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Human Rights in Europe – Part II The European Court of Justice and Human Rights

Published online by Cambridge University Press:  21 July 2009

Rick Lawson
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Extract

In a previous contribution on the protection of human rights in Europe, I discussed some developments taking place in the Conference on Security and Cooperation in Europe (CSCE). Despite the major changes that have occurred in the CSCE during the last year, I would like to address the matter this time from quite a different perspective.2 This short note will focus on the importance of human rights in the legal order of the European Communities – cynical as it may seem to address this rather ‘sophisticated’ issue at a time that in the Yugoslavian civil war human rights are violated with a harshness that has been unknown to Europe for decades.

Type
Current Legal Developments
Information
Leiden Journal of International Law , Volume 5 , Issue 1 , February 1992 , pp. 99 - 115
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1992

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References

1. See Lawson, R.. Human Rights in Europe: The Copenhagen Conference. June 1990. 3 LJIL 238–246 (1990).Google Scholar

2. In November 1990, the CSCE states adopted the “Charter fora New Europe” in Paris. See P.H. Fuwalda, M.W.J. Lak, Een Handvest voor Europa, 45 Internationale Spectator 256–262 (1991). The third conference on the human dimension of the CSCE was held in Moscow from Sept. 10 to Oct. 4. 1991. The 38 participating states (including Albania and the newly admitted three Baltic states) were able to agree on a substantive document. The most interesting features are the adoption of a new human rights supervision system, introducing inter alia the use of independent experts and a further erosion of the consensus requirement. In fact, much of the proposal of P.H. Kooijmans has been adopted: see 3 LJIL Special Issue, at 87–98 (1990). More in general, an interesting collection of articles on the CSCE can be found in the new All-European Yearbook on Human Rights (1991).

3. See Hilf., M. Ein Grundrechtskatalog für die Europäische Gemeinschaft. 26 Europarecht 24–27 (1991).Google Scholar

4. See Arts. 25 and 66 ECHR. See for some attempts to bring a complaint before the Court: Application 8030/77, CFDT v.European Communities(Decision of the Commission of July 10.1978: D –241); Application 13258/87. M. & Co. (Decision of the Commission of Febr. 9,1990. not yet reported) at 7.

5. Case 11/70. Internationale Handelsgesellschaft. ECR 1970. 1134.

6. See. e.g.. the German Bundesverfassungsgericht, May 29. 1974. Para. 23: “The Community […] in particular lacks a codified catalogue of fundamental rights, the substance of which is reliably and unambiguously fixed for the future he same way as the substance of the [German] Constitution […]. As long as this legal certainly, which is not guaranteed merely by the decisions of the European Court of Justice, favourable though these have been to fundamental rights, is not achieved in the course of the further integration of the Community, the reservation [that this Court will hold some rule of EC legislation unconstitutional when violating basic rights] applies”. II CMLR 551 (1974). See also the Italian Corte Constituzionale in the Fragd case, discussed by G. Gaja, New Developments in a Continuing Story: the Relationship between EEC Law and Italian Law. 27 CMLRev. 93–95 (1990).

7. See A. Drzemczewski. The Domestic Application of the ECHR as European Community Law. 30ICLQ 127 (1981). One solution might be derived from Art. 234 EEC. which confirms Article 41 Vienna Convention on the Law of Treaties: obligations arising out of the ECHR (1950) shall not be affected by the EEC Treaty (1957). National courts would thus have to give precedence to the ECHR, when conflicts with EEC legislation occur. Of course, this approach has the disadvantage that it would impair the effectiveness and uniformity of Community law.

8. Case 4/73, Nold, ECR 1974,507. Confirmed in Case 44/79, Hauer. ECR 1979.3727.

9. Case 36/75, Rutili. ECR 1975, 1232.

10. See. e.g. for a reference to the ESC: Case 222/86, Heylens. ECR 1987.4117. and to an ILO-convemion on equal payment: Case 43/55, Defrenne. ECR 1976,473.

11. See. e.g..Case 136/79. National Panasonic. ECR 1980.2056–2058: Joined Cases 100–103/80. Pioneer.ECR 1983. 1880: Case 347/87. Orkem. ECR 1989.3351; Joined Cases 46/87 and 227/88. Hoechst. ECR 1989.2924. See for a thorough review M. Fiesheuvel,Artikel 6 EVRM en het Gemeenschapsrecht, 36 SEW 659–705(1988).

12. Pescatore., P. La Cour de justice des Communautés européennes et la Convention européenne des Droits de L'Homme. in F. Matscher. H. Petzold (eds.). Protecting Human Rights - the European Dimension 450( 1988). One might, however, point to the fact that the Court only considers the ECHR as a ‘guideline’, from which it apparently is free to deviate. Probably the Court would have chosen different phrases if it completely shared Mr Pescatores view.Google Scholar

13. Id., at 444.

14. O.J. 1977. C 103/1.

15. See A. Amull, The General Principles of EEC Law and the Individual (1990) and H.G. Schenners. D. Waelbroeck. Judicial Protection in the European Communities 27–94 (1992).

16. More or less similar divisions have been made by. e.g., M. Fiesheuvel. supra note 11. at 664. and A. Clapham. A Human Rights Policy for the European Community, to be published in 10 Yearbook of European Law (1990).

17. Advocate General Jacobs in his opinion on Case 5/88. Wachauf. ECR 1989. 2622.

18. Even the more so since the European Commission of Human Rights considers complaints against these acts to be inadmissible and therefore cannot give protection. See M. & Co.. supra note 4.

19. Case 201/85. Klensch, ECR 1986,3507: emphasis added. See for a similar altitude Case 312/85. Villa Fanfi. ECR 1986,4055.

20. Weiler, J.H.H., The European Court at a Crossroads: Community Human Rights and Member Stale Action, in Capotorti, F.. et al. (eds.). De droit international au droit de I'imegration (Liber Amicorum Pescatore) 830 (1987). The EP, in a recent resolution on human rights (O.J. C 240/45 of Sept. 16, 1991) “considers that the Community must ensure [sic. RL] respect for human rights not only in other countries but more particularly in its Member States’.Google Scholar

21. Case 5/88, supra note 17. at 2639.

22. Id., at 2629.

23. See for an example Case 257/86, Commission v. Italy. ECR 1988. 3267.

24. O.J.L 257/2 of 1968.

25. Case 249/86, Commission v. Germany, ECR 1989, 1290. This judgement illustrates the remark of Pescatore, that references to the ECHR usually serve to confirm conclusions drawn from positive Community law; see, supra note 13.

26. Case 222/84, Johnston, ECR 1986, 1682.

27. The Commission always uses the possibility of Article 20 Statute of the Court to intervene in a procedure for a preliminary ruling, in order to give its own opinion on the case.

28. Rutili case, supra note 9. at 1225.

29. Id., especially at 1232, Para. 32.

30. Case 260/89, ERT, judgement of June 18.1991 (not yet reported). Paras. 43–45. See the comments on this case by P.J. Slot. 28 CMLRev. 964–988 (1991). He submits (at 1987) that the ERT case “is the first in stance where the Court tests the conformity of national legislation with provisions of the ECHR”.

31. Joined Cases 60, 61/84, Cinétéque, ECR 1985.2627. A more or less similar approach can be found in Case 149/77. DefrenneIII. ECR 1978, 1378: the Court recognized the need toensureequaliiyof working conditions for men and women employed by the Community itself, but acknowledged that the Community at that time had not assumed any responsibility for supervising and guaranteeing the observance of this principle in the Member States.

32. See, e.g.. P. Pescatore, supra note 12 and S. Prechal, T. Heukels, Algemene Beginselen in het Nederlandse Recht en het Europese Recht, 34 SEW 313 (1986).

33. See O.J. 1973, C 113.

34. Case 12/86, Demirel, ECR 1987,3754.

35. See esp. J.H.H. Weiler, Guaranteeing the Human Rights of Non EC Nationals, in Free Movement of Persons in Europe, Legal Problems and Experiences (to be published in 1992).

36. Case 222/86. Heylens. supra note 10. at 4117: “Since free access to employment is a fundamental right which the Treaty confers individually on each worker in the Community, the existence of a remedy of a judicial nature against any decision of a national authority refusing the benefit of this right is essential in order to secure for the individual effective protection for his right”. See also C. Timmermans. 38 Ars Aequi 289(1989).

37. ERT-case. supra note 30. emphasis added. RL: no English translation yet available.

38. The Open Door Counseling judgement. The case is at present pending before the European Court of Human Rights. See the report of the Commission. Applications 14234/S8 and I4235/8S (Decision of March 7. 1991. not yet reported), where a small majority concluded that Article 10 ECHR. freedom of expression, had been violated. I have made a more extensive review of this case in 17 NJCM- bulletin 47–55(1992).

39. Joined Cases 286/82 and 26/83. Luisi-Inno- FM. ECR 1990,1–667.

40. According to Case 362/88, G.F-Inno-FM. ECR 1990, 1–667.

41. As a telling example, the present Irish judge in the European Court of Human Rights. F. Walsh, devoted over one third of an article to “the fear that under the guise of ‘health care”. Community legislation might in some way bring about the introduction of legalized abortion in Ireland”: see F. Walsh. Reflections on the Effects of Membership of the European Communities in Irish Law: in F. Caportoti. et al. (eds.). supra note 20, at 805–820, quotation at 815.

42. Case 159/90. Society for the Protection of he Unborn Child -Grogan. Opinion of June 11. 1991 (not yet reported).

43. Id.. Judgement of Oct. 4.1991 (not yet reported).

44. Id., at Para. 26.

45. See Case 106/77, Simmenthal, ECR 1978.644; Case 166/73. Rheinmühlen, ECR 1974,38 and Case 213/89, Factortame. judgement of June 19. 1990 (not yet reported). Para. 20 and most recently Joined Cases 6/90 and 9/90, Francovich & Fonifaci. judgement ofNov. 19.1991 (not yet reported). Paras. 41 and 42.

46. Hence I cannot agree fully with K. Lenaerts. who maintains that there is a very clear distinction between the praetorial protection offered by the Court and the protection of human rights within the “residual powers” of the Member States which eventually is a matter for the European Court of Human Rights. See K. Lenaerts. Fundamental Rights to be Included in a Community Catalogue. 16 ELRev. 372 (1991).

47. In the Hoechst case (supra note 11), the Court “noted that there is no case law of the European Court of Human Rights on the subject” involved in that case. However, the Court did not indicate that it would actually follow case law if existing. As a matter of fact, the Strasbourg Court had delivered a relevant judgement more than half a year before the Luxembourg Court made this observation. See the Chappel case (Series A. Vol. 152) of March 30, 1989.

48. See supra note 4. Pescatore (supra note 12. at 448–449) has criticized this approach severely. The Dutch member of the Commission seemed to indicate that the Commission may change its attitude: H.G. Schermers, The European Communities Bound by Fundamental Human Rights, 27 CMLR 258 (1990).

49. It is most interesting, in this respect, toconsider the criteria that the twelve Member Slates have adopted for the recognition of new states. Respect for human rights and democracy take a very important place among these criteria (see Agence Europe of Dec. 18.1991). Would the Communities themselves pass this test without any problem?

50. Notice SEC (90) 2087. See for a detailed discussion of this proposal 16 NJCM-bulletin Nedlerlands Tijdschrift voor de Mensenrechten. 625–628 and 697–735 (1991).