The Gazette 1973

tion. Was it each of the markets in metal cans for meat products, for fish products and in metal caps? Or was it the whole of the market in metal packaging? Are those markets subject to competition from glass or

plastic products? On these various points the Court points out uncertainties, and indeed contradictions, in the decision, and annuls it on that ground.

THE PROTECTION OF HUMAN RIGHTS IN THE EUROPEAN COMMUNITIES by PIERRE PESCATORE, Judge of the European Community Court (Reprinted by kind permission of the Editors of the ' Messrs Sweet and Maxwell) 'Common Market Law Review" and of the publishers,

This document has two objects : to give information on the state of the problem of protecting basic human rights in the European Community; and to show in terms of methods used that it is possible to ensure appropriate protection by judicial means, even in the absence of any previous "declaration of rights".* At first sight it might be doubted whether there is any relationship at all between Community Law and the problem of protecting basic rights. It is in fact difficult to imagine how the functioning of a body whose object is essentially economic and social can conflict with human rights. No doubt such considerations explain why the creators of the Community included no clause in the Treaties of Paris and Rome dealing with the protection of these rights. In fact, it must be conceded that the way the Com- munity works cannot raise the acute problems that arise in the case of a State in certain ages and under certain regimes. How could it be thought that bodies essentially confined to the economic and social fields might en- croach on values such as respect for human life, personal liberty, freedom of conscience, freedom of opinion and of political action which lie at the root of concern for the protection of basic rights against the State? However, further consideration is necessary. The functioning of a power-machine such as the Com- munity, which takes real political action in its own field and which in so doing legislates and takes de- cisions, can raise problems concerning basic rights. These broadly refer to that body of prerogatives usually called "economic and social rights", representing such benefits as freedom of movement, freedom to trade, occupational freedom and the guarantees given to private property. All these benefits are, admittedly, less basic than those connected with the most intimate sphere of the individual in his relations with political society, but it is nonetheless the case that in a developed society such as Western Europe they need to be defined in terms of their relationship to the general interest and, once defined, to be suitably protected. 1. First Contacts with the Problem of Protecting Basic Rights (1) The problem of basic rights arose for the first time in the case law of the Court of Justice and this is a very typical way : to evade the provisions made by the Community authorities, some litigants invoked the guarantees given by their national constitutions. Thus, in the Stork case, settled by judgment dated 4 February 1959, 1 the applicant company, who con-

sidered its interests to be affected by a reorganizational measure imposed on the Ruhr coal-mining industry by the High Authority of the ECSC, had pleaded an alleged violation of Articles 2 and 12 of the German Basic Law concerning, respectively, the free development of the individual and occupational freedom. However, the Court rejected this argument saying that the Community institutions had only to observe Community Law and it was not for them to decide on rules of internal law, including constitutional law. An identical problem arose in the Ruhrkohlen- Verkaufsgesellschaft case, settled by judgment dated 8 July 1960. 2 Here, also, the applicant firms contested a commercial regulation imposed by the High Authority on the Ruhrkohlen-Verkaufsgesellschaft, this time in- voking Article 14 of the German Basic Law relating to legal guarantees of private property. The Court reacted in the same way as in the preced- ing case, saying that it was not for the Court, as judge of the legality of the decisions taken by the High Authority, to ensure respect for internal law, even con- stitutional law, in force in one or other of the member States; the Court could therefore neither interpret nor apply Article 14 of the German Basic Law when exam- ining the legality of a decision taken by the High Authority. In the Sgarlata case, settled by judgment dated 1 April 1965, 3 dealing with an objection raised by a group of Italian citrus-fruit growers to the validity of a Community agricultural regulation, the applicants contested the finding of inadmissibility of their action (in fact the EEC Treaty excludes in principle indivi- dual actions against regulations), invoking the "basic principles governing all member countries". Here again the Court avoided going into the merits of the case and simply referred to the express provisions of the Treaty. These judicial decisions, stemming from concern for the autonomy and primacy of Community Law, were certainly correct in the sense that the introduction of appraisal criteria drawn from the constitutional law of one member State would result in compromising both the unity and the efficacy of Community Law. At the same time, these early decisions might seem unsatis- factory : they reject the argument put forward of an alleged violation of the standards of the national con- stitution, but are silent on the question of whether, on the basis of Community Law, there might be similar guarantees they ought to take into account. This purely defensive attitude of the Court might seem to substan- tiate the idea that Community Law, while tending to reject the guarantees provided in the national constitu- 116