Case law: A. Court of justice

Common Market Law Review

Volumn 33, Issue 5, 1996, Pages 973-989

  Gaja, Giorgio ^a  

^a NONE

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[No Author keywords available]

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EID: 26244450234     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: 10.54648/120055     Document Type: Article

References (27)

1. See, among the more recent contributions, the collections edited by Iliopoulos-Strangas, Grundrechtsschutz im europäischen Raum (Nomos, 1993)
2. and by Ungari and Pietrosanti Malintoppi, L'Unione europea e i diritti dell'uomo. L'adesione dell'Unione europea alla Convenzione di Roma (Euroma, 1995).
3. See also Jacobs, "European Community Law and the European Convention on Human Rights", in Curtin and Heukels (Eds.), Institutional Dynamics of European Integration, Essays in Honour of Henry G. Schemers, Vol. II (Kluwer, 1994), 561 et seq.
4. Memorandum on the accession of the European Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms, Bulletin of the European Communities, Supplement 2/79.
5. See Doc. SEC(90) 2087.
6. Supra note 3.
7. The question reads as follows: "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?".
8. House of Lords, Select Committee on the European Communities, Human Rights, 21 Oct. 1980.
9. House of Lords, Select Committee on the European Communities, Human Rights Re-Examined, 23 June 1992.
10. Opinion 1/78, 4 Oct. 1979, [1979] ECR 2871, at para 35.
11. This principle underlies the provisions of the Vienna Convention on the Law of Treaties, although it is not expressed with regard to negotiations. See UN Conference on the Law of Treaties, First Session, Vienna, 26 March-24 May 1968, Official Records, at 98 et seq.
12. It would be difficult to read in the Court's reiterated reference to the purpose of the agreement a view on the dispute between Commission and Council with regard to the import of Art. 113 of the EC Treaty. See Ehlermann, "The Scope of Article 113 of the EEC Treaty", in Etudes de Droit des Communautés européennes, Mélanges offerts à Pierre-Henri Teitgen (Pedone, 1984), 145 et seq. The Court's language appears to echo the wording "object and purpose of the treaty" which often recurs in the Vienna Convention.
13. As is well known, the Court gave two Opinions with regard to the Agreement for establishing a European Economic Area. See Opinion 1/91, [1991] ECR I-6079 and Opinion 1/92, [1992] ECR I-2821.
14. Opinion 1/94, [1994] ECR I-5267, at para 85; Opinion 2/92, [1995] ECR I-521, at para 32.
15. Thus Case C-159/60, Grogan, [1991] ECR I-4685, at para 31.
16. For an analysis of the Court's case law on this point I refer to my article "The Protection of Human Rights under the Maastricht Treaty", in Curtin and Heukels (Eds.), Institutional Dynamics of European Integration, Essays in Honour of Henry G. Schermers, Vol. II (Kluwer, 1994), 549 et seq.
17. See, for instance, Case C-260/89, ERT, [1991] ECR I-2925, at para 41. A reference to this paragraph may be found in para 33 of the Opinion which is commented on here.
18. Case 11/70, Internationale Handelsgesellschaft, [1970] ECR 1125, at para 4.
19. In Case 5/88, Wachauf, [1989] ECR 2609, at para 18, the Court said that "restrictions may be imposed on the exercise" of fundamental rights, "in particular in the context of a common organization of a market, provided that those restrictions in fact correspond to the objectives of general interest, pursued by the Community and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights".
20. I refer again to my article, supra note 14. It is to be noted that para 33 of the Opinion commented here fails to draw any consequence from Art. F(2) in this regard.
21. See the judgment in the case of the Swedish Engine Drivers' Union, ECHR, Publications, Series A, No. 20, at 18.
22. Case 104/81, Kupferberg, [1982] ECR 3641, at paras. 17-18.
23. Joined Cases 46/87 and 227/88, Hoechst, [1989] ECR 2859, at para 18. As is well known, the European Court of Human Rights later reached the opposite conclusion in Niemietz. ECHR, Publications, Series A, No. 251, at 25 et seq. The earlier Chappell case, No. 152, concerned the search of the applicant's home, which was part of a house also used as business premises.
24. Opinion 1/91, [1991] ECR I-6079, at para 40.
25. The conclusion of an accession agreement would imply that the case law inaugurated by the European Commission of Human Rights in the Melchers case could no longer be maintained. According to this case law (decision of 9 Feb. 1990 on the admissibility of the application No. 13258/87, Decisions and Reports, No. 64, 138 et seq.) Community acts are not reviewed because the protection given to human rights under Community law is considered to be equivalent to that granted under the European Convention.
26. The European Court of Human Rights would not necessarily have to decide over questions of division of competences between the Community and Member States. As was said in the Melchers case, cited supra, acts taken by State authorities under Community law are attributed to the State. Obviously, an accession agreement could provide otherwise and make the Community responsible for any measures taken under Community law whenever Member States are not using their discretion.
27. See the editorial comment "Fundamental rights and common European values", 33 CML Rev. 215 et seq.