The European Court of Justice: an active enforcer of freedom, or a passive player in the EC game?

• Author: Dhabalia, Dimple D.
• Position: Recent Rulings of the European Court of Justice

In an ordered society of mankind, there is no such thing as unrestricted liberty, either of nations or of individuals. Liberty itself is the product of restraints; it is inherently a composite of restraints; it dies when restraints are withdrawn. Freedom ... is rot an absence of restraints; it is a composite of restraints. There is no liberty without order. There is no order without systematized restraint. Restraints are the substance without which liberty does not exist. They are the essence of liberty.(1)

1. INTRODUCTION

   Despite the European Community's (EC) efforts in moving towards a more united Europe through its fusion of several economic and political institutions and policies, the EC has failed to implement any structure to protect the fundamental freedoms accorded to each individual, thereby raising concerns about continued European unity, national sovereignty, and jurisdiction.(2) One of the main foundations of international law, the UN Charter (the Charter), "contains two basic axioms which may sometimes come into conflict."(3) First, the Charter ensures each State its sovereign equality as well as its territorial integrity. At the same time, however, "there is the aim of promoting and encouraging respect for human rights and fundamental freedoms for all."(4) In most instances however, States will refer to Article 2, section 7 of the Charter, which supports the first axiom, to "prevent the effective implementation of the latter."(5)

   Because the EC Member States are also members of the UN, each State has a right to assert its sovereignty.(6) However, all Member States are signatories to the European Community Treaty (EC Treaty) and most States are signatories to the International Covenant on Civil and Political Rights.(7) Both of these documents, as well as European case law, explicitly refer to the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) "by which all Member States have consented to be bound."(8) However, because there is no formal written Bill of Rights for the Community incorporating the Convention into Community law, some States adhere to the Convention and other States do not.(9) Although the European Court of Justice (ECJ) has taken to regularly referring to the Convention in its decisions, States continue to dispute the Court's jurisdiction.

   Unlike most national constitutions, the EC Treaty explicitly fails to catalog the "fundamental rights and freedoms upon which citizens can rely against the governmental authorities."(10) The ECJ attempts to protect these fundamental rights by "classifying them as general principles of Community law, referring to the common constitutional traditions of the Member States and to international instruments, in particular the Convention."(11) Since the Court has held that Member States are to consider fundamental rights as a part of Community "law" as suggested by Article 164 of the EC Treaty,(12) the ECJ must attempt to ensure that the individual Member States as well as the Community as a whole, honor fundamental rights.(13)

   This case-note will demonstrate that by denying itself the jurisdiction to guide individual Member States in interpreting the conformity of national laws to Community laws, the ECJ is failing to protect the fundamental freedoms of the EC citizens. This paper is divided into three sections. First, an examination of the case of Kremzow v. Republik Osterreich. Next, an in-depth analysis of the prior legal authority the ECJ incorporated into its decision. Finally, a discussion regarding the implications of the ECJ's decision.

2. FRIEDRICH KREMZOW V. REPUBLIK OSTERREICH--A HISTORICAL OVERVIEW

   In December of 1982, Friedrich Kremzow, a retired Austrian judge, confessed to the murder of an Austrian lawyer, a statement he later retracted.(14) In December of 1984, the District Court found Kremzow guilty of murder and the unlawful possession of a firearm and sentenced him to twenty years in a mental institution.(15) Kremzow appealed to the Supreme Court of Austria regarding the lower court's sentence. The Supreme Court, in a hearing during which Kremzow was absent, upheld the lower court's finding of Kremzow's guilt, however, the Court changed the twenty-year sentence in a mental institution to life imprisonment in a civilian prison.(16)

   At his appeals hearing, Kremzow argued that his fundamental right to freedom of movement was at stake.(17) Historically, scholars have regarded freedom of movement only in the context of economics, and not as a fundamental human right within the realms of the European Community. However, in this case, the European Court of Human Rights (ECHR) and the European Commission (the Commission) considering the "nature" of the freedom at risk reviewed Kremzow's case stating that Kremzow should have been allowed to defend himself pursuant to Article 6(3)(c) of the Convention.(18) The ECHR held that "Article 6 of the Convention had been violated," and Kremzow was entitled to monetary damages for legal fees and expenses.(19)

   Following the ECHR judgment, Kremzow again found himself in the Austrian civil courts. This time in his appeal he requested the resolution of three issues: (1) a reduction in his sentence pursuant to paragraph 410 of the Austrian Code of Criminal Procedure; (2) the payment of damages pursuant to Article 5(5) of the Convention for his unlawful detention; and (3) the Court's recognition of the fact that the Articles of the Convention are directly applicable under Austrian law and give rise to a legitimate claim for infringement on his right to liberty of person.(20) The Austrian court rejected Kremzow's claims pursuant to paragraph 2(3) of the Austrian Law on State Liability, which contradicted the articles of the Convention,(21) thereby holding Austrian law above Community law.

   Kremzow next appealed to the Austrian Supreme Court. He argued that although the ECHR had determined that the State had violated Kremzow's rights under the Convention, the Courts had failed to rectify these violations.(22) Kremzow beseeched the Court to reference the ECJ for a preliminary ruling on two main questions: (1) are all or at least the substantive law provisions of the Convention, including the provisions of Articles 5, 6, and 53 of the Convention which are relevant to the proceeding before the Supreme Court, part of Community law (Article 164 of the EC Treaty), with the result that the ECJ may give a preliminary ruling on their interpretation pursuant to the first paragraph of Article 177 of the EC Treaty;(23) and (2) if the first question was answered in the affirmative, there was an inquiry as to whether national courts are bound by ECHR decisions under particular circumstances pursuant to Articles 5 and 6.(24)

   Kremzow justified ECJ jurisdiction over this case based on the argument that because he is a citizen of the European Community, he is entitled to the right to freedom of movement for persons, as articulated in Article 8, section (a) of the EC Treaty.(25) Further, he stated that because any citizen is entitled to move freely between the Member States without any specific intention to reside, "a State which infringes that fundamental right, guaranteed by Community law, by executing an unlawful penalty of imprisonment must be held liable in damages by virtue of Community law."(26)

   The ECJ ultimately held that it did not have jurisdiction because the legislation in question was outside the scope of Community law. The Court said:

   [w]here national legislation is concerned with a situation which, as in the case at issue in the main proceedings, does not fall within the field of application of Community law, the Court cannot, in a reference for a preliminary ruling, give the interpretive guidance necessary for the national court to determine whether that national legislation is in conformity with the fundamental rights whose observance the Court ensures, such as those deriving in particular from the Convention.(27) The ECJ based its holding on the fact that its interpretation of the provision, regarding the freedom of movement of persons found in the EC Treaty, was not consistent with Kremzow's interpretation.(28) Thus, although the deprivation of liberty prevents a person from exercising freedom of movement, the Court did not find a sufficient connection with Community law to justify the application of Community provisions.(29) The ECJ reiterated that the Austrian Court had sentenced Kremzow for murder and the illegal possession of a firearm under Austrian national law.(30) The ECJ went on to establish that Austria had never intended Community law to address the national law in question.(31) Therefore, according to the Court, the national legislation in this case dealt with a situation outside the scope of Community law.(32)

   Although several European States agreed to membership in the EC, the States wanted to ensure the preservation of individual sovereignty. The unification process, which commenced after World War II, was the result of European State's "desire for economic and political unity and stability."(33) However, in order to progress without a loss of rights, Member States agreed to institutions such as the ECJ to maintain the framework of the Community.(34) The States continued to restrict the power of the Community through limitations on...