Re Accession of the Community to the European Human Rights Convention (Opinion 2/94)

JurisdictionEuropean Union
Date28 March 1996
CourtEuropean Court of Justice
Court of Justice of the European Communities.

(Rodríguez Iglesias, President; Kakouris, Edward, Puissochet, Hirsch, Presidents of Chambers; Mancini, Schockweiler (Rapporteur), Moitinho de Almeida, Kapteyn, Gulmann, Murray, Jann, Ragnemalm, Sevón and Wathelet, Judges; Lenz, Jacobs, La Pergola, Cosmas, Léger, Elmer, Fennelly and Ruiz-Jarabo Colomer, Advocates-General1)

Re Accession of the European Community to the Convention for the Protection of Human Rights and Fundamental Freedoms

Treaties — Conclusion and operation — European Community — Treaty-making powers — Whether European Community empowered to accede to European Convention on Human Rights, 1950 — Treaty establishing the European Community, 1957 (‘EC Treaty’) — Whether containing any provision conferring a general power on Community institutions to conclude international human rights conventions — Whether Article 235 of EC Treaty could provide a legal basis for accession to the Convention — Whether accession requiring amendment of EC Treaties

Human rights — Scope of protection within the European Community — Whether respect for human rights constituting a condition for the lawfulness of Community acts — Significance of the European Convention on Human Rights within the Community legal order — Whether accession of the Community to the Convention would entail a substantial change in the Community system for the protection of human rights, requiring a treaty amendment

International tribunals — Court of Justice of the European Communities — Jurisdiction — EC Treaty, Article 228(6) — Competence of Court to give opinions on the compatibility of proposed international agreements with provisions of the EC Treaty — Scope of competence — Whether reference for opinion concerning an envisaged agreement admissible even before negotiations have formally begun — The law of the European Community

Summary: The facts:—The Council of the European Union sought the opinion of the Court of Justice of the European Communities pursuant to Article 228(6)2 of the Treaty establishing the European Community (‘the Treaty’) on whether the European Community could accede to the Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (‘the Convention’). According to the Council, no decision could be taken on the principle of opening negotiations until the Court had considered whether such accession was compatible with the Treaty.

The Council, supported by the Commission, the Parliament and five Member States, argued that, while the text of the ‘agreement envisaged’ within the meaning of Article 228(6) of the Treaty did not yet exist, the request for an opinion was nevertheless admissible. The Convention to which the Community would accede was known and the legal issues to which accession would give rise were sufficiently clear, even if there were various possible solutions with regard to Community participation in the bodies established under the Convention. Other Member States argued, however, that the request for an opinion was inadmissible, or at least premature.

The Community institutions and eight Member States contended that Article 2353 of the EC Treaty constituted the legal basis for the envisaged accession, in the absence of specific provisions. They also contended that the accession, and in particular the submission of the Community to the legal system of the Convention, was compatible with Articles 164 and 219 of the Treaty. Five Member States argued against any application of Article 235. They also submitted that the accession was incompatible with Articles 164 and 219, in particular because it would call into question the autonomy of the Community legal order and the exclusive jurisdiction of the Court of Justice in matters of Community law.

Held:—The request for an opinion was admissible. In the present state of Community law, the Community had no competence to accede to the Convention.

(1) The purpose of the special procedure laid down by Article 228(6) of the Treaty was to ascertain, before the conclusion of an international agreement which would be binding on the Community, whether it was compatible with the Treaty. In this case, in order to assess the extent to which the lack of firm information regarding the terms of the envisaged agreement affected the admissibility of the request, two separate problems had to be distinguished: (i) the competence of the Community to conclude such an agreement; and (ii) the compatibility of the agreement with the provisions of the Treaty, in particular those relating to the jurisdiction of the Court of Justice (pp. 249–50).

(2) So far as competence was concerned, it was in the interests of the Community institutions and States concerned to have this question clarified from the outset, even before the main points of the agreement were negotiated,4 provided the purpose of the envisaged agreement was already known, which was clearly the case here. If the procedure under Article 228(6) was to be effective, it had to be possible to refer the question of competence to the Court not only as soon as negotiations had commenced but also before they had formally begun, provided they were clearly envisaged (pp. 250–2).

(3) The Court had been given no information regarding the arrangements by which the Community envisaged submitting to the judicial control machinery established by the Convention. Without information as to how the

Community would give effect in practice to such submission to the jurisdiction of an international court, the Court of Justice was not in a position to give an opinion on the compatibility of Community accession to the Convention with the rules of the Treaty (p. 252).

(4) It followed from Article 3b of the Treaty that the Community had only those powers which had been conferred upon it. That principle of conferred powers had to be respected in both the internal action and the international action of the Community. The competence of the Community to enter into international commitments derived both from express provisions of the Treaty and by implication.5 No Treaty provision, however, conferred on the Community institutions any general power (express or implied) to enact rules on human rights or to conclude international conventions in that field (p. 253).

(5) Article 235 was designed to fill the gap where no specific Treaty provisions conferred on the Community institutions express or implied powers to act, if such power nonetheless appeared necessary to enable the Community to carry out its functions with a view to attaining one of the objectives laid down by the Treaty. Article 235 could not, however, be used as a basis for the adoption of provisions whose effect would, in substance, be to amend the Treaty (p. 254).

(6) The importance of respect for human rights had been emphasized in various declarations of the Member States and of the Community institutions. Reference was also made to respect for human rights in the Single European Act and the Treaty on European Union, especially Article F(2) which provided that the Union was to respect fundamental rights, as guaranteed in particular by the Convention. It was also well settled that fundamental rights formed an integral part of the general principles of law whose observance the Court ensured. Respect for human rights was therefore a condition of the lawfulness of Community acts. Accession to the Convention would, however, entail a substantial change in the present Community system for the protection of human rights in that it would bring about the entry of the Community into a distinct international institutional system as well as integration of the Convention into the Community legal order. Such a modification of the system for the protection of human rights in the Community would be of constitutional significance and would therefore go beyond the scope of Article 235. It could be brought about only by way of Treaty amendment (pp. 254–5).

The text of the Opinion of the Court commences on the opposite page.

OPINION 2/94 OF THE COURT
28 March 1996

The Court of Justice has received a request for an Opinion, lodged at the Registry of the Court on 26 April 1994, from the Council of the European Union pursuant to Article 228(6) of the EC Treaty, which provides:

“The Council, the Commission or a Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of this Treaty. Where the opinion of the Court of Justice is adverse, the agreement may enter into force only in accordance with Article N of the Treaty on European Union.”

Summary
I—The request for an Opinion

1. The Council, represented by J.-C. Piris, Director-General of the Legal Service, J.-P. Jacqué, Director in the Legal Service, and A. Lo Monaco, of its Legal Service, acting as Agents, requests the Opinion of the Court on the following question:

“Would the accession of the European Community to the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (hereinafter ‘the Convention’) be compatible with the Treaty establishing the European Community?”

2. According to the Council, no decision on the principle of opening negotiations can be taken until the Court has considered whether the envisaged accession is compatible with the Treaty.

In its oral observations, the Council, whilst recognizing that the text of the envisaged agreement does not yet exist, submits that the request is admissible. The Council has not committed a misuse of procedure but is confronted by fundamental issues concerning legal and institutional order. Furthermore, the convention to which the Community would accede is known and the legal issues to which accession gives rise are sufficiently clear for the Court to be able to give an Opinion.

3. The Council, setting out the aim and objectives of the agreement envisaged, states its position on the scope of accession, Community participation in control...

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