1.

The Commission, the Parliament, and the Austrian, Belgian, Danish, German, Finnish, Greek, Italian and Swedish Governments submit that the envisaged accession, in particular the submission of the Community to the legal system of the Convention, is not contrary to Articles 164 and 219 of the Treaty. The Commission notes that, unlike in the case of the Agreement on the European Economic Area, the objectives of the Convention and the Treaty concur in the area of human rights. The Convention lays down classic international-law control machinery and the judgments of the European Court of Human Rights have no direct effect in the internal legal order. Admittedly, the Convention has the specific feature that individuals may petition. That however is simply one aspect of control, alongside the applications which may be made by the Contracting Parties; it would moreover be contradictory to accept that control machinery and to refuse individual petitions. The European Court of Human Rights would not rule on the question of the division of competence between the Community and the Member States, which is regulated solely by the Community legal order. Thus there should be no possibility of any action between the Community and the Member States. Neither can it be asserted that the control machinery of the Convention, in that it extends to all Community powers, calls in question the autonomy of the Community legal order. The Convention imposes only minimum standards. The control machinery has no direct effect in the Community legal order. Since it has not been considered contrary to the constitutional principles of the Member States, that machinery could hardly be considered to be incompatible with the principles of Community law. The Parliament refers to Opinion 1/91, cited above, in which the Court recognized that the Community had power to submit to decisions of an international court. The submission of the Community to a court competent in human rights matters is consistent with the development of the Community order which is no longer directed at the economic operator but at the citizen of the Union. External control in the field of human rights does not affect the autonomy of the Community legal order any more than it prejudices that of the Member States. The Parliament refers to its resolution of 18 January 1994, cited above, in which it noted the importance of being able to bring a direct action before an international court in examining the compatibility of a Community act with human rights and stressed that the envisaged accession is not such as to call in question the Court's competence in questions of Community law. The Belgian Government considers that the Court is required to decide whether the fundamental rights integrated in the Community legal order, where they arc drawn from the Convention, become Community law or retain their specific character. Whether or not the envisaged accession affects the autonomy of Community law will depend on the answer. The Government notes first that the rights and freedoms of the Convention have their own status among the general principles of Community law. The Convention simply establishes a minimum threshold of protection and does not affect the development of that protection from other sources recognized by the Court, namely the Community legal order properly so called and the common constitutional traditions. When it refers to the Convention, the Court takes into consideration the interpretation given by the organs of the Convention, thus underlining the specific place of rights guaranteed by the Convention in the Community legal order. To that extent, the autonomy of the Community legal order, within the meaning of Opinions 1/91 and 2/92, cited above, is from now on simply relative. The Belgian Government next argues that the agreement envisaged preserves the autonomy of the Community legal order. In accordance with the possibility provided in Article 62 of the Convention, any action between the Community and its Member States would be excluded, which would respect Article 219 of the Treaty. In order to avoid any external influence on the division of competence between the Community and the Member States, the latter could, in the event of an individual petition, adopt a position on the issue of who was liable for the alleged infringement; the machinery to be established would be based on Annex IX to the United Nations Convention on the Law of the Sea of 10 December 1982. The Belgian Government emphasizes, thirdly, that absolute autonomy of the Community legal order in the field of the rights and liberties guaranteed by the Convention is not desirable. The risk that the organs of the Convention will consider themselves competent to rule on the compatibility with the Convention, if not of Community acts, at least of national implementing acts, cannot be ruled out if the protection of human rights in the Community legal order is less than that of the Convention. Even if the Court of Justice were to conclude that the criteria laid down in Opinions 1/91 and 1/92 relating to the autonomy of the Community legal order were applicable, the envisaged accession could proceed. The Belgian Government notes the lack of any personal and functional link between the Court of Justice and the organs of the Convention. The European Court of Human Rights may simply require the relevant party to comply with its judgments without being able to annul or invalidate the national measure in dispute. With regard to the effect of the judgments of that Court, the Government distinguishes two cases. If the provision of the Convention is sufficiently precise and complete, it will be respected simply by recognizing that it is directly applicable. If the infringed provision is not directly applicable, it will be for the State to take the appropriate measures to remedy the infringement. In neither case would the autonomy of the Community legal order be called in question. According to the Austrian, Danish, Finnish, German, Greek and Italian Governments, the Court accepted in Opinion 1/91, cited above, that the Community may submit to a court set up by an international agreement for the interpretation and application of that agreement provided that the autonomy of the Community legal order is not affected. The Court stressed in particular the need to respect the independence of the Community judicature and the monopoly of the Court of Justice in the interpretation of Community law. The Danish Government emphasizes that in the Agreement on the European Economic Area the difficulty lay in the fact that that law was the same as Community law. In this case, the Community institutions, including the Court of Justice, would be taking into consideration the case-law of the organs of the Convention solely in respect of human rights. Without wishing definitively to settle the question, the Government stresses that the case-law of the Convention already influences that of the Court of Justice, which argues in favour of accession being compatible with the Treaty. The German Government also asserts that the question of the division of competence between the Community and the Member States remains within the jurisdiction of the Court of Justice, since the European Court of Human Rights does not rule on the internal law of the Contracting Parties. The Court of Justice safeguards fundamental rights by reference both to the constitutional tradition of the Member States and to the Convention, and achieves greater protection than the Convention. It cannot therefore be argued that the autonomy of Community law is called in question because identical provisions are interpreted differently by virtue of their different objectives. The sole obligation which the Convention would impose on the Community, namely a minimum level of respect, is within the limits laid down in Opinion 1/91, cited above. The German Government also refers to the fact that there is no personal link between the two courts. The Greek Government considers that any involvement of the European Court of Human Rights in the Community legal order would be limited to interpreting the rights guaranteed by the Convention. Respect for the autonomy of the Community legal order would not prohibit any external involvement, but would require the fundamental principles and the institutional balances of Community law to be protected. The participation of a judge from the Community who would not at the same time be a member of the Court of Justice should ensure that the European Court of Human Rights takes into consideration the specific features of Community law. The Italian Government, in its oral observations, points out that the accession agreement will have to respect the criteria laid down by the Court in Opinions 1/91 and 1/92 as regards respect for the Community legal order. The Italian Government particularly emphasizes in this regard that judgments of the European Court of Human Rights do not have direct effect in the internal legal systems and cannot have the effect of declaring internal acts unlawful. The Austrian Government emphasizes the difference from the Agreement on the European Economic Area. Accession would not create a normative package essentially comprising rules already part of the Community legal order and to be integrated into that order. The European Court of Human Rights would not have jurisdiction to rule on questions of Community law which would for this purpose be treated in the same way as the law of the States party to the Convention. The Swedish Government considers that accession could be incompatible with Articles 164 and 219 of the Treaty only in the event of a risk of a failure to observe the binding character of judgments of the Court and therefore an undermining of the autonomy of the Community legal order. In order to avoid that risk, the Swedish Government suggests that it would be possible to exclude, by special agreement, disputes between Member States or between Member States and the Community from the settlement machinery of the Convention. It also puts forward the idea of references being made by the European Court of Human Rights to the Court of Justice on questions of Community law. The Finnish Government does not rule out the possibility that the envisaged accession and the subordination of the Community institutions to the jurisdiction of the European Court of Human Rights may have effects on the interpretation by the Court of Justice of provisions of Community law to the extent that such provisions affect human rights. If the principles set out by the Court of Justice in Opinion 1/91 were applied, it would none the less be necessary to recognize that human rights, protected by way of general principles of Community law, were not within the economic and commercial framework of that law and accession would not prejudice its autonomy.