Right to Life of the Unborn v Promotion of Trade in Services: The European Court of Justice and the Normative Shaping of the European Union

Abstract

This Protocol, which by virtue of Article 239 EEC will have the same effect as a Treaty Article, exists to protect the Irish constitutional right to life of the unborn, not from the written provisions of the Treaty on European Union or feared secondary legislation thereunder, but from the jurisprudence of the European Court of Justice. This article argues that the Court has, by reference to its economic and federal teleology of Community objectives, evolved certain legal techniques applicable to human rights which will point the Community in new normative directions. These techniques, supported by the doctrines of supremacy over, and direct effect in, national law,2 are brought into play when national constitutional rights which the Court does not adopt as its own3 are held to have economic implications. The techniques are used to control the three dimensions of conflict between state and federal competencies, between a moral and an economic ideal of what is fundamental (and hence different ideas of fundamental rights), and between different legal doctrines of justification. The techniques are as follows. First, the definition of an act as a service solely on account of its economic significance, regardless of the unconstitutional and criminal nature of that act in national law. Second, the prohibition as a matter of principle of all impediments to the freedom of services, even if caused by disparities between national constitutional rights. Third, the use of fundamental rights to expand the free movement of services and to incorporate thereby supreme rights, based on different values and supported by the doctrines of supremacy and direct effect, for market participants. Fourth, the testing of national constitutional rights as derogations from economic principle. The article questions the desirability of th.ese techniques and also the general solution provided by the Treaty on European Union as well as the particular response to the Article 40.3.3 problem in the Protocol and the recent Declaration on the Protocol instigated by the Irish government. An alternative is proposed in the form of a teleological jurisdictional rule. This article focuses on the structure of argument in Society for the Protection of the Unborn Child v Grogan in the light of the Court's supporting decisions and