Internationale Handelsgesellschaft, Nold and the New Human Rights Paradigm
Mattias Kumm
Prof. of Law, NYU School of Law
Forthcoming in: M. Maduro, L. Azoulai (eds.), The Past and Future of EU Law: The Classics of EU Law
Revisited on the 50th Anniversary of Rome (Hart 2009)
The story about how the ECJ, from Stauder1
to Internationale Handelsgesellschaft2
and
Nold3
has developed its own human rights jurisprudence is a staple element in European
scholarship. It is part of the narrative describing the role of the ECJ in the
constitutionalization of EC law. By holding that fundamental rights are an integral part of
the general principles of law the observance of which the Court ensures, the ECJ has
accomplished two things: To incorporate a central feature of modern constitutions into
the corpus of EC law and to help strengthen the authority of EC law against potential
challenges before national courts in the name of domestic constitutional rights. So much
that is right has been written about this, that I will not focus on trying to uncover a new
nuance with regard to any of the obvious themes, be it the complex interaction between
the ECJ and German courts, the subtle shift in doctrine between Internationale
Handelsgesellschaft and Nold or the future of the ECJ’s doctrine in light of changes
relating to the Charter of Fundamental Rights or accession to the ECHR.
Instead the focus of this essay is an aspect of International Handelsgesellschaft and Nold
that is both fundamental and yet seems to have escaped commentators attention. In Nold
and International Handelsgesellschaft the ECJ develops the outlines of a conception of
human rights that departed from a number of widely held conventional assumptions about
what human or constitutional rights are and how they operate in legal practice. It is a
mistake to believe that in Nold and Internationale Handelsgesellschaft the ECJ in the
early 1970s merely Europeanizes a well established understanding of human rights, as it
has been recognized by Member States. Instead the ECJ reconceives constitutional and
human rights practice in an interesting and challenging way. The traditional legalist
1
Case 26/69, [1969] ECR 419.
2
Case 11/70, [1970] ECR 1161.
3
Case 4/73, [1974] ECR 491.
paradigm of human and constitutional rights is effectively replaced by a rationalist human
rights paradigm.
In order to substantiate and clarify the claim that the ECJ embraces a new human rights
paradigm, the first part this essay will highlight the central features of the ECJ’s
conception of human rights and its tension with conventional understandings of human
rights. A second part will briefly point to some basic questions on the conceptual,
institutional and doctrinal level that such a paradigm shift gives some urgency to. Clearly,
a substantial monograph, rather than a short essay would be necessary to more fully
develop the themes, substantiate and perhaps qualify the arguments that are made in this
essay. But the point of this essay is modest. It is to make aware of a number of mutually
reinforcing features in the ECJ’s human rights practice, that give rise to number of
distinct questions, that have not received the attention they deserve.
II. From Legalism to Rationalism: The New Human Rights Paradigm
There are three main features that distinguish the ECJ’s human rights jurisprudence from
traditional conceptions of human or constitutional rights. They relate to the scope (1),
structure (2) and the sources (3) of human rights respectively. Taken together they
amount to a shift from a legalist human rights paradigm to a rationalist human rights
paradigm.
1. The scope of human rights: From things fundamental to things mundane
The scope of human rights protection is traditionally believed to be limited to interests
deemed fundamental. Human or fundamental rights generally become part of debate
when the discussion turns to torture, the death penalty, arbitrary police detention,
religious coercion, censorship and the like. Typically the lists found in a constitutional
Bill of Rights or a Human Rights Treaty are a response to specific historical experiences
of blatant disregard of fundamental human interests. One of the reasons that neither the
Member states drafting the Treaties of Rome nor the ECJ in its jurisprudence during the
1960s embraced human rights as a matter of concern for EC law, is that the EC as an
institution primarily concerned with the establishment of a common market was not
active in an area that was believed to raise human rights concerns in any serious way. If
by the early 1970s the court changed its mind, it was not because the EC had significantly
expanded its competencies – a significant expansion of the EU’s competencies would
occur only much later in the context of the Maastricht Treaty and beyond – but because
its understanding of human rights had changed. Instead of a set of narrowly
circumscribed interests deemed fundamental any kind of liberty interests would enjoy
prima facie protection as a right. Human rights were not just about combating the worst
kind of dictatorships or government atrocities, human rights were in play the moment the
law restricts individual liberty. The language of human rights would play a role not just to
point to atrocities and fundamental concerns but to raise complicated questions
concerning the most mundane matters.
Both Internationale Handelsgesellschaft and Nold illustrate this shift. Internationale
Handelsgesellschaft was a case concerning the forfeiture of a deposit lodged in
connection with the issue of export licences for maize meal. The plaintiff had failed to
export the quantities of maize he had obtained a license for, by all indications because it
turned out to be more profitable to sell to a domestic buyer. Under EC rules failure to
export after obtaining the licence meant forfeiture of the deposit, unless the failure to
export was the result of force majeur. That regime, the plaintiff claimed, violated his
general right to freedom of action and economic liberty. In Nold the issue was whether
EC rules relating to the distribution of fuels could require companies to meet certain
volume of sales requirements in order for them to qualify as a direct wholesaler with a
right to direct purchase from a selling agency. The plaintiff believed that his denial of that
status based on its reduced sales volume was a violation of its fundamental right to freely
practice their trade and profession.
It is not at all clear that these types of interests would warrant protection as fundamental
rights. The European Convention of Human Rights did not recognize either a general
right to liberty4
, nor a right to freely pursue a trade or profession. Even a right to property
could only be agreed upon after difficult negotiations in a separate Protocol. And the
situation was not all that different in Member States. To the extent that the original six
Member States recognized judicially enforceable constitutional rights at all in 1970, it
was not obvious that these types of economic interests enjoyed protection. It is true that
any liberty interests and certainly interests related to the freedom to pursue a trade and
profession enjoyed prima facie protection as judicially enforceable constitutional rights in
Germany, where both of these cases originated. But even there the Federal Constitutional
Court recognized a general right to liberty only as a result of a highly controversial
interpretation of a clause of a clause guaranteeing the free development of personality.5
It
is striking that the court did not make much of an effort to find out what the various
constitutions of Member States or the European Convention of Human Rights actually
had to say about the issue. Indeed, the Advocate General in Internationale
Handelsgesellschaft introduced as uncontroversial the idea that the general principles of
law the court recognizes ought to include a fundamental right “that the indivdual should
not have his freedom of action limited beyond the degree necessary for the general
interest”.6
There might be good jurisprudential reasons to endorse such an expansive
approach to the scope of rights.7
But it was audacious in 1970 to claim that such a right
was legally recognized as part of the common constitutional tradition. On the other hand
there is no question that an expansive approach to defining the scope of rights effectively
furthers the purpose to appease national constitutional courts that the ECJ’s protection
does not fall below the protection offered by national constitutional rules. If the German
constitutional court recognizes such interests as worthy of constitutional protection prima
facie, adopting a more narrow approach might not be good policy for an ECJ trying to
persuade the national courts to abstain from reviewing EC law on national constitutional
grounds.
4
Art. 5 of the convention does mention liberty, but that is interpreted much more narrowly, see for
example M. Janis, R. Kay, A. Bradley, European Human Rights Law (OUP 2000), Ch. 7.
5
See BVerfGE 6, 32 (Elfes). Art. 2 Sect 1 of the German Basic Law posits: Everyone has the
right to the free development of their personality.
6
Case 11/70, Opinion of Mr. Advocate General Dutheillet de Lamotte of Dec. 2 1970, ECR 1140.
7
For a discussion of these issues see M. Kumm, On the Structure and Domain of Constitutional
Justice, ICON 2003, pp. 574-596.
In both cases the Court ultimately concluded that there was no violation of a right. But it
reached that conclusion not by determining that there were no interests here that could
plausibly qualify as warranting protection as fundamental rights. Instead, the Court
acknowledged that fundamental rights guaranteed as general principles of EC law might
well be in play, and then immediately focused on the justification of the restrictive
practices. Internationale Handelsgesellschaft and Nold thus established a pattern that the
Court would follow practically in every case involving human rights claims. The court
does not generally spend a great deal of time addressing the question whether a particular
restriction infringes on a right, not does it waste much time classifying the interest (is it a
general liberty interest, does it concern the freedom to pursue a trade or profession, is it a
property right?). Its focus of analysis is on the justification of whatever infringement has
taken place. If an infringement of a right can be justified, there is ultimately no violation
of the right.
2. What do you have in virtue of having a right? From trumps to proportionality
The key question then becomes what type of justification is sufficient to justify an
infringement of a right. What do you have in virtue of having an interest that the ECJ
recognizes as a right? In post WWII constitutional texts and international human rights
documents the first paragraph of an article would traditionally define the scope of the
protected right, whereas the second paragraph would define the specific conditions under
which an infringement of a right could exceptionally be justified. More generally
fundamental rights are conventionally believed to take general precedence over
countervailing policy concerns, subject only to limited exceptions. Correspondingly, legal
theorists have describe rights as fire-walls8
and trumps9
.
Yet the ECJ takes a very different approach that it applies to rights across the board. This
approach is already on display in Nold and Internationale Handelsgesellschaft. An act
infringing a right is justified, if it meets the proportionality requirement. Even though the
8
J. Habermas, Between Facts and Norms (1997).
9
R. Dworkin, What Rights do we have?, in: Taking Rights Seriously (1978), 266. See also R.
Dworkin, Principle, Policy, Procedure, in: A Matter of Principle (1985), 72.
ECJ in its earlier decisions – and even in some later ones - is not as clear and precise as it
might be about what exactly this test involves, even in early decisions it is possible to
distinguish the familiar three main prongs of the test. The first concerns the question
whether the measure at issue furthers a legitimate purpose. With regard to the forfeited
deposits at issue in Internationale Handelsgesellschaft, for example, the court first
established that they furthered a legitimate purpose: the deposit served as an instrument
to ensure that the Commission was well informed about overall volume of export and
import, thus providing valuable information on the structure of the market the
Commission was charged to help regulate. Second, the measure has to be necessary. It is
necessary if there are no other equally effective means to achieve the same goal. In
Internationale Handelsgesellschaft the court found the rule regarding its forfeiture was
necessary, in that alternative means, such as penalties imposed ex post, were not equally
effective. Finally, the court examines whether the burden imposed is excessive or
disproportionate when compared to its benefits. The court held that the system of deposits
and the rules on forfeiture were not a disproportionate burden on the exporter, both
because of the relatively modest amount of the deposit and the fact that in case of force
majeur – which the court suggested should be interpreted liberally – the deposit was not
forfeited.
There are three structural features of the courts analysis worth noting at this point. First,
interests protected as rights and countervailing policy considerations compete on the
same level and are subject to the same equation within proportionality analysis. There is
no built-in priority for claims that involve an infringement of the scope of a right.
Second, it has now become clearer why the court is not very concerned with the question
how it should characterize the infringed right. The point of classification, which is
usually to apply a rights-specific set of rules relating to the determination of its limits, is
absent. All rights are subject to the same limitation: proportionality. As the Advocate
General put it his Opinion in Internationale Handelsgesellschaft: All human rights related
questions “concerning the internal legality of the disputed measures are linked to one and
the same problem, namely whether or not these measures comply with a principle of
‘proportionality’, under which citizens may only have imposed on them, for the purposes
of the public interest, obligations which are strictly necessary for those purposes
attained.”10
Third, and most importantly, there is nothing specifically law-like about the
proportionality test. The test provides little more than a structure for reasoned policyassessment.
There is no legal authority that directly guides or constrains its application.
The test specifies the necessary and sufficient conditions that a policy has to meet in
order to qualify as good policy even when they impose burdens on certain individuals. If,
all things considered, there are good reasons that support a regulatory measure, it will be
proportional. If there are no such reasons, the measure is not proportionate.
Proportionality has become the lawyers framework to engage in policy analysis in a way
that is neither directly guided or constrained by legal authority. Courts engaged in this
type of rights reasoning are no longer enforcers of a political will that has previously
created and defined a set of legal rights. Such a court has transformed itself into a vetoholding
junior-partner in the joint legal-political enterprise of developing and enforceing
rational policies that reflect equal respect and concern for each individual. An expansive
scope of rights in conjunction with an open-ended proportionality test is the central
feature of the rationalist human rights paradigm. As will become clear it is a human rights
paradigm that leaves little space for meaningful guidance or constraint by legal authority.
3. Sources of law: Legal basis, inspiration or false consciousness?
The sources of post WWII human rights law are generally legal texts such as
constitutions or human rights treaties. No doubt these texts reflect widely held moral
beliefs about what rights ought to be respected by political communities whenever they
are engaging human beings. But human rights became legal rights in Europe the same
way as other more mundane rights: By having the relevant political actors entrench them
in legal documents. It is part of the common constitutional tradition of Member States
that human rights, to they extent that they are judicially enforced, are enforced only if and
to the extent that a constitution or a Treaty, duly interpreted, so establishes. That was a
practice the ECJ radically departed from when it started to establish its own human rights
jurisprudence in International Handelsgesellschaft and Nold.
10
See Opinion of Mr. Dutheillet de Lamothye, Case 11/70 p. 1146.
Of course the court did not explicitly announce a new rationalist human rights paradigm
that authorized it to sit as the ultimate arbiter of the EU’s policies using proportionality as
a general conceptual framework to structure its policy assessment. As is often the case
when courts make their most innovative decisions, the ECJ too relied on the most
conventional and unassuming concepts and arguments to justify its innovation: It was
doing no more than to recognize human rights as general principles of EC law. And it
would do so drawing inspiration from the common constitutional tradition of Member
States and any international obligations they had signed up to. This is the ECJ’s sources
formula: General principles, common constitutional traditions, international Treaty law.
Sources abound, legal guidance and constraint is assured, and a complex, novel but
ultimately not unfamiliar legal field is established. But even though the sources formula
is endlessly repeated by the ECJ, and has since the Treaty of Amsterdam been formally
entrenched in EU Law, it is misleading in more ways than one. Sources of law have had a
negligible role to play in guiding or constraining the Court’s human rights jurisprudence
and are unlikely to play a much more important role in the future.
The first point is that human rights in the jurisprudence of the court are not conceived of
as discrete set of reasonably specific rules or principles, each of which needs to be traced
to a particular source. Instead the issue is to find a ‘source’ for the one abstract principle
that then serves as the foundation for all further explication of human rights by the court.
To illustrate the point, this is how the Advocate General framed the issue in International
Handelsgesellschaft: All rights related questions “concerning the internal legality of the
disputed measures are linked to one and the same problem, namely whether or not these
measures comply with a principle of ‘proportionality’, under which citizens may only
have imposed on them, for the purposes of the public interest, obligations which are
strictly necessary for those purposes attained.” This leads to one central question: “But a
prior question is immediately raised, as to what legal source this principle must be taken
in order to be applied against a measure issued by the Community authorities.”11
The
task, as the Advocate General frames it, is to search for a source of a principle that is so
11
See Opinion of Mr. Dutheillet de Lamothe, Case 11/70 p. 1146.
abstract, that it incorporates wholesale the whole rationalist human rights conception that
was described above. To propose that such an abstract and jurisgeneratively productive
principle could be law if traced to a source is no different than searching for a legal
source for the proposition that courts should not enforce anything as law that is not just. It
is a remarkable way to think about sources in connection to human rights.
It is even more remarkable given the role that general principles have played in modern
legal systems and international law. General principles of law have historically been used
a shorthand for ‘natural law concepts’ or ‘rules recognized by the legal conscience of
civilized peoples’.12
But given the deep suspicion towards these kinds of ideas during
most of the positivist 20th
century, general principles have in modern legal systems and
international law only been used as a residual ‘source’ of last resort. They have mostly
used to legitimize the use of relatively specific common-sense rules and maxims that are
obvious and uncontentious, widely shared or that are very closely linked to other
explicitly codified rules and maxims. The resuscitation of the idea of general principles in
this highly abstract form seems, at first sight, to be a remarkable revitalization and
reformulation of a non-positivist conception of law.
But of course the court’s formula emphasizes that human rights as general principles are
inspired by the constitutional traditions common to the Member States. They are not
abstractly derived from a conception of law. There is a positive basis for what the court is
doing after all: The court merely refers to and makes productive use for European
purposes of constitutional commitments shared by Member States. But do Member States
constitutional commitments really reflect a rationalist conception of rights?
As a matter of constitutional ethos a rationalist conception of human rights very plausibly
informs the constitutional self-understanding of people in liberal democracies in Europe.
Something like the rationalist conception of human rights is deeply connected to the
enlightenment constitutional tradition and reflected both in formulas used in the
American Declaration of Independence and the Universal Declaration of Human Rights.
12
See I. Bownlie, Principles of Public International Law, OUP 5th
Ed. 1998, at 15.
Which Member of the EU would dispute, either in 1970 or today that any citizens may
have legal obligations imposed on them only for the purposes of furthering the public
interest, and only to the extent necessary and appropriate to further those interests?
Clearly this is part of the European constitutional tradition as it emerged among EU
Members after WWII.
A completely different question is whether there is a common constitutional tradition to
accept such a principle as a condition for constitutional legality, subject to constitutional
enforcement by a court. Institutionally this amounts to a massive empowerment of the
judicial branch. Is it up to a court to enforce such a principle? Certainly the answer given
by the French and American Revolutionaries and founders of the modern constitutional
tradition was a resounding “no”. The French suspicion of the judiciary as an institution is
well known and has left its own historical mark on constitutional practice in France,
where the Universal Declaration of Human Rights was discovered as a legal document
that is subject to enforcement by the constitutional council as late as the 1970s. The
function of the Declaration was originally to serve as a reference for legislators and
citizens, not courts. In the US too, the Bill of Rights was enacted as a contentious
afterthought and Amendment to the Constitution originally negotiated in Philadelphia, in
order to secure its ratification by some of the more recalcitrant states. The prevailing
view was that the Bill of Rights primarily secured what had previously been recognized
as the rights of Englishmen in British practice and supplemented by a few specific and
limited American guarantees, most importantly the 1st
Amendment. The purpose of the
Bill of rights was not to codify the whole panoply of human rights – including the right to
freely pursue happiness - that are captured by the Declaration of Independence’s majestic
clauses.13
Furthermore the constitutions and human rights Treaties written after WWII
that were subject to judicial enforcement are widely conceived as carefully negotiated
legislative acts involving a great many specific compromises and rules. Modern
constitutional bill of rights and modern human rights Treaties are conventionally believed
to provide a great deal more specificity and guidance to courts than the abstract principle
13
This is confirmed by the 9th
Amendment of the U.S. Constitution: “The enumeration of in the
Constitution, of certain rights, shall not be construed to deny or disparage others retained by the
people.”
the ECJ establishes as the foundation of its human rights jurisprudence. In this sense it is
unconvincing to claim that the human rights practice of the ECJ is grounded in principles
that enjoy general recognition in Member States.
But there is another way of understanding the court’s formula relating to the inspiration it
draws from the common tradition of Member States and international human rights
Treaties. Perhaps the ECJ is not inspired by the constitutional traditions of Member States
in endorsing a highly abstract principle. Perhaps the ECJ is inspired by the way Member
States constitutional actors interpret and specify this principle in concrete contexts.14
Unfortunately there is little indication that that is how the ECJ actually refers to Member
States practice either in Internationale Handelsgesellschaft and Nold or the ECJ’s
jurisprudence more generally. Member States and international practice is relevant
mainly in two ways. First, if a national court makes a reference and indicates that an EC
act falls within the scope of a right in that Member State, the ECJ will also recognize it as
also falling within the scope of a right under EC law. No national court will outdo the
ECJ with regard to the interests it protects as rights. Here the court unequivocally adopts
a maximalist approach. Second, the court will often draw on Member States and ECHR
practice in order to demonstrate that rights are not conceived as absolute, but can be
subjected to proportional restrictions related to legitimate public interests. In Nold and
International Handelsgesellschaft the court does so only by schematic reference, but in
later cases the Court occasionally makes more of a comparative effort.15
This form of
comparative engagement amounts to little more than a demonstration that the court’s
rationalist conception of rights is not in principle less protective than anything that
Member States recognize. Comparative engagement serves apologetic purposes: Even
though Member States have a written Bill of Rights, nothing in those texts preclude the
kind of proportionality analysis the ECJ engages in. On the other hand comparative
engagement does not generally constrain or guide the application of the proportionality
test. On the contrary: When it comes to the application of the proportionality test, the
14
Indeed the ECJ has, as far as I’m aware never explicitly embraced the very abstract formula that was the
focal point of the Advocate Generals opinion, even though it captures well much of what the court is doing
in fact.
15
See for example Case 44/79 [1979] ECR 3727 Hauer v. Land Rheinland-Pfalz.
court generally insists that it should focus on the issue as it arises in the EU context,
rather than distracting itself by an unhelpful focus on other Member States or the ECHR.
In Nold and International Handelsgesellschaft and many later decisions the ECJ
emphasizes that what counts a proportional needs to be assessed in light of the structure
and the objectives of the community as they apply to the community context. When the
court applies the proportionality test to a particular piece of regulation, it makes little
sense for the court to draw heavily on the constitutional experience of Member States,
because the difference in context may very well make a difference.16
It follows that
within the rationalist conception of rights there is only limited space for the kind of
inspiration by Member States constitutional traditions that would amount to meaningful
legal guidance or constraint. The core inspiration it receives amounts to little more than
the confirmation that the rationalist conception of rights in fact also informs the texts and
practices of Member States constitutional tradition and international human rights
treaties. “Your texts don’t make much of a difference” is the critically apologetic tenor of
the ECJ engagement with Member States constitutional traditions.
This leads to the next point: Nothing said above means to imply that the ECJ is in fact
doing something that no other constitutional or international courts are doing. The ECJ is
not a fringe outlier court in the methodology it adopts. The rationalist conception of
human rights is conceptually deeply at odds with a legalistic conception of human rights.
Most citizens, constitutional drafters of post WWII human rights texts and lawyers
probably believe in some version of a legalistic conception of human rights, rather than a
rationalist one described here. But a closer analysis of what courts are actually doing in
many jurisdictions is likely to reveal that constitutional texts are less important than is
conventionally believed. Basic structural features of human rights analysis characteristic
of the rationalist paradigm – proportionality analysis in particular - are a quasi-universal
feature of European human and constitutional rights practice and in many jurisdictions
16
This also implies that national courts need to be careful when they assess whether the ECJ’s
jurisprudence provides equivalent fundamental rights protection of national constitutions. A regulation that
the Federal Constitutional Court might have struck down if it took the form of a German statute as a
violation of a constitutional right might well be rightly upheld as an EC regulation by the ECJ. Such a
result is not necessarily an indication that the ECJ does not take rights seriously. It is just as possible that
the context of the EU might be different in a way that makes a difference for the purpose of assessing the
proportionality of a measure.
the scope of rights have been interpreted expansively and the specific wording of
limitation clauses have not played a significant role.17
This is certainly true with regard to
German constitutional rights practice.18
It is not implausible that an evolution of the
Federal Constitutional Courts’ understanding of constitutional rights played a significant
role in its doctrinal shift from Solange I to Solange II. Contrary to its position in Solange
I19
the Court in its Solange II decision20
did not insist on the existence of a written
Charter of Rights in Europe as a precondition for recognizing equivalence of human
rights protection on the European level. By the mid-eighties, when Solange II was
decided German jurisprudence had developed in the direction of a rationalist human
rights paradigm, a development that was still in its infancy in 1974, when Solange I was
decided. Lists of rights and their limitations, unless they exceptionally take the form of
clear-cut rules21
, had simply not contributed to provide much determinacy and clarity. On
the other hand the German Constitutional Court had become quite comfortable applying
the proportionality principle across the board.22
Under those circumstances the Court had
become less resistant to the idea that the ECJ, even without a textual basis, is essentially
engaging in the same practice as the Federal Constitutional Court.23
By embracing a rationalist conception of human rights the ECJ is by no means an outlier.
But there are two reasons why the ECJ’s jurisprudence exemplifies more explicitly a
rationalist conception of human rights than other national constitutional practices. First,
the absence of a constitutional text meant that the ECJ could not even pretend that its
jurisprudence was grounded in ordinary interpretation of legal texts, even though its
sources formula did its best to cover that up. Second the ECJ had strategic reasons to
17
For such a claim see D. Beatty, The Ultimate Rule of Law (OUP 2004).
18
See R. Alexy, A Theory of Constitutional Rights (OUP 2002).
19
BVerfGE 37, 271 (1974).
20
BVerfGE 73, 339 (1986).
21
E.g. Art. 102 Basic Law: The death penalty is abolished.
22
This development is subjected serious analysis in R. Alexy, A Theory of Constitutional Rights (OUP
2002), which first appeared in German in 1985, the year that Solange II was decided.
23
Of course is not the only explanation for the shift. Other relevant factors are very plausibly the changes in
the ECJ’s practice between these decisions. Compare the ECJ addressing the human rights issues in
Internationale Handelsgesellschaft (that led to Solange I) and compare it to Hauer (leading to Solange II).
And of course personalities matter. The Rapporteur in Solange I had been replaced by the more integrationfriendly
Judge Frowein as Rapporteur for Solange II.
adopt as expansive a conception of human rights as possible, to undercut any claims by
national courts and scholars that domestic courts provided more expansive protection.
If human rights texts are in fact less important role than a legalist believes, what is the
significance of the European Charter of Fundamental Rights? It is unlikely that the
European Charter of Fundmantal Rights, once it becomes valid law in the European
Union, will lead to the establishment of a more legalistic conception of human rights. On
the contrary, the Charter confirms, rather than replaces the ECJ’s rationalist conception.
There are three reasons for this. First, as the Reform Treaty makes clear, the Charter
complements and does not seek to replace the ECJ’s jurisprudence on general
principles.24
Second, the Charter itself clarifies in its Preamble that its purpose is not to
establish anything new, but merely to strengthen already existing rights by making them
more visible in the Charter. Third, a general limitations clause referring to the principle of
proportionality has substituted the traditional post WWII practice of writing rightsspecific
limitation clauses.25
This amounts to a codification of the rationalist paradigm.
No doubt the court will cite the Charter and refer to its provisions where they are
pertinent. Furthermore the infringements of interests specifically singled out and listed in
the Charter might lead to somewhat closer scrutiny by the court. But the basic rationalist
structure of the court’s jurisprudence will remain unchanged. Indeed, it is not obvious
that a single case would be decided differently by the ECJ with or without the Charter.
The Charter will certainly not meaningfully guide or constrain the court, the way a
legalist might imagine it. Consequently the decisions by the United Kingdoms and Polish
Governments to deny the Charter legal force in their jurisdiction are also likely to have
few if any legal consequences.
III. Implications
24
Art 6 Sect. 3 Draft Treaty Amending the Treaty on the European Union and the Treaty
Establishing the European Community (Treaty of Lisbon).
25
Art. 52 Sect. 1 2nd
sentence states: Subject to the principle of proportionality, limitations may be
made only if they are necessary and genuinely meet objectives of general interest recognized by
the Union or the need to protect the rights and freedoms of others.
Neither the critical discussions of the ECJ’s formula relating to sources nor the general
contrast between the legalist and the rationalist paradigm of human rights should suggest
that there is something inherently misguided or wrong about the rationalist conception of
human rights. What it does suggest is that challenges and concerns relating to the
rationalist model of human rights need to be confronted and addressed. In order for that
to happen, it is necessary to first acknowledge that we should not think or talk about the
ECJ’s human rights practice as if it conformed to the legalist paradigm. Rights as they are
understood by the ECJ are not just about things fundamental, they are also about things
mundane. An infringement of a right does not establish a presumption that the acts is a
violation of a right, it merely trigger the court’s assessment of whether the measure meets
the proportionality requirement. And sources doctrine does not play a significant role to
guide and constrain judicial decision-making. Rights discourse in a rationalist paradigm
is about assessing justifications for the actions of public authorities from the perspective
of individuals burdened by those actions.
The justification of the ECJ’s rights practice would have been less obfuscating if it had
justified its practice along the following lines, rather than using the misleading sources
formula: “All Member States share a commitment to human rights, democracy and the
rule of law as a foundation of legal and political order. In order to forge a closer Union
Member States have established common institutions with wide-reaching regulatory
authority, whose laws claim to be the supreme law of the land. For such a claim to
deserve recognition these laws must meet certain requirements relating to human rights.
These requirements are not met, when a law places restrictions on an individual without
being justified by a legitimate purpose pursued by necessary and proportionate means.
This is a general standard underlying the common tradition of constitutional and human
rights in Europe, that also applies to EC Law. In order to ensure the effective and uniform
application of EC law, the competence to determine whether this standard has been met
with regard to EC Law lies exclusively with the ECJ and the ECFI.”
What then are the major challenges and concerns that need to be confronted and
addressed, once a rationalist human rights paradigm is acknowledged? Here it must
suffice to briefly highlight some issues. Many of the institutional and doctrinal questions
raised are not new and have been discussed in the context of general discussions about
the ECJ as a court. But these questions appear in a new light and might require
reassessment once the nature of the task the ECJ has carved out for itself by adopting a
rationalist human rights paradigm has become apparent.
The first set of questions present direct challenges to a rationalist conception of rights, in
which the real work in deciding concrete cases is done within the framework of
proportionality analysis. Are there really rational standards available that allow for a
meaningful distinction between measures that are proportional and those that are not?
Call this the incommensurability challenge. Even if there are such standards, their
specific content is likely to be subject to considerable disagreement, either abstractly or
on application. To the extent that is the case, it is not clear why courts rather than
politically accountable actors should have a comparative institutional advantage in
assessing the proportionality of publicly endorsed policies. Furthermore this conception
of rights seems to be insufficiently specific and determinate to provide either citizens or
political actors with much guidance. Finally it is questionable whether a structure of
rights that puts proportionality front and center can adequately reflect the commitments
central to the liberal constitutional tradition. In the liberal tradition rights are generally
conceived as ‘trumps’26
over countervailing considerations of policy or as ‘firewalls’27
providing strong protections against the demands made by the political community. Does
a conception of human rights that focuses on proportionality analysis, allowing rights to
be overridden whenever sufficiently weighty general interests are at stake, actually do
justice to the idea of liberal rights? This is a question with important practical
ramifications. If everything is subject to proportionality analysis, what explains, for
example the categorical prohibition of torture, even in circumstances when a great deal
might be gained by torturing a criminal suspect? And was a recent German Constitutional
Court decision wrong, when it struck down a law which authorized shooting down a
civilian plane about to be used as a platform for a terrorist attack in cases where the
26
R. Dworkin, What Rights Do We Have?, in: Taking Rights Seriously (OUP 1978), 266.
27
J. Habermas, Faktizität und Geltung (Suhrkamp 1992).
number of persons saved is considerably greater than the number of persons killed?28
If
such an authorization was one day provided by EC Law, would it stand? A better
understanding of the place and limits of the proportionality requirement is called for, to
more convincingly address these and other issues.29
The second type of issues concerns questions relating to the institutional structure of the
court and the way that judicial opinions are written. If European courts as adjudicators of
rights are engaged in the kind of open-ended assessment of policies that the
proportionality test calls for, it becomes inevitable that they will have to engage and pass
judgment on complex policy questions that may involve controversial empirical and
moral judgments. Taking for granted that the ECJ should have an important role to play
along these lines, how should an openly rationalist, non legalistic understanding of its
task influence the style that opinions are written in? Should courts not, in the interests of
transparency and clarity be required to write more elaborately reasoned, discursive
opinions, rather than using the cryptic formulations that often cover up difficult choices
and competing reasons that the court confronts? Of course the more elaborately reasoned
opinions if the Advocate General provides some degree of compensation30
and the ECJ
has become somewhat more discursive in recent years. But more might be called for.
Indeed the case for allowing dissenting and concurring opinions might also have to be
reassessed. And if a court were to more openly address its internal controversies, it would
also be necessary for more politically exposed judges to be immunized from political
blowback. Like their brethren on most constitutional courts it might be a good idea to
appoint them for a longer term (say 10-12 years), without the possibility of
reappointment. An open recognition of the court’s role in rational policy assessment
under its non-legalist conception of human rights might require a reevaluation of these
questions and support a change in practice.
28
BVerfGE 115, 118 (2005).
29
For an attempt to do so see M. Kumm, Political Liberalism and the Structure of Rights: On the
Place and Limits of the Proportionality Requirement, in: G. Pavlakos (Ed.), Law, Rights,
Discourse: The Legal Philosophy of Robert Alexy (2007), 131, at 153-162.
30
See M. Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and
Legitimacy (OUP 2004).
On the doctrinal level the central question is how to regulate the division of labor
between the political branches and the court respectively. Embracing a rationalist
conception of human rights, the ECJ has put itself in a position to assess any and every
policy on any and every ground – that’s what proportionality means in practice - for so
long as it is presented with a case in which the plaintiff claims that his rights have been
violated. This presents two connected dangers. The first is to do too much: To assume a
role in second-guessing political and administrative judgments that are unsupported by
any plausible comparative institutional advantage a court may have. This is the danger of
juristocracy.31
The second is to do too little. Once the scope of rights is as broad as the
court has acknowledged and the standards it applies require engagement with rational
policy-assessment, an overburdened court, particularly one with a crowded docket, may
shy back from any kind of meaningful scrutiny. Once a court is charged with monitoring
practically everything it might not do a good job at monitoring anything. This is the
danger of a court that goes through the motions intoning the rhetoric of proportionality
while practically rubber-stamping any decision that the political branches make. There
are few today that claim the ECJ is guilty of the former. But there have been some
suggesting that it is guilty of the latter.32
Whatever the case may be, these are questions
that require considerably more attention than they have received so far. The ECJ is, of
course, aware of these concerns and, using the Strasbourg court’s formula of a margin of
appreciation, accords some degree of deference to political branches all the time. But
what are the circumstances under which deference is due? What are the circumstances
under which little or no deference is due? Is the same level of deference due to EC
institutions as to Member States actions that fall under the scope of EC Law, as the ECJ
has recently suggested? Given the scope and depth of inquiries a court committed to a
rationalist paradigm of human rights has to engage in, these are issues that deserve a great
deal more attention than they have received in the past.
31
See R. Hirschl, Towards Juristocracy, HUP 2004.
32
For the claim that the ECJ may be subject to such a charge, see J. Coppel, A. O’Neill, The
European Court of Justice; Taking Rights Seriously? 29 CMLRev (1992), 669.