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.