Accession Of The Communities To The European Convention On Human Rights: Commission Memorandum

Published date01 November 1979
DOIhttp://doi.org/10.1111/j.1468-2230.1979.tb01560.x
Date01 November 1979
REPORTS
OF
COMMITTEES
ACCESSION
OF
THE
CoMMUNITIES
TO
THE
EUROPEAN
CONVENTION
ON
HUMAN
RIGHTS
:
COMMISSION
MEMORANDUM
In
a
recent memorandum' dealing with the problem of pro-
tecting fundamental rights within the system of Community law,
the Commission has come out forcefully in favour
of
the European
Communities acceding to the European Convention on Human
Rights (ECHR).2 This solution represents
a
radical departure
from the position adopted in
an
earlier report, where it was stated
that accession was unnecessary because fundamental rights
guaranteed under the ECHR
". .
.
were recognised as generally
binding in the context
of
Community law without further con-
stitutive act."
s
The possibility
d
the
formal
accession to the ECHR
throws
up
a
variety
of
problems deeply affecting the whole
architecture of national and transnationad European legal systems
and the quality
of
protection afforded to the individual in Europe.
On the one hand, accession raises the possibility of evolving a
new
"
Grand Design
*'
in which separate, and at times competing,
jurisdictions could be forged into one unified whole, thus stream-
lining judicial review throughout modern Europe. At the same
time, it must be recognised that accession
per
se
can
be
no sub-
stitute for an effective system
of
protection tailored
to
the needs
of
a
developing Community and might itself impede the future
creation of
a
more functional catalogue of rights for the European
Communities and Europe as
a
whole that would
fill
the gaps left
uncovered
by
the ECHR.
Accession would have profound effects at several levels. At the
domestic level, in the United Kingd~m,~ accession
to
the ECHR
would raise the spectre
of
a
novel but perhaps anomalous legal
situation. At present the ECHR is not incorporated into United
Kingdom domestic law. Under the proposed new regime. by virtue
of
the direct applicability and supremacy
of
Community law the
possibility arises of United Kingdom courts having to decide certain
~ ~ ~~
1
E.C.Bull.Supp. 2/79. See also also proposed resolution in European Parlia-
ment, E.P.Doc. 80/79. The authors have greatly benefited from contributions to
the following colloquia
:
Centre
of
European Governmental Studies, Edinburgh
University (June 26, 1979);
The
British Institute
of
International and Com-
parative Law, London (June 21-23, 1979); European Parliament Round Table,
European University Institute, Florence (October 26-28, 1978) PE 57.049.
2
Accession means the formal incorporation of the ECHR into Community law
and the adherence to the institutional machinery
in
Strasbourg,
but
not the
extension
of
Community competence
to
all
spheres covered by the ECHR.
J
E.C.Bull.Supp. 5/76 at p. 14.
4
A different domestic problem will be raised in France, which does not
permit individual petitions.
683

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