Fundamental rights and their legal protections

¶ … 1950s, attempts to integrate fundamental human rights into EU treaties met with little success. Many commentators observe that the reason for the failure of these attempts is the fact that the EU was viewed primarily as an economic union, and as a result, the ECJ's role would be primarily in adjudicating economic and related trade disputes. Also, the ECJ would be charged with making determinations of EU/MS sovereignty where questions regarding the Eurozone's fundamental law and subsequent treaties are concerned. It follows then, that the development of a body of law for the securing and protection of fundamental rights across the EU's member states would have to wait until there was a deeper political and "psychological" union among Europe's citizens; and until this type of "union" took place among the EU's various polities, the ECJ was unable to legitimately and properly address questions of fundamental rights protections. Over time, the ECJ took the lead from adjudicating controversies surrounding the EU's "four freedoms" (the free movement of persons, goods, services and capital) to interpreting the EU's various treaties and their provisions in such a manner as to "carve out" so to speak, a judicial domain for fundamental human rights. The treatment of economic law, regulation and policy as a matter of human rights, and the development of 'general principles' of EU law begins in earnest in the 1960s, and subsequently until the Lisbon Treaty made the Charter of Fundamental Rights legally binding, the ECJ had established itself as the arbiter of European fundamental rights through its judicial decision making.

The first case of note in regard to laying the foundation for a European body of fundamental rights was the ECJ's 1969 decision in Stauder v. City of Ulm. Prior to this decision, no judicial, legislative or executive institution in the EU had explicitly addressed the theory that there may be fundamental human and political rights which cut across member states.

In Stauder, the ECJ held fundamental rights were recognized by EC law. In this case, which involved German welfare recipients, the ECJ allowed that there are "fundamental human rights enshrined in the General Principles of Community Law and protected by the court." In other words, there are principles of human rights subsumed in EU general law that may supersede law mandated by the various member states' national constitutions. Though the Court did not go so far as to enunciate a theory whereby the ECJ becomes the sole arbiter of what constitutes a violation of fundamental human rights, it did however, state that these fundamental rights are core principles and that they have the ECJ's protection. But what are the general principles of Community law and how are they binding?

The general principles of community law are essentially "unwritten law" (much like the British constitution) that can be found in the member states' constitutions, or it can be determined by express provisions or interpretations of Treaty regulations and law. Perhaps the language from the United States' Supreme Court said it best in Griswold v Connecticut, when the U.S. high court held that the American constitution was surrounded by a "penumbra" of rights that could only be determined as cases and controversies unfolding over history made light of -- one can conceptualize EU general principles in much the same way. But the question regarding legitimacy remains. One complaint in regard to obeying the ECJ's decision making authority is that the Court's authority at this point in EU history was ultra vires, that is, there is no legal basis to follow the ECJ's decisions, and that when the court mandates a member nation to take action, the ECJ does so beyond the scope of its power. Though this question was problematic (and would be addressed in Articles 6&9 of the Maastricht Treaty and Articles 263&340 of the Lisbon Treaty,) the effect of Stauder was to lay a marker for future judicial action in regard to European fundamental rights.

One year later in 1970, the ECJ quickly elaborated and expanded upon its Stauder decision in the case Internationale Handelsgesellschafi. In this case, a German court ruled that EU regulations breached the German constitution. The importance of the ECJ's decision was that though EU regulations and law could not remain consistent and in-line with member-state constitutions, it held that fundamental rights form an "integral part of general principles of . . . [EU] law." Further, the ECJ held that if a member-state's constitution or law flowing from the same is inconsistent with or violates an EU fundamental right, then the violation could provide the foundation for a successful challenge to a member-state's law. With this decision, the European high-court had effectually created a doctrine whereby they had the potential authority to determine a body of unwritten rights (or if you will, a "penumbra") which are binding upon member states. The ECJ's argument in Internationale Handelsgesellschafi solidified and clarified its view hinted at in Stauder.

The next major development in the ECJ's ability to determine and protect European fundamental rights is found in the case Nold v Commission in 1974. In this case, the ECJ reaffirmed that fundamental rights do in fact form a part of EU general principles and law, however, the Court found two additional sources for the determination of that law. First, in Nold, the ECJ drew upon the constitutional traditions of member states by stating "it cannot . . . uphold measures which are incompatible with fundamental rights recognized and protected by the constitutions of those states," and as a result the effect was to draw upon the constitutional and interpretative doctrines of member state constitutions. Secondly and uniquely, the Court also found inspiration for determination of fundamental rights in the treaties and conventions signed by member states. It held that such conventions such as the Convention for the Protection of Human Rights, the Geneva Convention, etc. To which member states are signatories can "supply guidelines which should be followed within the framework of Community Law." Thus, the ECJ found additional foundations for rights determinations.