Internationale Handelsgesellschaft, Nold and the New Human Rights Paradigm
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Description
The story about how the ECJ, from Stauder to Internationale Handelsgesellschaft and Nold has developed its own human rights jurisprudence is a staple element in European scholarship. It is part of the narrative describing the role of the ECJ in the constitutionalisation of EC law. By holding that fundamental rights are an integral part of the general principles of law the observance of which the Court ensures, the ECJ has accomplished two things: to incorporate a central feature of modern constitutions into the corpus of EC law and to help strengthen the authority of EC law against potential challenges before national courts in the name of domestic constitutional rights. So much that is right has been written about this, that I will not focus on trying to uncover a new nuance with regard to any of the obvious themes, be it the complex interaction between the ECJ and German courts, the subtle shift in doctrine between Internationale Handelsgesellschaft and Nold or the future of the ECJ’s doctrine in light of changes relating to the Charter of Fundamental Rights or accession to the ECHR. Instead the focus of this chapter is an aspect of International Handelsgesellschaft and Nold that is both fundamental and yet seems to have escaped commentators’ attention. In Nold and International Handelsgesellschaft the ECJ develops the outlines of a conception of human rights that departed from a number of widely held conventional assumptions about what human or constitutional rights are and how they operate in legal practice. It is a mistake to believe that in Nold and Internationale Handelsgesellschaft the ECJ in the early 1970s merely Europeanises a well-established understanding of human rights, as has been recognized by Member States. Instead the ECJ reconceives constitutional and human rights practice in an interesting and challenging way. The traditional legalist paradigm of human and constitutional rights is effectively replaced by a rationalist human rights paradigm. In order to substantiate and clarify the claim that the ECJ embraces a new human rights paradigm, the first part this chapter will highlight the central features of the ECJ’s conception of human rights and its tension with conventional understandings of human rights. A second part will briefly point to some basic questions on the conceptual, institutional and doctrinal level that such a paradigm shift gives some urgency to. Clearly, a substantial monograph, rather than a short essay, would be necessary to more fully develop the themes, substantiate and perhaps qualify the arguments that are made in this essay. But the point of this essay is modest. It is to make aware of a number of mutually reinforcing features in the ECJ’s human rights practice, that give rise to number of distinct questions, that have not received the attention they deserve.
Source Publication
The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty
Source Editors/Authors
Miguel Poiares Maduro, Loïc Azoulai
Publication Date
2010
Recommended Citation
Kumm, Mattias, "Internationale Handelsgesellschaft, Nold and the New Human Rights Paradigm" (2010). Faculty Chapters. 1068.
https://gretchen.law.nyu.edu/fac-chapt/1068
