The Founding Myth of European Human Rights Law: Revisiting the Role of National Courts in the Rise of EU Human Rights Jurisprudence

A conventional story argues that the ECJ developed a human rights jurisprudence in response to national pressures. The purpose of this article is to reconsider and nuance this simplistic understanding. First, the article underlines how the case law of the ECJ recognising fundamental rights as general principles of EU law predates the Solange case law of national courts. Secondly, the article carries out a structural examination of fundamental rights in the founding EU Member States and reveals that the mechanisms for human rights protection were weak—if not absent—in the majority of them. Thirdly, the article examines in depth the jurisprudence of national constitutional courts and emphasises how even in states like Italy or West Germany in the 1950s and 1960s constitutional courts were anything but aggressive in protecting fundamental rights. In conclusion, the article suggests that the rise of an EU human rights jurisprudence should be seen as the result of a transnational development consisting of greater sensitivity towards human rights at all levels of government—and not of a supranational response to national pressures.