The development of human rights protection within the European Union - from Stauder to Solange II: a challenge for supremacy between the EJC and the German Federal Constitutional Court

Abstract

“All politics must bend its knee before the (human) right.”1 With this phrase Immanuel Kant, the German philosopher, stressed the primacy of human rights in a society. Within the European Union the development of protection of fundamental rights has been a long process starting in the late 1960’s. From initially rejecting fundamental rights on a European level, the European Court of Justice (ECJ) developed a rich jurisprudence regarding those rights. During the first period of economic integration within the European Community the main aim of the ECJ was to establish the autonomous character of the new created entity. Therefore fundamental rights protection was disregarded by the ECJ. However, the awareness of the necessity of fundamental rights protection against community acts arose within the Member States. Through continuing pressure, particularly from the German Federal Constitutional Court, the ECJ changed its jurisdiction significantly. The development of fundamental rights protection at a European level comes from the differing understanding of the ECJ and the German Constitutional Court regarding the significance of fundamental rights within a legal order. From the ECJ’s understanding, fundamental rights served the supremacy and autonomy of Community Law, whereas from the German Constitutional Court’s point of view those fundamental rights are supreme itself and the crucial factor within a democratic legal system.