0 Alain van Hamme 3.2 Human Rights and the Treaty of Rome ALAIN VAN HAMME ‘The European Council of Maastricht has proven that the founding fathers of the Community were undoubtedly right when they anticipated that, through some spillover effect, the process of European integration initially confined to coal and steel production (ECSC), atomic energy (EAEC) and general economic matters (EEC) would gradually call for even more integration between the ‘Community's Member States. Asa consequence of this on-going process of European integration, no one can deny that the Treaty of Rome (hereinafter the Treaty) has grown to become ‘more than a treaty designed for economic integration, now that the European Court of Justice itself has referred to this ‘Treaty as the Community's basic constitutional charter. In view of this development itis quite logical, on reflection, that the Community legal order should guarantee an adequate protection of \damental human rights which are at the core of Europe's democratic society. At the same time it should be stressed, however, that the evolution which actually permitted this result was not exempt from hurdles, Initially, fundamental hhuman rights gained recognition in Community law in the case law of the ECJ which stressed that these rights were part ofthe general principles of law which the Court is bound to apply pursuant to Article 164 of the Treaty. However, since 1987, with the Single European Act, protection of human rights has found its way into Community legislation, It is the purpose of this paper to outline this evolution, THE SUPREMACY OF COMMUNITY LAW AND THE PROTECTION OF HUMAN RIGHTS. The ‘Treaty does not lista catalogue of human rights and does not lay down any procedure specifically designed to ensure effective compliance with those rights. As mentioned, this can easily be explained by the fact that within the field of application of the Treaty (initially limited to general economic matters) the protection of human rights did not seem to have immediate practical signifi- cance, even though the ‘Treaty imposes compliance with some basic principles inherent to the organization of an international free market economy, such a5 the prohibition of discrimination on. the basis of nationality (Article 7), the freedom of movement of workers (Article 48), the freedom of establishment forThe Earops— nrunity n ‘undertakings (Article 52) and the prohibition of gender discrimination with respect to salary (Article 119). In contrast, the draft treaties on the European Defence Community’ and on the European Political Community, specifically provided for the protection of human rights, in the context ofa general field of application going beyond economic matters.* ‘As rogards the ‘Treaty, the question of human rights first arose when economic operators tried to challenge the validity of secondary Community legislation before the European Court of Justice, on the basis that such legislation allegedly infringed fundamental rights expressed in their own national consti~ tutions. The success of such proceedings would have meant that constitutional rules of one Member State could constitute a valid ground for the annulment ‘of Community acts. Clearly, such claims threatened the primacy of Community law over national law, and hence the very foundations of Community law as an autonomous legal order Agninst such claims, the Court refused, in the Stork, Pracsident Ruhrkohlen- verkaufigesllschaft and Sgarlata cases, to consider whether Community acts, adopted by the competent Community institutions, complied with the con- stitutional provisions of a Member State, even if these provisions expressed fundamental rights because such review would be tantamount to recognizing the precedence of such rules over Community law. Hence, the aforementioned judgments should not be analysed so much as an express denial of the relevance of fundamental human rights within the realm of Community law, but rather as a confirmation of the Court’s main concern until the end of the 1960s, namely, to uphold the primacy of the Community legal order over national legal orders and its direct effect within national jurisdictions.* But, in Germany and Italy, where a constitutional court is specifically entrusted with the task of ensuring the compliance of ll national legislation and regulations with the national constitution and the fundamental rights enshrined therein, the jurisprudence of the EC caused serious concern on the basis that the protection of fundamental rights in the Community context should not fall behind the protection afforded in the liberal democratic constitutions of the Member States concerned.? More specifically, the German Constitutional Court held in the German Hlandelegesclschaft case that the protection of fundamental rights was an essential clement of the German Federal Constitution, an element which could not be automatically restricted by transferring sovereignty to a supranational organi- zation. In the opinion of the Constitutional Court, the fundamental human "rights of the German Constitution were insufficiently protected under Community lav, as long as solange) the Community lacked a democratically legitimated and directly elected Parliament and a codified catalogue of fundamental rightsn Alain v9 Homme Moreover, the protection of fundamental rights by the Court of Justice was considered insufficient as the case law of courts cannot fully guarantee legal certainty." The Italian Corte Costituzionale expressed a similar concern in its judgment of 27 December 1973. It declared itself competent to ensure that the ‘Treaty was compatible with the basic principles ofthe Italian Constitution at least in the case, albeit in its view unlikely, that an “unlawful power to infringe the basic principles of our Constitution or inviolable human rights” would be inferred from the sovereign powers assigned to the Community. Both Constitutional Courts quite rightly highlighted the existence of a cena within the Community legal order but, atthe same time, theit reasoning threatened the very foundations of Community law. In the absence of any legislation purporting to protect human rights at ‘Community level, the European Court of Justice recognized that there was a need for an aggiornamento of its own ease law so as to introduce these Fundamental values within the ambit of the Community legal system. The Court took a first step in this direction in its judgment of 12 November 1969 in the Stauder case, ‘where it held that the challenged provision of Article 4 of Decision no, 69/71 “contained nothing capable of prejudicing the fundamental human rights en shrined in the general principles of Community law and protected by che Court”. The Court thus accepted, albeit in an implicit way, that human rights ‘were not alien to Community law. In ts judgment of 17 December 1970, inthe Internationale Handelyeset- schaftcase, the Court developed its implied reasoning in the Stauder case and stated very clearly the ewoelements which underpin recognition of human rights as part of the general principles of Community law. On the one hand, the Court stressed, in accordance with its previous ease Taw that [rJecourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community lays. In fact, the law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived ofits character as Community law and without the legal basis of the Community itself being called in question. Therefore the validity of a Community measure or its effect within 4 Member State cannot be affected by allegations that it runs counter to cither fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure