The Protection of Fundamental Rights in the Case Law of the Court of Justice of the European Communities

1 Colum. J. Eur. L. 169 (1995)

G. C. Rodriguez Iglesias. President, Court of Justice of the European Communities, Professor of International Law, University of Granada.

The Court of Justice of the European Communities has, for two reasons, a special responsibility to protect fundamental rights. First, in the Community legal order there exists no catalogue of fundamental rights having constitutional or legislative status; secondly, respect for fundamental rights is essential as a basic element of the common patrimony upon which the very foundations of the Community rest; and fundamental rights are an indispensable prerequisite for the accession of a State to the Community.

The European Community does not yet have a catalogue of fundamental rights laid down by means of a binding legal instrument. The Declaration of Fundamental Rights and Freedoms, adopted by Resolution of the European Parliament of April 12, 1989 and, within a more limited substantive area, the Community Charter of Workers Fundamental Rights, adopted within the European Council in Strasbourg on December 8 and 9, 1989, by the Heads of State or Government of eleven Member States, do not formally have such legal effect.

Nevertheless, the essential importance of respect for fundamental rights has been repeatedly recognized. In the constitutional order of the Community such recognition, which is implicit in the preambles to the original founding treaties, is made explicit in the Single European Act. In its Preamble, the Member States proclaim that they are “determined to work together to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice.” The Maastricht Treaty on European Union contains one provision, Article F(2), which expresses such recognition as follows: “[tihe Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.”

Other major instruments that establish the essential importance of respecting fundamental rights are, in particular, the Joint Declaration of the European Parliament, the Council and the Commission of April 5, 1977* and the Declaration concerning Democracy, adopted by the European Council in Copenhagen of April 1978.6 In these instruments, the Heads of State and Government expressly emphasize respect for fundamental rights as an essential condition for accession to the European Communities. Indicative of this is a solemn declaration that “respect for and the maintenance of representative democracy and human rights in each of the Member States constitute essential elements of membership of the European Communities.”