Protecting Human Rights in the European Union: problems and prospective scenarios

El artículo no presenta resumen.


l. Introduction
Judicial protection offundamental human rights by the European Court may opera te as a so urce ofboth unity and disunity in the dialectical process ofEuropean integration.

J.H.H. Weiler (*)
Europe is the cradle ofhuman rights 1 and has traditionally been its committed advocate.When human rights first became an issue of intemational concem, Europe established a regional framework of protection that has become the most developed one worldwide.
«The idea of «human rights» is not universal -it is essentially the product of 17th and 18th century European thought».RAYNER, Moira.History Of Universal Human Rights -Up To WW2.Internet < http://www.universalrights.net/rnain/histof.htrn>.
Also, the promotion ofhuman rights beyond its borders is also an essential component of EU's development cooperation. 2e European integration and its regional mechanisms for the protection ofhuman rights represent complex and evolving institutional frameworks, plagued by power tensions and permanent defiance ofthe political and legal paradigms.This paper intends to provide both analytical and prospective elements focused on the judicial and dimensions ofhuman rights protection in Europe.This is a realm where inter-institutional competition and allocation of power between S tates, EU non-judicial institutions and European tribunals is vested with unique features and its own normative language.
The purpose ofthe paper is thus, on one hand, to shed light on how the judicial interinstitutional tensions, and more importantly the power-bargaining between the European institutions and States and the normative developments within the EU, have evolved to accommodate divergent interests and values; and, on the other, to reflect on how this experience might project itself into the ongoing Community and constitutional process in Europe.

Europe: Walking on two ropes
The complex institutional framework now goveming Europe is the result of a process of ~ aggregation, parallelism and poli ti cal tensions.The EU is the outcome of a progressive development of a project that started as an economic integration initiative.The Council of Europe, a parallel institutional setting, reinforced the communitarian project by providing political and ideological strength based on the promotion of democratic values and human rights among all its European Member States. 3th frameworks -The EU and the Council ofEurope-developed as parallel institutions, emphasizing the institutional autonomy of one in regards to the other.However, the weight of circumstances and particular!y the fact that both share the same govemmental and societal universe has led throughout time toan impressive level of convergence.However, the EU has become a more fundamental and comprehensive govemance framework than the Council ofEurope.The latter was established in 1949 by a group of ten states having as primary aim the promotion of democracy, the rule oflaw anda greater unity among Westem European nations.It embedded the commitment of its Members to these values and to the ideological containment ofCommunism. 4e origins ofthe EU can be traced back to the Treaty ofParis, of 1952, establishing the European Coal and Steel Community (ECSC), and subsequently to the two Treaties of Rome, of 1957, establishing the European Economic Community (EEC) and the European Atomic Energy Community.
While the notion of economic integration was implicit in the Saint James Treaty establishing the Council ofEurope, no reference to human rights orto its protection was included in the ECSC Treaty ofParis, nor in the ECC Treaty ofRome.Later developments, first in the ECJ jurisprudence and later in the EC and EU treaties, incorporated human rights as a general principie ofEC and then EU law.
The ECJ has played a fundamental role in the process of becoming an instan ce of supranational judicial control for the protection ofhuman rights within the EU jurisdiction.It was originally divested of such power and lacked a catalogue of fundamental rights ~ within the Treaty ofRome.It is well recognized that the judicial activism ofthe ECJ has ~ been a powerful catalyst of the EU communitarian project and has shaped the EU Constitution. 5lt gave such step in a reactive fashion, after being challenged by German national courts arguing that EC law should not necessarily prevail over the national Fundamental Law particularly on issues attaining to the protection ofhuman rights.«It became increasingly apparent to the Court of Justice, however, that national courts were hesitant to accept the principies of supremacy and direct effect [ consecrated jurisprudentially by the ECJ] ifCommunity institutions were not required to respect According to chapter I of its Statute, «[t]he aim of the Council of Europe is to achieve a greater unity between its Members for the purpose of safeguarding and realising the ideals and principies which are their common heritage, and facilitating their economic and social progress».

5
«[I]n the absence of a written bill of rights in the Treaty and an apparent freedom for the Community legislature to disregard individual rights in Community legislation, the European Court of Justice, in an exercise of bold judicial activism, and a reversa! of earlier case law, created a judge-made higher law of fundamental human rights, culled from the constitutional traditions of the Member States and intemational agreements such as the European Convention on Human Rights (ECHR).On the basis ofthis higher law, legislative and administrative acts ofthe Community organs, binding on or affecting individual citizens, could be struck in the normal course of judicial review provided by the Treaty».WEILER, Joseph H. H. «Eurocracy and Distrust: Sorne Questions Conceming The Role of the European Court of Justice in the Protection of Fundamental Human Rights Within the Legal Order of the European Communities», in 61 Washington Law Review 1103.fundamental rights guarantees». 6The ECJ responded by announcing the doctrine of «fundamental human rights enshrined in the general principies ofCommunity law and protected by the Court [ECJ]». 7Thus, the elaboration of a strong commitment towards human rights protection within the EC law was nota deliberate policy evolvement but rather a «by-product of the ECJ's effort to establish the supremacy of EC law».Conflicting Treaty Obligations.Member States may find themselves subjected to conflicting adjudicative decisions by, on one hand the ECJ, and on the other the ECHR.In Hauer v. Land Rheinland-Pfalz, the ECJ affirmed the EU's commitment to human rights but decided that the restriction on the use ofthe plaintiff's property rights o ver land in pursuance ofthe EC's interest did not infringe the substance ofthe right to property and served objectives of general interest. 12But, in Sporrong & Lonroth v. Sweden, the other European tribunal, the ECHR, found a violation ofthe right to property because the Govemment restricted the use of a property for about fifteen years. 13While the level of restriction of the right to property is different in both cases, they reflect «the poten ti al for inconsistent judgements». 14e EU has greater legal capacity to restrict human rights than the Member Sta tes.By the mere fact of not being subject to the rules of the European Convention of Human Rights and the jurisdiction ofthe ECHR, the EU has greater leeway to restrict human rights than States that are parties to the Convention.In Orkem S.A. v. Commission, the ECJ decided that the due process rights ofthe plaintiff under article 6 ofthe Convention had not been violated. 15The EU Advocate-General stated before the ECJ in Orkem: I must not fail to remind the court that, according to its case law, the existence in Community law offundamental rights drawn from the European Convention on Human Rights does not derive from the wholly straightforward application ofthat instrumentas interpreted by the Strasbourg authorities [i.e., by the ECHR] [ ... ] the Court's position regarding the European Convention on Human Rights consists in most cases «in using it merely as a ~ reference» even though it «goes as far as possible in that direction» and that, by doing so, it develops «directly or indirectly its own case-law by interpreting the [human rights] Convention».16 The ECHR decided the Funke v. France case in opposition to what the ECJ had decided in Orkem 17 and argued that the principie on which this latter case was decided is no longer valid.In the same fashion, contrasting decisions between the ECJ and the ECHR when applying the same rules ofthe human rights Convention can be traced in cases such as Hoechst A. G v. Commission 18 , decided by the ECJ against the plaintiff, andNiemietz v. Germanyl 9 , decided by the ECHR in favor ofthe victim regarding the same right claim than in Hoechst.
Similarly, SERA discusses a third problem situation involving the margin of discretion a S tate has in regards to its obligations underthe human rights Convention when implementing EU directives.

Trying to tie the EU to the European Human Rights Convention Tree
Such normative tension between both institutional frameworks conspires against the ideal oflegal security meant to exist in developed poli ti cal systems.Moreover, the fact that the EU is nota Party to the human rights Convention generates undesired outcomes. 21The prospect of not providing human rights protections within the Community legal order generated reluctance in national constitutional courts and ordinary tribunals to accept the principies of direct effect and supremacy ofEU law. 22 fill the gap, the Council of the European Union requested in April 1994 an advisory opinion from the ECJ on whether article 228 ofthe Treaty ofEuropean Community (article 300 and 301 ofthe consolidated version) allows the EU to accede to the human rights Convention.Many EU Member States submitted amicus curiae briefs to the ECJ evidencing wide disagreement among them on the issue.The ECJ concluded that the EU bodies could not accede to the ECHR because there is no Treaty of the European Community provision conferring powers to the EU to enact rules or to conclude intemational conventions on human rights issues.Also, the ECJ held that article 235 of the same Treaty (article 308 ofthe consolidated version), which empowers the EU to act in lack of specific authoritative rule when required to pursue the EC purpose, does not suffice as a normative basis to allow the EC accession to the ECHR. 23The ECJ concluded that Such a modification of the system for the protection ofhuman rights in the Community [as would result from allowing the EC or later the EU to accede the ECHR], with equally fundamental institutional implications for the Community and for the Member S tates, would be of constitutional signijicance and would therefore be such as to go beyond the scope of Article 235 .It could be brought about only by way of a Treaty amendment [ ... A]s community law now stands, the Community has no competence to accede to the Convention. 24ere was thus wide consensus on guaranteeing the obligation ofthe EU to abide to the regional human rights standards applicable to its Member S tates, but divergence on the 21 While many policies and rules adopted by EU organs affect the effective implementation of human rights, only the State parties to the human rights Convention are legally liable for the consequences of such policies and rules that may infringe upon the human rights obligations it sets forth.

Intergovernmentalism and functionalism with a judicial tune
The ECJ has been a central player in the process of expanding the competencies ofthe EU organs, including its own.Interestingly, is activism has not generated as much resistance as the one faced by other EU organs despite its episodically more revolutionary grasp. 26This lack ofresistance also has a more technical and less apparent dimension: the intergovernmentalism-versus-functionalism divide has a unique conceptual narrative when projected into the realm ofEuropeanjudicial institutions, the ECJ and the ECHR.Part ofit is typical ofintemational tribunals and part is ofEuropean making.Thus, we cannot assess the allocation of power tensions regarding the European judicial institutions with the same analytical categories used to make sense ofthe intergovemmentalismversus-functionalism divide of other EU organs.
Two specific doctrinal arguments are relevant to make our point.One is the general characteristic of intemational tribunals ofbeing the masters of their own competen ce, reflected in the principie of Kompetez-Kompetenz. 27Thus, it is assumed that no superior authority exists o ver an intemational adjudication body to define the scope of their ~ 25 «The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection ofHuman Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principies ofCommunity law».TEU, art.F 2. 26 «The Court thus ultimately succeeded in its endeavor: indeed, with the exception of the German and Italian courts, the Court's assertion of its power to review Community acts for compliance with fundamental rights was for the most part welcomed by Community institutions and Member States alike.Why was this the case?Severa!reasons may be mentioned.First, opposition to judicial review typically stems from its counter-majoritarian nature, since it results in the invalidation of the acts of a democratically elected legislature by an unelected judiciary.In the Community, however, such a democratically elected legislature was, and to sorne degree still is, non-existent.Judicial review of Community acts thus served to check the increasing power of an appointed executive branch.Second, because the Court's review extended only to acts of the Community institutions, it did not directly interfere with the power of the Member States.Third, the cases before the Court in which human rights issues were raised were economically oriented and often highly technical in nature.They did not involve issues that were highly sensitive to the majority of individuals in the Community, and thus the Court's human rights jurisprudence was not the subject of much debate or attention.»BINDER, 4. competen ce orto declare that a decision passed by it is in fact ultra vires. 28The ECJ's competence goes beyond the capacity to define the boundaries ofits own competence, as it al so reflects on the delimitation of competen ces of other EU organs («final umpire over Community competences») and on the primacy ofCommunity law.The principies of supremacy and direct 29 effect of Community law reinforces the primacy of EU institutions o ver the ones of its Nation S tates.The ECJ has gone as far as sustaining that «Community law has supremacy o ver all Member State law, including all Member Sta te constitutionallaw».30 The validity ofthe Kompetez-Kompetenz principie is not necessarily challenged by objections raised by national constitutionai courts, as it is firmiy based on intemationaliaw and the challenge originates in the overlapping but different reaim of nationai constitutionaiiaw. 31Neediess to say, the Kompetez-Kompetenz principie provides a powerfui argument to functionaiism, as it piaces the competen ce of the ECJ and the ECHR beyond the authority ofMember States.
In the opposite direction it can be identified the principies of subsidiarity 32 and margin of appreciation.The one has been developed and appiied by the ECJ, and grants S te Members

31
The most notorious example of such challenge was provided by the German Constitutional Court 1993 decision on the Maastricht Treaty.«While conceding that the ECJ hada role to play, the German Court held that from a German constitutional perspective, the ultimate authority to determine this issue [Who is the ultimate umpire to declare or to determine the limits of the competences of the Community?]rested with domestic law.Indeed, any German court or other emanation of the state had a duty not to apply Community measures which in their eyes were ultra vires.»WEILER, op.cit., p. 288.German Constitutional Court, Judgement of October 12, 1993, 89 BverfGE 155.32 «Subsidiarity is a principie of governance designed to give meaning to the division of power and responsibility between the central government and constituent states in a federal system.The principie seeks to allocate responsibilities for policy formation and implementation to the lowest leve! of government at which the objectives of that policy can be successfully achieved.»INMAN, Robert P. and RUBINFELD, Daniel L., «Subsidiarity and the European Union», NBER Working Paper 6556 [ 1998].«Talk of subsidiarity was introduced in the late 1980s through the primary authority to act on issues which do not fall under the exclusive authority ofthe EU «only if and insofar as the objec-tives ofthe proposed action cannot be sufficiently achieved by the Member S tates».
The margin of appreciation principie recognizes govemments a certain discretion regarding the manner in which they implement their obligations under the European human rights Convention.Ithas been developed by the ECHR as a way of accommodating the conflicting interests and values of, on one hand, its own role of final arbiter ofthe implementation of the Convention and the universality ofhuman rights, and on the other, the diversity of culturally-accepted legal standards among countries. 33itiative of the European Parliament, Britain and Germany.Britain feared European federalism, and the German Liinder sought to maintain their exclusive powers enjoyed in the German Federal Republic.To constrain centralising tendencies, they sought to place the burden of argument with integrationists.A Principie of Subsidiarity was included in the 1992 Maastricht Treaty on European Union (TEU), and further elaborated in a Protocol of the Amsterdam draft Treaty of 1997.»F0LLESDAL , Andreas, «Subsidiarity and Democratic Deliberation».ARENA Working Papers WP 99/21 [1999].In 1992, the principie of sub-si-di-a-rity was incorporated into the TEU.The principie was written into both the preamble and articles one and two of the TEU (ex articles A and B TEU). Article 5 (ex 3b) of the TEU, reads: «The Community shall act within the limits of the 8 powers conferred upon it by this Treaty and of the objectives assigned to it therein.In areas which do not fall within its exclusive competence, the community shall take ac-tion, in accordance with the principie of subsidiarity, only if and insofar as the objec-tives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the community.Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty».

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«The ECHR originally articulated the doctrine in its earliest cases to address state derogations of rights under alleged exigent circumstances.This doctrine has since evolved as one of the ECHR's primary tools for accommodating diversity, national sovereignty, and the will of domes tic majorities, while enforcing effective implementation of rights under the European Convention.[ ... ) The rationale for the «margin of appreciation» rests u pon the primacy of national implementation of rights and the notion that state authorities are often better situated to judge local conditions and the various public interests that inevitably compete with the claims of individuals.When a state's choices fall within a predictably amorphous range of acceptable altematives, the ECHR will uphold the state's actions as being within its so-called «margin of appreciation.»The margin of appreciation that the ECHR will provide depends u pon a number of factors, most prominently whether a European consensus on the issues exists.The importance of the right and the consequences of the state's conduct for the individual are also important factors in determining how wide the margin of appreciation should be in any particular case.While recognizing the importance of national discretion, the ECHR has repeatedly emphasized that the margin is limited by, and must correspond to, the concept of «European supervision.»Under this principie, the ECHR must assert its role as the final arbiter of European Convention rights and ultimately determine the consistency of state conduct with the European Convention and evolving European standards of human rights.The ECHR's teleological orientation to interpretation, demanding scrutiny of state justifications and emphasis on the «effectiveness» of rights, also tends to restrict state discretion.».DONOHO, Douglas Lee.«Autonomy, Self-Needless to say, both the subsidiarity and the margin ofappreciation principies provide powerful arguments to intergovernmentalism, inasmuch as they tend to limit the competence ofthe ECJ and the ECHR while recognizing exclusive authority to Member S tates on particular issues.This tradeoff between competing principies confirms our argument that the intergovernmentalism-versus-functionalism divide projects itselfinto the Europeanjudicial sphere with a unique conceptual narrative.«[T]he subsidiarity principie introduced by the Maastricht Treaty [ ... ] has posited a rival principie against the concept of Community law supremacy, and must therefore be balanced, in individual cases, against the latter.» 34ore specifically circumscribed to the judicial sphere, albeit used each by a different European tribunal, the principies of Kompetez-Kompetenz and margin of appreciation confirm the existence ofthat specialized conceptual narra ti veto deal with the challenge of drawing the fine line of competence boundaries between the Member S tates and the European courts.

Looking ahead
Does it make sense to keep Europe walking on two different ropes regarding human rights protection?Absolutely.One, because this duality has demonstrated to ~ be fruitful in terms of expanding the panoply oflegal recourses available to protect human U rights, thus indirectly helping the EU pro vide positive responses to its own legitimacy problems.Two, each framework addresses different kinds of situations and targets a relatively different clientele.The ECJ-Charter system is EU-centered, i.e. addresses violations resulting from the Community laws and policies and primarily those caused by the EU institutions and bodies, and marginally by Member S tates «only when they are implementing Union law».3 5 The ECHR-European human rights Convention system addresses all kinds ofhuman rights violations attributable to any ofthe (now 41) Member S tates.Three, it can further be argued that the ECHR-European human rights Convention system prepares countries aspiring to be admitted as members ofthe EU to meet the basic democratic govemance threshold required for admssion. 36Four, because the dualsystem will better serve the reality of a multi-levered European scenario, where despite the fact that not every country will be admitted into the EU, they all-EU Members and Non-Members-will cultivate a common understanding based on similar levels ofhuman rights protection.
How will the EU Charter of Fundamental Rights affect such institutional parallelism?The discussion about the prospective relationship between the parallel institutional frameworks ofhuman rights protection, the ECJ and the ECHR, is far from remission.The adoption ofthe Charter, if anything, adds complexity to such relationship.Because of its immediate limited binding nature, and dueto the fact that the EU Charter is applicable mainly to Community institutions and bodies but generally not to Member States 37 , the poten ti al for conflict between both frameworks is limited.MENÉND EZ dispels the conflict argument by noting that the EU exists «already in a pluralistic setting on what concems the protection offundamental rights [ ... ]». 38He also refers to the «striking convergence in terms ofsubstantive content [between the European human rights Convention and the Charter]» 39 , which the latter has made explicit4°, and to the fact that «there are few cases in which incompatible legal solutions have been provided by the different systems ofhuman rights protectiom>. 41wever, there are different factors that may change the correlation between both institutional frameworks.The prospective incorporation ofthe Charter into the EU Treaties, or its upgrade by ECJ case-law, or the EU accession into the European human rights Convention 42 , may pro vide new legal arguments or incentives for the heighten oftensions.The incorporation ofnew Member States may also play a role by increasing the demand on the ECHR conceming human rights claims typical of developing or transitional countries 43 , in contrast with the more «sophisticated» claims of greater economic ~ implications generated within the traditional affluent EU Member S tates.Last but not least, new waves ofjudicial activism, particularly by the ECJ, may produce transformations ofimmense implications.
Will the ECJ expand its competence beyond the scope of article 51 of the Charter? 44It seems likely and rather inevitable.Judicial activism by the ECJ is already  Suggested, for example, by the Laeken Declaration on the Future of the European Union, adopted on December 15, 2001. 43For example, basic freedoms, right to life and to physical integrity, due process guarantees, etc. 44 Supra, note 35. a historical fact in the process ofbuilding the EU as a unique political community.Moreover, the variety and complexity ofhuman rights problems likely to be presented by the S tates to be accepted into the EU in the coming years represents an incentive -if not a direct demand-for judicial activism shaped as a el o ser scrutiny by the ECJ of their compliance with human rights rules.The more the EU expands, the more difficult it will be to segregate human rights violations primarily based on the application ofCommunity policies and legislation, and thus the border line ofthe ECJ's human rights-related competences will become dimmer.The ECJ Advocat General Jacobs, reflected on this in the Konstantinidis case: [A] Community national who goes to another Member State as a worker or selfemloyed person under articles 48, 52, or 59 ofthe Treaty is entitled notjust to pursue his trade or profession and to enjoy the same living and working conditions as nationals of the host S tate; he is in addition entitled to assume that [ ... ] he will be treated in accordance with a common code of fundamental val u es [ ... ]In other words, he is entitled to say «civis europeos sum» and to invoke that status in order to oppose any violation ofhis fundamental rights. 45cording to BINDER, even if construed narrowly, [ ... ] the implications of the Advocat General 's position are significant.Once the requirement that an individual be exercising a right to free movement under Article 48 et.seq.ofthe Treaty is met, theAdvocat General's position would permit that individual to challenge potentially any national measure -regardless ofthe respective division of competences between the Community and the Member S tates with respect to the subject matter which the national measure in question addresses. 46at kind of opposition might the ECJ expansion of its competen ce beyond the seo pe of article 51 ofthe Charter genera te? Implicit in the question is the assumption that opposition will ensue.That is something beyond contention.However, sorne qualifications are required.Except for the national judiciaries, such opposition willlikely be mild.One, because the issue ofhuman rights has a great legitimizing value and no Government or politician wants to be perceived as opposing the heightening ofhuman rights protection, moreover when the EU faces a legitimacy-perception problem.Two, the EU does not face situations of egregious human rights violations among its Member States. 47Such opposition may become strenuous, however, when the issues involved in a particular case are of a sensitive nature -as the right to life of a fetus 48 or, more currently, immigration from abroad the EU.
While BINDER finds «harder to evaluate» the potential forre be Ilion on the part of national courts, 49 ifhistory is of any guidance it would not pro vide applicable antecedents.«Past opposition from-in particular-the German and the ltalian Constitutional Courts stemmed from the fear that the [European) Court of Justice would provide insufficient protection for fundamental rights». 50The situation under discussion represents just the opposite.At the same time, judicial activism is nota prerogative exclusively ofthe ECJ. 51 Will this expansion of competences by the ECJ affect the ECHR institutional framework?Y es indeed.lt may generate detrimental effects on the ECHR system and generally on human rights protection in Europe.It «would deprive the Convention of much of its independent significance for Member S tates, as there would be little need to resort to the institutions established to administer it [ECHR] in arder to remedy a violation of its provisions». 52A possible consequence of that competence might be one of specialization: EU actors will prefer to recur to the ECJ, while European actors from non-EU countries will only have available the access to the ECHR.Suchspecialization ought not to be a negative outcome inasmuch as the equal quality ofthe protection provided by both tribunals is equivalent.Quality is a variable that needs to be measured both in terms of standard-setting and of enforcement.While the first dimension does not warrant concem, the second does.By the mere fact ofbeing an EU organ, the ECJ has greater direct and indirect enforcement capacities, which the ECHR lacks.
Should (and will) the Charter be incorporated into the EU Constitution?Not ~ necessarily, but maybe.The formal stance ofthe Charter is notan urgent matter inasmuch as there is consensus among both the EU organs and the Member S tates on the compliance with those human rights standards.M oreo ver, the Charter does not add much substance to the rules already codified under the European human rights Convention.However, the EU Constitution needs the Charter to legitimize itself.A contemporary Constitution is expected to contain a Bill ofRights to be reputed legitimate.The EU needs a Constitution mainly to organize itselfbetter by defining with greater precision its functional and competence structures, its legislative hierarchy, ant to compile its goveming rules -now scattered in different treaties.The EU Constitution is likely to add little to the already panoply oflegal texts andjudicial mechanisms ofhuman rights protection.M oreo ver, the EU Charter may acquire throughout time a higher normative stature and legitimacy independently of any prospective incorporation into the EU Constitution or its 49 BINDER,41.

2«
Community Policy in this area [development cooperation] shall contribute to the general objective of developing and consolidating democracy and the rule of law, and to that of respecting human rights and fundamental freedoms».Article 177(2) of the consolidated version of the Treaty of the European Community.«The objectives of the common foreign and security policy are: [ ... ] to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms».Article J.l.2 of the TEU. 3 Ten countries (Belgium, France, Luxembourg, the Netherlands and the United Kingdom, accompanied by Ireland, Italy, Denmark, Norway and Sweden) signed the treaty constituting the Statute of the Council of Europe, on 5 May 1949, in St. James's Palace, London.
22 WEILER, op.cit., p. 108.23 «That provision [art.235], being an integral part of an institutional system based on the principie 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».European Court of Justice, Opinion 2/94 (1996), 2 C.M.L.R. at 291, pp.35-36.24 European Court, 35-36.Bold and italics added.
legal form in which this could be established.The TEU has given a step in the right direction by setting the moorings of such obligation in the national constitutional traditions ofits Members «as general principies ofCommunity law».25

27
Known in French as la compétence de la compétence.It is recognized as a general principie ofintemationallaw, and is normatively consecrated in article 36.6 ofthe Statute ofthe Intemational Court of Justice, article 32.2 of the European Convention of Human Rights, and the rules and arbitral procedures of both UNCITRAL and the Intemational Chamber of Commerce.

28«
The assumption that a Community without legislative Kompetenz-Kompetenz cannot contain a court with judicial Kompetenz-Kompetenz is at the core of Schilling's argument.It is not self-evident.In fact, we think it is false.»WEILER, J.H.H. «The Autonomy of the Community M Legal Order: Through the Looking Glass», in J.H.H. Weiler, The Constitution of Europe.«Do the U New Clothes Have an Emperor?» and Other Essays on European Integration.Cambridge: Cambridge, p. 312, 1999. 29«[I]n Costa v. ENEL the ECJ inferred the supremacy ofEU law from the Treaty, which does not explicitly mention the supremacy of EU law.In doing so, the ECJ characterized the Treaty as the constitution of the EU, because it «considers that the Treaty, a creature of international law governing relations between states, has be en converted [ ... ] into a Constitution.»Consisten!with its constitutional approach to treaty interpretation, the ECJ has developed the principie of direct effect in Member States, which gives individuals the ability to invoke EU law in national courts.»MONAGHAN, Sean C., «European Union Legal Personality Disorder: The Union's Legal Nature Through the Prism ofthe German Federal Constitution Court's Maastricht Decison», in 12 Emory International Law Review 1443, at 1463 [1998].Footnotes omitted.30 Internationale Handelsgesellschchaft, Case 11/70 [1970], E.C.R. 1125, 1135.
37 «The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principie of subsidiarity and to the Member States only when they are implementing Union law. [ ... ] .»Charter of Fundamental Rights of the European Union, art.51.1. 38MENÉNDEZ, Agustín José.«Chartering Europe: The Charter of Fundamental Rights of the European Union», ARENA Working Paper N° 01113 [2001], p. 10. 39 MENÉNDEZ, 11. 40 «This Charter reaffirms [ ... ] the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member S tates, [ ... ] the European Convention for the Protection of Human Rights and Fundamental Freedoms [ ... ] and the caselaw of the Court of Justice of the European Communities and of the European Court of Human Rights.»Charter, Preamble, parr. 5. 41 MENÉNDEZ, 12. 42

«
While not directly relevant to the issue of expanding fundamental rights review [by the ECJ], the German [Constitutional] Court's decision [on the validity of the Maastricht Treaty, of October 12, 1993] nevertheless suggests that national courts indeed may be concerned with enforcing the substantive division of competences between the Community and the Member S tates [ ... ]».!de m. 52 Idem, 43.
Jean M. «The Case for Accesion by the European Union to the European Convention for the Protection of Human Rights», in 14 Boston University International Law Journal 151, at: 163-176 [1996].