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The Founding Myth of European Human Rights Law: Revisiting the Role of National Courts in the Rise of EU Human Rights Jurisprudence
No full textThe conventional story argues that the emergence of a human rights jurisprudence in the context of the EU is a response to national pressures: while the EU was originally insensitive to human rights issue, national courts – notably the Constitutional Courts of Italy and West Germany – raised the issue of fundamental rights in the European integration agenda, forcing the ECJ to incorporate human rights in its review of EU legislation as a condition for the supremacy and direct effect of European law. The purpose of this paper is to reconsider and challenge this understanding based on arguments about chronology, structure and jurisprudence. To start with, the article underlines how the case law of the ECJ recognizing fundamental rights as general principles of EU law predates the Solange case law of the national courts. Moreover, the article carries out a structural examination of fundamental rights in the founding member states of the EEC and reveals that the mechanisms for human rights protection were weak – if not absent – in the majority of the states. Last but not least, the article examines in depth the jurisprudence of national constitutional courts and emphasizes how this fails to support the gist of the conventional story: Even in states like Italy or West Germany where constitutional courts were technically empowered to review national legislation in light of constitutional human rights, a study of the case law of the courts discloses that in the 1950s and 1960s high courts were anything but aggressive in protecting fundamental rights. In conclusion, the paper suggests a different explanation for the emergence of human rights in the European legal order. As it argues, rather than being the defensive response of the ECJ to the pressures of the national courts, the rise of human rights in the EU legal order ought to be seen as the result of a process – going on in parallel at the national and supranational level – of increasing sensitivity towards human rights. The rise of an EU human rights jurisprudence is therefore the result of a transnational development consisting in greater sensitivity towards human rights at all levels of government – and not the result of a supranational response to national pressures