On the Right to Freedom of Expression in the European Union

4 Colum. J. Eur. L. 69 (1998)

Benjamin L. Apt. B.A., Amherst College, 1982; M.T.S., Harvard Divinity School, 1985; J.D., Boston University School of Law, 1994; M.A. in International Relations, Boston University, 1995.

Is there an individual right to free expression in the legal system of the European Union? No, none formally. Neither the Treaty Establishing the European Community (EC Treaty) nor the Treaty on European Union (TEU) explicitly guarantees a subjective right to freedom of opinion or free speech. On occasion, opinions of the European Court of Justice (ECJ, the Court) have discussed free speech. In drawing up such opinions, the ECJ has had to look outside the European Community (EC) legal order, referring instead to Article 10 of the European Convention on Human Rights (ECHR, the Convention), or to some unformed common spirit of the Member State legal traditions.

Is it important that the European Union (EU, the Union) have its own justiciable basis for the right of free expression? Yes, I will argue here, for without formal recognition of this right, an EU citizen has only a precarious legal status. While the ECJ has repeatedly found against national laws that restrict free trade among the Member States, it has proceeded far more cautiously in dealing with laws that reflect national or regional cultural values. As the condition of being a “European” becomes more distinct, so the legal relationship of Europeans to the governments of Europe-the EU governing organs and the various Member States-will demand more clarity. What EU citizenship is now, and what it is becoming, is a sub-theme of this essay.

Subjective rights have had a place in the European Economic Community from the very beginning. The Treaty Establishing the European Economic Community (EEC Treaty) (1957) recognized a limited group of subjective rights, the most prominent of which is the right to freedom of movement, codified in Article 48 and its corollary, Article 52, dealing with the freedom of establishment. These are typically referred to as economic rights, arising as they do from the effort to weave Europe into a single economic body. Yet they are also rights on which people may call when attempting to change their social circumstances, along with their economic prospects. In part to loosen the ligatures of Article 48, the TEU introduced further provisions, Articles 8 and 138, to expand the Treaty’s protections for Member State (and thus EU) citizens beyond economic pursuits.

Despite the absence of formal codification, freedom of expression, both personal and political, has been steadily built up as a distinctive Community right. The main agency for its introduction has been the ECJ.P The existence of the right can be proved by reviewing the history of relevant opinions-that is, by treating ECJ decisions as a form of Community “common law.” At times, allusions to the freedom of expression can be detected in rulings of the Court.

At other times, its outline can be traced only in the incompleteness of the judges’ arguments or in contradictions they leave unresolved. I am not suggesting that the right can be extracted only through overeager interpretations of ECJ decisions. On the contrary, the fundaments of a right to freedom of expression in the EU already exist. Indeed, it is difficult to understand why the Court itself has not made that more clear.

Various solutions for recognizing individual rights within the Community have been proposed over the years. The four most prominent are: (1) to have the EC/EU join the ECHR as a member in its own right; (2) to have the Community adopt a fully elaborated “European” constitution; (3) to have the ECJ unilaterally elaborate such subjective rights as still lie inchoate in the European treaties; and (4) to have the Commission and Council, building on the achievements of the ECJ, compose and agree, respectively, to a catalogue of basic rights as a Treaty amendment.

The instant article comprises five sections. Section I examines the central ECJ opinions, including the relevant legislation, on freedom of movement. The Court has tried to reconcile the primary Community subjective right with the legal capacity of Member States to make it conform with national policies. The decisions, combined with ever more wide-reaching social legislation, have advanced the status of subjective rights in the Community. As a result, the decisions legitimated expectations that the EC, if not especially democratic, is to serve individuals as well as larger economic players.” Through a series of opinions, the ECJ built a heritage of unresolved difficulties in its interpretation of Article 48. When the TEU was instituted, these inconsistencies made more urgent the question of whether there can be an individual freedom of expression.

Section II builds on the preceding textual and theoretical discussion, starting out by considering a particularly prevalent recommendation for filling in the human rights lacuna in the Treaties, namely, membership of the EU in the ECHR. Membership in the ECHR would satisfy the protection of many but not all fundamental rights. However, the alternative proposal of a basic rights code peculiar to the EU risks disparities between the Community and the ECHR.

Section III discusses EU citizenship (Unionsbürgerschaft), introduced by the TEU. This new legal condition is set out for the most part in Article 8 of the EC Treaty, but related elements appear in a few other Articles. At this time, the plausible conflicts that could arise between Member States and individual Europeans as a consequence of Article 8-in particular from Article 8b, which enables EU citizens to participate actively and passively in local (Kommunalwahlrecht) and European Parliament (EP) elections-are handled here only conjecturally. Still, some of these problems can be anticipated, and they are important.

Section IV sets out the philosophical framework that explains the article’s focus on free expression as an essential right. Before going on to explain how the ECJ and the Treaty have handled subjective rights, I first define what I understand rights, and above all the right to free expression, to be. Here, the titular phrase of the article is dissected into its three components: rights, freedom, and expression. This section does not construe the ECJ’s stated perspective on rights and free expression, but rather presents my theoretical defense, explaining why this subject is crucial to the EU’s future.

Finally, Section V takes stock of the place of the right to free speech within the EU’s legal system, and comprises two subsections. The first is a summary of the protections of the right to free expression that have become incorporated into the EU, reviewing both the heritage of aggregated ECJ opinions and the advances introduced through the TEU. This discussion offers a vantage point over the edifice of the preceding argument, reviewing the extent to which the ECJ and the Council have, in fact, constructed an EU-specific right that formally does not exist.

The second portion of Section V weighs possible solutions to the present uncertain status of free expression, analyzing the comparative gains and risks of four approaches to solidifying further subjective rights in the EU. As alluded to above, these four possibilities are: to have the EU become a signatory of the ECHR; to adopt a discrete EU constitution incorporating individual rights; to create an extensive EU “Bill of Rights” to be appended to the TEU; and to codify formally those rights which have long been gestating within the Community, nurtured both through ECJ opinions and statutes passed by the Council. I favor the fourth solution; demonstrating its validity is the burden of this essay.