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CASE OF MATTHEWS v. THE UNITED KINGDOM

(Application no. 24833/94)

18 February 1999

ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1

24. The applicant alleged a breach of Article 3 of Protocol No. 1, which provides:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

25. The Government maintained that, for three main reasons, Article 3 of Protocol No. 1 was not applicable to the facts of the present case or, in the alternative, that there had been no violation of that provision.

A. WHETHER THE UNITED KINGDOM CAN BE HELD RESPONSIBLE UNDER THE CONVENTION FOR THE LACK OF ELECTIONS TO THE EUROPEAN PARLIAMENT IN GIBRALTAR

26. According to the Government, the applicant’s real objection was to Council Decision 76/787 and to the 1976 Act concerning elections to the European Parliament (see paragraph 18 above). That Act, which had the status of a treaty, was adopted in the Community framework and could not be revoked or varied unilaterally by the United Kingdom. The Government underlined that the European Commission of Human Rights had refused on a number of occasions to subject measures falling within the Community legal order to scrutiny under the Convention. Whilst they accepted that there might be circumstances in which a Contracting Party might infringe its obligations under the Convention by entering into treaty obligations which were incompatible with the Convention, they considered that in the present case, which concerned texts adopted in the framework of the European Community, the position was not the same. Thus, acts adopted by the Community or consequent to its requirements could not be imputed to the member States, together or individually, particularly when those acts concerned elections to a constitutional organ of the Community itself. At the hearing, the Government suggested that to engage the responsibility of any State under the Convention, that State must have a power of effective control over the act complained of. In the case of the provisions relating to the elections to the European Parliament, the United Kingdom Government had no such control.

27. The applicant disagreed. For her, the Council Decision and 1976 Act constituted an international treaty, rather than an act of an institution whose decisions were not subject to Convention review. She thus considered that the Government remained responsible under the Convention for the effects of the Council Decision and 1976 Act. In the alternative – that is, if the Council Decision and 1976 Act were to be interpreted as involving a transfer of powers to the Community organs – the applicant argued, by reference to Commission case-law, that in the absence of any equivalent protection of her rights under Article 3 of Protocol No. 1, the Government in any event retained responsibility under the Convention.

28. The majority of the Commission took no stand on the point, although it was referred to in concurring and dissenting opinions.

29. Article 1 of the Convention requires the High Contracting Parties to “secure to everyone within their jurisdiction the rights and freedoms defined  in … [the] Convention”. Article 1 makes no distinction as to the type of rule or measure concerned, and does not exclude any part of the member States’ “jurisdiction” from scrutiny under the Convention (see the United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 17-18, § 29).

30. The Court notes that the parties do not dispute that Article 3 of Protocol No. 1 applies in Gibraltar. It recalls that the Convention was extended to the territory of Gibraltar by the United Kingdom’s declaration of 23 October 1953 (see paragraph 19 above), and Protocol No. 1 has been applicable in Gibraltar since 25 February 1988. There is therefore clearly territorial “jurisdiction” within the meaning of Article 1 of the Convention.

31. The Court must nevertheless consider whether, notwithstanding the nature of the elections to the European Parliament as an organ of the EC, the United Kingdom can be held responsible under Article 1 of the Convention for the absence of elections to the European Parliament in Gibraltar, that is, whether the United Kingdom is required to “secure” elections to the European Parliament notwithstanding the Community character of those elections.

32. The Court observes that acts of the EC as such cannot be challenged before the Court because the EC is not a Contracting Party. The Convention does not exclude the transfer of competences to international organisations provided that Convention rights continue to be “secured”. Member States’ responsibility therefore continues even after such a transfer.

33. In the present case, the alleged violation of the Convention flows from an annex to the 1976 Act, entered into by the United Kingdom, together with the extension to the European Parliament’s competences brought about by the Maastricht Treaty. The Council Decision and the 1976 Act (see paragraph 18 above), and the Maastricht Treaty, with its changes to the EEC Treaty, all constituted international instruments which were freely entered into by the United Kingdom. Indeed, the 1976 Act cannot be challenged before the European Court of Justice for the very reason that it is not a “normal” act of the Community, but is a treaty within the Community legal order. The Maastricht Treaty, too, is not an act of the Community, but a treaty by which a revision of the EEC Treaty was brought about. The United Kingdom, together with all the other parties to the Maastricht Treaty, is responsible ratione materiae under Article 1 of the Convention and, in particular, under Article 3 of Protocol No. 1, for the consequences of that Treaty.

34. In determining to what extent the United Kingdom is responsible for “securing” the rights in Article 3 of Protocol No. 1 in respect of elections to the European Parliament in Gibraltar, the Court recalls that the Convention is intended to guarantee rights that are not theoretical or illusory, but  practical and effective (see, for example, the above-mentioned United Communist Party of Turkey and Others judgment, pp. 18-19, § 33). It is uncontested that legislation emanating from the legislative process of the European Community affects the population of Gibraltar in the same way as legislation which enters the domestic legal order exclusively via the House of Assembly. To this extent, there is no difference between European and domestic legislation, and no reason why the United Kingdom should not be required to “secure” the rights in Article 3 of Protocol No. 1 in respect of European legislation, in the same way as those rights are required to be “secured” in respect of purely domestic legislation. In particular, the suggestion that the United Kingdom may not have effective control over the state of affairs complained of cannot affect the position, as the United Kingdom’s responsibility derives from its having entered into treaty commitments subsequent to the applicability of Article 3 of Protocol No. 1 to Gibraltar, namely the Maastricht Treaty taken together with its obligations under the Council Decision and the 1976 Act. Further, the Court notes that on acceding to the EC Treaty, the United Kingdom chose, by virtue of Article 227(4) of the Treaty, to have substantial areas of EC legislation applied to Gibraltar (see paragraphs 11 to 14 above).

35. It follows that the United Kingdom is responsible under Article 1 of the Convention for securing the rights guaranteed by Article 3 of Protocol No. 1 in Gibraltar regardless of whether the elections were purely domestic or European.

B. WHETHER ARTICLE 3 OF PROTOCOL NO. 1 IS APPLICABLE TO AN ORGAN SUCH AS THE EUROPEAN PARLIAMENT

36. The Government claimed that the undertaking in Article 3 of Protocol No. 1 was necessarily limited to matters falling within the power of the parties to the Convention, that is, sovereign States. They submitted that the “legislature” in Gibraltar was the House of Assembly, and that it was to that body that Article 3 of Protocol No. 1 applied in the context of Gibraltar. For the Government, there was no basis upon which the Convention could place obligations on Contracting Parties in relation to elections for the parliament of a distinct, supranational organisation, and they contended that this was particularly so when the member States of the European Community had limited their own sovereignty in respect of it and when both the European Parliament itself and its basic electoral procedures were provided for under its own legal system, rather than the legal systems of its member States.

37. The applicant referred to previous decisions of the European Commission of Human Rights in which complaints concerning the  European Parliament were dealt with on the merits, so that the Commission in effect assumed that Article 3 of Protocol No. 1 applied to elections to the European Parliament (see, for example, Lindsay v. the United Kingdom, application no. 8364/78, decision of 8 March 1979, Decisions and Reports (DR) 15, p. 247, and Tête v. France, application no. 11123/84, decision of 9 December 1987, DR 54, p. 52). She agreed with the dissenting members of the Commission who did not accept that because the European Parliament did not exist when Protocol No. 1 was drafted, it necessarily fell outside the ambit of Article 3 of that Protocol.

38. The majority of the Commission based its reasoning on this jurisdictional point. It considered that “to hold Article 3 of Protocol No. 1 to be applicable to supranational representative organs would be to extend the scope of Article 3 beyond what was intended by the drafters of the Convention and beyond the object and purpose of the provision. ...[T]he role of Article 3 is to ensure that elections take place at regular intervals to the national or local legislative assembly, that is, in the case of Gibraltar, to the House of Assembly” (see paragraph 63 of the Commission’s report).

39. That the Convention is a living instrument which must be interpreted in the light of present-day conditions is firmly rooted in the Court’s case-law (see, inter alia, the Loizidou v. Turkey judgment of 23 March 1995 (preliminary objections), Series A no. 310, pp. 26-27, § 71, with further reference). The mere fact that a body was not envisaged by the drafters of the Convention cannot prevent that body from falling within the scope of the Convention. To the extent that Contracting States organise common constitutional or parliamentary structures by international treaties, the Court must take these mutually agreed structural changes into account in interpreting the Convention and its Protocols.

The question remains whether an organ such as the European Parliament nevertheless falls outside the ambit of Article 3 of Protocol No. 1.

40. The Court recalls that the word “legislature” in Article 3 of Protocol No. 1 does not necessarily mean the national parliament: the word has to be interpreted in the light of the constitutional structure of the State in question. In the case of Mathieu-Mohin and Clerfayt v. Belgium, the 1980 constitutional reform had vested in the Flemish Council sufficient competence and powers to make it, alongside the French Community Council and the Walloon Regional Council, a constituent part of the Belgian “legislature”, in addition to the House of Representatives and the Senate (see the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, p. 23, § 53; see also the Commission’s decisions on the application of Article 3 of Protocol No. 1 to regional parliaments in Austria (application no. 7008/75, decision of 12 July 1976, DR 6, p. 120)  and in Germany (application no. 27311/95, decision of 11 September 1995, DR 82-A, p. 158)).

41. According to the case-law of the European Court of Justice, it is an inherent aspect of EC law that such law sits alongside, and indeed has precedence over, domestic law (see, for example, Costa v. ENEL, 6/64 [1964] ECR 585, and Amministrazione delle Finanze dello Stato v. Simmenthal SpA, 106/77 [1978] ECR 629). In this regard, Gibraltar is in the same position as other parts of the European Union.

42. The Court reiterates that Article 3 of Protocol No. 1 enshrines a characteristic of an effective political democracy (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 22, § 47, and the above-mentioned United Communist Party of Turkey and Others judgment, pp. 21-22, § 45). In the present case, there has been no submission that there exist alternative means of providing for electoral representation of the population of Gibraltar in the European Parliament, and the Court finds no indication of any.

43. The Court thus considers that to accept the Government’s contention that the sphere of activities of the European Parliament falls outside the scope of Article 3 of Protocol No. 1 would risk undermining one of the fundamental tools by which “effective political democracy” can be maintained.

44. It follows that no reason has been made out which could justify excluding the European Parliament from the ambit of the elections referred to in Article 3 of Protocol No. 1 on the ground that it is a supranational, rather than a purely domestic, representative organ.

C. WHETHER THE EUROPEAN PARLIAMENT, AT THE RELEVANT TIME, HAD THE CHARACTERISTICS OF A “LEGISLATURE” IN GIBRALTAR

45. The Government contended that the European Parliament continued to lack both of the most fundamental attributes of a legislature: the power to initiate legislation and the power to adopt it. They were of the opinion that the only change to the powers and functions of the European Parliament since the Commission last considered the issue in the above-mentioned Tête decision (see paragraph 37 above) – the procedure under Article 189b of the EC Treaty – offered less than even a power of co-decision with the Council, and in any event applied only to a tiny proportion of the Community’s legislative output.

46. The applicant took as her starting-point in this respect that the European Commission of Human Rights had found that the entry into force of the Single European Act in 1986 did not furnish the European Parliament with the necessary powers and functions for it to be considered as a “legislature” (see the above-mentioned Tête decision). She contended that the Maastricht Treaty increased those powers to such an extent that the  European Parliament was now transformed from a mere advisory and supervisory organ to a body which assumed, or assumed at least in part, the powers and functions of legislative bodies within the meaning of Article 3 of Protocol No. 1. The High Contracting Parties had undertaken to hold free elections at reasonable intervals by secret ballot, under conditions which would ensure the free expression of the opinion of the people in the choice of the legislature. She described the powers of the European Parliament not solely in terms of the new matters added by the Maastricht Treaty, but also by reference to its pre-existing powers, in particular those which were added by the Single European Act in 1986.

47. The Commission did not examine this point, as it found Article 3 not to be applicable to supranational representative organs.

48. In determining whether the European Parliament falls to be considered as the “legislature”, or part of it, in Gibraltar for the purposes of Article 3 of Protocol No. 1, the Court must bear in mind the sui generis nature of the European Community, which does not follow in every respect the pattern common in many States of a more or less strict division of powers between the executive and the legislature. Rather, the legislative process in the EC involves the participation of the European Parliament, the Council and the European Commission.

49. The Court must ensure that “effective political democracy” is properly served in the territories to which the Convention applies, and in this context, it must have regard not solely to the strictly legislative powers which a body has, but also to that body’s role in the overall legislative process.

50. Since the Maastricht Treaty, the European Parliament’s powers are no longer expressed to be “advisory and supervisory”. The removal of these words 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. The amendment to Article 137 of the EC Treaty cannot, however, be taken as any more than an indication as to the intentions of the drafters of the Maastricht Treaty. Only on examination of the European Parliament’s actual powers in the context of the European Community legislative process as a whole can the Court determine whether the European Parliament acts as the “legislature”, or part of it, in Gibraltar.

51. The European Parliament’s role in the Community legislative process depends on the issues concerned (see paragraphs 15-16 above).

Where a regulation or directive is adopted by means of the consultation procedure (for example under Articles 99 or 100 of the EC Treaty) the European Parliament may, depending on the specific provision, have to be consulted. In such cases, the European Parliament’s role is limited. Where the EC Treaty requires the procedure set out in Article 189c to be used, the  European Parliament’s position on a matter can be overruled by a unanimous Council. Where the EC Treaty requires the Article 189b procedure to be followed, however, it is not open to the Council to pass measures against the will of the European Parliament. Finally, where the so-called “assent procedure” is used (as referred to in the first paragraph of Article 138b of the EC Treaty), in relation to matters such as the accession of new member States and the conclusion of certain types of international agreements, the consent of the European Parliament is needed before a measure can be passed.

In addition to this involvement in the passage of legislation, the European Parliament also has functions in relation to the appointment and removal of the European Commission. Thus, it has a power of censure over the European Commission, which can ultimately lead to the European Commission having to resign as a body (Article 144); its consent is necessary for the appointment of the European Commission (Article 158); its consent is necessary before the budget can be adopted (Article 203); and it gives a discharge to the European Commission in the implementation of the budget, and here has supervisory powers over the European Commission (Article 206).

Further, whilst the European Parliament has no formal right to initiate legislation, it has the right to request the European Commission to submit proposals on matters on which it considers that a Community act is required (Article 138b).

52. As to the context in which the European Parliament operates, the Court is of the view that the European Parliament represents the principal form of democratic, political accountability in the Community system. The Court considers that whatever its limitations, the European Parliament, which derives democratic legitimation from the direct elections by universal suffrage, must be seen as that part of the European Community structure which best reflects concerns as to “effective political democracy”.

53. Even when due allowance is made for the fact that Gibraltar is excluded from certain areas of Community activity (see paragraph 12 above), there remain significant areas where Community activity has a direct impact in Gibraltar. Further, as the applicant points out, measures taken under Article 189b of the EC Treaty and which affect Gibraltar relate to important matters such as road safety, unfair contract terms and air pollution by emissions from motor vehicles and to all measures in relation to the completion of the internal market.

54. The Court thus finds that the European Parliament is sufficiently involved in the specific legislative processes leading to the passage of legislation under Articles 189b and 189c of the EC Treaty, and is  sufficiently involved in the general democratic supervision of the activities of the European Community, to constitute part of the “legislature” of Gibraltar for the purposes of Article 3 of Protocol No. 1.

D. THE APPLICATION OF ARTICLE 56 OF THE CONVENTION TO THE CASE

55. Article 56 §§ 1 and 3 of the Convention provide as follows:

“1. Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary General of the Council of Europe that the … Convention shall, subject to paragraph 4 of this Article, extend to all or any of the territories for whose international relations it is responsible.

...

3. The provisions of [the] Convention shall be applied in such territories with due regard, however, to local requirements.”

56. The Government noted, without relying formally on the point, that two members of the Commission had emphasised the constitutional position of Gibraltar as a dependent territory in the context of Article 56 (formerly Article 63) of the Convention.

57. The applicant was of the view that the “local requirements” referred to in Article 56 § 3 of the Convention could not be interpreted so as to restrict the application of Article 3 of Protocol No. 1 in the case.

58. The Commission, which found Article 3 not to be applicable on other grounds, did not consider this point. Two members of the Commission, in separate concurring opinions, both found that Article 56 of the Convention had a role to play in the case.

59. The Court recalls that in the Tyrer v. the United Kingdom judgment (25 April 1978, Series A no. 26, pp. 18-19, § 38) it found that before the former Article 63 § 3 could apply, there would have to be “positive and conclusive proof of a requirement”. Local requirements, if they refer to the specific legal status of a territory, must be of a compelling nature if they are to justify the application of Article 56 of the Convention. In the present case, the Government do not contend that the status of Gibraltar is such as to give rise to “local requirements” which could limit the application of the Convention, and the Court finds no indication that there are any such requirements.

E. WHETHER THE ABSENCE OF ELECTIONS TO THE EUROPEAN PARLIAMENT IN GIBRALTAR IN 1994 WAS COMPATIBLE WITH ARTICLE 3 OF PROTOCOL NO. 1

60. The Government submitted that, even if Article 3 of Protocol No. 1 could be said to apply to the European Parliament, the absence of elections in Gibraltar in 1994 did not give rise to a violation of that provision but instead fell within the State’s margin of appreciation. They pointed out that in the 1994 elections the United Kingdom had used a single-member constituency, “first-past-the-post” system. It would have distorted the electoral process to constitute Gibraltar as a separate constituency, since its population of approximately 30,000 was less than 5% of the average population per European Parliament seat in the United Kingdom. The alternative of redrawing constituency boundaries so as to include Gibraltar within a new or existing constituency was no more feasible, as Gibraltar did not form part of the United Kingdom and had no strong historical or other link with any particular United Kingdom constituency.

61. The applicant submitted that she had been completely deprived of the right to vote in the 1994 elections. She stated that the protection of fundamental rights could not depend on whether or not there were attractive alternatives to the current system.

62. The Commission, since it did not find Article 3 of Protocol No. 1 to be applicable, did not examine whether or not the absence of elections in Gibraltar was compatible with that provision.

63. The Court recalls that the rights set out in Article 3 of Protocol No. 1 are not absolute, but may be subject to limitations. The Contracting States enjoy a wide margin of appreciation in imposing conditions on the right to vote, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with. It has to satisfy itself that the conditions do not curtail the right to vote to such an extent as to impair its very essence and deprive it of effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. In particular, such conditions must not thwart “the free expression of the people in the choice of the legislature” (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 23, § 52).

64. The Court makes it clear at the outset that the choice of electoral system by which the free expression of the opinion of the people in the choice of the legislature is ensured – whether it be based on proportional representation , the “first-past-the-post” system or some other arrangement – is a matter in which the State enjoys a wide margin of appreciation. However, in the present case the applicant, as a resident of Gibraltar, was completely denied any opportunity to express her opinion in the choice of the members of the European Parliament. The position is not analogous to  that of persons who are unable to take part in elections because they live outside the jurisdiction, as such individuals have weakened the link between themselves and the jurisdiction. In the present case, as the Court has found (see paragraph 34 above), the legislation which emanates from the European Community forms part of the legislation in Gibraltar, and the applicant is directly affected by it.

65. In the circumstances of the present case, the very essence of the applicant’s right to vote, as guaranteed by Article 3 of Protocol No. 1, was denied.

It follows that there has been a violation of that provision.