IMAGINACIÓN Y CREATIVIDAD

Students of EU law are well-versed in the incremental and, at least initially, reactive introduction of fundamental rights considerations within the EU legal order. While a glance at the most recent incarnation of the Union’s Treaties, particularly after the amendments introduced at Lisbon, might suggest that fundamental rights occupy a central position within the Union’s constitutional framework,45

this lies in stark contrast to the (absence of) fundamental rights provision in the Rome Treaty, the foundational text of the EEC.46 That document set, as the EEC’s central task, economic integration through the creation of a common market.47 Reference to fundamental rights was seemingly not relevant within a Treaty charged with constituting such a polity and was not included in its text.48

And yet, litigants soon began to argue that the pursuit of economic integration was affecting their fundamental rights. Although the CJEU was initially reluctant to introduce fundamental rights considerations into the EU’s legal order,49

in Stauder it accepted that the interpretation of internal market rules could incorporate ‘the fundamental rights enshrined in the general principles of Community law and protected by the Court’.50

Soon after, in its seminal

Internationale Handelsgesellschaft decision, the Court held that, while domestic fundamental rights norms could not pose a challenge to the validity of EU law, Union legislation could be

45_{Inter alia, the preamble to the TEU (Consolidated version of the Treaty on European Union [2012] OJ}

C326/13) confirms the attachment of the EU Member States to ‘respect for human rights’; Art.2(2) states that ‘[t]he Union is founded on [inter alia] respect for human rights’; Art.6(1) TEU bestows primary law status on

the Charter; Art.6(2) TEU commits the Union to acceding to the ECHR.

46 _{Treaty Establishing the European Economic Community [1957]} 47 _{Art.2 EEC}

48

A richer analysis of the background to the creation of the EEC does demonstrate fundamental rights considerations. For instance, the draft European Political Community Treaty would have integrated the ECHR within the law of that polity. While this arguably increases the potential significance of the absence of a reference to fundamental rights in the Rome Treaty, that document itself can be said to acknowledge goals beyond economic integration. Its preamble seeks to ‘lay the foundations of an ever-closer union among the peoples of Europe’ and to ‘ensure…the social progress’ of the Member States. However, crucially, Art.2 EEC presents this as achievable through the medium of the common market. For discussion of this history, see M, Dauses, ‘The Protection of Fundamental Rights in the Community Legal Order’ (1985) 10 ELRev 398, 399

49

Case 1/58 Stork v High Authority [1959] EU:C:1959:4; Joined cases 36-38, 40/59 Geitling v High Authority

[1960] EU:C:1960:36; Case 40/64 Sgarlata a.o. v Commission [1965] EU:C:1965:36

15 assessed by reference to analogous guarantees existing at EU-level. Fundamental rights formed an integral part of the general principles of Union law, were inspired by the constitutional traditions common to the Member States, but operated within the structure and objectives of the Union.51 This was later confirmed in Nold, in which the Court also highlighted the significance of international human rights instruments, to which the Member States were signatories, to the EU fundamental rights framework.52 The ECHR became a ‘special source of inspiration’ in this regard.53

In time, the Court accepted jurisdiction not only for examining the compatibility of the activity of the EU’s legislative organs with fundamental rights, but also the actions of the Member States when they were implementing54 and, later acting in the scope of, EU law.55

Acknowledgement, by the EU’s legislative organs, of the need to recognise fundamental rights has been similarly incremental. It was not until 1977 that the Union’s legislative institutions released a joint declaration stressing the prime importance they attached to the protection of fundamental rights, particularly those derived from the constitutions of the Member States and the ECHR.56 This commitment was endorsed by the Member States in the preamble to the Single European Act (SEA) in 1986. It was only with the Maastricht Treaty, entering into force in 1993, that respect for the fundamental rights contained in the ECHR and resulting from the common constitutional traditions of the Member States entered the main Treaty text, via Article 6 TEU.57 Suspension of the voting rights, within the European Council, of those Member States that seriously and persistently breached fundamental rights, was not possible until the Amsterdam Treaty became effective in 1999.58 With this Treaty, Article 6 TEU was changed to declare that that the Union was founded on, inter alia, respect for human rights. Accession to the Union also became conditional upon respect for fundamental rights.59 The EU’s own Charter of Fundamental Rights, solemnly proclaimed in 2000,60 did not enjoy primary law status until the most recent Treaty amendments at Lisbon in

51 _{Case 11/70 Internationale Handelsgesellschaft v Einfuhr und Vorratstelle für Getreide und Futtermittel}

[1970]EU:C:1970:114, paras.3-4

52 _{Case 4/73 Nold v Commission [1974] EU:C:1974:51, para.13}

53 _{Case C-260/89 ERT v DEP [1991] EU:C:1991:254; Case C-299/95 Kremzow v Austria [1997] EU:C:1997:254} 54 _{Case 5/88 Wachauf v Germany [1988] EU:C:1989:321}

55

Case C-260/89 ERT, n.53

56 _{Joint Declaration by the European Parliament, Council, and the Commission concerning the protection of}

fundamental rights and the ECHR, 05/04/77 OJ C103

57 _{Art.F(2), Treaty on European Union [1992] OJ C325/5 (TM)} 58

Art.7 TEU

59 _{Art.O TA/Art.49 TEU} 60 _{[2000] OJ C364/1}

16 2009. Similarly, after the CJEU had ruled that the EU lacked the competence to accede to the ECHR,61 the process for formal accession to the Convention could not commence until the insertion of Article 6(2) TEU by the Lisbon Treaty.62 Even post-Lisbon, the Union has no general fundamental rights competence.

Thus, while economic integration through the formation of a common market has always been a central objective of the Union, the relationship between the EU and fundamental rights has been more piecemeal. The historical and constitutional asymmetry between the development of the internal market, on the one hand, and the Union’s commitment to fundamental rights, on the other, has invited abundant comment within the academic literature, particularly where the two interact. For instance, some have argued that the reception of fundamental rights into the EU legal order was a direct attempt to avoid the derailing of the doctrine of primacy.63 Even after Internationale Handelsgesellschaft, the German Bundesverfassungsgericht, in its

Solange I judgment,64 famously rejected the primacy of EU law in light, inter alia, of the lack of a catalogue of fundamental rights operating at Union-level. Only after the EU had further demonstrated its commitment to fundamental rights did that court declare, in Solange II,65 that it would no longer exercise jurisdiction in assessing the validity of EU legislation on fundamental rights grounds, so long as the EU offered an equivalent standard of protection to that found in the German Constitution. In a similar vein, others argue that fundamental rights protection provides a useful means of improving the legitimacy of Union activity, or that it exists (deliberately) to allow for further EU encroachment into Member State law and policy.66 These claims are themselves hotly contested.67 Others still have voiced concern that

61_{Opinion 2/94 [1996] EU:C:1996:140. For criticism, see J. Weiler and S. Fries, ‘A Human Rights Policy for}

the European Community and Union: The Question of Competences’ in P. Alston et al (eds), The EU and Human Rights, (OUP, 1999), ch.5

62 _{Moreover, this process has been somewhat stalled by the CJEU’s recent decision in Opinion 2/13 [2014]}

EU:C:2014:2454 that the draft agreement for accession to the ECHR is not compatible with Art.6(2) TEU or with Protocol (No 8) relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the Convention.

63

Following the introduction of the doctrine in Case 6/64 Costa n.34, a parliamentary report explicitly voiced concern that primacy could undermine domestic fundamental rights protection. F. Dehousse (MEP), ‘Report on the Supremacy of EC Law over National Law of the Member States’. Eur Parl Doc 43 (1965-1966_ JO (2923) 14; J. Coppel and A. O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’, (1992) 29CMLRev 669

64_{International Handelsgesellschaft mbH v Einfuhr – und Vorratstelle für Getreide und Futtermittel [1974] 2}

CMLR 540

65_{Re Wünsche Handelsgesellschaft [1987] 3 CMLR 225} 66

S. Greer, A. Williams, ‘Human Rights in the Council of Europe and the EU: Towards ‘Individual’,

‘Constitutional’ or ‘Institutional’ Justice?’, (2009) 15(4) ELJ 462; A. Williams, EU Human Rights Policies: A Study in Irony, (OUP, 2004) 159-160; Coppel, O’Neill, n.63

17 EU fundamental rights might reflect the existence, but not the substance, of the fundamental rights contained in international instruments and the constitutions of the Member States.68 Commentators have questioned the extent of fundamental rights protection at EU-level when the scope of EU fundamental rights is frequently defined by reference to Union objectives.69 Finally, as noted above, following the emergence of clashes between fundamental rights and the free movement provisions, Brown has argued that slotting fundamental rights considerations into the Court’s existing two-stage approach, originally designed for adjudicating conflict between free movement and public interests, is ill-suited to this dynamic.70

Although Brown highlighted the two-stage approach as a cause for concern in the wake of the

Schmidberger decision,71 its use was not problematic in terms of the substantive outcome of that judgment. The fundamental rights arising in that case – the freedoms of expression and association – prevailed over the free movement of goods. The cases of Viking and Laval, on the other hand, arguably demonstrate the realisation of Brown’s concerns about the structural prioritisation of free movement over fundamental rights. In this way, those cases are just one (significant) manifestation of a larger, enduring discussion surrounding the relative positions of market values and fundamental rights (and/or social goals) in the Union legal order. Nevertheless, they do reignite the debate, provoking commentators to decry apparent constitutional asymmetry with renewed vigour. As a result, the cases merit examination of their material facts.