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)