Hansard

EU: Article 308

Volume 692: debated on Monday 14 May 2007

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Lord Pearson of Rannoch

asked Her Majesty's Government:

Further to the Written Answer by Lord Triesman on 16 April (WA 15), what were the circumstances surrounding the case on which the European Court of Justice delivered its Opinion 2/94 on 28 March 1996 (paragraph 29). [HL3628]

The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office
(Lord Triesman)

Pursuant to Article 300(6) of the Treaty establishing the European Community (then Article 228(6)), the Council lodged a request for an opinion with the European Court of Justice on 26 April 1994, on the following question: “Would the accession of the European Community to the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 ... be compatible with the Treaty establishing the European Community”.

Further background information is cited in the introductory paragraphs to the opinion, including at paragraphs III-6 to III-10.

Lord Pearson of Rannoch

asked Her Majesty's Government:

Further to the Written Answer by Lord Triesman on 16 April (WA 15), what are the limits to which the European Court of Justice's Opinion 2/94 on 28 March 1996 (paragraph 29) can be applied. [HL3629]

Lord Triesman

Paragraph 29 of the European Court of Justice's (ECJ) Opinion 2/94 on 28 March 1996 is an explanatory disposition. Its aim is to clarify the scope of Article 308 of the Treaty on the European Community (then Article 235 TEC).

In Opinion 2/94 the Court of Justice gave an interpretation of Article 235 (now Article 308) which is of general application. The ECJ has often been asked to rule on the use of Article 308 of the TEC. From the case law of the court, it is clear that Article 308 cannot be used by the community to widen its competencies beyond what is needed to attain the objectives mentioned in the EC treaty.

As an example, paragraph 30 of the opinion makes clear that Article 308 “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 that it “cannot be used as a basis for the adoption of provision whose effect would, in substance, be to amend the Treaty without following the procedure which it provides for that purpose”.