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European Union—accession of the Community to the European Convention on Human Rights— competence of the Community under Article 235 of the Treaty Establishing the European Community—need to amend the Treaty

Published online by Cambridge University Press:  27 February 2017

Judith Hippler Bello ,
Juliane Kokott  and
Frank Hoffmeister
Juliane Kokott
Affiliation:
University of Düsseldorf/Max Planck Institute, Heidelberg
Frank Hoffmeister
Affiliation:
University of Düsseldorf/Max Planck Institute, Heidelberg
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Extract

Opinion 2/94, Accession of the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms. 17 Hum. Rts. L.J. 51 (1996).

European Court of Justice, March 28, 1996.

On April 26, 1995, die Council of the European Union requested an opinion on whether accession of the European Community to the European Convention on Human Rights (ECHR) was compatible with the Treaty Establishing the European Community (Treaty). In its request, the Council of the European Union stated that no decision on opening negotiations could be taken before the Court pronounced on die compatibility of accession with the Treaty. The Council argued that, even though a text of the envisaged agreement did not yet exist, the legal issues regarding accession were sufficientiy clear for the Court to provide an advisory opinion. The Council made clear that accession should not have any effect on the reservations entered by member states, which would “continue to apply in the areas falling within national jurisdiction.” It also explained that the “Community would agree to submit to the machinery for individual petitions and inter-State applications; actions between the Community and its Member States would, however, have to be excluded in recognition of the monopoly conferred in such matters by Art. 219 of the EC Treaty on the Court of Justice.”

Type
International Decisions
Information
American Journal of International Law , Volume 90 , Issue 4 , October 1996 , pp. 664 - 669
Copyright
Copyright © American Society of International Law 1996

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References

1 Council Request for an Opinion, para. 4, in 17 Hum. Rts. L.J. 51, 52 (1996).

2 Id.

3 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Art. 66, 213 UNTS 221.

4 Opinion 2/94, 17 Hum. Rts. L.J. 51, para. 36 [hereinafter Opinion].

5 Opinion 1/78, 1979 ECR 2871, para. 35.

6 Opinion 2/91, 1993 ECR I–1061, para. 7.

7 E.g., Joint Declaration by the European Parliament, the Council and the Commission on fundamental rights, 3 EC Bull. 5 (1977); Resolution of the Council and of the Member States on human rights, democracy and development, 11 EC Bull. 131, point 2.3.1 (1991). See the Court’s Summary preceding the Opinion, pt. III.5, 17 Hum. Rts. L.J. at 53.

8 Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 224) 1.

9 Opinion, para. 36.

10 Id., paras. 34–35.

11 Case C–260/89, Elliniki Radiophonia Tileorasi v. Dimotiki Etairia Pliroforissis, 1991 ECR I–2925, 2964, para. 42; Case 159/90, Society for the Protection of Unborn Children Ireland Ltd. (SPUC) v. Grogan, 1991 ECR I–4685, 4741, para. 31. For a progressive view on the reach of fundamental Community rights, see Joseph H. H. Weiler & Nicolas J. S. Lockhard, “Taking Rights Seriously,” 32 C.M. L. Rev. 579 (1995).

12 Joined Cases 45/87 & 227/88, Hoechst v. Commission, 1989 ECR 2859, 2924.

13 Niemitz v. Germany, 251–B Eur. Ct. H.R. (ser. A) at 34, paras. 30–31; Miailhe v. France, 256–C Eur. Ct. H.R. (ser. A) at 87, para. 28.

14 Case 374/87, Orkem v. Commission, 1989 ECR 3283, 3350, para. 30.

15 Funke v. France, 256-A Eur. Ct. H.R. (ser. A) at 22, para. 44; Murray v. United Kingdom, 17 Hum. Rts. L.J. 39, 45, para. 45 (1996).

16 Saunders v. United Kingdom, App. No. 19187/91, para. 71 (Commission report May 10, 1994).

17 Commission of the European Communities, Memorandum on the accession of the European Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms, EC Bull., Supp. No. 2, 1979, at 8, para. 7. See also Juliane Kokott, Menschenrechtsschutz im Rahmen der Rechtsordnung der Europäischen Gemeinschaften, in The Modern World of Human Rights—Essays in Honor of Thomas Buergenthal 135, 149–52 (A. A. Cançado Trindade ed., 1996) (including further references).

18 Commission’s Programme for 1990, EC Bull., Supp. No. 1, 1990, at 40, para. 72.

19 Opinion, paras. 32, 34.

20 Id., para. 35. For the wording, see text at note 10 supra.

21 Opinion, para. 35.

22 Id., para. 34.

23 This clause can be found in the EC framework agreements with the Cartagena Agreement and its member states (the Andean Pact), Bolivia, Colombia, Ecuador, Peru and Venezuela, 1993 O.J. (C 25) 32; and with Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama, 1993 O.J. (C 77) 31; as well as in cooperation agreements with Brazil, 1992 O.J. (C 163) 11; India, 1994 O.J. (L 223) 24; Sri Lanka, 1994 O.J. (C 86) 5; and South Africa, 1994 O.J. (L 341) 62. If the third state is a country participating in the Organization for Security and Co-operation in Europe, more recent agreements include references to human rights as denned in documents of the Conference on Security and Co-operation in Europe.

24 Cf. Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 60, 1155 UNTS 331, 8 ILM 679 (1969).

25 Article 130u, paragraph 2 of the Treaty, as amended by the TEU, supra note 8, reads: “Community policy in this area shall contribute to the general objective of developing and consolidating democracy and the rule of law, and to that of respecting human rights and fundamental freedoms.”

26 Opinion, para. 34.

27 Id.

28 Current status of ratification as of June 1, 1996. In the last four years, Bulgaria, Romania, Slovakia, the Czech Republic, Hungary, Poland, Estonia, Lithuania and Slovenia, among others, became parties to the Convention.