Joint DISSENTING OPINION OF JUDGEs Sir John freeland and jungwiert

1. We voted against the finding of a breach of Article 3 of Protocol No. 1, essentially for the following reasons.

2. In the first place, and as a general point, the view has throughout weighed heavily with us that a particular restraint should be required of the Court when it is invited, as it is here, to pronounce on acts of the European Community or consequent to its requirements, especially when those acts relate to a matter so intimately concerned with the operation of the Community as elections to one of its constitutional organs.

3. Secondly, as to the interpretation to be given to Article 3 of Protocol No. 1, we have considered that the view taken in the Commission, by the substantial majority of eleven votes to six, that “the role of Article 3 is to ensure that elections take place at regular intervals to the national or local legislative assembly” has much to commend it. It is, as reference to the travaux préparatoires   confirms, a view squarely within the intention of the drafters (who, it should be recalled, were working at a time when about half the countries of Europe – including some in Western Europe – were deprived of free elections). Further, by confining the ambit of the provision to bodies within the domestic area and excluding any supranational representative organ, it avoids the uncertainty and invidiousness involved in analysis by an outside body of the characteristics of such an organ, which as experience has shown are likely to be neither straightforward nor static.

4. If, however, it is justifiable, on the familiar basis that “the Convention is a living instrument which must be interpreted in the light of present-day conditions”, to include within the scope of Article 3 of Protocol No. 1 a body which was plainly not within the contemplation of the drafters, if only because no such body existed at the time, it becomes necessary to consider whether the body concerned is properly to be regarded as “ the legislature” (emphasis supplied) within the meaning of the provision. That question may require, in turn, two others. First, is the body a legislature at all? And, secondly, if it is, is it the legislature for the State or territory in question – in this case, Gibraltar?

5. As to the first of these questions, it is in our view intrinsic to the notion of a “legislature” that the body concerned should have the power to initiate legislation and to adopt it (subject, in the case of some national Constitutions, to the requirement of the assent of the head of State). If this power is lacking, the fact that the body may have other powers often exercisable by national legislatures (for example, powers in relation to censure of the executive or to the budget) is not enough to remedy the deficiency. The existence of such other powers may enhance the body’s entitlement to be styled as a parliament and its role in promoting an “effective political democracy”. But the facts that it is so styled and has such a role are not to be regarded as requiring it to be treated as a “legislature” unless it has in itself the necessary legislative power.

6. With the vestigial and for present purposes insignificant exception of its power under Article 95(3) of the European Coal and Steel Community Treaty, the European Parliament has no power to initiate and adopt legislation. Even in the case of the so-called co-decision procedure (Article 189b) introduced by the Maastricht Treaty – a procedure to which much significance was attached on behalf of the applicant –, while the European Parliament has potential influence on the content of legislation and a power to block legislation to which it objects, it has neither the sole right to adopt legislation nor the power to force the Council to adopt legislation which the Council does not want. Nor does the procedure provide the Parliament with any opportunity to initiate legislation itself.

7. Thus, even if, as paragraph 50 of the judgment says, the Maastricht Treaty’s removal of the words “advisory and supervisory” to describe the powers of the European Parliament “must be taken as an indication that the European Parliament has moved away from being a purely consultative body, and has moved towards being a body with a decisive role to play in the legislative process of the European Community”, as matters stand (and stood at the time of the 1994 elections) that Parliament has not in our view reached a stage where it can of itself properly be regarded as constituting a legislature. To borrow the words of Professor Dashwood in his inaugural address at the University of Cambridge in November 1995, “the Community has no legislature, but a legislative process in which the different political institutions have different parts to play”. In fact, of the institutions of the Community it is the Council of Ministers which performs the functions most closely related to those of a legislature at national level.

8. If it had become necessary to consider whether, on the hypothesis that it was in the true sense a legislature, the European Parliament qualified to be treated as “the legislature” for Gibraltar within the meaning of Article 3 of Protocol No. 1, so that Gibraltar elections were required to be held to it as well as to the local House of Assembly, we would have been influenced in the contrary direction by the exclusion of Gibraltar from substantial parts of the EC Treaty and the limited extent of the areas of Community competence in which the Parliament has, in any event, a significant role (as it does not in the areas of foreign and security policy, justice and home affairs, the implementation of the common commercial policy or the negotiation of trade agreements with other States or international organisations; or in the field of economic and monetary union). We would have been similarly influenced by the small number of measures adopted under the Article 189b procedure and applicable to Gibraltar. But, given the negative view which we have reached on the qualifications of the European Parliament to be regarded as a legislature, there is no need for us to proceed to a conclusion on the further question.

9. We would add only that, to put it no higher, we see a certain incongruity in the branding of the United Kingdom as a violator of obligations under Article 3 of Protocol No. 1 when the exclusion from the franchise effected multilaterally by the 1976 Decision and Act – in particular, Annex II – was at that time wholly consistent with those obligations (because on no view could the Assembly, as it was then known, be regarded as a legislature); when at no subsequent time has it been possible for the United Kingdom unilaterally to secure the modification of the position so as to include Gibraltar within the franchise; and when such a modification would require the agreement of all the member States (including a member State in dispute with the United Kingdom about sovereignty over Gibraltar).

[1] Notes by the Registry

1-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[2] 3. Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[3]

[3] 1. Note by the Registry . Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol.

[4] 1. This procedure is required to be used, inter alia , in connection with Article 49 of the EC Treaty (measures for the free movement of workers), Article 54(2) (programme in connection with freedom  of establishment), Article 57(2) (mutual recognition of diplomas in connection with the right of establishment), Article 66 (mutual recognition of diplomas in connection with the freedom to provide services), Article 100a(1) (approximation of provisions in connection with the internal market) and Article 130s(3) (action programmes in connection with the environment).

[5] 1. This procedure is required to be used, inter alia , in connection with Article 6 (rules to prohibit discrimination on grounds of nationality), Article 75(1) (transport policy) Article 118a (social policy) and Articles 130l-130k (framework programmes in connection with the environment).

[6] 1. Note by the Registry . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.