Julianne Kokott, Professor of International Law at Heidelberg University, contributes to the essays with the work titled Menschenrechtsschutz im Rahmen der Rechtsordnung der Europäischen Gemeinschaften [The protection of human rights within the frame of the European Communities' legal system].

I Introduction

The author points out, as an introduction, Thomas Buergenthal's work, as a young professor, following the decisions of the Court of the European Communities, as referred in his notes in the American Journal of International Law. She recalls the review of the Van Gend & Loos case made by Buergenthal for said journal: in that case the Communities'' Court had decided that an individual could invoke directly before domestic tribunals the provisions of the [European] Constituent Agreements. The first publications of Thomas Buergenthal in the American Journal of International Law leave a vision on the set of issue that would later constitute the work of his life, something that has a most clear imprint of his effort and creativity in all related to the rights of the individual.

II The fundamental rights and rights assimilated to fundamental rights facing the european community's constituent agreement
It is made clear that the Community's Constituent Agreements, as opposed to most of the national constitutions do not have a list of fundamental rights, but that they do contain rights that may be assimilated to fundamental rights and that may be enforced at domestic tribunals. Among these rights we have the prohibition of discrimination and the basic freedoms. Article 6 of the European Community´s Constituent Agreement prohibits any kind of discrimination based on nationality within the Agreement´s sphere of application. Article 119 thereof orders similar payment for men and women. Freedom of domicile entails fundamentally the admission and exercise of independent industries as well as the establishment and direction of enterprises, particularly of companies under the receiving State's regulations applicable to its own citizens. Freedom of Service fulfills the work applicant's freedom of circulation and freedom of domicile, considering specifically as services: a) industrial activities, b) commercial activities, c) craftsmanship activities, d) activities related to free professions. This is why the Court of the European Communities has determined that pregnancy interruption services are included within the spirit of European Community's Constituent Agreement. The case of the persistent Irish prohibition of abortion extended also to the divulging of information n abortion in other member States, has often occupied the European Communities' Court as well as the organs of the European Convention on Human Rights and shows us once more the interdependence between both protection systems. In this section of the work there is also a review of the situation of medical and legal services: physicians may rely on freedom of service whenever they wish to travel to other community member countries to see patients, they may do it, by meeting certain requirements; lawyers may also make use of the freedom of service.

We are reminded also that the basic freedoms of the European Community's Agreement that may be assimilated to fundamental rights have the value within the Community of directly applicable law and an individual may avail himself thereof against the State of which he is a citizen. The courts of the individual States not being able to decide with the legal resources of domestic law may, under specific circumstances, invoke the Court of the European Communities.

There I an important quotation of a statement by the Counsel General to the Court of the European Communities, Carl Otto Lenz, according to whom the basic freedom and the prohibition of discrimination provided by the Constituent Agreements may be deemed as "the original fundamental rights of the Community".

III The linking of the community to human rights as developed by the european court

1. Grounds
Professor Kokott tells us that although a supra-national organization without effective guarantees of fundamental rights is not compatible with the tradition of the Member Countries'' Constitutions, the Court of the European Communities has developed guarantees based on the text of the Constituent Agreement that go beyond fundamental rights as general principles of law. The subsequent development of fundamental rights through the precedents of the Court of the European Communities was an essential premise for the Community's growing integration. It is seen how there is a subordination thereof to the principles of proportionality, of protection of confidentiality, of legitimacy of the administration, of legal security, of protection of good faith, of principles of the right to bee duly heard, of nec bis in idem, of the general principle of equal treatment, of the right to have access to the record, of the principle of the confidentiality of consultation with counsel etc.

2. The development of the doctrine on the fundamental rights by the Court of the European Community
There is a review of the case of Stauder against the city of Ulm. In it, the Court acknowledges that the Community law encompasses fundamental rights that it must protect. In the Nold case, the Court rules for the first time that besides the Members States' set of constitutional traditions account must be taken also of the international Agreements of which the member States where interested in their proper establishment or to which they contributed. There is an indication of the protection of international agreements on human rights. In the case of Hauer v. Rheinland-Pfalz, the Court established the protection of intellectual property by the member States' set of constitutional traditions in compliance with the European Convention on Human Rights.

It is observed that, within the frame of the law of the Community, fundamental rights are thus applicable as legal principles.

3. Basic rights of the individual as developed by the Court of the European Community
There is in this section an account of the several basic rights recognized until now by the Court in its decisions regarding the private sphere, of private life, protection of medical secret, inviolability of the home, the principle of equality and prohibition of discrimination, freedom of religion, freedom of association, freedom of profession, protection of ownership right, free access to employment, freedom of economic participation, freedom of opinion and publication, requirement of judicial protection of law and of due process, prohibition of retroactive effect of legal norms.

4. Direct application by the E.C.H.R. or adherence of the Communities to the E.C.H.R.
There is an explanation on how article 66 of the European Convention on Human Rights provides that the later remains open to the signing by members of the European Council. However, under the Statute's article 4, in order to become a member of the European Council a State must respect the basic principle of the predomination of Law and of human rights and basic freedoms.

There is an indication of the strong aspirations towards adhesion to the E.C.H.R. by the Communities.; during recent years the same may be said with regard to the European Council, which is preparing for the possible adhesion to the European Union of the new Eastern Europe democracies. It is said also that the Union Agreement's binding effect has made it clear once more that European integration is not limited to demands of economic progress. The European Council underlines that there is also, and above all, the need to create a space where to develop a political, economic, social and cultural vision, under the domain of freedom and the individual.

It is then commented that, after and adherence of the Communities to the E.C.H.R., the Court of the European Communities could, linked to the Strasbourg organs, reach a position being similar to that of the Members States' highest courts. Through adhesion, the Court of the European Communities could make it necessary to amend the Convention under article N of the European Union's Agreement.

IV. Interpretation of the fundamental right by the European Parliament, Council and Commission
Use is made of the need to quote how the law was construed by the European Parliament, Council and Commission. It is observed how the Community's organs recognize the fundamental rights as the constitutional traditions of the member States' general legal systems. It is noted also that the Court of the European Communities has cited the interpretation of the set of fundamental rights as an affirmation of the protection of fundamental rights already existing in the Community.

V. The Individual States' Fundamental Rights and the Community's Fundamental Rights
It is established that an effective protection of fundamental rights at the level of the European Communities is a condition precedent to the advance in the integration process. This is how the member States partially have a highly developed system for the protection of human rights in their constitutions. But it is added that at the level of member States, these may not rule in the void as established norms. since the authority of sovereignty in essential zones is no longer determined domestically but rather supra-nationally, hence the permanent transfer of competence to the Union

VI Concluding Thoughts
Professor Kokott concludes that the law of the Community is fitted with a developed and effective protection of fundamental rights. The scope of an effective protection of these rights, within the frame of the Community, grows wider with greater growth of integration. An intensive joint work with the Council of Europe and its organs protecting human rights must prepare also the leading of Eastern European countries to their admission to the European Union. The adhesion of the European Communities to the European Convention on Human Rights should lead. additionally, to the availability of a mandatory European interpretation of human rights.

She closes by saying: "Everything shows that the effective protection of the individual against violations of human rights, through the Communities and the member States, is a central need of the Community".