Respect for Fundamental Rights as a Constitutional Principle of the European Union
![handle is hein.journals/coljeul6 and id is 7 raw text is: RESPECT FOR FUNDAMENTAL RIGHTS AS A
CONSTITUTIONAL PRINCIPLE OF THE EUROPEAN UNION
Koen Lenaerts *
On the eve of the Intergovernmental Conference which opened in Turin on 29
March 1996 with the task of drafting what was to become the Treaty of Amsterdam, the
Court of Justice delivered an Opinion in which it found that: As Community law now
stands, the Community has no competence to accede to the European Convention for
the Protection of Human Rights and Fundamental Freedoms (hereinafter the
Convention or the European Convention on Human Rights).' Having noted that no
provision of the Treaty establishing the European Community confers on the
Community institutions any general power to enact rules on human rights or to
conclude international conventions in this field, the Court proceeded to consider
whether Article 235 (now Article 308) of the Treaty may constitute a legal basis for
2
accession. The Court's conclusion was that it may not, since in its view accession to
the Convention would [...] entail a substantial change in the present Community system
for the protection of human rights in that it would entail the entry of the Community
into a distinct international institutional system as well as integration of all the
provisions of the Convention into the Community legal order.3 Such a modification
would be of constitutional significance and would therefore be such as to go beyond
the scope of Article 235.' The Court consequently concluded that it could be brought
about only by way of Treaty amendment.'
It is not the purpose of this article to assess the relative merits of the arguments
developed by the Court and the various criticisms that have been leveled against them .6
. Judge, Court of First Instance of the European Communities; Professor of Law, Katholieke
Universiteit Leuven. This paper expresses the personal views of the author.
' Accession by the Communities to the European Convention for the Protection of Human Rights and
Fundamental Freedoms, Opinion 2/94, 1996 E.C.R. 1-1759.
2 See id., at 1787.
See id., at 1789.
4 Id.
Id.
6 See Michel Waelbroeck, La Cour de Justice et la Convention europdenne des droits de I'homme, 32
Cahiers de droit europden 549 (1996); Sandrine Mathieu, L'adhdsion de la Communautd At la CEDH: un
probI~me de competence ou un problbme de soumission?, 1998 Revue du Marchd commun et de I'Union
europienne 31; Noreen Burrows, Question of Community Accession to the European Convention
Determined, 22 European Law Review 58 (1997); Patrick Wachsmann, L'avis 2/94 de la Cour de justice
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Respect for Fundamental Rights as a Constitutional Principle of the European Union
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