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)

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,

the applicant company, who con-

'Common Market Law Review" and of the publishers,

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.

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,

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-

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