It sometimes seems to be thought that the reasoning used by the European Court of Justice in its Opinion 2/94 on Community accession to the European Convention on Human Rights41 not only prevents such accession in the absence of a specific Treaty amendment, but also makes it virtually impossible to develop a general human rights policy unless it too were specifically authorized by a Treaty amendment. In our view, however, a Treaty amendment is not required in order to provide a legal basis, or legal bases, for the human rights policy we envisage. Such a policy would be perfectly consistent with the jurisprudence of the Court, including its Opinion 2/94. At no point in that Opinion did the Court suggest that the protection of human rights was not an objective of the Community, nor did it say that the Community lacked competence to legislate in the field of human rights. Because of the centrality of this issue, it seems necessary to devote particular and detailed attention to it.42
1 Complying with the Interpretations of the European Court of Justice
In its jurisprudence, the Court has articulated three critical constitutional principles which inform this field. The first affirms that ‘… respect for human rights is a condition of the lawfulness of Community acts’. The second affirms that it is the positive duty of the institutions ‘… to ensure the observance of fundamental rights’. In other words, they are obligated not simply to refrain from violating them, but to ensure that they are observed within the respective constitutional roles played by each institution. Finally, the human rights jurisdiction of the Community extends only ‘…in the field of Community law’.43
A Community Human Rights Policy must, therefore, not extend beyond the field of Community law. That boundary, like many other legal boundaries, is not always razor sharp. There are likely to be some hard cases. But that does mean that the vast areas of Member State action which fall outside the reach of Community law will be beyond the writ of a Community human rights policy. By contrast, all those areas which are regulated by the Community or come within the reach of Community law can and should also be subject to its human rights policy.
Especially since the entry into force of the Single European Act, the question of the legal basis for Community legislation has become critical, given the different political consequences of varying legal bases in terms of voting procedures and the role accorded to the European Parliament. What legal basis, then, could and should be used by the political institutions when exercising their duty to ensure the observance of fundamental rights in the field of Community law?
2 The Specific Treaty Provisions
There are several potential legal bases, although attention is given below to only the most salient.
The first is that governing action in a specific field. For example, the Community ‘legislative branch’ (the Commission, the Council and the Parliament) could, and in our view should, attach to any legislation it passes a ‘human rights clause’ dealing with matters such as transparency, the availability of information to interested parties, the possibilities open to those affected to launch an appeal, the availability of legal aid and the like. This would be consistent with the commitment in Article 1 of the EU Treaty to take decisions ‘as openly as possible’ and of new Article 255 of the EC Treaty providing for enhanced public access to Community documents. There are few areas of Community activity which cannot, negatively and positively, affect the fundamental rights of individuals and groups. In this way, the Community would consistently and routinely be affirming that it considers its legislative action to conform with its human rights undertakings and would make it possible for those who believe otherwise to take appropriate action.
In some fields, unchallenged Community competences which underpin legislation also coincide with a classic fundamental right – such as the right to freedom of movement, access to employment and Article 141 TEC establishing the principle that men and women have the right to receive equal pay for equal work and for work of equal value. In other fields, the importance of fundamental rights is specifically mentioned – such as in relation to the provisions dealing with Cooperation and Development.44 Similarly, under Article 13 TEC as introduced by the Amsterdam Treaty, ‘the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. Indeed, such measures were taken even prior to the enactment of that Article, on the basis of existing non-discrimination provisions, such as in the case of the Broadcasting Directive. Article 13 is especially significant since the right to non-discrimination and the duties that flow from that right are at the core of a great number of other human rights and thus provide a broad foundation upon which to build a human rights policy.
An appropriately broad human rights policy cannot, however, be constructed entirely on the basis of individual provisions of this type. As is the case in a great many areas of Community activity, certain measures would have to cut across several fields, in the sense that they have implications for a broad range of horizontal and institutional matters. In relation to these, a prudent usage of Article 308 would be permissible.
Because this provision was a central focus of Opinion 2/94 of the European Court of Justice it is necessary in this context to explore whether our conclusion is compatible with the view expressed by the Court. In its Opinion the Court noted that:
No Treaty provision confers on the Community institutions any general power to enact rules on human rights ….45
This then led the Court to ask whether, in the absence of such express or implied powers, Article 308 could provide the necessary legal basis. It defined the function of the Article thus:
Article 235 [new Article 308] is designed to fill the gap where no specific provisions of the Treaty confer on the Community institutions express or implied powers to act, if such powers appear none the less to be necessary to enable the Community to carry out its functions with a view to attaining one of the objectives laid down by the Treaty.46
In considering whether that Article could then be used as a basis upon which to proceed with Community accession to the European Convention on Human Rights, the Court concluded in the following terms:
That provision, being an integral part of an institutional system based on the principle of conferred powers, cannot serve as a basis for widening the scope of Community powers beyond the general framework created by the provisions of the Treaty as a whole and, in particular, by those that define the tasks and the activities of the Community. On any view, Article 235 [new Article 308] cannot be used as a basis for the adoption of provisions whose effect would, in substance, be to amend the Treaty without following the procedure which it provides for that purpose.47
What then are the implications of this reasoning for the proposal that the Community should adopt a human rights policy which relies, by no means exclusively but at least in part, on Article 308? In our view it is clear that such a policy would be in conformity with the Court’s reasoning provided that it:
does not entail the entry of the Community into a distinct international institutional system;
does not modify the material content of human rights within the Community legal order; and
does not have fundamental institutional implications.
In other words, a Community human rights policy which respects the current institutional balance and which scrupulously remains within the field of Community law could be based, in part, on Article 308 TEC. The approach suggested in this article meets these criteria.