -- without any reference to Community law -- what was or was not covered by the prohibition and its derogation. Surely how wide or narrow the derogation is, should be controlled by Community law. The concomitant consequence of this is that once it is found that a Member State measure contravenes the market freedom interdictions such as Article 30, even if it is exculpated by a derogation clause in the Treaty, the Community's legislative competence is triggered and it may become susceptible to harmonization.
Let us illustrate this by taking the most telling instance: The Rule of Reason doctrine developed principally in Cassis de Dijon of which Cinetheque is an example. Here the Court has carved out new circumstances, not explicitly mentioned in the Treaty derogation clause, which would allow the Member States to adopt measures which otherwise would be a violation of Article 30. I do not recall any protest by Member States complaining about the Court's rather audacious construction of Articles 30-36 in this regard. But, obviously the Member States are not given a free hand. The Court will have to be persuaded that the Member State measures seeking to benefit from the Rule of Reason are, for example, as a matter of Community law, in the general interest and of sufficient importance to override the interest in the free movement of goods, that they are proportionate to the objective pursued, that they are adopted in good faith and are not a disguised restriction to trade. So, the ability of the Member States to move within the derogations to the free movement provisions are subject to a series of limitations, some explicitly to be found in the Treaty, others the result of judicial construction of the Treaty.
In construing the various Community law limitations on the Member States' ability to derogate from the Treaty and in administering these limitations in cases that come before it, should the Court insist on all these other limitations and yet adopt a "hands off" attitude towards violation of human rights. Is it so revolutionary to insist that when the Member States avail themselves of a Community law created derogation they respect too the fundamental human rights, deriving from the constitutional traditions of the Member States, even if the European Community construction of this or that right differs from its construction in this or that Member State? After all, but-for the judicially constructed Rule of Reason in Cassis, France would not be able to justify at all its video cassette policy designed to protect French cinematographic culture. To respect the Community notion of human rights in this scenario appears to us wholly consistent with the earlier case law and the policy behind it.
It could be argued that in supervising the derogation the Court should not enter into the policy merits of the Member State measure other than to check that it is proportionate and not a disguised restriction to trade. Human Rights review, on this reading, is an interference with the merits. Again, I am not persuaded. First it must be understood that the doctrine of proportionality also involves a Community imposed value choice by the Court on a Member State. Each time the Court says, for example, that a label informing the consumer will serve a policy adequately compared to an outright prohibition, it is clear that at least some consumers will, despite the label, be misled. There are ample studies to demonstrate the limited effectiveness of labels. Thus, in the most banal proportionality test "lurks" a judicial decision by the ECJ as to the level of risk society may be permitted to take with its consumers.
Second, even if Human rights review may be more intrusive than proportionately in some cases, it need not always interfere with the actual merits of the policy pursued and could still leave considerable latitude to the State to pursue their own devices. Provided they do not violate human rights, the Court will not interfere with the content of the policy. Admittedly this may sometimes thwart their wills, but that, after all, would also be the case under the European Convention on Human Rights. That on some occasions it might give teeth to the European Convention in those countries which have after decades not yet incorporated it into national law must, we assume be welcomed by those who profess to take rights seriously.
Even if there is a doctrinal and policy justification for extending human rights review to this category of Member State measures, would it not be overly transgressing the prerogatives of Member State courts? This very question might suggest a view which sees the relationship between the European Court and its national counterparts in the area of human rights as consisting of a zero-sum game (powers granted to one are taken away from the other) or, worse, confrontational. It suggests perhaps a view which considers a tug-of-war between a Transnational court and a National court. This might be so in some instances, but the relationship is far more complex and in some cases could, and in my view should, be seen as involving a transnational Court and a national Court: A cooperative relationship wherein the critical sense of identity results not from one body being national and the other transnational but from their sense of both belonging to the judicial branch, not confrontational but mutually reenforcing their ability to uphold the law (as they see it). Not, then, a zero-sum game, but a positive sum game with both parties better off.
The institutional dimension is particularly intriguing in relation to the domestic application of the ECHR especially in those states, like the UK, in which the Convention has not been incorporated into domestic law. Consider, for example, the UK.
By extending its jurisdiction to Member State measures the Court may be stepping into areas which previously were reserved to a national court. But that domain may be more illusory than real. What was reserved to UK courts previously? The "power" to tell hapless individuals that, for example, since successive British governments for their own reasons have refused to incorporate the ECHR into domestic law, courts were unable to give them relief (except, a la Wachauf, as an aid in interpretation) even in the face of egregious violations of the Convention to which their country is a party? One can, of course, take the view that British constitutional arrangements and the denial of power to British courts to apply the ECHR are matters which should be left to Britain. But in anybody's book that would hardly qualify as a position which takes human rights seriously. Moreover, is not the extension of jurisdiction of the ECJ, at least in some respects, an empowerment of the UK national courts and a strengthening of the protection of human rights in Britain in that at least in those areas coming within the scope of Community law as defined by the ECJ, British domestic courts would have gained the right and the power, hitherto denied them, to give human rights relief to individuals?
What then of the issue of Standards of review? What are the potentials here for conflict of fundamental values? My reflections in this respect are very speculative -- suggesting at most a possible interpretation of the scant case law. More realistically they should be taken as prognosis of future developments.
Let us examine first the Wachauf situation, review of a Member State measure implementing or acting for the Community.
This review arises only in those situations when the Community norm or policy leaves some discretion to the Member State so that national authority are choosing from several possible executing or implementing options.
Scenario A: The measure is in violation of the ECHR. Result: It should be struck down either by the national court or by the European Court. There would be no conflict of values since both Community and Member State regard the ECHR as a basic core which cannot be transgressed.
Scenario B: The measure clears the ECHR hurdle but is in violation of a more stringent Member State standard though it would not be in violation of the Community standard. Result: The measure should be struck down by the national court. Since the Community gives the Member State discretion in execution or implementation, provided the Community norm is executed or implemented by one way or another, Community law does not require that Member State standards be violated. There is no conflict of values either.
Scenario C: The measure clears the ECHR hurdle, clears national standards of human rights but fails the Community standard. Result: The measure should be struck down. There is a conflict of values since the public authorities of the Member State are prohibited from exercising a power in a manner which under domestic constitutional standards would be permitted. The conflict is not acute since the Member State public authorities are, ipso facto and ipso jure acting for and on behalf of the Community.
Scenario A: The Member State measure violates the ECHR. Result: The measure should be struck down either by national court or by the European Court of Justice. There is no substantive conflict of values since both legal orders accept the ECHR as a basic core which cannot be transgressed. There could, of course, be a difference in interpreting the ECHR minimal standard. The mistake will inevitably fall in favor of human rights.
Scenario B: The Member State measure clears the ECHR standard but violates the national standard though it would clear the Community standard. I would submit that the result should be a striking down of the measure. There is no Community interest in overriding a national human rights standard applied by a national Court against a Member State derogating from the Treaty.
Scenario C: The Member State measure clears the ECHR, clears the Member State standard but violates the Community standard. I have come to believe that in the ERT situation the Community should not impose its own standard on the Member State measure but allow a wide margin of appreciation, insisting only that the Member State not violate the basic core encapsulated in the ECHR. This seems to be consistent with the Opinion of AG Van Gerven in Grogan. Unlike the Wachauf situation where the Member State is merely the agent of the Community and the Member State measure is in truth a Community measure, here we are dealing with a Member State measure in application of a Member State policy. The interest of the Court and the Community should be to prevent a violation of core human rights but to allow beyond that maximum leeway to national policy. This would essentially equate situation C with Situation A with practical effects limited essentially to those jurisdictions, such as the UK, where national courts are not empowered to enforce under national law the ECHR. They would, as suggested above, be empowered through European Union law. It would also mean that should the Community harmonize disparate Member State derogation measures to, say, Article 30, the standard of human rights review of the harmonized measure may be higher than the standard applied by the Court to reviewing the previous Member State measures.
Finally, in the ERT situation and more generally, even when the standard for review imposed by the Court may be no different than that applying in the Member State I confess to a bias, rebuttable to be sure, in favor of human rights judicial review by courts not directly part of the polity the measures of which come under review. That is why, for example, I favor accession of the Community to the European Convention of Human Rights which would subject even the jurisprudence of the European Court of Justice to a second outside scrutiny. As I noted in the introduction transnational protection of human rights frequently involves the painful tension between the universal and the particular. So far I have insisted on the value of the particular as encapsulating a fundamental choice of the polity. It is trite to recall, however, that regularly, States defend alleged human rights violations on the grounds of respect for deeply held local cultural practices. Sometimes there is merit in the argument. Often, as in the case of, say, the Southern States in the USA defending in the 50s and 60s discrimination against blacks, or some countries today defending the ghastly practice of female mutilation, or corporal punishment of adults (hand chopping) and children (whippings, canings and the like) the defense is specious, a mockery of the transcendental notion of human dignity. In our impressionistic view, local courts, close to local culture, are over susceptible to this type of argument. We are particularly suspicious of these claims when they emanate in contexts, such as Europe, of considerable common cultural affinity among peoples and a shared concept of the State and public authority. Adjudicating these competing claims between the particular and the universal is never easy and may not ultimately have a "right" answer. On balance, from the perspective of my own human rights sensibilities, I prefer, in this respect, the bias of the transnational forum to that of the national one, tempered as it is by the doctrine of margin of appreciation and mindful that the transnational forum is, as noted, often a second bite at the apple, the national jurisdiction having already had its say.
By way of conclusion I would like to set out in tabulated form the principal permutations of review for violation of human rights and the relationship between the different standards of Review.