REMEMBRANCE IN TIME - Index of

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Remembrance in Time
to receive the highest level of protection against government interference. [5]
According to art. 6 EU fundamental rights are now protected in the EU under three
diverse and complementary perspectives: as general principles of the EU, as defined by
the European Charter and as protected by the European Convention of human rights.
Up to this state of affairs in the protection of the freedoms and rights and the
comprehension of the dimension of them a long development had to take place.
3. Genesis
The increasing importance of the protection of fundamental rights during the European
Integration becomes apparent by its progressive transcription. Neither the European Coal
and Steel Community (ECSC) nor the European Economic Community (EEC) possessed
rules for the protection of fundamental rights. Given the fact that the European integration
started as a reaction to the massive violations of human rights during the Second World
War the question occurs why.
The ECSC had been established as a mere economic organization. The ones that were
bound by it were big affiliated groups as well as the member states themselves. Thus the
protection of fundamental rights – in the sense they were understood at that time [6] –
seemed to have no connection with it. Therefore the exemption of fundamental rights
from the reconstruction and integration process had been no explicit one. In fact it
happened at the same time that in connection with the Council of Europe fundamental
rights were noted in the European Convention of Human Rights. Both the ECSC and the
EEC were based on the same motivation; they just seemed to have no interrelation. [7]
3.1. Development of fundamental rights by the ECJ
In the absence of contractual provisions the European Court of Justice (ECJ) had to take
over the development of the protection of fundamental rights.
Initially the ECJ did not show any sensitivity with regard to fundamental rights. [8] The
Court dismissed several cases [9] which were based on the infringement of national
fundamental rights without even mentioning the legal argument for it. Reasons for this
were that the Treaty Establishing the European Coal and Steel Community as the basis of
the decision neither contained fundamental rights itself nor had the structure of a
framework agreement with the possibility for a teleological interpretation; secondly that
the ECSC had been an independent international organization, whose autonomy would
have been limited by giving national fundamental rights the possibility of legal control of
its acts; and thirdly that the ECJ itself was of the opinion of having no right to judge
about national law. [10] By doing so, the judges avoided a confrontation with the
European Court for Human rights in Strasbourg as well as the national Constitutional
Courts.
Only a few years later in 1963 and 1964 the ECJ declared the autonomy of the
Community legal order in its “Van Gend en Loos” [11] and “Costa vs. ENEL” [12]
decisions. In “Van Gend en Loos” the Court developed the principle of direct effect,
which means that provisions of the Treaty Establishing the European Economic
Community are capable of creating legal rights which can be enforced by both natural
and legal persons before the courts of the Community's member states [13]. In “Costa
vs. ENEL” the court established the supremacy of European law over national law. By