6 Colum. J. Eur. L. 1 (2000)
Koen Lenaerts. Judge, Court of First Instance of the European Communities; Professor of Law, Katholieke Universiteit Leuven.
On the eve of the Intergovernmental Conference which opened in Turin on 29 March 1996 with the task of drafting what was to become the Treaty of Amsterdam, the Court of Justice delivered an Opinion in which it found that: “As Community law now stands, the Community has no competence to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms” (hereinafter “the Convention” or “the European Convention on Human Rights”). Having noted that no provision of the Treaty establishing the European Community confers on the Community institutions any general power to enact rules on human rights or to conclude international conventions in this field, the Court proceeded to consider whether Article 235 (now Article 308) of the Treaty may constitute a legal basis for accession. The Court’s conclusion was that it may not, since in its view “accession to the Convention would […] entail a substantial change in the present Community system for the protection of human rights in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order.” Such a modification “would be of constitutional significance and would therefore be such as to go beyond the scope of Article 235.” The Court consequently concluded that it could be brought about only by way of Treaty amendment.
It is not the purpose of this article to assess the relative merits of the arguments developed by the Court and the various criticisms that have been leveled against them. It is concerned, rather, with the action that has been taken on the Court’s Opinion, which was a thinly veiled appeal to the Community legal order’s constituent power-namely, the Intergovernmental Conference which has authority under Article 48 (ex Article N) of the Treaty on European Union to amend the Treaties on which the Union is founded-to assume its responsibilities by amending the “constitutional charter” of that legal order to enable it to accede to the Convention. The suggestion did not, however, find favor with the framers of the Treaty of Amsterdam, signed on October 2nd, 1997, since that Treaty does not grant the powers that the Court considered necessary to open the way for the Community to accede to the Convention. One might therefore repeat-albeit this time with even greater emphasis-the words with which Professor Michel Waelbroeck greeted the Court’s Opinion: alea jacta est. There appears to be little immediate prospect of the wider Europe represented in the Council of Europe exercising direct control over the way in which fundamental rights are respected by the European Union.
It may nevertheless be of interest to examine, first, the place accorded to respect for fundamental rights in the Treaty of Amsterdam (under A below) and, second, possible developments in the area ofjudicial enforcement of respect for fundamental rights by the Community institutions (under B) and the Member States (under C).