1 See Commission Opinion on the Czech Republic’s Application for Membership of the European Union, Bull. Eur. Union, Supplement 14/97, 9 (1997) [hereinafter Commission Opinion on Application]. The Czech Republic has traditionally looked toward Western Europe, and the accession process will represent full integration into the Western European legal order. See Wiktor Osiaynski, Rights in New Constitutions of East Central Europe, 26 Colum. Hum. Rts. L. Rev. 111, 111 (1994).
2 See generally Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Czech Republic, of the other part, 1994 O.J. (L 360/2), as amended by 1996 O.J. (L 343/1) and explained in 1997 O.J. (C 141/5), available in 3 Encyclopedia of European Union Law § 43.2660, et seq. [hereinafter Europe Agreement].
3 Ministry of Foreign Affairs of the Czech Republic, Memorandum (visited Oct. 12, 1998) <http://www.czech.cz/english/132_eu.htm> [hereinafter Memorandum]. The Mem-orandum accompanied the Czech Republic’s application for membership in the EU and stated the reasons for its application. Ministry of Foreign Affairs of the Czech Republic, Czech-EU Relations (visited Oct. 12, 1998) <http://www.czech.cz/english/142.htm> [hereinafter Czech-EU Relations].
4 See generally Commission Opinion on Application, supra note 1.
5 See id. at 19–20. See also Council Decision 98/267 of 30 March 1998 on the Principles, Intermediate Objectives and Conditions Contained in the Accession Partnership with the Czech Republic, Annex, 1998 O.J. (L 121) 2, 3.2 [hereinafter Council Decision on Accession Partnership]. Roma (or Romany) is a synonym for Gypsy. See Jean-Marie Henckaerts & Stefaan Van der Jeught, Human Rights Protection Under the New Constitutions of Central Europe, 20 Loy. L.A. Int’l & Comp. L.J. 475, 475 n.21 (1998). The Roma are a minority in the Czech Republic who originally came from Northern India around the fourteenth century. See Marc W. Brown, The Effect of Free Trade, Privatization and Democracy on the Human Rights Conditions for Minorities in Eastern Europe: A Case Study of the Gypsies in the Czech Republic and Hungary, 4 Buff. Hum. Rts. L. Rev. 275 (1998). A full discussion of the Roma follows at infra notes 94–117 and accompanying text.
6 See Nanette A. Neuwahl, The Treaty on European Union: A Step Forward in the Protection of Human Rights?, in The European Union and Human Rights 1 (Nanette A. Neuwahl & Allan Rosas eds., Kluwer Law International 1995).
7 See Tara C. Stever, Protecting Human Rights in the European Union: An Argument for Treaty Reform, 20 Fordham Int’l L.J. 919, 958–61 (1997). For a discussion of the EU treaties and the lack of human rights provisions, see infra notes 9–21, 53–61 and accompanying text.
8 See id.
9 See generally Treaty Establishing the European Coal and Steel Community, Apr. 18, 1951, 261 U.N.T.S. 140 [hereinafter ECSC Treaty]; Treaty Establishing the European Atomic Energy Community, Mar. 25, 1957, 298 U.N.T.S. 167 [hereinafter Euratom Treaty]; Treaty Establishing the European Community (previously the Treaty Establishing the European Economic Community as renamed by the Treaty on European Union), Mar. 25, 1957, 298 U.N.T.S. 11 [hereinafter EC Treaty]; Hon. John P. Flaherty & Maureen E. Lally-Green, Fundamental Rights in the European Union, 36 Duq. L. Rev. 249, 255 (1998).
10 See European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 220 [hereinafter ECHR]; Diarmuid Rossa Phelan, Revolt or Revolution: The Constitutional Boundaries of the European Community 120 (1997). For a full discussion of the ECHR, see infra notes 22–34 and accompanying text.
11 See generally Joint Declaration by the European Parliament, the Council and the Commission of 5 April 1977, 1977 O.J. (C 103) 1; Joint Declaration Against Racism and Xenophobia, 1986 O.J. (C 176) 62; Resolution on the Joint Declaration by the European Parliament, the Council, the Representatives of the Member States Meeting within the Council and the Commission Against Racism and Xenophobia, 1986 O.J. (C 176) 63; Resolution on the Joint Declaration Against Racism and Xenophobia and an Action Programme by the Council of Ministers, 1989 O.J. (C 69) 40; Resolution Adopting the Declaration of Fundamental Rights and Freedoms, 1989 O.J. (C 120) 51; Resolution on Human Rights in the World in 1993 to 1994 and the Union’s Human Rights Policy, 1995 O.J. (C 126) 15; Resolution on Racism, Xenophobia and Anti-Semitism, 1995 O.J. (C 126) 75 and 1995 O.J. (C 308) 140; Resolution on Respect for Human Rights in the European Union, 1996 O.J. (C 320) and 1997 O.J. (C 132); and Resolution on Racism, Xenophobia and Anti-Semitism and the Results of the European Year Against Racism, 1998 O.J. (C 56).
12 See Single European Act, July 1987, [1987] 2 C.M.L.R. 741, Preamble, para. 5 (1987); Neuwahl, supra note 6, at 5.
13 See Flaherty & Lally-Green, supra note 9, at 316.
14 See id.
15 See Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 224), [1992] 1 C.M.L.R. 719, art. 6 (1992) [hereinafter TEU]. When the Treaty of Amsterdam entered into force on May 1, 1999, it renumbered the provisions of the TEU. See Note on the Citation of Articles of the Treaties in the Publications of the Court of Justice and the Court of First Instance, [1999] All ER (EC) 646 (1999) [hereinafter Note on the Citation of Articles]. Citations to the TEU in this Note reflect the renumbering.
16 Id. art. 6(2).
17 See id. art. 46. Article 6(2) only summarizes the ECJ’s jurisprudential development of the concept of human rights and therefore does not create any new obligations for the Member States. See Phelan, supra note 10, at 125. Consequently, Article 6(2) is not derived directly from textual authorization in the EU treaties and cannot provide a separate substantive basis for ECJ adjudication. See id.
18 See TEU, supra note 15, art. 46.
19 See id.
20 See id. art. 6(2), 46.
21 See Neuwahl, supra note 6, at 6–13. For a full discussion of ECJ human rights jurisprudence, see infra notes 35–52 and accompanying text.
22 See ECHR, supra note 10; Stever, supra note 7, at 948.
23 See European Convention on Human Rights, General Note, 3 Encyclopedia of European Union Law § 50.0015 [hereinafter Note on ECHR]. Although the UK, Ireland, and Denmark have signed the ECHR, its provisions have not been applied within the national legal order. See Neuwahl, supra note 6, at 20–21; Flaherty & Lally-Green, supra note 9, at 277.
24 See Note on ECHR, supra note 23, § 50.0015.
25 See Stever, supra note 7, at 949.
26 See Opinion 2/94, Re the Accession of the Community to the European Human Rights Convention, 1996 E.C.R. I-1759, [1996] 2 C.M.L.R. 265, 291 (1996). The ECJ determined that the EU treaties did not confer the power to enact human rights legislation or to accede to international human rights treaties. See id. at 290. Because EU action is authorized only when a treaty provision permits such action, the absence of a treaty provision prevents the EU from acting in the sphere of human rights. See id.
27 See Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, 1997 O.J. (C 340) art. L [hereinafter Treaty of Amsterdam]; TEU, supra note 15, art. 6(2); Flaherty & Lally-Green, supra note 9, at 316. For a full description of the Treaty of Amsterdam, see infra notes 53–61 and accompanying text.
28 See Stever, supra note 7, at 951.
29 See id.
30 See id. at 953–54.
31 See id. at 957.
32 See id.
33 See Stever, supra note 7, at 951–57.
34 ECHR, supra note 10, art. 14.
35 See Flaherty & Lally-Green, supra note 9, at 306–07.
36 See id. at 313–15. See also Phelan, supra note 10, at 139–40. The ECJ has already recognized the following rights: property, freedom of work, free exercise of commerce, professional activities, non-discrimination on the basis of sex, non-violability of the dwelling, non-arbitrary and proportionate government intervention in one’s private life, freedom of expression, respect for privacy, medical secrecy, and legal professional privilege. See id.
37 1969 E.C.R. 419, [1970] C.M.L.R. 112 (1969); see also Phelan, supra note 10, at 129.
38 1969 E.C.R. 419, [1970] C.M.L.R. 112 (1969).
39 See id.
40 Id. Because the Commission amended the Decision to allow Member States to choose from a number of ways of identifying the recipient (including ways that did not require Stauder’s name to be disclosed), the ECJ found that the Decision, as amended, did not violate any of his fundamental rights. See id.
41 1970 E.C.R. 1125, [1972] C.M.L.R. 255 (1970).
42 See id.
43 1974 E.C.R. 491, [1974] 2 C.M.L.R. 338 (1974).
44 See id.
45 See Case C-5/88, Wachauf v. Federal Republic of Germany, 1989 E.C.R. 2609, [1991] 1 C.M.L.R. 328 (1989).
46 Id.
47 Id.
48 1991 E.C.R. I-2925, [1994] 4 C.M.L.R. 540 (1991).
49 See Joined Cases 60 and 61/84, Cinéthčque v. Fédération Nationale des Cinémas Français, 1985 E.C.R. 2605, [1986] 1 C.M.L.R. 365 (1985); Case 12/86, Demirel v. Stadt Schwäbisch Gmünd, 1987 E.C.R. 3719, [1989] 1 C.M.L.R. 421 (1987). In Demirel, the ECJ held that even where EU law may be implicated, the implementation of a Member State law that does not have to implement EU law will not be subject to ECJ review for human rights compliance. See 1987 E.C.R. 3719, [1989] 1 C.M.L.R. 421 (1987).
50 1985 E.C.R. 2605, [1986] 1 C.M.L.R. 365 (1985).
51 Id.
52 See Neuwahl, supra note 6, at 11. See, e.g., Case 29/69, 1969 E.C.R. 419, [1970] C.M.L.R. 112 (1969) (where the ECJ made its first reference to human rights); Case C-5/88, 1989 E.C.R. 2609, [1991] 1 C.M.L.R. 328 (1989) (where the ECJ expanded its jurisdiction over human rights to include Member State implementation of EU law); Joined Cases 60 and 61/84, 1985 E.C.R. 2605, [1986] 1 C.M.L.R. 365 (1985) (where the ECJ refused to examine human rights when Member State action fell outside of the scope of the EU treaties).
53 See Flaherty & Lally-Green, supra note 9, at 260.
54 See id.
55 See id. at 264 n.74.
56 See Note on the Citation of Articles, supra note 15.
57 Treaty of Amsterdam, supra note 27, art. F(1).
58 Id. art. F(1). First, either one-third of the Member States or the Commission must submit a proposal to the Council regarding a serious and persistent breach by a Member State. See id. After receiving permission from Parliament, the Council must ask the Member State alleged to have committed the breach to submit its observations about the matter. See id. In order to determine that there has been a serious and persistent breach, the Council must unanimously agree. See id. If the Council has found such a breach, it may act by qualified majority to suspend some of the Member State’s treaty rights. See Treaty of Amsterdam, supra note 27, art. F(1).
59 See id.
60 Id. art. L.
61 See id.
62 See Commission Opinion on Application, supra note 1, at 11.
63 See id.
64 See id. The “Velvet Divorce” was the peaceful split of Czechoslovakia in 1993 into two political entities, the Czech Republic and Slovakia. See Rett R. Ludwikowski, Fundamental Constitutional Rights in the New Constitutions of Eastern and Central Europe, 3 Cardozo J. Int’l & Comp. L. 73, 130–31 (1995).
65 See Europe Agreement, supra note 2, § 43.2680.
66 See id. §§ 43.2710, 43.3982.
67 See id. § 43.2710. The Community Declaration on Articles 6 and 117 of the Agreement provides that “the reference to the respect for human rights” is an “essential element of the Agreement.” Id. § 43.3982.
68 See generally id. Article 8 sets forth the establishment of a free trade area. See Europe Agreement, supra note 2, § 43.2722. Article 97 covers cultural cooperation. See id. § 43.3256. Title VIII covers financial cooperation. See id. §§ 43.3262–43.3292.
69 See Commission Opinion on Application, supra note 1, at 9. TEU Article 49 permits any European state to apply for membership in the EU. See TEU, supra note 15, art. 49.
70 See Czech–EU Relations, supra note 3.
71 See generally Agenda 2000: For a Stronger and Wider Union, Bull. Eur. Union, Supplement 5/97 (1997) [hereinafter Agenda 2000].
72 See Commission Opinion on Application, supra note 1, at 9. At the same time the Commission issued its opinion on the Czech Republic’s application, it also submitted opinions on the applications from Bulgaria, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia, and Slovenia. See generally Agenda 2000, supra note 71, at 95 n.1.
73 See Commission Opinion on Application, supra note 1, at 9–10.
74 See EU Unveils Plans for New Members, E. Eur. Newsletter, Aug. 1997, at 160. The Copenhagen European Council criteria stipulate that:
(1) the applicant country must have achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities; (2) it must have a functioning market economy, as well as the capacity to cope with competitive pressure and market forces within the EU; and (3) it must have the ability to take on the obligations of membership, including adherence to the aims of political, economic and monetary union.
Id.
75 See Czech-EU Relations, supra note 3.
76 Council Decision on Accession Partnership, supra note 5.
77 See generally Ministry of Foreign Affairs of the Czech Republic, National Programme for the Preparation of the Czech Republic for Membership in the European Union (visited Oct. 12, 1998) <http://www.czech.cz/english/national.htm> [hereinafter National Programme].
78 See id.
79 See id.
80 See id.
81 See Czech Republic: Accession Partnership, 1998 O.J. (C 202) 14. In general, the EU views minority integration as necessary for democratic stability. See Agenda 2000, supra note 71, at 41–42.
82 See Czech Republic: Accession Partnership, supra note 81, at 18.
83 See Commission Opinion on Application, supra note 1, at 19.
84 See id. at 19–20.
85 See Charter of Fundamental Rights and Freedoms, art. 1 § 2, cited in Henckaerts & Van der Jeught, supra note 5, at 478 n.25 [hereinafter Charter]. The creation of explicit human rights protection was a result of the lack of such protection under the communist government. See Osiatynski, supra note 1, at 112.
86 See Charter, supra note 85, art. 3; Henckaerts & Van der Jeught, supra note 5, at 498.
87 See Henckaerts & Van der Jeught, supra note 5, at 478.
88 Ústavní zákon Ceské republiky (Constitution of the Czech Republic) art. 3, available at <http://www.czech.cz/english/constitution.htm> [hereinafter Czech Constitution].
89 See Henckaerts & Van der Jeught, supra note 5, at 478. When the Czech Constitution was created, a serious issue arose regarding whether to make the Charter part of the Constitution. See Eric Stein, Czecho/Slovakia: Ethnic Conflict, Constitutional Fissure, Negotiated Breakup 290 (1997). Ultimately, the Charter was incorporated as part of the Czech “constitutional order.” Id. at 291. Because the Charter was adopted by the Czechoslovak Constitutional Act, upon the split of Czechoslovakia into two states, that Act became an ordinary law rather than a constitutional law. See Henckaerts & Van der Jeught, supra note 5, at 478. Therefore, although the Czech Constitution incorporates the Charter, it is unclear whether the Charter receives the status of an ordinary law or a constitutional law. See id. This issue then becomes significant in the event a law is challenged for violating the Charter. The Constitutional Court has the power to hear cases arising from violations of Constitutional Acts or international treaties. See Czech Constitution, supra note 88, art. 87. Because it is unclear whether the Charter is a Constitutional Act or an ordinary law, it becomes unclear whether a remedy may be sought in the Czech Constitutional Court. Furthermore, because judges of the Constitutional Court are bound “only by constitutional laws and international treaties,” it is unclear whether judges are bound by the Charter in the adjudication of disputes. Id. art. 88.
90 Id. art. 10.
91 See id. art. 87.
92 See Note on ECHR, supra note 23, § 50.0015.
93 Czech Constitution, supra note 88, arts. 10, 87.
94 See Brown, supra note 5.
95 See Fred Bertram, The Particular Problems of the Roma, 2 U.C. Davis J. Int’l L. & Pol’y 173, 175 (1996).
96 See id. at 175–77.
97 See id. at 176, 179. The forced sterilization program in the Czech Republic occurred as recently as the 1960s and 1970s. See id. at 179.
98 See id. at 178–79.
99 See Commission Opinion on Application, supra note 1, at 19. The total population of the Czech Republic is around ten million. See id. at 91.
100 See Ladislav Holy, The Little Czech and the Great Czech Nation: National Identity and the Post-Communist Social Transformation 64 (1996).
101 See id. at 64–65.
102 See Brown, supra note 5. Eighty-five percent of those polled believe that the Roma should be excluded from their neighborhoods; ninety-two percent believe that the Roma are criminals; and eighty-three percent believe that the Roma should not receive welfare benefits. See id.
103 See Bertram, supra note 95, at 181.
104 See Henckaerts & Van der Jeught, supra note 5, at 498.
105 See Brown, supra note 5.
106 See id.
107 See id.
108 See id.
109 See id.
110 See Brown, supra note 5.
111 See Henckaerts & Van der Jeught, supra note 5, at 498. For example, in September 1993, a dozen armed, masked skinheads forced four Roma into the Otava River. See Skinheads Sentenced for Racially Motivated Murder, Ceskoslovenské noviny (New York), Oct. 30, 1998, at 3. Because the skinheads were throwing rocks at the Roma, thereby preventing them from coming out of the river, one of the Roma, 18 year-old Tibor Danihel, drowned. See id.
112 See Brown, supra note 5.
113 See id.
114 See Henckaerts & Van der Jeught, supra note 5, at 498.
115 See Brown, supra note 5.
116 See id.
117 See id.
118 See National Programme, supra note 77.
119 See id.
120 See Written Question No. 2927/97 by Elly Plooij-Van Gorsel to the Commission. Discrimination against the Roma population in the Czech Republic and Hungary, 1998 O.J. (C 117)[hereinafter Written Question].
121 See Skinheads Sentenced for Racially Motivated Murder, supra note 111, at 3.
122 See id.
123 See id. It is interesting to note, however, that the Czech court opened the case for resentencing only after Former Justice Minister Vlasta Parkanova lodged a complaint against the initial verdict. See id.
124 See EU Support for Roma Communities in CEECs, Rapid, July 14, 1998.
125 See id.
126 See Written Question, supra note 120.
127 See supra notes 9–21, 53–61 and accompanying text.
128 See id. See also supra notes 35–52 and accompanying text.
129 See supra notes 35–52 and accompanying text.
130 See supra notes 9–21, 35–61 and accompanying text.
131 See supra notes 81–84 and accompanying text.
132 See supra notes 6–8 and accompanying text.
133 See Stever, supra note 7, at 969. Within the past thirty years, Italy, Turkey, and Great Britain have received the highest number of human rights complaints. See id. at 969 n.320.
134 See Ian Ward, The Margins of European Law 144 (1996).
135 See Stever, supra note 7, at 969–70. Specifically, Northern Ireland has problems with due process, violence against human rights, and prisoners’ rights. See id. at 970–71.
136 See supra notes 85–93 and accompanying text.
137 See Note on ECHR, supra note 23, § 50.0015.
138 See supra note 23 and accompanying text.
139 See supra notes 81–84 and accompanying text.
140 See supra notes 6–8 and accompanying text.
141 See supra notes 53–61 and accompanying text.
142 See id.
143 See id. See also supra notes 35–52 and accompanying text.
144 See id.
145 See Stever, supra note 7, at 975–76.
146 See supra notes 81–84 and accompanying text.
147 See Stever, supra note 7, at 982–84.
148 See Ward, supra note 134, at 144.
149 See id.
150 See id. at 142.
151 See id. at 143–44.
152 See, e.g., Flaherty & Lally-Green, supra note 9, at 264 n.74 (discussing potential ratification problems for the Treaty of Amsterdam). Although the specific objections Member States might raise to a human rights provision are rather speculative, it is important to note that each Member State responds differently to new treaty provisions. See id. For example, the French are concerned that the Treaty of Amsterdam may conflict with the French Constitution. See id. As occurred with the ratification of the TEU, the Danish government continues to face anti-Europe sentiment. See id. On the other hand, Sweden and Germany have already overwhelmingly approved the Treaty of Amsterdam. See id.
153 See Flaherty & Lally-Green, supra note 9, at 264 n.74.
154 See Stever, supra note 7 at 975–76.
155 See supra notes 35–61 and accompanying text.
156 See supra notes 150–53, 157–59 and accompanying text.
157 See Phelan, supra note 10, at 123 n.243. ECHR Article 66(1) explicitly requires that states acceding to the ECHR be members of the Council of Europe. See ECHR, supra note 10, art. 66(1).
158 See id.
159 See Opinion 2/94, supra note 26. This impediment then implicates the problem of generating unanimous support from the Member States. See supra notes 152–53 and accompanying text.
160 See supra notes 145–53 and accompanying text.
161 See supra notes 94–117 and accompanying text.
162 See supra notes 81–84 and accompanying text.
163 See supra note 58 and accompanying text.
164 See supra notes 145–49 and accompanying text.
165 See supra notes 35–52 and accompanying text.
166 See supra note 23 and accompanying text.
167 See Stever, supra note 7, at 983–84.
168 See supra note 71 and accompanying text.
169 See Case 26/62, van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963 E.C.R. 1. In van Gend en Loos, a Dutch national challenged a Dutch law reclassifying ureaformaldehyde, claiming that the law violated Article 12 [now Article 25] of the EC Treaty. See id. The ECJ held that because Article 12, prohibiting an increase in customs duties on imports, expressly grants rights and clearly defines them, an individual can invoke that treaty provision against other individuals, Member States, and EU institutions. See id.
170 See id.
171 See EC Treaty, supra note 9, art. 226. The Treaty of Amsterdam renumbered the EC Treaty when it entered into force on May 1, 1999. See Note on the Citation of Articles, supra note 18. Citations in this Note to the EC Treaty reflect this renumbering. Article 226 authorizes the Commission to address a Member State’s failure to fulfill a treaty obligation by submitting a reasoned opinion to the Member State for review. See id. If the Member State does not comply with the Commission’s opinion, the Commission may then institute an ECJ action against the Member State. See id.
172 See EC Treaty, supra note 9, art. 249. Article 249 authorizes the Parliament, Council, and Commission to jointly adopt regulations, directives, and decisions in order to carry out treaty provisions. See id.
173 See id.
174 See supra notes 169–73 and accompanying text.