Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 24833/94

Denise Matthews

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 29 October 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-23) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(para. 17). . . . . . . . . . . . . . . . . . . . .3

B. Relevant non-Convention law

(paras. 18-23). . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 24-70) . . . . . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 24). . . . . . . . . . . . . . . . . . . . .6

B. Points at issue

(para. 25). . . . . . . . . . . . . . . . . . . . .6

C. As regards Article 3 of Protocol No. 1 to the Convention

(paras. 26-64). . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 64). . . . . . . . . . . . . . . . . . . . 13

D. As regards Article 14 of the Convention, taken together with

Article 3 of Protocol No. 1

(paras. 65-68). . . . . . . . . . . . . . . . . . 13

CONCLUSION

(para. 68). . . . . . . . . . . . . . . . . . . . 13

E. Recapitulation

(paras. 69-70). . . . . . . . . . . . . . . . . . 13

Page

CONCURRING OPINION OF Mr E. BUSUTTIL. . . . . . . . . . . . 14

CONCURRING OPINION OF Mr F. MARTINEZ. . . . . . . . . . . . 16

CONCURRING OPINION OF Mr L. LOUCAIDES . . . . . . . . . . . 17

DISSENTING OPINION OF MM A. WEITZEL, C.L. ROZAKIS, M.P. PELLONPÄÄ,

B. CONFORTI and N. BRATZA . . . . . . . . . . . . . . . . . 19

DISSENTING OPINION OF Mr H.G. SCHERMERS . . . . . . . . . . 27

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 28

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a British citizen, born in 1975 and resident in

Gibraltar. She was represented before the Commission by Mr M. Llamas,

barrister and avocat at the Court of Paris.

3. The application is directed against the United Kingdom. The

respondent Government were represented by Mr M. Eaton, Agent of the

Government of the United Kingdom.

4. The case concerns the applicant's complaints that she was not

entitled to vote in the 1994 elections to the European Parliament. The

applicant invokes Article 3 of Protocol No. 1 to the Convention.

B. The proceedings

5. The application was introduced on 18 April 1994 and registered

on 5 August 1994.

6. On 10 January 1995 the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 22 May 1995 after

two extensions of the time-limit fixed for this purpose. The applicant

replied on 10 July 1995. On 26 May 1995 the Commission granted the

applicant legal aid for the representation of her case.

8. On 27 November 1995 the Commission decided to hold a hearing of

the parties. The hearing was held on 16 April 1996. The Government

were represented by MM Martin Eaton, Agent of the Government,

David Anderson, Counsel and Donald Macrae, Cabinet Office Legal Adviser

and Robert Gwynn, Foreign and Commonwealth Office, Advisers. The

applicant was represented by Mr Michael Llamas, Barrister,

Ms Jill Keohane, Legal Draftsman to the Gibraltar Government and

MM Lewis Baglietto and Fabian Picardo, Barristers.

9. On 16 April 1996 the Commission declared the application

admissible.

10. The text of the Commission's decision on admissibility was sent

to the parties on 24 April 1996 and they were invited to submit such

further information or observations on the merits as they wished. The

Government submitted observations on 20 June 1996, to which the

applicant replied on 8 July 1996.

11. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

B. CONFORTI

N. BRATZA

J. MUCHA

C. BÎRSAN

P. LORENZEN

K. HERNDL

13. The text of this Report was adopted on 29 October 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

15. The Commission's decision on the admissibility of the application

is annexed hereto.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. The applicant applied on 12 April 1994 to the Electoral

Registration Officer for Gibraltar to be registered as a voter at the

elections to the European Parliament. The Electoral Registration

Officer replied on 25 April 1994 that:

"The provisions of Annex II of the EC Act on Direct Elections of

1976 limit the franchise for European Parliamentary Elections to

the United Kingdom. This act was agreed by all member states and

has treaty status. This means that Gibraltar will not be

included in the franchise for the European Parliamentary

Elections."

B. Relevant non-Convention law

18. Gibraltar is a dependent territory of the United Kingdom. It is

largely self-governing. The Gibraltar Constitution Order 1969 provides

for a Governor, who is the representative of the sovereign in the

territory. He has very wide powers, executive authority is vested in

him, and he is directly responsible for external affairs, defence and

internal security. Certain "defined domestic matters" are allocated

to the locally elected chief minister and his ministers (called "the

Government", although there are in fact two separate bodies, the

Gibraltar Council and the Council of Ministers). These domestic

matters include public utilities, social services and matters clearly

affecting the economy of Gibraltar, such as tourism, trade and

commerce. The Gibraltar House of Assembly is allowed to make laws on

defined domestic matters, but may not consider a Bill which is not a

"defined domestic matter" without the consent of the Governor, who in

all cases retains power to refuse assent to legislation passed by the

House of Assembly. The United Kingdom Parliament retains ultimate

power to legislate in Gibraltar, and the United Kingdom Government has

residual power to legislate by Order in Council.

19. European Community legislation which requires transposition into

domestic law before it can take effect enters Gibraltar law in one of

three ways. Section 23 of the Interpretation and General Clauses

Ordinance 1984 enables the Government of Gibraltar to make regulations

for transposition without recourse to the House of Assembly. According

to the applicant, this is the most common method of transposition.

Community legislation can be also transposed by Ordinance of the

Gibraltar Government. Acts on Accession of new member states have been

transposed in this way. The third manner of giving effect to Community

legislation is under the European Communities Ordinance 1972, which

gives the Governor power to make regulations subject to the approval

of the House of Assembly. According to the Government, this is the

method of transposition generally used to give effect to Community

legislation.

20. Gibraltar is part of the territory of the European Union because

the United Kingdom is responsible for its external relations within the

meaning of Article 227 (4) of the EC Treaty. EC law is therefore

applicable in Gibraltar. Certain areas of EC law, such as the rules

on the Common Agricultural Policy, the Common Commercial Policy, and

Value Added Tax, do not apply.

21. The EC Act on Direct Elections of 1976 is annexed to Council

Decision 76/787/ ECSC, EEC, Euratom. The Council Decision itself is

signed by the President of the Council and by the Ministers

representing the Member States as members of the Council. The Decision

recommends States to adopt the provisions of the Act in accordance with

their respective constitutional requirements, and requires them to

notify the Council when the procedures have been completed. The Act,

signed on behalf of the Member States, declares that the

representatives of the States shall be elected by direct universal

suffrage, and creates the framework for direct elections to the

European Parliament. Annex II, which is stated in the Act to be an

integral part thereof, declares "The United Kingdom will apply the

provisions of the Act only in respect of the United Kingdom". Its

provisions were enacted into United Kingdom domestic law by the

European Parliamentary Elections Act 1978.

22. The Treaty on European Union (TEU) entered into force on

1 November 1993. The following matters are of particular relevance in

the present case (references to TEU are to the provisions which were

introduced by that Treaty; references to the EC Treaty are to

pre-existing provisions).

1. Article 138b TEU entitles the European Parliament formally to

request the Commission for appropriate proposals on "matters on

which it considers that a Community act is required ...".

2. Article 189 TEU lists as the bodies which make regulations and

issue directives the European Parliament acting jointly with the

Council, the Council acting alone, and the Commission.

3. Article 189b TEU provides for an increased role for the

Parliament in the passing of certain types of legislation. Under

Article 189b the Parliament has a genuine power of co-decision

with the Council: that is, both Parliament and Council must agree

before an act may come into being under Article 189b. Any act

passed under Article 189b is signed by the President of the

Parliament and the President of the Council.

Article 189b applies where "reference is made in this Treaty to

this Article for the adoption of an act". In the context of

legislative measures, the Article 189b procedure is used mainly

for acts relating to the completion of the internal market.

4. Article 189c TEU provides for an increased role for the European

Parliament in connection with other types of legislation. Under

Article 189c, if the European Parliament rejects a common

position (adopted by the Council after a procedure involving the

Commission), the Council may ultimately only adopt the act by

unanimity. The full text of Article 189c is set out in the Annex

to the present decision. Article 189c applies where "reference

is made in this Treaty to this Article for the adoption of an

act". The Article 189c procedure is used as a consultation and

co-operation mechanism in connection with, for example, certain

transport matters (Article 75 TEU), the implementation of the

Social Fund (Article 125 TEU) and certain environmental measures

(Article 130s TEU).

5. Article 158 (2) TEU increases the European Parliament's influence

and powers in the appointment of the President and members of the

Commission; the power to pass a motion of censure (Article 144 EC

Treaty) is retained, and in addition to its power to put

questions to members of the Commission (Article 140 EC Treaty),

the European Parliament may now set up Commissions of Inquiry

(Article 138c TEU).

6. The TEU does not affect the powers of financial control of the

European Parliament over the other organs of the European Union.

23. It appears that in 1994 some 21 Regulations and Directives were

adopted pursuant to Article 189b, of which nine were applicable to

Gibraltar, including Directives relating to vehicle emissions and

credit institutions. In 1995, some 10 Regulations and Directives were

adopted pursuant to Article 189b, of which five were applicable to

Gibraltar, including Directives relating to insurance, noise emission

and data protection. In the first half of 1996, two Regulations and

Directives were adopted pursuant to Article 189b (relating to credit

institutions and the legal protection of data bases) both of which were

applicable to Gibraltar. According to information provided by the

parties, in 1994 there were a total of 3385 (or 3373) Regulations

adopted by the Council and Commission and published in the Official

Journal of the European Communities. The equivalent figure in 1995 was

3096 (or 3082) and, in the first half of 1996, 1116.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

24. The Commission has declared admissible the applicant's complaints

concerning her inability to vote in elections to the European

Parliament elections from Gibraltar.

B. Points at issue

25. Accordingly the points at issue in the present case are:

- whether there has been a violation of Article 3 of Protocol No. 1

(P1-3) to the Convention, and

- whether there has been a violation of Article 14 of the

Convention, taken together with Article 3 of Protocol No. 1

(Art. 14+P1-3).

C. As regards Article 3 of Protocol No. 1 (P1-3) to the Convention

26. Article 3 of Protocol No. 1 (P1-3) provides as follows:

"The High Contracting Parties undertake to hold free elections

at reasonable intervals by secret ballot, under conditions which

will ensure the free expression of the opinion of the people in

the choice of the legislature."

27. The Government contend that the Commission has no jurisdiction

to entertain the present application and, in the alternative, that the

applicant's claim falls outside the scope of Article 3 of Protocol

No. 1 (P1-3). Three principal grounds are relied on by the Government

for their contention.

28. (a) The Government's first principal objection is that the Act

which gave rise to the direct elections to the European Parliament, and

the Annex which limited its applicability to the United Kingdom, fall

within the European Community legal order and are therefore not subject

to review by the Convention organs.

29. As to Annex II, the Government point out that the Annex is an

integral part of the Act, unlike the German declaration to the Act

which was unilateral and could be (and was) unilaterally amended by

Germany, and that any amendment to the Annex would have to be agreed

by all member states of the Union. The exclusion of Gibraltar from the

European Parliament elections therefore derives from an act for which

the United Kingdom has no responsibility under the Convention.

30. As to the Act itself, the Government underline that although the

Act was annexed to a Council decision and has equivalent status to a

Community treaty, it is a treaty of a special nature. This special

nature stems both from the origin of the treaty - the obligation in

Article 138 (3) EC to lay down appropriate provisions for elections to

the European Parliament - and from the requirement in the Decision to

which the Act is annexed that the Council is to be notified of the

procedures for its adoption. The Act itself is therefore not an

ordinary international treaty for which the United Kingdom may be

responsible under the Convention, but is part of European Community

law, a distinct legal order for which the United Kingdom cannot bear

responsibility under the Convention.

31. In the Government's submission, the Commission's inability to

consider these matters is underscored by the debate on Community

accession to the Convention: it is because Community acts are not

subject to scrutiny by the Convention organs that Community accession

is being considered. Until such accession, Community acts cannot be

considered by the Convention organs.

32. In this connection, the Government add that there is no doubt

that at the time of the EC Act on Direct Elections, the European

Parliament (or Assembly, as it then was) was not a legislature within

the meaning of Article 3 of Protocol No. 1 (P1-3), and even on the

applicant's analysis, the Government have not taken any specific step

since then which could give rise to the responsibility of the United

Kingdom under the Convention.

33. (b) The Government's second principal contention is that the

European Parliament is not a "legislature" within the meaning of

Article 3 of Protocol No. 1 (P1-3) to the Convention, so that the

provision does not apply in any event.

34. The Government suggest, as a working definition of what is a

"legislature", that a legislature may normally be said to have two

particular characteristics: the power to initiate legislation, and the

power to adopt it. In the Community legal order, the Council of

Ministers corresponds most closely to a legislature as it is understood

at national level.

35. For the Government, the European Parliament's only legislative

powers in the strict sense are the powers contained in Article 95 (3)

of the European Coal and Steel Community Treaty, which provides for the

Parliament to adopt, on its own and by a majority of three quarters of

the votes cast, certain minor amendments to the powers of the

Commission in the field of coal and steel. The powers have apparently

not been used since 1960, and were regarded as negligible by the

Commission in the Alliance des Belges case (No. 8612/79, Dec. 10.5.79,

D.R. 15, p. 259).

36. Article 138b of the EC treaty defines the role of the Parliament

as being "to participate in the process leading up to the adoption of

Community Acts", which participation amounts to neither a right to

initiate nor a power to enact legislation on its own account.

37. As to the right to initiate legislation, the Government point out

that Article 138b provides only that the European Parliament may

request the European Commission to submit a proposal on a matter on

which it considers a Community Act is required. Such a provision

merely emphasises the paramount role of the Commission in proposing new

legislation.

38. As to the right to enact legislation, the Government recall that

there are large areas of European Union activity in which the European

Parliament plays no significant part at all: in particular, it plays

no part in the implementation of the common commercial policy and a

marginal role only is ascribed to the Parliament in the field of

economic and monetary union. Further, the European Parliament never

has any independent power to adopt legislation, but rather, at most,

can have an influence on, or block, the content of legislation. Only

the Article 189b procedure is new since the last time the Commission

considered questions relating to the European Parliament in the case

of Tête v. France (No. 11123/84, Dec. 9.12.87, D.R. 54, p. 52). The

Article 189b procedure merely expands what was a veto power which could

only be exercised with any one member state in the Council, into a

unilateral veto. However, the Article 189b procedure itself is only

used in limited fields, and it is used relatively rarely.

39. (c) The Government contend that the European Parliament does not

in any event in Convention terms form the "legislature" or part of it

in Gibraltar because the term "legislature" in Article 3 of Protocol

No. 1 (P1-3) must be taken to mean the national legislature of the

Contracting Parties, and not the organs of supranational organisations

such as the Community.

40. The Government consider that the question of whether the European

Parliament is capable of forming part of the national legislature (and

thus rendering applicable Article 3 of Protocol No. 1 (P1-3)) has

always been left open by the Commission in the case-law. They add that

it cannot be said that the member states have delegated their powers

to legislate to the European Parliament since the European Parliament,

as an institution of the Community, operates within the Community legal

order, and not that of the member states.

41. Further, Gibraltar falls outside the scope of considerable areas

of the law of the European Communities: it does not form part of the

customs territory; it is treated as a third country for the purposes

of the Common Commercial Policy; it is excluded from the common market

in agriculture and trade in agricultural products; and it is exempt

from Community rules of value added and other turnover taxes. In

addition, Gibraltar makes no financial contribution to the Community's

finances. In these circumstances, the Government regard it as even

more difficult to conceive of the European Parliament as part of the

legislature in Gibraltar than it would be in, for example, the United

Kingdom or France.

42. The applicant contests each of these submissions made by the

Government.

43. (a) The applicant does not agree that the EC Act on Direct

Elections with Annex II falls outside the scope of the Convention

organs' jurisdiction. She agrees with the Government that the Act is

a treaty, but does not accept that it has any special status. For her,

it is a treaty like any other treaty and if a State, having become a

party to the Convention, subsequently concludes a treaty which disables

it from performing its obligations under the Convention, it is

answerable for any resulting breach of its obligations under the

Convention. She refers to Convention case-law to this effect

(No. 235/56, Dec. 10.6.58; the above-mentioned Tête decision).

44. As to Annex II to the Act, the applicant underlines that the

Annex was included in the Act as a result of the unilateral wish of the

United Kingdom, that the United Kingdom was under no obligation to add

Annex II, that the real aim of Annex II was to exclude the Channel

Isles and the Isle of Man from the scope of EC elections (because the

Channel Isles do not form part of the EU, unlike Gibraltar) and

moreover, that nothing required the United Kingdom to interpret, or

continue to interpret, Annex II in such a way as to exclude Gibraltar

from the application of the Act on Direct Elections.

45. The applicant recalls that Gibraltar is the United Kingdom's

responsibility in the European Community, and in signing the treaty of

direct elections, the United Kingdom had the power, and the obligation,

to provide for the enfranchisement of citizens of the Union who live

in Gibraltar.

46. The applicant argues that, when she applied for registration as

a voter in the 1994 elections to the European Parliament, the European

Parliament had become part of the legislature in Gibraltar by virtue

of the accretions of power to that body culminating in the Treaty on

European Union, and that the United Kingdom is responsible for the

ensuing breach of Article 3 of Protocol No. 1 (P1-3) because of its

declaration extending the scope of the Convention to Gibraltar. She

does not accept that the fact that the European Parliament was not a

legislature in 1976, the date of the EC Act on Direct Elections, can

affect the Government's responsibility under the Convention, pointing

out that the assembly of the Flemish Region and Community had likewise

not existed when Belgium ratified Protocol No. 1 (Eur. Court HR,

Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987,

Series A no. 113).

47. (b) In contesting the Government's second principal submission,

the applicant again relies on the case-law of the Convention organs.

She underlines that, whilst the Commission has left open the question

of whether the European Parliament is a "legislature" within the

meaning of Article 3 of Protocol No. 1 (P1-3), it has consistently

referred to the European Parliament as "not yet" constituting a

legislature. Further, the Commission has repeated that it "cannot ...

be accepted that by means of transfers of competence the High

Contracting Parties may at the same time exclude matters normally

covered by the Convention from the guarantees enshrined therein" (above

mentioned Tête decision). In the light of this case-law, she considers

that the Commission itself has acknowledged the possibility that the

European Parliament may, if it acquires sufficient powers, become a

"legislature" within the meaning of Article 3 of Protocol No. 1 (P1-3).

The applicant submits that, whether or not the Commission was correct

in concluding that, even after the entry into force of the Single

European Act, the European Parliament was still not yet a

"legislature", the matter was put beyond doubt by the fundamental

changes to the powers of the Parliament made by the Treaty on European

Union.

48. (c) The applicant submits that it is particularly clear that the

European Parliament is, or is part of, "the legislature" of Gibraltar

for the purposes of Article 3 of Protocol No. 1 (P1-3).

49. The applicant has calculated that, in 1995, approximately one

third of all legislation adopted by the Gibraltar authorities was as

a direct consequence of Gibraltar's membership of the European Union,

a proportion which is especially large because there is relatively

little domestic legislation in a small community like Gibraltar.

50. With specific reference to the procedure under Article 189b of

the Treaty on European Union, the applicant points, by way of example,

to directives on insurance (which increase the potential for Gibraltar

authorised insurers to have access to the European market), on deposit

guarantee schemes (which increase investor confidence in credit

institutions authorised in Gibraltar), on data protection, on

recreational craft (two new businesses have started in the field) and

on standards on the supply of petrol.

51. The Commission first recalls that the Convention applies to

Gibraltar by virtue of declarations made by the United Kingdom under

Article 63 of the Convention, the most recent on 3 April 1984.

Protocol No. 1 (P1) to the Convention applies to Gibraltar by virtue

of a declaration made by the United Kingdom on 25 February 1988 under

Article 4 of Protocol No. 1 (P1-4). Individual petitions are permitted

in connection with Protocol No. 1 (P1) by virtue of the United

Kingdom's declarations under Article 25 (Art. 25) of the Convention,

which apply to the Protocol pursuant to its Article 5 (Art. 5). The

Commission is therefore competent to consider individual complaints

under Protocol No. 1 against the United Kingdom in respect of

Gibraltar.

52. It is convenient to examine first the question whether the

European Parliament can be considered a "legislature" within the

meaning of Article 3 of Protocol No. 1 (P1-3) and, if so, whether it

is properly to be regarded as "the legislature" of Gibraltar for the

purposes of that provision.

53. The Commission recalls that the status of the European Parliament

in terms of Article 3 of the Protocol (P1-3) has been the subject of

consideration in the Commission's earlier case-law.

54. In Lindsay v. the United Kingdom (No. 8364/78, Dec. 8.3.1979,

D.R. 15, p. 247), which was concerned with the voting system laid down

in the European Assembly Elections Act 1978 for Northern Ireland which

differed from that provided for in the rest of the United Kingdom, the

Commission noted that the wording of Article 3 (Art. 3) showed that the

national legislature was meant by the drafters of the Convention when

the Article was adopted. Nevertheless, the Commission went on to say

that this did not exclude the possibility that developments in the

structure of the European Communities would require the High

Contracting Parties to grant the right protected under Article 3

(Art. 3) "in respect of new representative organs partly assuming the

powers and functions of national legislatures." The Commission however

found (without finally deciding the point) that at that time (1979) the

European Parliament had no legislative power in the strict sense except

for Article 95 para. 3 of the ECSC Treaty: it was in the view of the

Commission an advisory organ as to legislation, enjoying certain

budgetary and control powers.

55. In Alliance des Belges de la Communauté Européene v. Belgium

(No. 8612/79, Dec. 10.5.1979, D.R. 15, p. 259), decided two months

later in May 1979, the Commission in a case concerning residence

requirements for voting in the direct elections for the European

Parliament again found that the Parliament had no legislative powers

in the strict sense, but concluded that in any event the residence

requirements were not inconsistent with Article 3 (Art. 3).

56. In Tête v. France (11123/84, Dec. 9.12.1987, D.R. 54, p. 52) and

Fournier v. France (No. 11406/85, Dec. 10.3.1988, D.R. 55, p. 130),

which were both decided after the coming into effect of the Single

European Act which conferred additional powers on the European

Parliament, the Commission was concerned with the compatibility with

Article 3 of the Protocol of various provisions of French law governing

the election of French representatives to the European Parliament.

After referring to its decision and reasoning in the Alliance des

Belges case, the Commission observed that the Parliament's role had

increased since that decision, particularly as a result of the entry

into force of the Single European Act. The Commission nevertheless

found that the European Parliament did not yet constitute a

"legislature" within the ordinary meaning of the term, although it went

on to declare the application inadmissible on different grounds. In

André v. France (No. 27759/95, Dec. 18.10.95, unpublished), the

Commission left open the question of the status of the European

Parliament as the application was inadmissible on other grounds.

57. Since the Commission last considered the question of the status

of the European Parliament, the Treaty on European Union has entered

into force. That Treaty has given the European Parliament new

competences. In particular, the Treaty not only repealed the words

"advisory and supervisory" which previously qualified the reference to

the powers of the Parliament in Article 137 of the EC Treaty but

enacted the new procedure in Article 189b of the Treaty, which

conferred on the Parliament a power of co-decision in addition to its

pre-existing powers under the basic or consultative procedure and

co-operation procedure.

58. The Government claim that the provisions of Article 189b

represent only a modest incremental development from the co-operation

procedure which was considered by the Commission in Tête v. France,

merely extending the Parliament's power of veto. It is argued that the

new procedure does not give the Parliament the sole right to adopt

legislation, nor even to compel the Council to adopt a measure that the

Council does not want. Nor, it is argued, does the Article 189b

procedure give the Parliament any opportunity to initiate legislation

itself. It is, moreover, emphasised that the European Parliament plays

no role or a very limited role in certain of the most important areas

of the Community Treaties, notably the common commercial policy and the

field of economic and monetary union.

59. The applicant claims that the arguments of the Government

understate the impact and importance of the additional legislative

powers conferred on the Parliament by the Treaty of European Union.

As the applicant points out, the Article 189b procedure is applicable

in fourteen areas of EC legislation, including internal market

harmonisation, the right of establishment and the freedom to provide

services. Within the field of legislation covered by Article 189b the

European Parliament is not only given an effective and unilateral power

of veto against which not even a unanimous Council can prevail: the

procedure envisages the full participation of the Parliament in the

elaboration of EC legislation and in determining the content both

directly and through the new Conciliation Committee on which the

Parliament is equally represented with the Council. In addition, as

pointed out by the applicant, the European Parliament enjoys certain

other powers (notably, control over the adoption and implementation of

the budget and over the appointment and dismissal of the Commission)

which are common attributes of national legislatures.

60. The Commission considers that the introduction of a formal right

of co-decision in important areas of legislation, in addition to the

powers formerly enjoyed by the European Parliament, represents a

significant development in the powers of the Parliament. However, for

reasons which appear below the Commission is not required finally to

decide whether the European Parliament is yet endowed with sufficient

of the powers and functions of national legislatures to be regarded as

a legislature within the ordinary meaning of that term.

61. Although, as noted above, the Commission has in several previous

decisions examined the powers and functions of the European Parliament

in the context of a complaint under Article 3 of Protocol No. 1, it has

never finally decided the question whether the expression "the

legislature" in that Article is capable of extending beyond national

legislative bodies to include supra-national bodies which exercise

functions in a legislative process having a direct impact within the

State concerned. In the present case - which concerns a complaint

relating to a complete absence of elections to the European Parliament,

rather than the manner in which such elections are held - this central

question falls to be answered.

62. It is true, as pointed out by the applicant, that in its previous

decisions the Commission, while finding that the European Parliament

had not yet acquired sufficient legislative powers to amount to a

legislature, contemplated that Article 3 might become applicable to the

Parliament in the event of its assuming the powers and functions of a

national legislature. However, the Commission further observed that

the wording of Article 3 showed that national legislative bodies were

intended to be referred to by the drafters of the Convention when the

Article was adopted. The Commission finds confirmation for this

interpretation in the Travaux Préparatoires to the Convention. In

particular, the Commission recalls that the Court in the

above-mentioned Mathieu-Mohin case noted, by reference to the Travaux,

that the provision applies "only to the election of the 'legislature',

or at least one of its chambers if it has two or more" (p. 23, para.

53). It thus appears that Article 3 does not require more than one

level of elected assembly, although if the domestic constitution

divides legislative competence between regional and central assemblies,

the provision applies to elections to both organs.

63. On reviewing its earlier dicta, the Commission considers that to

hold Article 3 of Protocol No. 1 to be applicable to supra-national

representative organs would be to extend the scope of Article 3 beyond

what was intended by the drafters of the Convention and beyond the

object and purpose of the provision. The Commission considers that the

role of Article 3 is to ensure that elections take place at regular

intervals to the national or local legislative assembly - that is, in

the case of Gibraltar, to the House of Assembly. While the Commission

accepts that the legislation emanating from the different institutions

of the European Union, including the European Parliament, has an

increasingly important impact on Gibraltar and that such legislation

may be transposed into the domestic law of the territory without

recourse to the House of Assembly, the Commission does not consider

that such non-national institutions are properly to be regarded as, or

forming part of, "the legislature" of Gibraltar for the purposes of

Article 3 of Protocol No. 1. Accordingly, the Commission finds that

Article 3 of Protocol No. 1 is inapplicable in the present case.

CONCLUSION

64. The Commission concludes by 11 votes to 6 that in the present

case there has been no violation of Article 3 of Protocol No. 1 to the

Convention.

D. As regards Article 14 of the Convention, taken together with

Article 3 of Protocol No. 1

65. Article 14 of the Convention provides as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

66. The applicant claims that, because of her status as a

Gibraltarian, she is deprived of the right to vote in European

elections. She also alleges a violation of Article 14 in this

connection as, pursuant to EC Council Directive 93/109/EC, she is

entitled to vote in European Parliament elections in any territory in

the European Union in which she resides save Gibraltar. She sees

discrimination between citizens of Gibraltar in this respect.

67. The Commission recalls that it has found that the European

Parliament does not fall within the scope of Article 3 of

Protocol No. 1 and that, accordingly, Article 3 of the Protocol is

inapplicable in the present case. In these circumstances, Article 14

which guarantees the enjoyment without discrimination of the rights

and freedoms set forth in the Convention is similarly inapplicable in

the present case.

CONCLUSION

68. The Commission concludes by 12 votes to 5 that in the present

case there has been no violation of Article 14 of the Convention, taken

together with Article 3 of Protocol No. l.

E. Recapitulation

69. The Commission concludes by 11 votes to 6 that in the present

case there has been no violation of Article 3 of Protocol No. 1 to the

Convention (para. 64).

70. The Commission concludes by 12 votes to 5 that in the present

case there has been no violation of Article 14 of the Convention, taken

together with Article 3 of Protocol No. l (para. 68).

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

CONCURRING OPINION OF Mr E. BUSUTTIL

I concur with the decision of the majority of the Commission that

there has been no violation of Article 3 of Protocol No. 1 in the

present case but would base the decision on the following reasoning in

preference to that adopted by the majority.

While the Commission is competent to consider individual

applications under Protocol No. 1 against the United Kingdom in respect

of Gibraltar by virtue of declarations made by the United Kingdom under

Article 63 para. 1 of the Convention and Article 4 of Protocol No. 1,

the Convention and Protocol must be applied in Gibraltar with due

regard to "local requirements". Indeed, the territory is nowadays to

be considered as something of an anachronism, and the "legislature" in

Gibraltar must be interpreted in the light of the particular

constitutional structure there operative.

The constitutional status of Gibraltar is that of a dependent

territory of the United Kingdom. The Governor is vested with executive

authority and is directly responsible for external affairs, defence and

internal security, on which he is entitled to legislate. The local

House of Assembly is permitted to legislate on defined domestic

matters, such as public utilities, social services, tourism, trade and

commerce, but may not consider matters not defined as domestic without

the consent of the Governor, who also retains the power to veto all

legislation passed by the House of Assembly. Furthermore, the United

Kingdom Parliament retains a concurrent power to legislate for

Gibraltar, and the United Kingdom Government has residual power to

legislate by Order-in-Council.

In this amorphous framework, where legislative power is so

broadly diffused across the constitutional spectrum, the "legislature"

of Gibraltar becomes impossible to identify unless Article 3 of

Protocol No. 1 is interpreted in the light of the rider inserted in

para. 3 of Article 63 of the Convention.

So interpreted, the "legislature" in Gibraltar is the House of

Assembly of Gibraltar, which is essentially a limited and truncated

local legislature specifically debarred by the Gibraltar Constitution

Order 1969 from considering matters relating to defence and foreign

affairs. At the same time the consideration of domestic affairs by the

House can be stultified, or otherwise rendered nugatory, by any of the

following: (i) the United Kingdom Parliament; (ii) the United Kingdom

Government, and (iii) the Governor of Gibraltar.

This constitutional situation, which stems from Gibraltar's

status as a dependent territory of the United Kingdom, clearly

demonstrates that the electorate in Gibraltar is precluded from

participating in external affairs, European or other.

Again, while the Convention organs have so far left open the

question whether the term "legislature" in Article 3 extends beyond

national legislatures to include supra-national organizations

exercising legislative functions within the boundaries of a particular

State, the wording of Article 3 of Protocol No. 1 read in conjunction

with Article 63 of the Convention would appear to restrict the term

"legislature" to the domestic legislatures of the High Contracting

Parties as well as of those territories for whose international

relations the High Contracting Parties are responsible where an

appropriate declaration has been made in accordance with Article 63

para. 1 of the Convention. On this construction, the European

Parliament could not be properly regarded as, or as forming part of,

the "legislature" in Gibraltar, and Article 3 of Protocol No. 1 is

therefore inapplicable to it in the circumstances of the present case.

(Or. French)

OPINION CONCORDANTE DE M. F. MARTINEZ

Je partage les motifs exprimés dans le rapport de la Commission.

Toutefois, je voudrais y ajouter ceci.

C'est en raison d'une règle de droit communautaire que l'habitant

de Gibraltar ne peut participer aux élections du Parlement européen ;

et j'ai beaucoup de difficultés à comprendre comment les organes de la

Communauté, en agissant selon leurs compétences, peuvent engager la

responsabilité d'un Etat membre au regard de la Convention européenne

des Droits de l'Homme.

(Or. English)

CONCURRING OPINION OF Mr L. LOUCAIDES

I agree that in this case there has been no violation of

Article 3 of Protocol No. 1 to the Convention but the reasons for my

conclusion are different from those of the majority.

The provisions of the Convention were made applicable in respect

of Gibraltar by virtue of a notification made under Article 63 of the

Convention.

The Government did not express their objections in terms of

Article 63 para. 3 of the Convention. But I believe that the

Government's arguments are ultimately founded on the consideration that

Gibraltar is not, and never has been, part of the United Kingdom, and

that its status as a Crown Colony puts it in a different position from

domestic territories.

I believe that Article 63, whose aim was to allow extension of

the Convention to territories like Gibraltar, could not reasonably have

been intended to effect indirectly, through the application of any of

its provisions such as the one under consideration, a change of the

constitutional status of such territories. In other words the

provisions of Article 63 were not meant to effect such radical

political changes of colonial territories through the incidental

operation of the Convention rights.

Precisely because in applying the Convention account had to be

taken of the special situations, constitutional and other, of the

territories in question and relevant adjustments be made, para. 3 of

Article 63 provides as follows:

"The provisions of this Convention shall be applied in such

territories with due regard, however, to local requirements".

There is no definition of the term "local requirements". The

European Court of Human Rights in one of its judgments (Tyrer v. the

United Kingdom, Series A no. 26, p. 19) has pointed out

"that the system established by Article 63 was primarily designed

to meet the fact that, when the Convention was drafted there were

still certain colonial territories whose state of civilization

did not, it was thought, permit the full application of the

Convention".

Independently of whether one agrees or not with this statement

I believe it is correct to say that if the term "local requirements"

was applied by the jurisprudence with reference to the local state of

civilization such term should a fortiori be applicable with reference

to the constitutional status of the territories to which the Convention

was extended through the machinery provided under Article 63.

Therefore, the Convention should be applied to such territories taking

into account the requirements of the local constitutional status of

these territories with the object of preserving this status.

The European Court of Human Rights has on two occasions found

that local requirements were not sufficient to justify what could

otherwise be in violation of the Convention (Eur. Court HR, Tyrer

v. the United Kingdom, op.cit., pp. 18, 19 and Piermont v. France,

Series A no. 314, p. 23). In both those cases, however, there was no

link between the special character of the territories concerned and the

alleged violation of the convention.

In the present case the applicant is denied the right to

participate in European Parliament elections precisely because of the

constitutional status of Gibraltar as a Crown Colony: it is because

of Gibraltar's constitutional status that it was excluded from the

operation of the E.C. Act on Direct Elections by Annex 2 to that Act,

and it is because of Gibraltar's constitutional status that

Gibraltarians do not vote in elections to the Westminster Parliament

which could also act as a form of democratic legitimation for the acts

of the European Union.

Accordingly, in the particular circumstances of the present case

I find that Article 63 para. 3 requires the Commission to accept that

the local requirements in Gibraltar are such that the applicant should

not be entitled to vote in elections to the European Parliament.

(Or. English)

DISSENTING OPINION OF MM A. WEITZEL, C.L. ROZAKIS, M.P. PELLONPÄÄ,

B. CONFORTI AND N. BRATZA

We regret that we are unable to agree with the majority of the

Commission that Article 3 of Protocol No. 1 has no application to

supra-national legislative institutions such as the European Parliament

or that, by virtue of Article 63 para. 3 of the Convention, the

Parliament cannot be regarded as part of "the legislature" of Gibraltar

for the purposes of Article 3. In our view, not only is Article 3 of

Protocol No. 1 applicable, but the failure of the United Kingdom to

provide for elections to the European Parliament for citizens of the

European Union who live in Gibraltar is in violation of the applicant's

rights under that Article.

As is indicated in the Report the case gives rise to four

principal issues: (1) whether the European Parliament can be

considered a "legislature" within the ordinary meaning of that term;

(2) if so, whether it is properly to be regarded as "the legislature"

of Gibraltar for the purpose of Article 3 of Protocol No. 1; (3) if so,

whether State responsibility can, in the particular circumstances of

the case, be engaged in respect of the absence of elections to the

European Parliament in Gibraltar; and (4) if so, whether such absence

of elections constituted a violation of the obligation in Article 3 "to

hold free elections ... under conditions which will ensure the free

expression of the opinion of the people in the choice of the

legislature".

It is convenient to deal with each issue in turn.

(1) The earlier case-law of the Commission in which the status of the

European Parliament has been examined under Article 3 of the Protocol

is summarised in paragraphs 54 - 56 of the Commission's Report. As

appears from that summary, the Commission, while acknowledging that the

wording of Article 3 showed that the national legislature was meant by

the drafters of the Convention, nevertheless did not exclude the

possibility that developments in the structure of the European

Communities would require the High Contracting Parties to grant the

right protected under Article 3 to supra-national representative organs

"partly assuming the powers and functions of national legislatures".

The sole ground on which, in the cases of Lindsay, Alliance des Belges,

Tête and Fournier, the Commission found that the European Parliament

did not fall within the provisions of Article 3 was that the Parliament

did not enjoy legislative powers in the strict sense and thus did not

constitute a "legislature" within the ordinary meaning of the term.

As pointed out in the Report, since the Commission last

considered the question of the status of the European Parliament, the

Treaty on European Union has entered into force, conferring new powers

on the Parliament. The Treaty not only repealed the words "advisory

and supervisory" which previously qualified the reference to the powers

of the Parliament in Article 137 of the EC Treaty, but introduced the

new procedure in Article 189b of the Treaty, conferring on the

Parliament a genuine power of co-decision in addition to its pre-

existing powers under the basic or consultative procedure and co-

operation procedure.

The Government assert that the provisions of Article 189b

represent only a modest incremental development of the existing co-

operation procedure and, in effect, merely extend the Parliament's

powers of veto. It is additionally pointed out that the European

Parliament plays a very limited role in certain of the most important

areas of the Community Treaties, notably the common commercial policy

and the field of economic and monetary union.

In our view, the arguments of the Government, while not without

force, understate the impact and importance of the additional

legislative powers conferred on the Parliament by the Treaty on

European Union. As the applicant points out, the Article 189b

procedure is applicable in fourteen areas of EC legislation, including

internal market harmonisation, the right of establishment and the

freedom to provide services. Within the field of legislation covered

by Article 189b the European Parliament is not merely given an

effective and unilateral power of veto against which not even a

unanimous Council can prevail: the procedure envisages the full

participation of the Parliament in the elaboration of EC legislation

and in determining its content, both directly and through the new

Conciliation Committee on which the Parliament is equally represented

with the Council.

It is true, as emphasised by the Government, that the Parliament

has no unilateral power to adopt legislation, its powers being jointly

exercised with the Council. It is also true that the Parliament has

no independent power to initiate legislation. However, these

limitations are not in our view sufficient to say that the Parliament

exercises no legislative powers. As to the absence of a unilateral

power to decide, the joint sharing of legislative powers is a feature

which is to be found in certain national legislatures and is of itself

not inconsistent with the notion of a legislature. As to the absence

of the power to initiate legislation, we note that in many national

legislatures the effective power to initiate legislation lies not with

the legislature itself or with its members, but with the Executive.

In addition, as is pointed out by the applicant, Article 138b of the

Treaty expressly confers powers on the Parliament to request the

Commission to submit any appropriate proposal on matters on which it

considers that a Community act is required for the purpose of

implementing the Treaty.

We further note that the European Parliament enjoys certain other

powers which are common attributes of national legislatures. In

particular, the Parliament has control over the adoption and

implementation of the budget, with power to amend and to reject the

draft budget. In addition, the Parliament is granted powers of control

over the appointment of the Commission (Article 158) as well as powers

to compel the Commission to resign as a body by means of a notice of

censure (Article 144). Indeed, compared to several national

Parliaments, the powers of the European Parliament are already

considerable and will become further strengthened when the Treaty of

Amsterdam enters into force.

In these circumstances the European Parliament is in our view

capable of being regarded as the representative organ of the Union,

which assumes at least in part the powers and functions of national

legislative bodies.

(2) The further question remains whether the European Parliament is

to be regarded as "the legislature" of Gibraltar for the purposes of

Article 3 of Protocol No. 1.

We recall that the aim and purpose of Article 3 of Protocol No. 1

is to contribute to the "effective political democracy" referred to in

the Preamble to the Convention. It is certainly not the function of

the Convention organs to prescribe the roles of the different

institutions of domestic constitutions, but rather they must look to

the existing constitutional structures to ascertain whether, in a given

situation, an organ is, or is not within the scope of the term "the

legislature" (see, e.g., Eur. Court HR, Mathieu-Mohin and

Clerfayt v. Belgium judgment of 2 March 1987, Series A No. 113, p. 23,

para. 53, where regional authorities shared competence powers with the

central authorities in such a way that Article 3 of Protocol No. 1

applied to elections to the regional authorities; and see also

No. 7008/75 v. Austria, Dec. 12.7.76, D.R. 6 p. 120. In No. 8873/80

v. the United Kingdom (Dec. 13.5.82, D.R. 28 p. 99) the Commission

accepted that the possibility for the United Kingdom Parliament to

legislate for Jersey was not sufficient for it to be part of "the

legislature" in the island, and in Booth-Clibborn and others v. the

United Kingdom (No. 11391/85), Dec. 5.7.85, D.R. 43 p. 236) the

Commission considered that metropolitan county councils in the United

Kingdom were not legislative bodies. For a further, recent example of

this approach to whether a body is part of "the legislature", see

Lindsay v. the United Kingdom, No. 31699/96, Dec. 17.1.97, concerning

elections under the Northern Ireland (Entry to Negotiations, etc.)

Act 1996.

The question whether the expression "the legislature" in

Article 3 is capable of extending beyond national legislative bodies,

so as to include supra-national institutions which exercise legislative

functions having a direct impact within the State concerned, is one of

some difficulty. It is correct, as pointed out by the Government, that

the question has never been addressed by the Court and that, while the

issue has been discussed by the Commission, it has not been finally

resolved. It is also correct that, as pointed out by the majority, the

Commission has previously accepted that the wording of Article 3 shows

that national legislative bodies were meant by the drafters of the

Convention when the Article was adopted. However, the Commission has

also clearly accepted in its earlier case-law that there is nothing in

principle to exclude the application of the Article 3 of the Protocol

to institutions - even those of a supra-national nature - which have

been created or developed after the coming into force of the Convention

and which exercise legislative functions directly affecting the State

or territory concerned. We see no reason to depart from this view.

It has constantly been emphasised by the Court and Commission that the

Convention is a living instrument which must be interpreted in the

light of present day conditions. This principle is in our view of

special relevance in the present case, concerned as it is with an

institution which did not even exist at the time when the Convention

was drafted. We can find nothing in the Travaux Préparatoires to

suggest that it would be contrary to the intention of the drafters to

exclude from the scope of Article 3 any new legislative body of a

supra-national character. Nor can we agree with the majority of the

Commission that to hold Article 3 to be applicable to such a

representative institution would be to extend the scope of the Article

beyond the object and purpose of the provision.

Whether in any particular case the institution concerned is to

be considered as forming part of "the legislature" of a State or

territory will depend on an examination of the constitutional and

legislative structures existing within the State or territory in

question.

As noted in the Report, Gibraltar is not part of the United

Kingdom but is a Crown colony, the Governor of which retains direct

responsibility for all matters primarily concerned with external

affairs, defence and internal security. The Gibraltar House of

Assembly has the right to make laws for the peace, order and good

government of Gibraltar, although it may not except with the consent

of the Governor proceed upon any Bill which is not a defined domestic

matter". While the scope of the House of Assembly's powers to

legislate is thus limited, we consider that the House of Assembly, to

which elections are held every five years, may be regarded as the

domestic "legislature" of Gibraltar for the purposes of Article 3 of

the Protocol.

In Gibraltar, as in the other parts of the European territory

subject to European Community law, the impact of that law has steadily

increased over the years. Applicable EC legislation is generally given

force in Gibraltar under the 1972 European Communities Ordinance, under

which primary or secondary legislation is enacted in Gibraltar to give

effect to EC legislation there, the exceptions being EC Regulations

which are directly applicable in Gibraltar as in all other parts of the

European Union.

In terms of numbers alone, approximately one-third of all

legislation currently adopted in Gibraltar is as a direct consequence

of Gibraltar's membership of the European Union. Admittedly, in purely

numerical terms the number of legislative acts adopted under

Article 189b and applied in Gibraltar in 1994, 1995 and the first half

of 1996 is small. However, even assuming that it is appropriate to

confine attention to acts adopted under this procedure, we note that

the acts in question relate to such areas as data protection,

insurance, deposit guarantee schemes and environmental matters, with

an increasingly important impact on a small territory such as

Gibraltar.

We consider that, notwithstanding the exclusion of Gibraltar from

significant parts of the EC Treaty, the impact of Community legislation

in Gibraltar, including that emanating from the European Parliament

under the co-decision procedures in Article 189b, is such that the

Parliament can be regarded as sharing at least in part the powers and

functions of the national legislature and as forming part of "the

legislature" of Gibraltar for the purposes of Article 3 of

Protocol No. 1.

We note in this regard that in two of the concurring opinions

reliance is placed on the provisions of Article 63 para. 3 of the

Convention, it being argued that the local requirements of a colonial

territory such as Gibraltar, and, in particular, its special

constitutional structure, are such that the European Parliament cannot

be regarded as "the legislature" of the territory for the purposes of

Article 3 of the Convention.

We are not persuaded by this view. While we accept that the

constitutional structure of Gibraltar has special features, the fact

remains that the impact of legislation emanating from the institutions

of the European Union, including the Parliament, on citizens of the

Union living within Gibraltar is considerable. Even assuming that the

term "local requirements" in Article 63 para. 3 of the Convention is

to be interpreted as including the constitutional structure within a

territory (which we doubt), we can see no reason why those "local

requirements" should be interpreted as requiring the exclusion of the

European Parliament from the term "the legislature" in Article 3. We

are reinforced in this view by the fact that, in the extensive

submissions filed on their behalf, the Government have at no stage

invoked Article 63 para. 3 or suggested that the provision had any

relevance to the issues raised.

(3) The further issue remains whether the absence of elections to the

European Parliament in Gibraltar is capable of engaging the

responsibility of the United Kingdom and, if so, whether there has been

a violation of that Article.

We observe at the outset that the 1976 Act, which by Annex II

confined the application of its provisions to the United Kingdom, is

not as such a Community act, the signatories to the Act being the

Governments of the Member States and the Act having the status of a

Community treaty. It is true that the Act was itself annexed to a

Council Decision but, as pointed out by the applicant, the Decision is

itself not a typical Community act, being signed not merely by the

President of the Council but by the Ministers of each of the Member

State in their capacity as Members of the Council. Further, in

contrast to an ordinary Council decision, the 1976 Decision did not

oblige the Member States to do anything. Consistently with the

provisions of Article 138 (3) under which it was made, the Decision

laid down provisions which it "recommends to the Member States for

adoption in accordance with their respective constitutional

requirements": the Decision did not require the exclusion of Gibraltar

from the right of direct franchise.

The Government rely on the case-law of the Commission in support

of their contention that the absence of elections does not engage the

responsibility of the United Kingdom, in particular the decisions of

the Commission in CFDT v. the European Communities and their Member

States (No. 8030/77, Dec. 10.7.1978, D.R. 13, p. 231), Dufay v. the

European Communities and their Member States (No. 13539/89, Dec.

19.1.1989) and M. and Co. v. Germany (No. 13258/87, Dec 9.2.1990,

D.R. 64, p. 138).

We note that in the first two decisions relied on, the complaints

were lodged against, inter alia, the European Communities themselves

and concerned what were indisputably Community acts. However, the case

of M. and Co. v. Germany presents more difficulty. In that case the

Commission was concerned with a writ of execution issued against the

applicant company to give effect to a judgment of the Court of Justice

of the European Communities (hereinafter referred to as "the European

Court of Justice") fining the company for breaching the anti-trust

provisions of the Treaty. The applicant company complained that the

proceedings before the European Court of Justice were unfair and that,

by giving effect to the judgment by issuing a writ of execution, the

Federal Republic had violated Article 6 of the Convention. The

Commission, having recalled that it was not competent to review

decisions of organs of the Community, stressed that this did not mean

that, by granting executory power to a judgment of the European Court

of Justice, the German authorities acted as a Community organ or that

they were to that extent beyond the scope of control exercised by the

Convention organs. In the Commission's view the issue raised by the

application was whether by giving effect to a judgment that allegedly

violated Article 6 the Federal Republic incurred responsibility under

the Convention on account of the fact that the proceedings against the

applicants were only possible because the Federal Republic had

transferred its powers in the anti-trust sphere to the European

Communities. The Commission observed that the Convention did not

prohibit a Member State from transferring powers to international

organisations. Nevertheless, the Commission held that if a State

contracted treaty obligations and subsequently concluded another

international agreement which disabled it from performing its

obligations under the first treaty, it would be answerable for any

resulting breach of its obligations under the earlier treaty:

"The Commission considers that a transfer of powers does not

necessarily exclude a State's responsibility under the Convention

with regard to the exercise of the transferred powers. Otherwise

the guarantees of the Convention could wantonly be limited or

excluded and thus be deprived of their peremptory character. The

object and purpose of the Convention as an instrument for the

protection of individual human beings requires that its

provisions be interpreted and applied so as to make its

safeguards practical and effective (cf. Eur. Court HR, Soering

v. the United Kingdom judgment of 7 July 1989, Series A no. 161,

p. 34, para. 87). Therefore the transfer of powers to an

international organisation is not incompatible with the

Convention provided that within that organisation fundamental

rights will receive an equivalent protection" (D.R. 64, p. 145).

In rejecting the application as inadmissible, the Commission

found that the legal system of the European Communities not only

secured fundamental rights but also provided for a control of their

observance. In particular, the European Court of Justice had developed

case-law according to which it was called on to control Community acts

on the basis of fundamental rights, including those enshrined in the

Convention.

We agree with the applicant that the decision of M. and Co. is

not directly applicable to the present case, since the Act on Direct

Elections did not involve the transfer of powers to the institutions

of the Community and since, in any event, the rights guaranteed by

Article 3 of the Protocol did not receive an equivalent protection, the

European Court of Justice having no power to examine the legality of

the Act or of the exclusion of Gibraltar from its ambit.

Nevertheless, the question remains whether, having excluded

residents in Gibraltar from the right of direct elections to the

European Parliament (or Assembly) in 1976, at a time when the

Parliament was unquestionably not a "legislature" for the purposes of

Article 3 of Protocol No. 1, the United Kingdom may be held in

violation of the Article when, as a result of structural developments

occurring within the Union, the European Parliament is endowed with

sufficient powers to be regarded as a legislature.

As a general principle, a State, which creates new legislative

bodies for the first time after the entry into force of the Convention

or which confers on an existing body sufficient powers to be regarded

as forming part of "the legislature" of the State concerned, must grant

the right of direct election to such body and any failure to do so will

engage the responsibility of the State concerned under Article 3 of

Protocol No. 1.

We have considered whether the position may be different where,

as here, the Commission is concerned with a supra-national body to

which, at the time the territory in question was by international

treaty excluded from the right of election, the Protocol was

inapplicable and to which the State responsible cannot by amendment of

the Treaty unilaterally extend the right of election once the body has

acquired sufficient powers to be regarded as a "legislature".

However, we do not find it necessary to decide this question,

since we consider that the United Kingdom could in any event

unilaterally and consistently with its treaty obligations extend the

right of franchise to Gibraltarians. The United Kingdom clearly could

not unilaterally amend the provisions of Annex II to the Act on Direct

Elections; nor are we able to accept the applicant's argument that the

application of the Act on Direct Elections could be extended to

Gibraltar by the United Kingdom without the need for any amendment to

Annex II. However, we consider that the United Kingdom could,

unilaterally and consistently with its international treaty

obligations, extend the right of franchise to Gibraltar by integrating

the Gibraltarian vote in the vote of a European Parliamentary

constituency in the United Kingdom.

The Government do not dispute that it would be possible to extend

the right of franchise to Gibraltarians in this way but contend that

such a course would not be consistent with the proper operation of the

simple majority system applied in the United Kingdom for elections to

the European Parliament.

While we accept that there may exist practical objections to

extending the right of franchise to Gibraltarians, we cannot accept

that such objections could suffice to relieve the United Kingdom of

State responsibility under Article 3 of Protocol No. 1 in respect of

the absence of elections.

(4) Assuming that State responsibility is engaged, did the failure

to grant the right to Gibraltarians the right of election to the

European Parliament violate the rights of the applicant guaranteed

under that Article?

In submitting that there was no violation, the Government refer

to the margin of appreciation permitted to States in the performance

of their Convention obligations, to the difficulties in creating a new

constituency for Gibraltar in the European Parliament and to the

traditional separation of the Gibraltarian and the United Kingdom.

It is well established that the rights implicit in Article 3 of

Protocol No. 1 are not absolute, but may be subject to implied

limitations. States have a wide margin of appreciation, but it is

nevertheless for the Convention organs to determine in the last resort

whether the requirements of the provisions have been complied with.

As the Court has pointed out, the conditions must not curtail the

rights to such an extent as to impair their very essence and deprive

them of their effectiveness. Any conditions imposed must pursue a

legitimate aim and the means employed must not be disproportionate to

that aim. In particular, such conditions must not thwart "the free

expression of the opinion of the people in the choice of the

legislature" (see the above-mentioned Mathieu-Mohin and Clerfayt

judgment, p. 23, para. 52).

The Convention organs have, on several occasions, found that

various exclusions from the right to vote are compatible with Article 3

of Protocol No. 1 (No. 8987/80, Dec. 6.5.81, D.R. 23 p. 192 with

further reference). The present case is, however different from a case

involving residence conditions. Residence conditions on voting are

acceptable because states are permitted to regulate the manner in which

elections take place, and one of the regulations is, commonly, a

condition that a person vote from within the country. In Gibraltar,

however, no Gibraltarians are entitled to vote in elections to the

European Parliament in Gibraltar at all.

The Government claim that it would be difficult, if not

impossible, to arrange for Gibraltarians to vote in elections to the

European Parliament because of the electoral system in the United

Kingdom which, by using a simple majority system with a single member

for each constituency creates strong links between the electors and the

elected. Gibraltar has very different needs and interests from the

United Kingdom, and could not be readily included in a mainland

constituency. It is pointed out, in particular, that were

Gibraltarians to be included in a mainland constituency, their vote may

have a decisive and unjustifiable effect on the result of the election.

We do not underestimate the value in the United Kingdom electoral

system of the close links which exist between Members of Parliament and

the constituency which they represent, and which can strengthen

effective political democracy in very real ways. Nor do we disregard

the Government's argument as to the risk of Gibraltarian voters having

a decisive impact on the result of the election in a particular

mainland constituency, although we note in this regard that the total

population of Gibraltar is small by comparison with the size of the

average European Parliament constituency in the United Kingdom.

However, given the impact of European Community legislation in the

Gibraltar, and the complete absence of any democratic accountability

for the people of Gibraltar in respect of that legislation, we consider

that the total exclusion of the applicant from elections to the

European Parliament is not compatible with Article 3 of Protocol No. 1

to the Convention.

We have, accordingly, concluded that in the present case there

has been a violation of Article 3 of Protocol No. 1 to the Convention.

In view of this finding we have not found it necessary to examine

the applicant's further complaints under Article 14 of the Convention.

(Or. English)

DISSENTING OPINION OF Mr H.G. SCHERMERS

I agree with the dissenting opinion of Mr. Weitzel and others.

However, in my opinion, the paragraph on M. and Co. should be stronger.

I disagree with the applicant that M. and Co. is not relevant to the

present case. In the present case, the United Kingdom Government

submitted that the act which gave rise to the direct elections to the

European Parliament, and the Annex which limited its applicability to

the United Kingdom, fall within the European Community legal order and

are therefore not subject to review by the Convention organs. In

M. and Co. the German Government also submitted that the complaint in

fact concerned an act which fell within the European Community legal

order and which, therefore, could not be subject to review by the

Convention organs. To that extent, I see no fundamental difference

between the two cases. In my opinion, therefore, the answer of the

Commission to this argument in M. and Co. is indeed relevant to the

present case.

Essential in the passage quoted from M. and Co. in Mr. Weitzel's

dissenting opinion is the last part of the last sentence: "Therefore,

the transfer of powers to an international organisation is not

incompatible with the Convention provided that within that organisation

fundamental rights will receive an equivalent protection" (M. and Co.

v. Germany, No. 13258/87, Dec 9.2.1990, D.R. 64, pp. 138-146 at

p. 145). Only when an equivalent protection of human rights is

guaranteed, may the Commission dispense a High Contracting Party from

its obligation to guarantee the rights of the Convention to everyone

within its jurisdiction. Otherwise the guarantees of the Convention

could wantonly be limited or excluded by the creation of an

international organisation. In the case of M. and Co. the EC treaty

applied. Because of the way the Court of Justice of the European

communities interprets that treaty sufficient guarantees are offered.

In M. and Co., the Commission noted that the legal system of the

European Communities not only secures fundamental rights but also

provides for control of their observance. This is different in the

present case. The act at stake is signed and ratified in the same way

as a treaty. This means that the Court of Justice has no power to

examine the legality of the act or of the exclusion of Gibraltar from

its ambit. In my opinion, therefore, the proviso mentioned in M. and

Co. is not met in the present case. There are insufficient guarantees

that the European Union will apply the rights incorporated in Article 3

of Protocol No. 1 to the citizens of Gibraltar. The United Kingdom was

not entitled to transfer legislative powers to the Community without

protecting or obliging the Community to protect the rights of Article 3

of Protocol No. 1, also for the citizens of Gibraltar.

At the present stage of European and international development,

where increasingly governmental powers are transferred to European or

international organs, I consider it essential to underline that the

Contracting States remain responsible for infringements of human rights

if they do not provide for adequate protection of these rights by the

institutions to which powers are transferred.

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MATTHEWS v. THE UNITED KINGDOM

MATTHEWS v. THE UNITED KINGDOM

LEXI