Annexes to COM(1976)37 - - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(1976)37 - . |
|---|---|
| document | COM(1976)37  |
| date | February 4, 1976 |
(1) See on this the paragraph which follows.
9* The Court of Justice of the European Communities was faced with the question of fundamental ri^its for the first time in 1959* Its case law is sufficiently well known and may "be summarised as follows:
— In two judgments in 1959 and 1960^ the Court of Justice initially held that it was not competent to examine the legality of acts of the Community institutions according to the yardstick of national
. fundamental rights.
— The subsequent cases'- 1 2 3 of Stauder (1969) and Internationale Handelsgesellschaft (1970) reveal a new attitude in the jurisprudence of the Court when it held that "respect for fundamental rights forms an integral part of the general principles of law of which (it) ensures respect."
(3} j
*• In 1974» in the Hold case' ' the Court of Justice went one step ■ seems to have i
further. It/moved towards a sort of optimum, standard of fundamental rights by holding that "in safeguarding these rights, the Court is bound to draw inspiration from the constitutional traditions common to the Member States, and it cannot, therefore, up' hold measures which are‘incompatible with fundamental rights . , 1
recognised and protected by the Constitutions of those States".
In addition, the Court of Justice draws from international treaties on the protection of human rights in which the Member States have collaborated or of which they are signatories guidelines for determining general legal principles which apply in the Community legal order. ,
The above-mentioned decisions concern the right to human dignity and freedom in general (Stauder) and the principles of the freedom to develop and deal with property from an economio standpoint (int.
Handelsgesellsohaft)• The Hold case concerned rights of ownership
in the economio sense and freedom to choose and practise a profession or trade.
The Court of Justice has, however, recognised that fundamental rights are not to be considered as absolute. As in all legal systems, there are no fundamental rights which are not subject to limitations, the extent of which depends on the nature of the right involved.
In this way the Court of Justice has already held in the Internationale Handelsgesellschaft case that ”the protection of (fundamental) rights, while inspired by the constitutional principles common to the Member States, must be ensured within the framework of the Community’s structure and objectives.” In the Hold case, the Court decided that even if the fundamental rights at issue in the case were protected, nevertheless these were to be considered ”in the light of the social function of the property and activities protected thereunder” so that it is legitimate ”tjiat these rights should if necessary be subject to certain limits justified by the overall objectives pursued by the Community, on condition that the substance of these rights is left untouched.”
Furthermore, other judgments of the uourt have reoognised a number of important general principles of law as essential elements of the principle of the rule of law in order to secure an* 'effective protection of fundamental rights. These include the principle of .proportionality,^ the requirement of legal oertainty and the protection of confidence thereby#^ observance of the prinoiple of the right
.) Judgment of 12.6.1958 — Compagnie des Hauts Fouxneaux de Chasse v. The High Authority, case 15/57# Recueil 1958# 155•
2) Judgment of 4*7*1973 - Westzucker-v. Einfulu>- tend Vorratsstelle ftir Zucker, case l/73# ^97^ E.C.R. 723.
to "be heard and to defend one's rights in legal proceedings, f ^ the
(2^
prohibition of conviction of a single offence twice' ', the general obligation to give reasons^and the principle of non-discrimination.^
Furthermore the Court of Justice has not only paid attention to the substantive standard as regards the protection of the citizen against publio authority: it has also considered the problem of the access of the individual to the Community court* j
On the one hand, by developing a more and more favourable jurisprudence on the subject of the direct effect of Community provisions, it has considerably widened access to the national courts and thereby
broadened the scope of application of Article 177 EEC. On the other
( 5}
hand, the oases decided by it since 1971 involving Article 215 EEC' ' enable the individual citizen to go before the Court of Justice even where the damages alleged arise out of Community legal acts which oannot be directly attacked.
In this way access to the Court as laid down in Articles 173 and 175 EEC has been substantially extended.
(1) Judgment of 22.3.1961 - Soci6t6 Nouvelle des Usines de Porrtlieue The High Authority, joint cases 42 and 49/59* reeueil 1j>6i, 101.
(2) Judgment of 14.12.1972 - Boehringer Ilannheim GmbH v. The Commission,
case 7/72, Reeueil 1972, 1281. j
(3) Judgment of 15.3.1967 — S.A. Cimenteries CBR Cementbedrijven 1I.V. and others v. The Commission, joint oases 8 to 11/66, fV)E.C.R. 75* see also the Rutili case (footnote 3 at the foot of page 5)•
(4) Judgment pf 24*10.1973 — Merkur-Aussenhandels-GmbH v. The Commission,
case 43/72, £-91$/ E.C.R. 1055. j
(5) See judgment of 2.12.1971 — Zuckerfabrik Schoppenstedt v. The Counoil,
case 5/71, Reeueil 1971, 975. ■
10. It is well known that the effectiveness of the protection of fundamental rights is based not so much on written legal guarantees as on judicial protection in individual cases. Accordingly it is necessary to underline the important role which the courts of the Member States have played towards clarifying the fundamental rights standard which is to apply in the Community, above all by referring questions for preliminary ruling to the Court of Justice.
In this connection, the oourts of the Member States may be faced
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with a conflict in cases relating to Community law if the national standard of fundamental rights that they are required to protect were to go beyond that recognized tinder Community law. Competition to obtain the best protection of fundamental rights may have some positive effects for the citizen. However, he is also affected if Community law is not applied everywhere on a uniform basis.
Recently, the supreme oourts of the Member States have adopted various positions with regard to this undoubtedly more theoretical than real conflict.
The Italian Constitutional Court described suoh a conflict as . "aberrant” and extremely improbable.^ Whilst refusing to "
examine secondary Community legislation according to the fundamental rights in the Italian Constitution it nevertheless reserved the right, in an extreme case, to question, in respect of Italy, the law of the Treaty itself if the effect of this were to permit substantial infringements of fundamental rights. . .
(2)
In its decision of 29 May 1974, 7 it is true that the German Federal Constitutional Court was unable to establish.any substantive confliot between secondary Community legislation and national 4 5
fundamental rights. However, it justified the right it claimed to examine secondary Community lav; hy hasing itself on the fundamental rights embodied in the German Constitution^ and hy stating that in its opinion the fundamental rights standard achieved in the Community was inadequate. In its view this was heoause there was no written catalogue of fundamental rights enaoted hy a democratically elected. Parliament.
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11. At first, a prime concern of the public was that the citizen in the
Community would he subjected to a new authority hound neither hy
national fundamental rights nor hy a catalogue of fundamental rights
(2)
at Community level.' * Meanwhile the more recent decisions of the Court of Justice in favour of fundamental rights have silenced the original criticisms to a considerable extent. The frequently asserted danger of massive infringements of fundamental rights hy the Community institutions has at no time materialized. This must he attributed, first, to the mechanisms adopted hy the Community institutions to prevent any conflict between Community legal acts and fundamental rights reoognized in the Community legal order and, secondly, to the limited competence of the Community: the powers of intervention written into the Treaties can hy the very nature of things oome into conflict only viith a relatively limited number of fundamental rights. The debate about the deficiency of Community law as far as the protection of fundamental rights is concerned has
(1) A corresponding abstract reservation had already been made in the ruling of the same court of 18.10.1967*
(2) See, for example, the debates in the German Bundestag on the ECSC Treaty (Parliamentary reports of the German Bundestag, 1st term,
133rd session of 10.1.1952) and on the EEC Treaty (Parliamentary reports of the German Bundestag, 2nd term, 208th session; of 9»5»1957 and 224th session of 5.7.1957) • Here, anxiety with regard to a lack of democracy in the Community was expressed viith particular intensity.
Similar fears were expressed in the Parliaments of the new Member States during the debates on accession to the Community. .
■therefore proved to he, to a considerable extent, hypothetical even though the Community institutions* awareness of fundamental rights nay thereby have been considerably increased# •
Although there are still sporadio assertions that fundamental rights are inadequately protected in the Community, the views of those concerned are usually based on the universal application of their own national systems of fundamental rights# The opinion of most, however, is that the approach indicated by the Court of Justioe provides sufficient guarantee that the fundamental rights of the Community*s citizens are recognized and effectively protected#^
12* Summarizing the above it can be said that the legal protection of fundamental rights at the Community level is guaranteed by the procedures laid down in the Treaties. As to the substantive standard of fundamental rights, this is based, first, on the fundamental rights and similar guarantees laid doym in the Treaties and, secondly, on the general principles of lav; to be determined according to the oriteria set out in the Mold judgment#
0. The position taken by the Commission on the question of fundamental .
rigilts to date . ■ ■ •
13* The Commission has certainly influenced the development of’ fundamental rights as described above# It has also adopted in its own sphere a number of preventative measures to meet the requirements necessary to protect fundamental rights# .
14# The creation of the Common Market has extended the freedom of
Community citizens# As framework treaties, the Community treaties call for permanent and continuous enaotment of legislation, for
(1) See the many oritical observations with regard to the deoision 6f the Federal Constitutional Court of 29#5«1974» ' ' - '
example, in the field of freedom of movement and freedom of establishment. The Commission plays a decisive role in this law-making
I •
process. The respect and protection of fundamental rights is therefore a permanent task for it. In the field of agricultural policy in particular, where decisions that have a direct effect on the individual citizen have to be taken almost daily, the Commission has constantly to consider how it can safeguard him against discrimination, interference with duly acquired rights and excessive encroachment s. j .
The instrument at the disposal of the Commission, the Treaty infringement procedure, can/servedoacoun^!rSbreaches of Community law through national measures which adversely affect the citizen.
This does not mean that only direct infringements of the fundamental rights of citizens are involved.^ Disturbances in the free movement of goods, for example, by the levying of unauthorized taxes
l
or the granting of aids which are incompatible with the Treaty, oan also limit the citizen*s freedom to engage in the trade or profession of his choice.
15* The Commission also plays a role in almost all proceedings before the Court of Justice. By tihis means it is able through its written opinions to contribute towards resolving the question at issue, even when it is not itself one of the parties. In particular, it has always made use of the possibility of presenting its observations in Article 177 EEC procedures. In this way it has contributed in the working cut of a jurisprudence which has become increasingly more favourable in the sphere of fundamental rights and as regards
' • ■ • ■ • • • ■ •' ’ (2)
the economic liberties laid down by the Treaties.' ' | 6 7
French
16* In cooperation with the European Parliament the Commission has had
many opportunities to express its views on the protection of the
and in reply to many written and oral questions/^
fundamental rights of citizens. In various statements to the
(
Parliament'
the Commission has stated that it ‘ abhors every violation of human rights and any attack on democracy wherever this may take place In this way it intervenes with all the means at its disposal in favour of the respect of fundamental rights in the Community legal order.
This agreement between the views of the Commission and those of the European Parliament was recently shown in the assessment of the effect that the above-mentioned decision of the German Federal Constitutional Court of 29 May 1974 nay have on the Community legal order and in particular on the protection of fundamental rights.
The Commission shares the conclusions drawn by the Legal Committee of the European Parliament in its draft Resolution contained in the report of Mr. Rivierez/^
17. In addition, one aspect which is also of importance in developing
the freedom of the citizen should not be overlooked, namely informing ’ him of his rights. Only when the citizen himself is convinced that the freedoms which are given him by the Treaties will be extended
(1) See for example the statement by Sir Christopher Soames on 14*3.1973 (EP Debates of March 1973* p. 18); statement by Mr. Scarascia Mugnozza on 30.4*1973 (EP Debates of April 1973,PP« 21 et seq.)•
(2) See the following more recent examples: Written Question Mo. 213/75 by Mr. Giraud and Mr. Schmidt, OJ No. C 242 of 22.10.1975,PP* 3 et seq; Written Question No. 285/75 by Mr. Seefeld, OJ No. C 264 of 18.11.1975, P* 13; Oral Question No. H-40/75 of 14.5.1975'W “
Mr. Bordu, EP Debates of. May 1973, p. 105» . -
(3) Statement by Sir Christopher Soames (of. footnote 1 above) .
(4) Doo. No. 390/75 (EP 41.913/fin,) .
in the course of European integration and that he can count on effective protection of his rights will integration "be successful. The Commission is endeavouring to inform the public of those measures which affect the citizen directly.
As part of its public relations work the Commission has promoted scientific examination of the question of fundamental rights through organizational and financial assistance. It is precisely because the Court of Justice refers to ’’the fundamental rights embodied in the constitutions of the Member States" as the expression of general principles of law that surveys comparing laws and constitutions are essential. j
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|
The Commission summarized its views and aims in respect of the protection of fundamental rights and put them forward for public discussion in its report on European Union of June 1975*
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18. A system of preventive legal checks which extends to safeguarding fundamental rights exists within the internal decision-making procedure of the Commission. Right from the initial stages of working out a legal act of the Commission the various interested services are on their guard to avoid a conflict between the measure in question and the fundamental rights of the individual.
In addition the Commission has created a special organ, the Legal Service - as has the Council - to examine the legalit^ of drafts of legal acts which are submitted to it. Pursuant tp a deoision
■ of the Commission of 1958 it was laid down that "all documents intended for the Commission, either with a view to their forming
' the subject of a proposal to the Council or for the adoption of one of the measures laid down in Artiole 189, are first to be referred to the Legal Service.The Opinion of the Legal Service is to be forwarded to the Commission at the same time as
■ j
the documents in question. ;
(l) Decision of 1 October 1958 (Minutes*- 31)•
Because of the cohesive way in which it works, the flexibility of its organisation and the means at its disposal, this Service, whose members come from the various legal circles of the Member States, is in a position to clarify any fundamental rights question which may arise with regard to general legal principles or the constitutional traditions of one or more Member State*
In this way, the Commission considers that it has been able up to now to come up with solutions which conform to fundamental rights*
19* Proposals from the Commission for the enactment of a legal instrument affecting the citizen, and the Commission's own instruments, are, of course, preceded by preparatory work. Here there is always adequate opportunity to examine fundamental rights questions. The views of and meetings with,experts from the Member States, consultations within the framework of the various committees, and contacts with associations representing,inter alia,the interests of persons affected by such instruments enable additional checks to be carried out.
20. As regards Community acts in respect of which the Commission has only .
the right to make a proposal responsibility to respect fundamental rights is also in the hands of both the Council, which decides, and the European Parliament,to the extent it is consulted.
In this case the Parliament is able to raise any question concerned with fundamental rights by asking the Commission to reconsider its proposals and to modify them pursuant to Article 149, second paragraph, EEC.
The Commission, which has undertaken to look at its proposals again in . the light- of the opinion of the Parliament is naturally ready to modify them every time that the parliamentary debates bring to light an ,
incompatibility of these proposals with the fundamental rights of the citizen.
The Council is then able at the final stage, with the Commission arid ' all aorta of experts from'the Member States participating in the work, to make sure that problems bound up with fundamental rights receive a satisfactory solution. -
D. Programmes and objectives
21. The Commission is convinced that the conclusions set out in Section
C and the preventive measures it has adopted should he sufficient to avoid infringements of the fundamental rights of citizens. Protecting fundamental rights is not, however, a static task. The potential for extending the freedom of citizens within the Community is hy no means exhausted. The increasing mass of Community law affecting the individual citizen calls for constant and increased attention.
As regards its future activities the Commission has set itself the . following tasks: . . ■
— extending knowledge of the sources and bases of fundamental rights to be safeguarded by the Community,
— pursuing short-term projects concerning the improvement of the position of the citizen in the Community and
— developing general objectives.
22. If, in the field of fundamental rights, one goes back to national
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constitutional traditions, the most immediate task from the comparative law standpoint is to acquire detailed knowledge of these traditions.
The Commission will support and promote efforts undertaken in this
I
direction. Until very recently there were no detailed comparative surveys of the constitutional traditions of.all Member States,
■ . '1
The comprehensive preparatory work for the VII FIDE Congress and
a study requested by the Commission on the problems faced by the Community in drawing up a catalogue of fundamental rights (l) now make it possible to gain/insight into the various systems which have been set up in the Member States to protect the fundamental rights of citizens. Alongside many points in common there are at times profound differences.
(l) Dfawn up by Prof. R. Bernharc?,Director of the Max-Planck Institute for foreign public law and international law, Heidelberg, together-with several oolleagues. The Commission will make the study, together with this report, available for public discussion as a Supplement to the Bulletin of the European Communities.
23. The abovenentioned study of the Max-PlanCk Institute comes
essentially to the conclusion that the method used at present by v
the Court of Justice to proteot fundamental rights, that is to derive general legal rules from the constitutional traditions of the Member States, ensures adequate protection of fundamental rights.
It considers this method to be suitable for the institutional safeguarding of fundamental rights given the present Community structure. On the other hand, a catalogue of fundamental rights' embodied in a treaty is hardly likely to improve the protection of fundamental rights in the present state of integration. The study refers in particular to the possibility of using international conventions and legal rules, even where they are not binding in all Member States, to derive general principles of law.
Also according to the study, should there be a structural transformation of the Communities into a European Union or into a subject of international law, analogous to a federal state,it would be "difficult to imagine that a new European constitution could, contrary to all contemporary trends and demands, dispense with an. express and detailed guarantee of fundamental rights"*
24* Apart from attempts to find solutions to basic problems, the
Commission is also pursuing, ih the creation and further development of European law, various individual- projects (some pursuing objectives already laid down in the Treaties* others being steps on the path towards European Union) which should bring appreciable improvements in the position of the individual citizen within the Community*
25* In connection with extending the freedom of individual citizens laid
. down in the Treaties the Commission has, 'for example, recently submitted to the Council an action programme designed to reinforce the social situation of migrant workers(l).
(1) COM 74/2250
At the beginning of 1975 the Council, on a proposal of the Commission, adopted a directive putting into concrete form the principle of equal pay for men and women contained in Article 119 EEC (1). .
Recently, on the 18 December 1975* the Council has given effect to a large extent, to a proposed directive which the Commission
submitted to it on 12 February 1975 (2) designed____
to achieve equality of
treatment for men and women as regards access to employment, vocational training, promotion and working conditions (3).
26. . Furthermore, on the road towards European Union, the Commission is . participating in the progressive creation of a European citizenship.
It has submitted two concrete proposals drawn up on the invitation of the Heads of State or Government at the Paris Summit meeting
in December 1974 (4) : '
- on the establishment of a Passport Union, which proposes progressive harmonization of legislation affecting aliens and the abolition of passport controls within the Community;
- on the granting of special rights in each Member State *
to nationals of other Member States on the principle of treating such persons in the same way as nationals of the host Member State.
The special political rights are, in particular, to include the right to vote, to stand for election and to hold public office at the local and possibly regional level ,
(1) Directive of 10.2.1975i O.J. No. L 45, 19*2.1975t P* 9
(2) O.J. No. C 124, 4.6.1975, p. 2
(3) Directive not yet published , ’
(4) See points 10 and 11 of the final communique.
(5) The Commission reports on these subjects have been published in Supplement 7/75 of the Bulletin of the European Communities.
The general objectives of the Commission as regards the development of fundamental rights in the Community are determined above all by three problem areas: ,
- due regard for the European Human Rights Convention in the Community,
- the guarantee of a standard of fundamental rights which is as comprehensive as possible,
- the manner in which the Institutions are to safeguard this guarantee.
In the Hold case the Court of Justice ruled that "similarly, international treaties for the protection of human rights, on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law" (l).
The Commission is of the opinion that this approach is particularly relevant with regard to the Human Rights Convention, The Human Rights Convention sets out, as far as the "classic" fundamental rights are concerned, that is, certain of the fundamental rights to be protected in the Community, a catalogue of principles of law recognized as binding in all the Member States, It therefore also has binding effect on the activities of the Community institutions.
The Commission does not consider it necessary for the Community as such to become a party to the Convention, The fundamental rights laid down as norms in the Convention are to recognized as generally binding in the context of Community law without further constitutive act
(l) In the Rutili case (of, footnote 3 on page 5 ) the / Court has for the first time expressly referred to certain articles in the Convention.
29» The second problem area concerns the guarantee of a standard of fundamental rights which is as comprehensive as possible. It is troethat many basic rights can be involved only in exceptional cases in view of the powers conferred upon the Community institutions(1).
Fundamental rights are, however, regulatory principles qf a pluralistic societyTand should be taken into account as such by the {Community institutions even if it is unlikely that they may, in a'specific case, be infringed. j
JO. On the other hand, a dual tendency of Community law makes the
protection of civil and political rights as well as economic and social rights appear more necessary than before:
- the tendency to adopt increasingly detailed and specific rules which, by virtue of this fact, affect the individual pore directly,
and this not only in the field of economic activity; !
I
— the extension of the powers of the Community institutions as part of the dynamic development towards European Union. :
31# These tendencies increase the need for the protection qf fundamental rights which the Commission will meet in two ways. j
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Firstly, it will,in its legislative actions and in exercising its right
of initiative vis-£r*vis the Council,pay particular attention to the
development of economic and social fundamental rights. It considers
of*
this field of fundamental rights to be/particular significance since the activities of the Community institutions are mainly in the economic sector. The Commission is aware that these types of fundamental rights need in particular to be put into concrete form and complemented by being given effect on the Community as well as the Member State level. It can only confirm its intention increasingly) to encourage
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developments in the direction indicated.
(l) See the views of Mr. Jozeau-MarignS in his report (referred to above, footnote 2 on page 1.
Secondly, in interpreting the decisions of the Court of Justice, the Commission proceeds from the basis that the substantive content of the fundamental rights recognized under Community law must be defined in accordance with the national standard that affords the maximum protection to the individual whilst taking into account the general interest, in order to achieve an optimum standard of protection of fundamental rights in the Community.
In considering the legal positions of the individual and of the Community the Commission will,on every occasion,align its activities on the optimum standard in question
and not on the
lowest common denominator of the standardsof fundamental rights achieved in the Member States. A high standard of fundamental rights at Community level will constitute an element in the Community legal order that will enoourage integration.
32. The lant problem area, mentioned under paragraph 27,ooncerns the question of th^^af^guai^n^ of fundamental rights from the technical point
of view . As already indicated, expert opinions expressed
in legal academic circles
recently on this questiory^have boen overwhelmingly to the effect that protection of fundamental rights by the judicial authority is prefera/-ble to an attempt to codify the rights to be protected. The Commission, although being in favour of a Community catalogue in its report on European Union, considers that in the present state of integration the reasons put forward in favour of a judicial solution are conclusive.
33. A written Community catalogue of fundamental rights would have many advantages: such a catalogue would improve legal certainty and would lend solid support to the law-making by the judiciary. In addition
it would emphasize the importance of fundamental rights and remove any remaining doubts about their relevance in Community law. Finally it would enable the exercise of economic and social rights, most of which require legislative measures to make them effective, to be more completely assured.
34* The advantages of codifying fundamental rights can, however, hardly he realized in the short tern* If the legal systems of the Member States do indeed have many fundamental points in common, certain differences nevertheless remain.
The fundamental rights, and bound up with them, the freedom • of action of the state vis-S^vis its citizens are based on the structural principles of the individual constitutions. It might be difficult for certain Member States to accept a codification of fundamental rights, binding in its entirety, especially if this differed considerably from their own constitutional traditions. . The establishment of a catalogue of
fundamental rights would require, in the present state of the Community, an intergovernmental negotiation and would have to receive the unanimous agreement of the Member States.
' Defining the fundamental rights to be included
in the Community catalogue could therefore . result in compromises and deletions. There would
be a real danger that the result of such efforts would be a minimum consensus on the matters to be included.
35* Any catalogue of fundamental rights must, moreover, provide for the possibility of limitations and involve making an inevitable choice between the protection of individual rights and the necessity of safeguarding the common good* In the
present political and institutional structure of the Community an undertaking of this kind could only be realised on the basis of concepts
which often differ among the Member States. There could he a risk of working out formulas which would he too general to have any value or of different reservations hy different Member States. Legal security, which is the objective of a catalogue, would therefore not really be achieved.
36. In every case in which a problem is raised as regards
fundamental rights the Court of Justice can, at the present time, be guided by the optimum level of these rights.
A catalogue would not greatly improve the material position of the citizen in the Community if, being drawn up under the conditions mentioned above, it ended up on a lower level.
37* On the other hand th^position would be completely different on the totality of relations between the Member States being transformed into a European Union. Both the powers and the means of action of the Union, even if, although attributed, they were not immediately fully exercisable, would apply over a much larger area and would reveal a much more political quality than those of the present Communities.
Undertalcing the action involved will affect individual citizens even more in their daily lives. Just as it is difficult to imagine that the constitutional law of democratic states would not have provisions covering the protection of fundamental rights, so it would he difficult for the European Union to avoid this. Further- ^
more, in the construction of the \ European Union there will certainly be political pressure to emphasise fundamental rights: this will facilitate the work preparatory to the establishment of a Community catalogue.
Moreover it is clear that a predominant role would fall on a European Parliament elected by direct universal suffrage in the establishment of this catalogue: this would conform to the traditions of all the Member States.
38. For the time being , the Commission feels that the idea already put forward to confirm, by a solemn common declaration of the three political institutions of the Community, respect for fundamental rights in the Community meritsserious consideration* Such a declaration could underline the importance of the Human Rights Convention and the indispensable nature of the protection of these rights by the Court of Justice. In this way a reply would be given to oortain objections directed again^lhe present system, objections which, based on the principle of the separation of powers, take exception to its exclusively judge-made character.
However, such a declaration would have to be adopted without giving ‘ rise to long discussions on its contents. If there is not immediate
agreement between the Institutions involved on the declaration such an attempt would be of no use and even dangerous. It might create doubts — not justified — as to the credibility of the Community institutions in the field of fundamental rights. .
Conclusions
In view of developments so far, the Commission is of the opinion that the present standard of protection of fundamental rights, as this can he taken from the more recent decisions of the Court of Justice, is satisfactory#
Furthermore, it considers that the protective machinery at present available within the institutional structure of the Communities is sufficient to prevent and counter infringements of fundamental rights through Community acts and, following the implementation of these acts, at the national level# However, it feels that while .... the European Union is being set up access by the individual to the.. Community Court should be improved#
The Commission considers that it has a constant duty, in the further development of the Common Market, to safeguard and extend the freedom of the individual citizen# It will accordingly pursue its efforts in this area#
As already stated in the report on European Union, express embodiment of fundamental rights in a future European constitution remains desirable, if not essential#
As regards the present and the near future, however, the Commission ' shares the opinion of the Parliament that in the light of the present structure of the Community, the most complete protection of fundamental rights is ensured by the Court of Justioe which guarantees a maximum level of protection# nevertheless the Commission considers it desirable to stress by a declaration to this end the importance of fundamental rights in the Community# ,
1
Judgment of 4.2.1959 “ Stork v. High Authority, Case l/58, Recueil 1958/59, 43; Judgment of 55.7*1960 - Ruhrlcohlenverkauf sge sellschaften v. High Authority, joint cases 36—38, Recueil i960, 8^7 «j
2
Judgment of 12.11.1969, Case 29/69, Recueil I969, 419> judgment of
17.12.1970, Case 11/70, Recueil 1970, 1125* For a translation of r ... these cases in English, see respectively /l97Q7 C.M.L.R. 112 and /J97|7'C.M.L.R.. 255. ' ' .
3
..Case 4/73, ^97^2.C*R.491* See also judgment of 28.10.1975 —
Rutili v. The Italian Minister for the Interior, case 36/75, not yet published.
4
Judgment of 18/27*12.1973 * Frontini oase, 183/73.
5
Internationale Handelsgesellschaft case, 2 BvL 52/ri-*
6
Judgment of the Court of Justice of 4»4»1974 - Commission v. Republic, case 167/73, JJ31AJ E.C.R. 359*
7
See paragraph 9 above.