^1. Originally three separate communities were established, the European Coal and Steel Community (ECSC), the European Economic Community (EEC) and the European Atomic Energy Community (Euratom). The so-called Merger Treaty, which took effect on July 1, 1967, integrated these three communities into one organizational structure referred to as the European Community or Communities (EC). Recently, through the coming into force of the Treaty of Maastricht, the European Community have been transformed into the European Union.Google Scholar

^2. Some EEC treaty provisions and some secondary community law do guarantee some human rights that can be enforced through the judicial mechanism set up under the treaty. See Metropoulos, Demetrios G., Note, Human Rights, Incorporated: The European Community's New Line of Business, 29 Stan. J. Int'l L. 131, 132 (1992); Dauses, Manfred A., The Protection of Fundamental Rights in the Community Legal Order, 10 Eur. L. Rev. 398, 402-405 (1985); Pescatore, Pierre, The Context and Significance of Fundamental Rights in the Law of the European Communities, 2 Hum. Rts. L.J. 295, 297-98 (1981) and cases cited there.Google Scholar

^3. Treaty establishing a European Defense Community, May 27, 1952. Article 3 of that Treaty provides that the Community shall intervene only “in so far as is necessary to fulfil its task; in so doing it shall safeguard civic rights and the fundamental rights of individuals.”Google Scholar

^4. Draft Statute, Feb. 26, 1953 elaborated by the so-called ad hoc Assembly on the Creation of a Political Community. Article 2 declared that the Community shall “contribute towards the protection of human rights and fundamental freedoms.” Article 3 incorporated the list of human rights protected by the European Convention on Human Rights into the Statute.Google Scholar

^5. Pescatore, supra note 2, at 296.Google Scholar

^6. Dauses, supra note 2, at 399.Google Scholar

^7. Mancini, G. Federico, The Making of a Constitution for Europe, 26 Common Mkt. L. Rev. 595, 609 (1989). Mancini continues: “If this is the reason why they omitted to guarantee those rights, no American observer should be shocked by their attitude as he only has to recall that, in arguing for the ratification of the constitution despite the absence of a bill of rights, Hamilton and Madison took the view that the limited powers of the federal government made such a bill unnecessary.” See also Dauses, supra note 2, at 399.Google Scholar

^8. Case 1/58, Friedrich Stork & Co. v. High Authority of the European Coal and Steel Community, [1959] E.C.R. 17.Google Scholar

^9. Id. at 26.Google Scholar

^10. Cases 36-38/59 and 40/59, Ruhrkohlen-Verkaufsgesellschaft and others v. High Authority of the European Coal and Steel Community, [1959] E.C.R. 857.Google Scholar

^11. Case 40/64, Sgarlata and others v. Commission of the European Economic Community, [1965] E.C.R. 215, 227.Google Scholar

^12. Case 6/64, Costa v. ENEL, [1964] E.C.R. 585.Google Scholar

^13. Id. at 594 (“The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty …”).Google Scholar

^14. Id. at 594.Google Scholar

^15. Pescatore, Pierre, The Protection of Human Rights in the European Communities, 9 Common Mkt. L. Rev. 73, 75 (1972).Google Scholar

^16. Bundesverfassungsgerichtshof, order of Oct. 18, 1967, BVerfGE, 1967, 223.Google Scholar

^17. Case 29/69, Stauder v. City of Ulm, [1969] E.C.R. 415, 9 C.M.L.R. 112, 119 (1970).Google Scholar

^18. Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratstelle für Getreide und Futtermittel, [1970] E.C.R. 1125, 8 Common Mkt. L. Rev. 250 (1971).Google Scholar

^19. The passage addressing the supremacy issue summarizes the Court's previous case law in one powerful paragraph:Google Scholar

Recourse 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 law. In fact, the law stemming from the Treaty, an independent source of law, can not because of its very nature by overridden by rules of national law, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. Therefore, the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure.Google Scholar

^20. Id.Google Scholar

^21. Id.Google Scholar

^22. Bundesverfassungsgerichtshof, Decision of May 19, 1974, BVerfGE 37, 271, 2 C.M.L.R. 540, 551 (1974) (my emphasis); see a similar decision by the Italian Constitutional Court in the case of Frontini v. Ministero delle Finanze, Dec. 27, 1973, no. 183, 18 Giurisprudenza Costituzionale 2401 (1973), 2 C.M.L.R. 372, 383 (1974).Google Scholar

^23. Case 4/73, J. Nold, Kohlen-und Baustoffgro$Szhandlung v. Commission of the European Communities, [1974] E.C.R. 491, 507. The Court had to use this formula because France had not yet ratified the European Convention on Human Rights. In fact, France ratified the Convention on May 3, 1974 which was less than 2 weeks before the Nold judgment was rendered (May 14, 1974).Google Scholar

^24. See especially Case 260/89, Elliniki Radiophonia Tileorassi-Anonimi Etairia v. Dimotiki Etairia Pliroforissis, [1991] E.C.R. 2925. On the legal basis for this evolution, see Mendelson, Maurice H., The European Court of Justice and Human Rights, 1 Y.B. Eur. L. 125, 152-162 (1981).Google Scholar

^25. Case 36/75, Roland Rutili v. Minister for the Interior, [1975] E.C.R. 1219, 1232.Google Scholar

^26. Id. at 1239.Google Scholar

^27. See, e.g., Case 260/89, Elliniki Radiophonia Tileorassi-Anonimi Etairia v. Dimotiki Etairia Pliroforissis, supra note 24; Case 353/89, Commission of the European Economic Community v. The Netherlands, [1991] E.C.R. 4069.Google Scholar

^28. Case 44/79, Liselotte Hauer v. Land Rheinland-Pfalz, [1979] E.C.R. 3727.Google Scholar

^29. Id. at 3744, para. 14.Google Scholar

^30. Id. at 3745-3746, paras. 17-19.Google Scholar

^31. Id. at 3746-3747, paras. 20-22.Google Scholar

^32. See, e.g., Case 98/79, Josette Pecastaing v. Belgian State, [1980] E.C.R. 691 (Article 6); Case 209-215/78 and 218/78, Heintz van Landewyck Sàrl and Others v. Commission of the European Communities, [1980] E.C.R. 3125 (Article 6); Case 136/79, National Panasonic (UK) Ltd. v. Commission of the European Communities, [1980] E.C.R. 2033 (Article 8); Cases 100-103/80, S.A. Musique Diffusion Française and Others v. Commission of the European Communities, [1983] E.C.R. 1825 (Article 6); Case 222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary, [1986] E.C.R. 1651, 3 C.M.L.R. 240 (1986) (Articles 6 and 13); see also Foster, Nigel, The European Court of Justice and the European Convention for the Protection of Human Rights, 8 Hum. Rts. L.J. 245, 264-266 (1987).Google Scholar

^33. Case 63/83, Regina v. Kent Kirk, [1984] E.C.R. 2689, 2718 where the Court refers to Article 7 ECHR.Google Scholar

^34. Re Application of Wünsche Handelsgesellschaft, Bundesverfassungsgerichtshof, Decision of Oct. 22, 1986, BVerfGE 73, 339, 3 C.M.L.R. 225, 263-265 (1987) (my emphasis).Google Scholar

^35. Joint Declaration of the EC Parliament, Council and Commission, 20 O.J. Eur. Comm. (No. C 103) 1 (1977), reprinted in Mendelson, supra note 24, at 139.Google Scholar

^36. 30 O.J. Eur. Comm. (No. L 169) 1 (1987).Google Scholar

^37. 31 I.L.M. 247, 256 (1992); reprinted in Laursen, Finn & Vanhoonacker, Sophie (eds.), The Intergovernmental Conference on Political Union: Institutional Reforms, New Policies and International Identity of the European Community-Professional Research Paper 431 (1992).Google Scholar

^38. On the pros and cons of adherence, see Dauses, supra note 2, at 417.Google Scholar

^39. See Commission's Memorandum on the Accession of the European Community to the Convention for the Protection of Human Rights and Fundamental Freedoms of October 29, 1982, 25 O.J. Eur. Comm. (No. C 304) 252 (1982).Google Scholar

^40. Council Communication, Nov. 19, 1990, Doc. SEC (90) 1087 final.Google Scholar

^41. This would preclude a “denial of justice” situation like the Confédération Française Démocratique du Travail (CFDT) case in which the Commission on Human Rights declared a petition against the EC, the Member States and each individual Member State inadmissible. The Commission's decision in this fascinating case has been sharply criticized by Pescatore, Pierre, La Cour de justice des Communautés européennes et la Convention européenne des Droits de l'Homme, in Matscher, Franz & Petzold, Herbert (eds.), Protecting Human Rights: The European Dimension - Studies in Honour of Gérard J. Wiarda 441, 448-453 (2d ed. 1990) who argues that the Community is bound by the ECHR on the ground of the doctrine of state succession (analogous to the EC substituting its Member States in relation to GATT).Google Scholar

^42. For the pros and cons of such a list, see Dauses, supra note 2, at 416-417.Google Scholar

^43. Resolution Adopting the Declaration of Fundamental Rights and Freedoms, 32 O.J. Eur. Comm. (No. C 120) 51-52 (1989), reprinted in 10 Hum. Rts. L.J. 341 (1989); 1 Revue universelle des droits de l'homme 343 (1989).Google Scholar

^44. Cases 60-61/84, Cinéthèque S.A. and Others v. Fédération nationale des cinémas français, [1985] E.C.R. 2605.Google Scholar

^45. Id. at 2627 (emphasis added).Google Scholar

^46. Mancini, supra note 7, at 611-612.Google Scholar

^47. Case 201-202/85, Marthe Klensch and Others v. Secrétaire d'État à l'Agriculture et à la Viticulture, [1986] E.C.R. 3477.Google Scholar

^48. According to the Court:Google Scholar

Under Article 40(3) of the EEC Treaty the common organization of the agricultural markets to be established in the context of the common agricultural policy must ‘exclude any discrimination between producers or consumers within the Community'. That provision covers all measures relating to the common organization of agricultural markets, irrespective of the authority which lays them down. Consequently, it is also binding on the Member States when they are implementing the said common organization of the markets.Google Scholar

^49. Case 5/88, Hubert Wachauf v. Federal Republic of Germany, [1989] E.C.R. 2609.Google Scholar

^50. Id. at 2639, para. 19.Google Scholar

^51. Case 12/86, Meryem Demirel v. Stadt Schwäbisch Gmünd, [1987] E.C.R. 3719, 3754, para. 28 (my emphasis). Reconciling the holdings of Cinéthèque and Klensch, Advocate General Francis G. Jacobs recently wrote that:Google Scholar

So far, the distinction is apparently clear-cut: where a Member State is exercising its own legislative competence, its measures are not subject to control by the Court of Justice for compliance with human rights; where a Member State, on the other hand, is in effect adopting delegated legislation to implement primary Community legislation, or where it is otherwise implementing Community law, then such implementation is subject to control by the Court of Justice for compliance with human rights.Google Scholar

Jacobs, Francis G., The Protection of Human Rights in the Member States of the European Community: Impact of the Case Law of the Court of Justice, in O'Reilly, James (ed.), Human Rights and Constitutional Law - Essays in Honour of Brian Walsh 243, 247-248 (1992).Google Scholar

^52. Case 5/88, Hubert Wachauf v. Federal Republic of Germany, supra note 49, at 2639-2640, paras. 17-19.Google Scholar

^53. Metropoulos, supra note 2, at 142.Google Scholar

^54. 268 U.S. 652 (1925).Google Scholar

^55. Weiler, supra note 48, at 837.Google Scholar

^56. According to Weiler “we should be able to identify two anchors: One to define and elaborate the law of human rights at the central level, the second to project that law into State jurisdiction. In the American system these two anchors rest securely within the institutional framework: the Bill of Rights and the Fourteenth Amendment, respectively. This explicit support favours incorporation.” Id.Google Scholar

^57. For further comparison between the EEC and United States incorporation efforts, see Metropoulos, supra note 2.Google Scholar

^58. Mancini, supra note 7, at 611.Google Scholar

^59. See, e.g., Coppel, Jason & O'Neill, Aidan, The European Court of Justice: Taking Rights Seriously?, 29 Common Mkt. L. REv. 669, 670-71 (1992) (“In response to the threat that national courts would resolve their dilemma by opting for the supremacy of their own national constitutional provisions on fundamental rights protection, the European Court discovered that the protection of fundamental rights was indeed a general principle of European Community law. This development contradicted its own previuos case law rejecting the idea of fundamental reights protection with the Community legal order, and was effected notwithstanding the absence of any mention of list of fundamental rights within the texts of the Community treaties.” footnote omitted); see also Weiler, Joseph H.H., Methods of Protection of Fundamental Human Rights in the European Community: Towards a Second and Third Generation of Protection, in 2 Casses, Antonio, Clapham, Andrew & Weiler, Joseph (eds.), Human Rights and the European Community: Methods of Protection 580-581 (1991).Google Scholar

^60. Materials are classified according to their language, the languages being in alphabetical order. There are Books and Articles sections under each language heading. Books and articles are classifed in chronological order and materials from the same year are in alphabetical order.Google Scholar