The most sophisticated theoretical explanations for the emergence of the constitutional practice of European law have portrayed the European Court of Justice (ECJ) as the fulcrum institution, working in chorus with lower national courtsFootnote ¹ and an increasingly influential field of pro-integration lawyers and elites,Footnote ² to circumvent national hierarchies, nullifying the influence of national high courts and governments who would otherwise be unwilling to accept such a profound loss of their authority. Careful and patient case-law building over time by the ECJ avoided a national ‘backlash’, which would have reined in the Court.Footnote ³ The evidence presented in this article, drawn from an analysis of archival material from the foundational period of European integration, will however offer evidence to revise and nuance this account. By taking an issue at the heart of constitutionalism – the creation of a system of human rights protection at the Community level – this article will show that the national high courts did indeed react to the ECJ, as is already well known, but that the nature of this resistance and the diplomatic response to it had an as yet undocumented and profoundly constitutive impact on the establishment of the constitutional practice. Rather than being an obstacle to be run around, the resistance of the highest national courts instead became a crucial and undeniable part of the multiple agencies shaping the nature of European law, enjoying, at the very least, equivalent impact to the key actors already pointed to in existing social scientific accounts.

Creating a rights regime in the context of the 1970s

The decisions of the political and the judicial institutions of the European Community in 1977Footnote ⁴ and 1979Footnote ⁵ to respect the European Convention on Human Rights (ECHR) was an important step in the creation of a human rights regime for the European Union (EU).Footnote ⁶ Until this point, the Court's thinking on rights had been limited by the rather restricted economic rights incorporated into the Treaty of Rome. The Court had however promised to protect and safeguard ‘the inspiration’ it could draw on rights from ‘the constitutional traditions common to the member states’.Footnote ⁷ Despite the fact that the ECJ had gone some way in creating a constitutional practice in its Van Gend en Loos Footnote ⁸ and Costa v. ENEL Footnote ⁹ decisions, the lack of a robust rights regime at the Community level on a par with the ECHR or, more particularly, with national constitutions, had not gone unnoticed in the member states. This was especially the case in Germany and Italy, where post-war traditions of inviolable rights protection made the lack of an equivalent at the European level a particularly contentious issue.Footnote ¹⁰ With constitutional courts in place tasked with safeguarding national rights systems, decisions from these member states’ highest courts resisting the ECJ's encroachment in this area in the mid-1970s spoke clearly to this problem.Footnote ¹¹

This article focuses on the later of these two decisions – the German Federal Constitutional Court's (FCC) Solange decision of May 1974. In this ruling, the FCC controversially refused to accept the unconditional primacy of European law over national constitutional provisions. The FCC instead played up its obligation as the ‘guardian’ of the national constitution and withheld the right to rule on this issue ‘as long as’ (‘Solange’), there was not a comparable system of rights protection endorsed by a democratic parliament in the Community. The Solange decision can be interpreted as quite an astute warning shot fired across the bows of the Commission, the ECJ and even the German government. It was designed to provoke action to address quite widespread concerns at the national level in both public and academic discourse about the lack of democracy and rights protection within the Community.Footnote ¹² It was presented by the FCC judges not as an aggressive ultimatum, but as an offer of acceptance if suitable action was taken by the Community institutions.Footnote ¹³ However, not everyone shared this view at the time. By refusing to accept the primacy of European law without condition as earlier European case law had suggested must be the case, the FCC was accused by some of fragmenting the coherence of the new European constitutional practice,Footnote ¹⁴ and others feared that the FCC had paved the way for similar actions by more overtly Eurosceptic member states. The German government indeed feared it would become a poster boy for the Eurosceptics, despite its long-standing and continual support of both political and economic integration. It also raised the embarrassing prospect of infringement proceedings being taken against Germany by the Commission. For these reasons, Solange was the clearest, most contentious moment of resistance by a major national institution to the acceptance of the constitutional practice.

A huge amount was at stake for the Commission, the ECJ and the German government. Given the resistance at the national level on such a critical issue, it is understandable that the European institutions started taking the issue of rights protection seriously in the 1970s. Not only did this correspond with the obvious saliency of human rights as an international issue at the time, but it was also part of a broader strategy to address some of the perceived shortcomings of the integration process. The 1970s were perceived to be a decade of ‘Eurosclerosis’. Continued financial shocks caused by the energy crisis throughout the 1970s had destroyed the first attempt at a supranational currency union and prompted member states to seek national, rather than European solutions to their economic woes. Politically, the inception of regular European Council meetings (from 1975 on) posed a substantial challenge to the Commission's self-perception as the institution driving the integration process. Most crucially, there was a growing sense that the Community was overly technocratic and therefore inherently undemocratic. A central question was raised even in avowedly pro-integration Germany on the wisdom of transferring sovereignty to a system with a clear lack of congruence with the democratic order of the Federal Republic. Taking rights seriously would be one way at least in which the Community might win back some much needed legitimacy among the increasingly sceptical national publics.

However, building a rights regime would not be easy given the political and economic context of the 1970s and the divergent rights traditions across the nine member states. Whereas Germany and Italy had constitutional charters of rights and were full members of the ECHR, this was not the case across the board, most importantly in the other two largest member states. The recent accession of the United Kingdom (1973) with its public and institutional reluctance to accept supranational governance – heightened by its tensely fought referendum on continued membership in 1975 – and the worsening of the Troubles in Northern Ireland towards the end of the decade meant that British agreement to a European charter of rights would be very difficult to win. This was coupled with reluctance within France to accede to the ECHR – achieved only in 1974 – and even then with some heavy conditions which remained in place into the 1980s. As a result of the fact that France did not abolish capital punishment until 1981, individual petition to the ECHR could only be incorporated in that year.Footnote ¹⁵ Hopes of being able to create and reach agreement on a Community-wide human rights charter were slim at best.

The Joint Declaration of the Council, Commission and Parliament in 1977 to respect the ECHR, and the Court's Hauer decision in 1979, which cited part of the ECHR in its reasoning, were the responses to this growing issue. A glance at the historical chronology suggests an obvious connection between these events and the Solange decision just a few years earlier. However, this cursory chronology glosses over what was actually a much more complex path connecting these three events. The opening of the Joint Declaration text declares clearly that this came about as an initiative of the European Parliament (EP). Scholarship on the EU's fundamental rights provisions has often taken this claim at face value, deceived by the fact that the Declaration came about as a result of an EP sitting in 1976.Footnote ¹⁶ However, the Joint Declaration did not originate in the EP, but was instead transplanted there from an initiative of the German government, scrambling to respond to the fallout from Solange while at the same time trying not to be seen doing a runaround of its own constitutional guardian. The Joint Declaration was in fact born in a series of meetings in the German chancellor's office in 1974 and 1975 between Chancellor Helmut Schmidt and the German advocate general at the ECJ, Gerhard Reischl. The agreements reached in those meetings found their way into the EP through a series of adroit political machinations undertaken by the German foreign ministry and European Commission. This served a dual purpose of sidelining domestically the Constitutional Court, which had thrust the government into a difficult political situation in Europe, while also making it appear as if the EP had initiated the Declaration itself, thereby fulfilling one of the important criteria in the FCC's Solange decision – parliamentary endorsement. The Commission gained by being able to avoid a showdown with the largest and otherwise supportive member state.

This article re-examines the course of events in the late 1970s, revealing a much more complicated narrative in this particular aspect of the evolution of the constitutional practice of European law. Without seeking to over-generalise a huge body of literature, there is certainly a discernible and understandable tendency to look towards the ECJ as the decisive ‘motor of integration’.Footnote ¹⁷ The same applies to studies of transnational groupings or occasionally the Legal Service of the Commission.Footnote ¹⁸ All roads, it seems, lead to Luxembourg. In this story, we find neither the ECJ nor the Legal Service of the Commission at the centre of the story, but instead see quite clearly the constitutive effects of national-level judicial resistance and the efficiency of political diplomacy in shaping the European legal system. The ECJ is largely sidelined here, reacting post-factum to the events decided elsewhere. The lower national courts play a very minor role. The archival evidence in this example warns us not to ignore a complicated, multi-modal approach to the shaping of the constitutional practice. These narratives must focus not just on the ECJ, but also on the power of national institutions decisively to shape the practice and parameters of the European legal framework.Footnote ¹⁹

Germany's confrontation with the ECJ

Despite the broad and lasting base of support in Germany for European integration,Footnote ²⁰ the seminal case law of the ECJ in the 1960s met with a mixed response in the Federal Republic, both in and outside the courtroom. Academic discourse in particular remained largely unmoved by the concept of the separate and original nature of European law as it was envisioned by the ECJ and the Commission's Legal Service, an inertia that occurred despite the best efforts of a number of pro-Europeanists gathered around Konrad Adenauer during his long tenure as chancellor (1949–63). This small, but highly influential grouping included scholars and politicians such as Hans-Peter Ipsen,Footnote ²¹ Carl-Friedrich Ophüls,Footnote ²² Karl Carstens,Footnote ²³ and, of course, the President of the Commission, Walter Hallstein. Bolstered by the organisational support of the Fédération internationale pour le droit européen (FIDE), an organisation discussed elsewhere in this edition,Footnote ²⁴ this strongly pro-European elite initially made some inroads in the mid-1960s in convincing the generally conservative German legal academy that a legal revolution had indeed taken place in Luxembourg.Footnote ²⁵

However, these initial successes did not last. A new position emerged in the academy that had its origins in the earlier protracted debates about Germany's rearmament,Footnote ²⁶ which called for a pre-requisite of ‘structural congruence’Footnote ²⁷ between the democratic, constitutional order of the Federal Republic and any organisation to which it chose to transfer its sovereign competencies. The structural congruence argument, championed at the time by the Frankfurt scholar Hans-Jürgen Schlochauer, represented a pragmatic compromise between the Europeanists, who were convinced that congruence could be (or already had been) achieved, and the mainstream of the academy, who were still to be convinced. Entering the early 1970s, the issue of creating a directly elected, powerful European Parliament was still unresolved and the lack of fundamental rights protection at the European level continued to be answered only in part by the ECJ.Footnote ²⁸ As a result, a consensus grew in the legal academy that the necessary structural congruence was lacking and that the delegation of authority to the Community institutions had to be very carefully monitored. As one particularly polemical author put it, Germany had freely empowered a Community, which was ‘not only a regime without a master, the use of power without a democratic sovereign, but also a regime without fundamental rights’.Footnote ²⁹

Similarly and unexpectedly, German public opinion towards the ECJ had steadily become increasingly hostile during the mid-1960s. Initially antagonised by a perceived anti-German bias in its early case law, for instance in the 1962 Mannesmann decision,Footnote ³⁰ public attitudes towards the ECJ shifted from hopeful expectancy – in that the ECJ was busy creating a European rule of law which would bolster Germany's own nascent national order – to growing disillusionment with the nature and form that European democracy was taking in the 1970s. In part, the concern was that European constitutional practice had not gone far enough in creating an effective European rule of law as desired by the majority of Germans. In fact, a line of argumentation developed, particularly in the German business media, which was remarkably similar to that of the ‘structural congruence’ notion found in the legal academy. Whether measured in terms of access to judicial procedure or, again, the protection of fundamental rights, the idea emerged that the ECJ had not done enough to consolidate the generally welcome gains made in the early 1960s. By the mid-1970s, it was commonplace to find headlines from widely read newspapers such as the Rheinische Post, describing the ECJ as the place ‘where the national cow is slaughtered’,Footnote ³¹ or the Handelsbatt, fearing the ‘retarding influence’ of the European judges on the Basic Law, the ‘most progressive national constitution’,Footnote ³² and its basic rights.

The FCC judges were fully aware of this growing discontent among experts and the public. The judges even took time out to publish newspaper articles and participate in television and radio interviews to participate with and explain their decision to the broadest possible audience. The Solange decision is then best understood as an articulation by the FCC of this growing hostility in public opinion and the legal academy and the recognition of the need for an amount of structural congruence between the national and European orders. This decision marked the latest in an ongoing dialogue between the ECJ and the FCC about the issue of fundamental rights provisions. The Solange decision itself originated in a case at first referred to the ECJ in 1970 by the Frankfurt administrative court. In its preliminary ruling in 1970, the ECJ stated that, in order to maintain the ‘uniformity and efficacy’ of Community law, the law could not be bound ‘by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure’.Footnote ³³ Equally aware of the growing outcry in Germany against this principle, the ECJ attempted to dampen the tensions by stating in its Nold decision, delivered just a fortnight before Solange, that it would ‘draw inspiration from the constitutional traditions common to the member states’ and could not ‘uphold measures which are incompatible with the fundamental rights established and guaranteed by the Constitutions of these States’.Footnote ³⁴ This built on the ECJ's Stauder decision from five years earlier, which had mentioned the ‘fundamental human rights enshrined in the general principles of community law and protected by the court’.Footnote ³⁵

The FCC plainly chose to ignore these peace offerings, declaring in Solange that:

This decision left the German government between the proverbial rock and hard place. While remaining supportive of European integration as an overall goal – the government had submitted a pro-ECJ opinion to the FCC, which was duly rejected – the Federal Republic now came under attack by the Commission and the European Parliament for the actions of its constitutional court, which of course the German government was bound to obey. The Commission sent a series of warning letters to the German government in the summer of 1974, threatening the start of an infringement proceeding hearing, a potentially embarrassing and expensive court case for failing to uphold its obligations under the treaty. The European Parliament was positively braying for such a resultFootnote ³⁷ and a meeting in the Commission's Legal Service, led by its German Director General, Walter Much, was so damning of the Solange logic, it deemed it a ‘significant attack’ on the integrity of the European legal system and claimed that the FCC was attempting to relegate the ECJ to the status of a second order court in Europe.Footnote ³⁸

The German government was desperate to avoid an infringement proceeding, which would have been embarrassing internationally and disastrous domestically for an SPD government keen to prove its pro-integration credentials. This was all the more so at a time when Germany's controversial Ostpolitik had led some to doubt the reliability of its Western alignment.Footnote ³⁹ Moreover, if the Commission were to attack the government, this would merely add fuel to growing anti-integration feeling in the national arena. One possible solution suggested by the justice ministry was to hope that a subsequent ruling by the First Senate of the FCC would disagree at the earliest possible opportunity with the Second Senate (which had issued Solange), so that a full plenary of the FCC could be called and the Solange decision might ultimately be overturned.Footnote ⁴⁰ Justice Minister Hans Jochen Vogel reported back to Schmidt in a cabinet meeting at the end of October 1974 about ministerial deliberations on the decision. He, like Much, stressed the danger that other member states might draw inspiration from the FCC's reasoning, which would be all the more ‘regrettable’ considering the government's impeccable pro-integration credentials until that point.Footnote ⁴¹ Top priority was, according to the results of one such meeting, to give the press and other commentators no reasons to play up the importance of the story.Footnote ⁴² The government indicated it had no desire to play the role of poster boy for elements within the Community keen to undermine the power and integrity of its legal system.Footnote ⁴³ This was far from successful, as the British Embassy in Bonn forwarded a letter to the foreign ministry in July 1975 asking to host a parliamentary scrutiny committee coming from London, which wanted to learn more from the Germans about promoting national oversight over the Community institutions!Footnote ⁴⁴ In response, the chancellor stated the urgent need for German representatives to the Community to ensure all legislation would meet the basic rights standards of the Basic Law. This was, at best, a rather desperate attempt to minimise the potential fallout from Solange.

Worse still, the battle with the Commission was only half of the struggle. There was also the issue of dealing with the concerns raised by the FCC in a reasonable and politically appropriate way. Being stuck between its own constitutional court and the European Commission was never going to be easy for the government, but the measures it took in trying to sideline the FCC really tested the limits of the separation of powers. Equally, the FCC did not seem at all reluctant to try to meddle in political affairs: the court's vice president (president of the Second Senate) Walter Seuffert used his political and social capital to ensure the FCC participated in the drafting of a response letter to the Commission, even though this was formally a competency of the foreign ministry. Indeed, the justice ministry sent Kai Bahlmann, who then led its public law section (and would later sit as a judge on the ECJ), to speak with Seuffert and pass on news of his exclusion on the grounds that this was now a political, not a legal issue.Footnote ⁴⁵ Seuffert was far from satisfied with thisFootnote ⁴⁶ and so appealed directly to Chancellor Schmidt, who in the presence of both foreign and justice ministers ensured that Seuffert would see the government's response before it was sent. By May 1975, Seuffert had a paragraph prepared that he demanded be included in the letter and declared that he would call the foreign ministry with additional amendments in June.Footnote ⁴⁷ The paragraph, which denied the claim that the FCC was trying to undermine the coherence of the Community legal system, was ultimately included in the German response.

The Reischl compromise

The ministries had already discussed several possible ways of working around the court's decision. One suggestion involved using the historically pro-integration First Senate of the court (which had ruled in the more pro-ECJ European Regulations case in 1967)Footnote ⁴⁸ against the Second Senate (which had ruled in Solange).Footnote ⁴⁹ Other more drastic options were floated – originating notably from the Legal Service's Much, who, as a massively experienced scholar in German constitutional law, must have known how radical his suggestions were. They included changing the laws that established the FCC, as well as a constitutional amendment to make integration easier.Footnote ⁵⁰ While none of these options were deemed viable or even desirable, the chancellor requested directly that the German government took extra care to ensure that Community legislation did not conflict with any national fundamental rights provisions.Footnote ⁵¹ Ultimately, the government's response letter to the Commission was conciliatory in nature, emphasising the common position of all sides on the need for basic rights provisions and the necessity for an integral and effective Community legal system. The letter also welcomed the ECJ's Nold decision, but further suggested that Germany would work to ensure that the ECJ had a real catalogue of rights in the treaties on which to call.Footnote ⁵²

It was during the negotiations with the Commission to postpone infringement proceedings that neither side wanted that a solution emerged to the dilemma confronting all sides. In the face of a conciliatory government letter, the worsening climate of the 1970s, and the fact that a prolonged battle on this issue would only increase awareness of the fact that fundamental rights provisions in European law were perceived as deficient, the Commission was more than willing to hold off from the threatened infringement proceedings.Footnote ⁵³ This suited the German approach perfectly. Instead, behind the scenes, negotiations began about a compromise first suggested by the German advocate general at the ECJ, Gerhard Reischl,Footnote ⁵⁴ in late 1974, which would see the Community tied officially to the standards of rights protection found in the European Convention of Human Rights.Footnote ⁵⁵

In 1973 Reischl had become Germany's second appointment as advocate general at the ECJ. Just two weeks into the job, he received an invitation for a thirty-minute conversation with Willy Brandt in the chancellor's office to discuss his role at the ECJ.Footnote ⁵⁶ The first topic of discussion was the lack of fundamental rights provisions in European law and Brandt, under prompting from the foreign and justice ministries, suggested in no uncertain terms that Reischl consider ways in which the ECJ might make improvements in this area. Reischl's arrival at the ECJ must have increased the already growing pressure on the ECJ to strengthen its human rights jurisprudence. This it did in the Nold case, delivered just a few months later, which went further than the Court's previous attempt to mollify national concerns on basic rights in Stauder. It did this by explicitly naming the ECHR as a potential source of ‘inspiration’ in its decision-making. In this lay the kernel of an idea that, when the time came, served as a basis for Reischl's suggestion for ending the Solange stand-off between the government, the Commission and the FCC.

After another thirty-minute conversation in the chancellor's office, this time with the new chancellor Schmidt on 8 November 1974, Reischl wrote a letter back to the chancellor just six days later making the point that, given the current political atmosphere in the Community, getting any kind of agreement on a fundamental rights catalogue, as demanded by the FCC, would be simply impossible. The European Parliament would be too slow and ungainly in drawing up such a document, despite parliamentary involvement being a necessary condition in the Solange decision. Another solution had to be found and Reischl suggested that perhaps a political declaration by the European institutions, initiated by the European Parliament, would be sufficient to persuade the FCC to change its mind. While the chancellor himself found the suggestion ‘sufficient and practical’,Footnote ⁵⁷ there were some significant reservations in the justice ministry about whether this would go far enough to satisfy the FCC.Footnote ⁵⁸ In fact the ministry undertook a fifty-page comparative study of the provisions of the ECHR and the Basic Law, finding many similarities between the two, but also areas where the ECHR was starkly insufficient in comparison. The German response to the idea of a Joint Declaration was hence lukewarm. The foreign ministry wanted to push for a legally binding initiative, not merely a declaration.Footnote ⁵⁹

Despite this, the justice ministry seemed willing to accept this as a temporary compromise, especially in the light of two subsequent events in 1975. First, the British membership referendum was just around the cornerFootnote ⁶⁰ and then second, later that year the justice ministry had received notification from the Embassy in Rome that the Italian Constitutional Court ruled in its Chimiche caseFootnote ⁶¹ in a manner mirroring the FCC's Solange reasoning. It seemed that the overarching goal of a functioning, effective Community legal system was more important to the Germans at this point and that some sort of progress towards securing human rights at the European level was preferable to waiting for the legally perfect but politically unrealistic solutions. The Solange ‘contagion’ was spreading and the threat of growing fragmentation of the Community's legal system at the hands of national constitutional courts was too great to bear. In these circumstances, neither the foreign nor justice ministry was ready to oppose a Joint Declaration as a starting point in a longer conversation on fundamental rights. By now, the European Parliament sitting on the Solange decision had taken place and had reached the conclusion that a Joint Declaration would be a practical and sufficient step forward, even though the ECJ had continued its expansion of fundamental rights jurisprudence in the Rutili decision in October 1975.Footnote ⁶² The momentum for a Joint Declaration was gathering.

The question now arose of how to get the European Parliament to initiate a declaration voluntarily binding the European institutions to the ECHR without it appearing that the supranational institutions were bowing to pressure from the FCC or that the German government was trying to circumvent its own constitutional court. This proved a tricky issue to solve. Eventually, though, a solution became apparent that made use of the working group on European rights created by the Paris Summit of December 1974. At a ministerial roundtable in Bonn in April 1975, it was decided to use this working group to push the issue of improving basic rights provisions.Footnote ⁶³ This was not entirely within the scope of the group – it had been tasked to ‘study the conditions and timing under which the citizens of the nine member states could be given special rights as members of the Community’, but the government seemed happy simply to hijack the meetings for the purpose of getting the issue onto the agenda of the European Parliament.Footnote ⁶⁴ Then, in addition, two pieces of fortunate timing helped relieve the situation. First, a year-long inquiry by the European Parliament on the consequences of the Solange decision was published in October 1975. The inquiry report was massively critical of the FCC – so much so that even the German government felt compelled to defend the FCC against the ‘one-sided negative portrayal of the decision’.Footnote ⁶⁵ Yet it did allow the government to get its views across strongly to the German MEPs, who were ordered to defend the FCC's position at every opportunity. To do this, the justice ministry even drew up ‘educational documents’ for use by the MEPs in plenary discussions. As a result, the European Parliament held a sitting specifically on the Solange decision in October 1976, which became part of the basis for the Joint Declaration by the European institutions in 1977.

The rest of the basis for the Joint Declaration related to the second piece of good timing, which was the release of a three-year-long report into basic rights protection by the Commission in February 1976.Footnote ⁶⁶ The Commission had been requested to undertake the study by the European Parliament in 1973, but due to the difficulties created by Solange and by the fact that the Commission had been patiently waiting for some kind of ‘balance’ to be reached in legal academic opinion, the report had been delayed. In particular, the report waited on the outcome of the 7th FIDE conference held in Brussels in 1975, at which prominent ECJ Justice, Pierre Pescatore delivered a particularly important assessment of European fundamental rights. Eventually in its delayed report, the Commission stated that it believed that the ECJ had done enough in its Nold jurisprudence, but because this had not satisfied the FCC, a Joint Declaration by the political institutions of the Community on the importance of fundamental rights would be necessary until such time as a rights catalogue could be completed. Both the foreign and justice ministries were delighted with their euphemistically named ‘special initiative’ in the European special rights working group. After all, as German officials were happy to point out to themselves, the Commission had got the idea of a Joint Declaration from German suggestions in that forum.Footnote ⁶⁷ There were no doubts that the Community institutions were starting to take ownership of the German idea, which suited the German government perfectly.

Bound to what?

The question now was to which set of human rights the Community institutions would bind themselves? It was apparent to everyone that creating a unique document for the Community itself would be politically impossible and as a result, the Reischl compromise, which identified the ECHR as a suitable paradigm, came to the forefront of discussions. This would not be without problems: the justice ministry had already found the ECHR deficient in comparison to the Basic Law in many respects. German legal academia agreed. In October 1976, a colloquium on European basic rights was held at Heidelberg University.Footnote ⁶⁸ The participant list at the meeting was a genuine Who's Who of the German and European judiciaries at the time, not least such luminaries as FCC president Ernst Benda, ECJ president Hans Kutscher, and advocate general Reischl himself. The economics, justice and foreign ministries all sent their European specialists, such as Ulrich Everling and Erich Bülow. The three-day event discussed specifically the Joint Declaration proposal, the limitations of the ECHR and the best way forward after Solange. What was striking about this meeting, especially considering the attendance by Benda, was the much more conciliatory tone towards the European institutions. Overall, the participants did not over-estimate the importance of the basic rights problem for the overall fate and destiny of European integration. The project itself was too important to let one problem bring it down. It was clear to many that a single attempt to create a basic rights catalogue would be insufficient and that this issue was only going to be solved through a gradual evolution towards sufficient rights protection. Most even went so far as to say that the rights protection afforded at that time by the European institutions would be sufficient for the time being.

So by the end of 1976 it was quite clear that the Joint Declaration, though far from perfect, would be the best way forward. It was drafted over the course of the next few months and published on 5 April 1977. What stands out most about the 1977 Joint Declaration was, in fact, the opening speeches made by the respective presidents of the institutions. British foreign secretary David Owen, representing the Council, stated clearly that ‘this proposal came from the European Parliament’ and Parliament President Emilio Colombo thanked ‘the courageous and determined Members of Parliament who originated this Declaration’.Footnote ⁶⁹ We now know quite clearly that the Joint Declaration had definitively not originated in the European Parliament – it was instead, for all practical purposes, the product of a thirty-minute conversation between the advocate general and the German chancellor in the latter's office on what we might imagine to be a cold November day in Bonn. Nonetheless, these speeches assigning ownership of the Declaration to the European Parliament rather adroitly dealt with the FCC's demand that the fundamental rights issue be settled by a parliamentary body,Footnote ⁷⁰ while at the same time saving face for the Commission and the German government. As resolutions to tricky disputes go, this was a particularly nimble example. To reinforce their support for human rights and parliamentary democracy, the European Council made an official ‘Declaration on Democracy’ at the Copenhagen Council meeting a year later in April 1978.Footnote ⁷¹ This was a precursor to the imminent direct elections to the European Parliament – another measure closely connected with the concerns for greater legitimacy for the Community during the 1970s.

It would, however, be wishful thinking to expect everyone to be pleased with this outcome. Some voices in the German legal academy spoke out against the compromise. One academic, Meinhard Hilf, who between 1973 and 1976 had worked for both the FCC and the Commission's Legal Service, was critical of the non-legally binding nature of the enterprise.Footnote ⁷² Hilf was confused by the purely rhetorical nature of the Declaration – the institutions were still not, in end effect, legally bound by any fundamental rights provisions. Moreover, Hilf argued, the ECJ had not been party to the document – it ‘bound’ only the three political institutions of the Community, and yet it had been the Court's interpretation of its duties in 1970 that had caused the problems in the first place. Even the German media remained critical, with the leading broadsheet, Frankfurter Allgemeine Zeitung, writing in June 1979 that the Community ‘still does not have basic rights’.Footnote ⁷³ By this time, the ECJ was extremely sensitive to criticism emerging from Germany. In October 1975, the ECJ had expanded on its rather equivocal reference to the ECHR in the Nold decision actually to use Protocol 4 of the Convention to rule in the Rutili case.Footnote ⁷⁴ This marked a substantive step forward in incorporating the ECHR into the body of ECJ case law. The ECJ also extended review for compliance with the ECHR not just to European legislation, but to member states’ actions too.Footnote ⁷⁵ However, with both the Commission and the ECJ now monitoring the responses in the national realm, particularly in Germany,Footnote ⁷⁶ we can imagine that the ECJ felt that the criticism that it had not taken part in the Joint Declaration gave it further reason to strengthen its fundamental rights jurisprudence. It did so in the Hauer judgment of December 1979. The ECJ boldly reiterated the developments in its basic rights case law throughout the 1970s, ultimately and rather self-confidently addressing the conditional approach adopted by the FCC in Solange, stating:

Convinced that it and its fellow European institutions had done enough to appease the FCC, the ECJ listed the developments in European basic rights since 1974 in its reasoning and, to reinforce the point, ruled using Article 1 of Protocol 1 of the ECHR combined with its own interpretation of the member states constitutional traditions. In 1986, the FCC rescinded its earlier Solange conditions.Footnote ⁷⁷ It had taken twelve years, but finally the confrontation between the FCC and the ECJ was over – at least on the issue of fundamental rights. The often forgotten secondary clause to Solange – the need for greater parliamentary input – in essence, the need for greater ‘structural congruence’ between the parliamentary democracy in Germany and the institutions of European governance – was not entirely fulfilled.Footnote ⁷⁸ The inception of direct elections to the European Parliament in 1979 – driven by impulses earlier than Solange itself – did not really bring about a comparable form of parliamentary democracy for Europe. In this, we find the genesis of the FCC's subsequent and highly controversial MaastrichtFootnote ⁷⁹ and LisbonFootnote ⁸⁰ decisions, as well as the most recent decision in this series involving the Euro Bailout Mechanism.Footnote ⁸¹

To accede or not to accede?

The final part to this story concerns Community deliberations as to whether full accession to the ECHR for the European institutions was possible or even desirable. This would take the Reischl compromise far beyond its original remit of just a simple political declaration on the ECHR. Actual membership posed a number of difficult questions about legal recourse, competence and legal representation that were as complex, if not more so, than the original process involved in legally integrating the member states of the Community.

The initial impulse for this move came from a cross-party grouping of Socialists and Liberals within the European Parliament towards the end of 1978. Having referred the issue to the Parliament's legal committee on 14 December 1978, and getting a statement of intent from the political committee in April 1979, the Commission's Legal Service quickly drew up a Green Paper that addressed some of the difficulties involved in accession to the ECHR.Footnote ⁸² The Legal Service stated that, due to the concerns raised in the German and Italian Constitutional Courts, there was a real and pressing need to create some kind of rights catalogue for the Community. However, it was noted that the ECHR was not as complete as most national provisions, lacked clear procedures for individual recourse, and most importantly, as a non-sovereign state entity, it was not entirely clear whether the Community could accede or not.Footnote ⁸³

The Commission, now under the presidency of Roy Jenkins, seemed determined to push ahead with the suggestion and published a memorandum with its intent to consider accession to the ECHR. Jenkins sent representatives of the Legal Service out to the member states at the end of 1979 to sound out the possible reactions towards accession. The director general of the Legal Service, Claus-Dieter Ehlermann, made contacts in Germany and the United Kingdom. Germany, understandably, was open to the suggestion. The justice ministry's Erich Bülow passed Ehlermann several internal documents intended for German MEPs and the legal committee of the Bundestag, which revealed the intention to draft a favourable reply to the Commission's memorandum.Footnote ⁸⁴ Ehlermann's visit to the House of Lords in London, however, did not go so well: the British gave the suggestion a frosty response.Footnote ⁸⁵ His visit right at the start of 1980 was during the height of the Irish troubles, with Lord Mountbatten having been assassinated just a few months earlier and the death toll of the conflict rising on both sides. Britain had long faced criticism for its tactics in dealing with Northern Ireland, not least from the European Parliament itself. Across the Channel, the battle continued to abolish the death penalty and allow the right to individual petition for French citizens to the ECHR. This came about finally in 1981 after a successfully contested campaign spearheaded by the Minister of Justice, Robert Badinter.Footnote ⁸⁶ The final nail in the coffin of the accession suggestion came from the ECJ itself. Its German president, Hans Kutscher, was reluctant to agree to the suggestion because of questions about who would represent the Community in actions at the ECHR and the fact that the ECHR was not always compatible, in Kutscher's view, with European law.Footnote ⁸⁷ Moreover, Kutscher was particularly worried about subjecting the ECJ to review by the ECHR. It seemed that the hierarchies among courts mattered not just in the member states.