REMEMBRANCE IN TIME - Index of

Christina BICK et al.: European Evolution: Fundamental Freedoms and Fundamental Rights 463
these decisions acts of the community could directly interfere with the legal sphere of
the nationals. Because of this the member states feared that the protection against
community acts could not been provided by the ECJ in the sphere of fundamental
rights. So the Luxembourg Court faced the opposition of the Constitutional Courts of
Italy [14] and Germany [15] which did not accept such a primacy of Community law
when fundamental rights as protected by the national Constitution could have been at
stake. In Germany the BVerfG actually construed an exception from the supremacy of
European law. The opposition of Germany and Italy had not been by chance. Both
countries have a fascistic background where fundamental rights have been spurned,
why they both installed a court to protect individual fundamental rights. This explains
why these two courts could not take a violation of fundamental rights, no matter from
what direction. [16]
Although the decisions of the German Bundesverfassungsgericht and the Italian Corte
constituzionale had not been taken in 1969 the academic discourse pointed into that
direction. Karlsruhe and Rome threatened to declare European legal acts as inapplicable
in case of a violation of national fundamental rights. This endangered the consistent
application of the Community law to an extremely high degree.
To counter this national opposition and the lack of an explicit reference to fundamental
rights in the founding Treaties, the Court of Justice developed a very clever and original
legal practice.
Ten years after its first decision on fundamental rights the ECJ made an about-turn in its
“Stauder” decision. [17] Like in the former decisions national fundamental rights were
brought forward against community acts. But in this case the ECJ ruled that national
fundamental rights could by way of judgmental comparative law become applicable as
general principles of law. [18] Thereby the protection of fundamental rights had been
adopted on community level. This decision was specified in the ruling Internationale
Handelsgesellschaft [19]. The ECJ interpreted fundamental rights as an integral part of
the general principles of community law which must be applied. This new approach was
on the one hand based on the framework-character of the EEC-Treaty. And on the other
hand on the constitutional context which had substantially changed since 1959 due to the
“Frontini e Pozzani” and “Solange-I” judgements.
In general the question if a breach of a fundamental right cannot be reviewed by the
national constitutional law, which was stressed in the Hauer decision [20], but only by
community law. In the decision the ECJ states the general commitment to fundamental
rights and explains the method to define them in the absence of a codified list of
rights. It developed a sort of European fundamental rights as a part of the general
principles of community law. The Court derives them on the one hand from the
common constitutional traditions of the member states and on the one hand the ECHR.
[21]
The following case-law on fundamental rights of the ECJ comprised two functions.
On the one hand the ECJ had to create and define individual fundamental rights and on
the other hand it had to safeguard reaching a certain level of fundamental rights not
only with regard to the fundamental rights as such but also with regard to the
dogmatics of it. [22]
What can be seen is that the need for a decision about fundamental rights normally
appeared in the context of fundamental rights.