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The concept of `plebiscitary' democracy goes some way toward accounting for the development of constitutional jurisdiction among European democracies, although the variety of democratic forms reflects the diversity of political aspirations and intentions at work.[10]. Since constitutional jurisdiction is most actively and articulately applied in defense of fundamental rights, it is however difficult to attribute decisive weight to this application. While it is true that protection of these rights involves the defense of minority rights from possible abuse by the majority, it would be ridiculous to limit the meaning of `fundamental rights' to this type of instrumental importance. The Charter of Rights is the nucleus of all European constitutions, promulgated either as a distinct chapter of the constitutional code, or as a separate declaration[11].
Protection of freedoms is at the root of constitutionalism, but the constitutional centrality of these fundamental rights is to an extent a new phenomenon and entails a dramatic alteration of earlier ideas. The inter-war period saw the generalized incorporation of the declaration of rights into constitutional texts. Mirkine-Guetzevitch interpreted this development as congruent with tendency, prevalent at the time, to move toward rationalization of power. The period also saw attempts to reserve these rights from legislative assault. However at the time less importance was ascribed to the demise of unlimited faith in the legislature than to the extension and incorporation of social rights. By contrast, the current preoccupation is not with the relative size of the Charter of Rights, but instead with the change in the normative and legal status of rights "old" or "new".[12] Before 1939, the constitution was still regarded in continental Europe as the standard by which public power was defined, above all with respect to legislators, whose actions gave rise to law. In the post-war era Constitutions began to be seen as the direct source of law; especially of its central core, the fundamental rights that directly empower (and bind) the citizen.[13]
The constitutions of the EU member states are not the only source of fundamental rights. All member states are signatories to the European Convention on Human Rights, although the convention operates differently in each. Some national constitutions contain additional clauses which allow the constitutional judiciary to derive fundamental rights which are not specifically enumerated in the text of the constitution.[14] If we limit ourselves to the constitutional texts, we see that they differ not only concerning the rights declared but also with the means employed to guarantee them, particularly with respect to preventing legislative encroachments.[15]
A number of states have highly developed systems of constitutional jurisdiction, or are attempting to institute such systems. In other states, judicial control over laws is more of a theoretical proposition than a regular practice, and, in a further subset of member states, judicial control is expressly prohibited. The formulation of fundamental rights follows too very different criteria. In some constitutions, fundamental rights comprise a homogenous category with regard to their legal status. In others they are subdivided according to normative and legal characteristics. In the former group, the repertoire generally encompasses only the classic rights16, while constitutions of the latter group contain not only the classic rights, but also numerous social rights, even some so-called "third generation" rights, including environmental rights.
Since the concept of fundamental right has to be built accordingly to the corresponding legal system, this diversity of provisions across member states seems to preclude any possibility of building a concept of fundamental rights valid all over the European Union. However, the uniform application of European Law all over the Union demands such an unified concept of fundamental rights, since the Union is bound to respect, as general principles of European Law, "the fundamental rights as guaranteed by the European Convention on Human Rights and such as they derive from the common constitutional traditions of the Member States" [16].
However, the formal limitations of the comparative legal approach are not insurmountable. Starting from the Paragraph F of EUT, the construction of a unified concept of `fundamental right' is both possible and indispensable. Since there is no right incorporated in the European Convention which does not derive from the common constitutional traditions of member states, nor these traditions include rights that the Convention does not enact, the double reference seems to be redundant. That does not means its being useless, since it offers a mean to distinguish in the set of fundamental rights guaranteed by each national Constitution two very different sorts of rights. First there is a class formed by those rights deriving from the common constitutional traditions and granted without fail in the texts of all European national constitutions and in the European Convention . Second, another class including the rights which are peculiar to each country. The former are fundamental not only for the Member State, but also for the Union, the latter only for the State. Only those rights universally considered to be fundamental should be included in the Community definition.
As it happens, these "doubly fundamental" rights are the so called "classic" rights , the rights of liberty and equality, the only ones whose content derives immediately from the Constitution[17]. So, too from an strictly theoretical point of view, there are reasons to reserve to them the qualification as fundamental, excluding from this category the social rights which exist in all the member states, but whose real content can not be established by constitutional adjudication, but by the legislature and in some cases not even by the legislature, but by the market. Social rights of provision, such as health, social security, social services, and welfare services, only exist if created by law, and with the content attributed by law, independent of whether the constitution provides explicitly for such a law.[18] In some cases the constitutional declaration can be understood only as a programmatic norm, given the manifest impossibility of securing the universal satisfaction of these rights in the context of a market economy,[19] and the necessity of balancing competing interests in the utilization of scarce resources, such as the environment. These self-styled fundamental rights are truly no more than "Principles of Economic and Social Policy", and so is how the Spanish constitution qualifies them[20].
The notion of `fundamental right' must so be reserved in European jurisprudence to those rights which immediately derive from the constitution and whose validity can be effectively guaranteed by judges, even against the actions of national legislatures. Substantively, these rights are the so-called "classic" rights assuring liberty and equality. They include "political" rights, such as the right to elect and be elected, and constitutional guarantees of property . However, the vast range of social rights that exist in some measure in all European states are not considered fundamental. Social rights are excluded because their specific content is determinable only through decisions of national legislatures and the market -- not by means of constitutional adjudication. For example, the `right to an education' has a distinctly social character, but the ability of the individual to exercise this right is guaranteed, free of charge, only to the extent that national legislatures consider its provision an obligation. Some rights commonly classified as social are in reality political, for example, the `right to a fair trial' and the `right to justice' more generally. Social rights are correctly limited to those goods and services which can be legitimately demanded of the state by its citizens, but which can also be obtained in the market.
Another class of excluded "rights" includes those more properly classified mere as institutional guarantees. For example the `right not to be dismissed from employment without "just cause",' which appears in Article 15 of the Finnish constitution and in Article 53 of Portugal's constitution, is not considered fundamental.)
Reducing the catalogue of fundamental rights to those which spring directly from the constitution, even though they may be limited or to some extent dependent upon outside law, in no way implies an under-valuation of those rights denied the classification of `fundamental.' At the edge of the twenty-first century, governments of developed states can no longer deny the necessity of fighting unemployment, providing decent housing and suitable health care, and maintaining a social security system capable of protecting all residents (not only citizens) to the fullest extent possible. The question lies not in the desirability of the ends, but rather in the suitability of the means chosen to achieve them. We will advance not a single step toward providing full employment, universal housing, or social-welfare protections against the inclemency of the market by merely proclaiming them to be constitutional rights. A constitutional proclamation, whether or not it contains a legal remission,[21] leaves the actual creation of rights to the legislature and denies judges any effective control over legislative acts or omissions. It falls to judges only to apply and respect the legislature's political and distributional, decisions.[22] Politics has its inherent limits which quickly become apparent when it comes time to give legal form to complex procedural issues outside judicial control. To lengthen the catalogue of fundamental rights in order to include social demands whose satisfaction depends, above all, on the economic resources of the state would be to create a dangerous mirage, which could only weaken the validity of those rights that can be effectively formed in this way. Evidence for this conclusion is abundant.
[10] Eleven of the fifteen member states of the EU rely on some form of jurisdictional control over the constitutionality of laws. However, this control is seldom exercised in those states where such control is entrusted to judges at all levels - i.e. in Denmark, Greece, and Sweden. Jurisdictional control is used as a preventive control in Ireland and France, and is invested with widely differing characteristics in those states where is has become most developed, namely in Germany, Austria, Belgium, Italy, Spain, Portugal. A clear, synthetic presentation can be found in L. Favoreu Les Cours Constitutionnelles, (1986) Paris, and in subsequent editions.
[11] In general, the Charter of Rights forms part of the constitutional "code", although it is a separate document in France and Austria. In Sweden, Chapter Two of the Instrument of Government enumerates the fundamental rights in general terms, but rights concerning freedom of the press are included in a separate constitutional bill.
[12] Grewe has referred to characteristic traits of the fundamental rights as "juridicite et normativite". See Constance Grewe, Les droits constitutionnels europeans, PUF (1995), p. 141.
[13] In Spain, E. García de Enterría was the first person to comment formally on this change at the moment the constitutional was proclaimed, and his work is still considered seminal. See "La Constitución como norma" in Civitas (1981).
[14] See C. Grewe, op. cit., particularly pp. 147-150 and 157-158.
[15] A comparative catalogue of these rights reveals some differences across constitutions. However, these differences can be adequately explained with reference to the varying ages of the constitutions and should not be ascribed transcendent theoretical or practical importance.
[16] See Article F, paragraph 2, of the Treaty of the European Union.
[17] The effectiveness of such rights against a legislature depends upon the existence or non-existence in each respective system of the power of judicial review over legislation. Where judicial review is a feature of the system, its precise scope and characteristics are highly relevant to outcomes in this area. Submission of all EU member states to the jurisdiction of the European Court of Human Rights has reduced the general level of variation across national legal systems, irrespective of the structures involved. Significantly, in the Netherlands, where article 120 of the constitution explicitly prohibits judges from drafting opinions about the constitutionality of treaties and other types of law, article 94 demands that these same judges refuse to apply domestic norms which contradict European law, including the European Convention on Human Rights. In Sweden, where judicial control over domestic constitutionality is similarly very limited (see Instrument of Government, Chapter XI, article 14) and seldom used, a prohibition against applying norms incompatible with the European Convention has also been proclaimed (I.G., Chapter II, article 23). In effect, this proclamation granted the judiciary control over determinations of "conventionality."
[18] In the French and Italian constitutions there is no specific reference to a right to social security, to social services, or to a minimum standard of living. However, there is a generic remit to law of the right to social security and social service in the constitutions of Finland (article 15a), Belgium (article 23), Denmark (article 75), Greece (article 21), Luxembourg (article 11), and the Netherlands - to mention only those constitutions that do not recognize differences of legal framework among the rights they set out.
[19] For example, consider the right to housing, confirmed without restriction in the Finnish constitution (article 15a); or the right to work, stated in emphatic terms in constitutions of France (preamble, 1946) and Luxembourg (article 11). The remaining European constitutions that make mention of housing or employment more pragmatically charge public authorities with the mission of "promoting" the goal of guaranteed housing and full employment. See, for example, the constitutions of Belgium (article 23), Greece (article 21), and the Netherlands (articles 19 and 22).
[20] Some of the "rights" excluded are only institutional guarantees, (for example the right to not be dismissed without "legal" or "just" cause, which is consecrated in the constitutions of Finland -art.15- or Portugal -art. 53-. Most of them are nevertheless social rights of provision (of health, social security, social services, minimum standards of living, etc.) which only originate as such when they are created by statute, and with the content attributed by it, independently of whether or not the constitution refers explicitly to this statutory configuration. In some cases, moreover, the constitutional declaration, whichever the formula employed, can only be understood as a programmatic norm, given the manifest impossibility of securing the universal satisfaction of these rights in the context of a market economy, or the indeterminacy of the goods protected (the environment, etc.)
[21] In verdict 252/1988, the Italian Constitutional Court affirmed that social rights are largely a function of the resources available in a given community. It stated that "only the legislature, weighing up the available resources and the interests capable of being satisfied over time, can rationally adapt the means and the consequences of such rights." See C. Grewe, op. cit., p. 162.
[22] Legislative freedom in these matters is severely constrained among the member states of the Union, and may not be much greater in states outside the EU. A detailed explanation of this matter is, however, beyond the scope of this introductory article.