Case Law: Opinion 2/94

2 Colum. J. Eur. L. 372 (1996)

Inge Bernaerts. Assistant at the Institute for European Law, Katholieke Universiteit Leuven and Attorney with Stibbe Simont Monahan Duhot, Brussels.

Opinion 2/94 of the Court, March 28, 1996, not yet reported in the ECR. Accession by the Community to international treaties; Admissibility of the request for an opinion; The European Convention for the Protection of Human Rights and Fundamental Freedoms.

Human rights are a hotly debated issue in the European Union. The controversy is not whether human rights form an integral part of European law and consequently bind the European institutions, Member States and the European citizens. That question was first adressed in 1969, when the Court of Justice, referring to the common constitutional traditions of the Member States and international instruments, confirmed the status of fundamental rights in the European legal order. The current debate concerns the Community’s competence to accede to the European Convention of Human Rights and Fundamental Freedoms, signed in Rome on November 4, 1950 in the framework of the Council of Europe (hereafter referred to as the Convention) and the compatibility of such accession with the EC Treaty.

1. The History of the Community’s Respect for Human Rights

Contrary to most national constitutions, the EC Treaty contains no enumeration of fundamental rights and freedoms upon which citizens can rely against the governmental authorities. The only specific reference to fundamental rights in the EC Treaty can be found in the last recital of its preamble, resolving “to preserve and strengthen peace and liberty.” However, the Court of Justice has guaranteed the protection of fundamental rights by classifying them as general principles of Community law, referring to the common constitutional traditions of the Member States and to international instruments, in particular the Convention. Because these general principles have the status of “law” as referred to in Article 164 of the EC Treaty,2 the Court of Justice shall ensure that fundamental rights are observed.

Drawing on that case law, the parties to the Single European Act, signed by the Member States on February 17, 1986, referred in the preamble to respect for the fundamental rights recognized in the constitutions and the laws of the Member States, in the Convention and in the European Social Charter. In turn, the Treaty on the European Union (TEU) states in Article F(2) that the Union”shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms . . . and as they result from the constitutional traditions common to the Member States, as general principles of Community law.” The fifth indent of Article J.l(2) of the TEU defines the development of the respect for human rights and fundamental freedoms as one of the objectives of the common foreign and security policy. Article K.2(1) contains an express reference to compliance with the Convention in the field of justice and home affairs.

Respect for fundamental rights has also been the subject of several political declarations by the Member States and the Community institutions. In particular, the Joint Declaration by the European Parliament, the Council and the Commission on fundamental rights of April 5, 1977 bears mention. In this document, the Community institutions jointly stressed the importance that they attach to the respect of fundamental rights.

Thus, while it is commonly accepted that fundamental rights and freedoms form an integral part of Community law, the Community as such has never become a member of the Convention. The first proposal for formal accession to the Convention was formulated by the Commission on April 4, 1979, and was more recently renewed in a Commission Communication dated November 19, 1990. On October 26, 1993, the Commission published a working document entitled “Accession of the Community to the European Convention of Human Rights and the Community legal order,” particularly addressing the issues of the legal basis for accession and the exclusive jurisdiction which the EC Treaty confers upon the Court of Justice. Similarly, the European Parliament has on several occasions made statements in favor of accession, most recently by a resolution of January 18, 1994. The Council, however, considered that before opening negotiations on the accession, the opinion of the Court should be heard.