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After reading some of the landmark decisions of the European Court of Justice, one comes away with the impression that individual rights are at the front and center of concerns within the European legal system. The Court began conveying this message from its seminal decision in Van Gend, in which it held that Community law was capable of producing direct effects, that is, creating legal rights which could be invoked by individuals in litigation before their national courts. The critical passage is by now so well known that most European scholars can recite it from memory:
[T]he Community constitutes a new legal order of international law ... the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.119
The Court in Van Gend linked the concept of individual rights to
that of direct effect in a way that made the two terms virtually synonymous in
the language of Community law. In subsequent cases, the Court was asked to
determine whether a particular provision had direct effect, the question was
often formulated as whether the provision created "individual rights which
national courts were bound to protect."
As well, the Court has often
emphasized the importance of individual rights when setting limits to the
institutional autonomy of Member States. In Bozzetti, for example, the
Court explained that "it is for the legal system of each Member State to
determine which court has jurisdiction to hear disputes involving individual
rights derived from Community law, but at the same time the Member States are
responsible for ensuring that those rights are effectively protected in each
case."120
The Court of Justice's
decision in Francovich is clearly cut from the same cloth. The Court's
justification of the principle of State liability begins with an invocation of
Van Gend:
It should be borne in mind at the outset that the EEC Treaty has created its own legal system, which is integrated into the legal systems of the Member States and which their Courts are bound to apply. The subjects of that legal system are not only the Member States but also their nationals. Just as it imposes burdens on individuals, Community law is also intended to give rise to rights which become part of their legal heritage.121
The Court then sets out, in three successive paragraphs, the implications of Van Gend in a way that makes it clear that the Community legal system is not concerned merely with the enforcement of rules for their own sake, but with the protection of the individual rights conferred by those rules:
Furthermore, it has been consistently held that the national Courts whose task it is to apply the provisions of Community law in areas within their jurisdiction must ensure that those rules take full effect and must protect the rights which they confer on individuals.
The full effectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of Community law for which a Member State can be held responsible.
The possibility of obtaining redress from the Member State is particularly indispensable where, as in this case, the full effectiveness of Community rules is subject to prior action on the part of the state and where, consequently, in the absence of such action, individuals cannot enforce before the national Courts the rights conferred upon them by Community law.122
However, our difficulty in articulating a theory of liability that can make sense of the content of EU rules compels us to inquire more carefully into the nature of the rights which the rules protect. As Weiler observes, the inherent appeal of fundamental rights has two roots:
The first of these two roots regards fundamental rights (and liberties) as an expression of a vision of humanity which vests the deepest values in the individual which, hence, may not be compromised by anyone. ...
The other root for the great appeal of rights and part of the justification, even if countermajoritarian, looks to them as an instrument for the promotion of the per-se value of putting constraints on power. Modern democracy emerges, after all, also as a rejection of absolutism...123
We have seen, however, that the "individual rights" conferred by Community law do not always share these roots. Rather, the ideals reflected in Community legal rights are those expressed in Article 2 of the EC Treaty:
The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing the common policies or activities referred to in Articles 3 and 3a, to promote throughout the Community a harmonious and balanced development of economic activities, sustainable and non-inflationary growth respecting the environment, a high degree of convergence of economic performance, a high level of employment and of social protection, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.
The rights protected under Community law give expression, not to the
essence of human dignity or the inherent limits of government, but to a policy
of economic prosperity through integration.124 In consequence, court challenges that would
anywhere else have been fundamental rights cases were in Europe cases about
economic integration. Sunday closing,125
discrimination based on religion126 or
sexual orientation,127 and
abortion128 are just a few examples of
this phenomenon.
The Court of Justice's insistence that Community law is
about "individual rights" reflects, in large part, the Court's commitment to
the underlying goals of Community law. However, it also reflects the rhetorical
value of rights. Since the end of the Second World War, we have witnessed a
proliferation of international instruments, from the Universal Declaration, to
the European Convention, to the International Covenants, proclaiming the
universality and inalienability of the rights of humankind. This development at
the international level has been matched, in liberal democratic states, by an
increased acceptance of rights as a superior source of law even within the
domestic legal order. Judicial enforcement of rights, once a frowned-upon quirk
of American constitutionalism,129 has
become a common feature of modern constitutions. It is hardly surprising then,
that the European Economic Community should aspire to a place within this new
global culture of rights. The contest between national autonomy and the
supremacy of Community law is more easily resolved in favor of the latter when
supremacy is transformed into a question of individual rights.
There are
some signs that things may be changing in the EU. The Community legal order has
begun to take notice of rights which do not find their ultimate justification
in economic integration. The process began some time ago, when, in the wake of
the rebellion by the Bundesverfassungsgericht (German Federal Constitutional
Court) against the principle of supremacy,130 the Court of Justice decided that it would
review Community law for compliance with fundamental rights.131 More recently, attention has come to be
focused on the reviewability of Member State actions for compliance with
fundamental rights standards. Until now, such review has been limited to two
circumstances - "agency" situations,132
where national authorities are essentially carrying out Community law, and
"derogations,"133 where a national
measure is prima facie inconsistent with one of the market freedoms but
the Member State seeks to defend the measure by reference to an exculpatory
rule. The Court of Justice has so far been unwilling to go further,134
and so, despite these developments, fundamental rights remain a constraint upon
and not the essence of EU law. As we have seen, the rights which are the
essence of EU law are rights which serve an ulterior purpose: the reinforcement
of the common market.
120 Case 179/84, Bozzetti,[1985] ECR 2301, [1986] 2 CMLR 246, par. 17.
122 Par. 32-34, emphasis added
123 J.H.H. Weiler, "The Jurisprudence of Human Rights in the European Union: Integration and Disintegration, Values and Processes," Harvard Jean Monnet Working Paper 2/96.
124 Some authors interpret the Treaty in a way that demonstrates a hostility to regulation reminiscent of the U.S. Supreme Court's Lochner era, essentially erecting non-interference with the market as an inherent constraint on government. See, for example, the comments of A. Mattera, who deplores "[c]e phE9nomE8ne inquiE9tant et grandissant de l'intervention des C9tats dans la vie E9conomique de leur pays par des mesures touchant aux domaines les plus disparates..." in "Libre circulation des marchandises et articles 30 E0 36 du TraitE9 C.E.E.," [1976] R.M.C. 500, at pp. 518-19. However, the integrationist objectives of the Treaty do not require such an interpretation.
125 Case C-145/88, Torfaen v. B&Q, [1989] E.C.R. 3851.
126 Case 41/74, Van Duyn v. Home Office, [1974] E.C.R. 1337.
127 Case C-13/93, P v. S. and Cornwall City Council, [1996] I.R.L.R. 347.
128 Case C-159/90, Society for the Protection of Unborn Children v. Grogan, [1991] E.C.R. I-4685. Here, an Irish injunction against distribution of pamphlets advertising U.K. abortion clinics was upheld because the distributor of the pamphlets was acting gratuitously; in the absence of an economic link between the pamphleteer and the clinics, enjoining the pamphlets was not a restriction on the "free movement of services."
129 J. Lambert, Les origines du contrF4le judiciaire de constitutionnalitE9 des lois fE9dE9rales aux C9tats-Unis(1933). It was Lambert who coined the expression, "gouvernement des juges," in describing U.S. constitutional review.
130 Internationale Handelsgesellschaft, [1974] 2 C.M.L.R. 549. The case was overruled in 1986, in part, and a more recent statement of the German Court's position can be found in its 1993 decision on Maastricht. See also N. Reich, "Europe E0 la carte: Some Remarks on Recent Conflicts Between European and German Constitutional Law Provoked by the Banana Litigation."
131 Case 4/73, Nold, Kohlen and BaustoffgroDFhandlung v. Commission, [1974] E.C.R. 491.
132 Case 5/88, Wachauf v. Germany, [1989] E.C.R. 2609.
133 E.g., the national measure violates the Art. 30 prohibition on measures having an effect equivalent to quantitative restrictions on imports, but the Member State seeks to justify it on grounds of public policy under Art. 36. See Case C-260/89, Elliniki Radiophonia Tileorasi v. Dimotiki Etairia Pliroforissis (ERT), [1991] E.C.R. I-2925.
134 For example, it did not adopt Advocate General Jacobs' opinion in Konstantinidis: "[A] Community national who goes to another Member State as a worker or self-employed person ... is 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." See See Darcy S. Bhinder, "The European Court of Justice and the Protection of Fundamental Rights in the European Community" Harvard Jean Monnet Working Paper 1995.
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