CEDH · CASELAW;REPORTS;ENG — 29 octobre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial } .s76CF415B { page-break-before:always; clear:both }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 24833/94                           Denise Matthews                               against                         the United Kingdom                      REPORT OF THE COMMISSION                    (adopted on 29 October 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-11) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 12-16). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 17-23) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (para. 17). . . . . . . . . . . . . . . . . . . . .3        B.    Relevant non-Convention law           (paras. 18-23). . . . . . . . . . . . . . . . . . .3   III. OPINION OF THE COMMISSION      (paras. 24-70) . . . . . . . . . . . . . . . . . . . . .6        A.    Complaint declared admissible           (para. 24). . . . . . . . . . . . . . . . . . . . .6        B.    Points at issue           (para. 25). . . . . . . . . . . . . . . . . . . . .6        C.    As regards Article 3 of Protocol No. 1 to the Convention           (paras. 26-64). . . . . . . . . . . . . . . . . . .6             CONCLUSION           (para. 64). . . . . . . . . . . . . . . . . . . . 13        D.    As regards Article 14 of the Convention, taken together with           Article 3 of Protocol No. 1           (paras. 65-68). . . . . . . . . . . . . . . . . . 13             CONCLUSION           (para. 68). . . . . . . . . . . . . . . . . . . . 13        E.    Recapitulation           (paras. 69-70). . . . . . . . . . . . . . . . . . 13                                                             Page   CONCURRING OPINION OF Mr E. BUSUTTIL. . . . . . . . . . . . 14   CONCURRING OPINION OF Mr F. MARTINEZ. . . . . . . . . . . . 16   CONCURRING OPINION OF Mr L. LOUCAIDES . . . . . . . . . . . 17   DISSENTING OPINION OF MM A. WEITZEL, C.L. ROZAKIS, M.P. PELLONPÄÄ, B. CONFORTI and N. BRATZA . . . . . . . . . . . . . . . . . 19   DISSENTING OPINION OF Mr H.G. SCHERMERS . . . . . . . . . . 27   APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 28   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a British citizen, born in 1975 and resident in Gibraltar.   She was represented before the Commission by Mr M. Llamas, barrister and avocat at the Court of Paris.   3.    The application is directed against the United Kingdom.   The respondent Government were represented by Mr M. Eaton, Agent of the Government of the United Kingdom.   4.    The case concerns the applicant's complaints that she was not entitled to vote in the 1994 elections to the European Parliament.   The applicant invokes Article 3 of Protocol No. 1 to the Convention.   B.    The proceedings   5.    The application was introduced on 18 April 1994 and registered on 5 August 1994.   6.    On 10 January 1995 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 22 May 1995 after two extensions of the time-limit fixed for this purpose.   The applicant replied on 10 July 1995.   On 26 May 1995 the Commission granted the applicant legal aid for the representation of her case.   8.    On 27 November 1995 the Commission decided to hold a hearing of the parties.   The hearing was held on 16 April 1996.   The Government were represented by MM Martin Eaton, Agent of the Government, David Anderson, Counsel and Donald Macrae, Cabinet Office Legal Adviser and Robert Gwynn, Foreign and Commonwealth Office, Advisers.   The applicant was represented by Mr Michael Llamas, Barrister, Ms Jill Keohane, Legal Draftsman to the Gibraltar Government and MM Lewis Baglietto and Fabian Picardo, Barristers.   9.    On 16 April 1996 the Commission declared the application admissible.   10.   The text of the Commission's decision on admissibility was sent to the parties on 24 April 1996 and they were invited to submit such further information or observations on the merits as they wished.   The Government submitted observations on 20 June 1996, to which the applicant replied on 8 July 1996.   11.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   12.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM    S. TRECHSEL, President                E. BUSUTTIL                A. WEITZEL                J.-C. SOYER                H.G. SCHERMERS                F. MARTINEZ                C.L. ROZAKIS                L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                M.A. NOWICKI                B. CONFORTI                N. BRATZA                J. MUCHA                C. BÎRSAN                P. LORENZEN                K. HERNDL   13.   The text of this Report was adopted on 29 October 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   15.   The Commission's decision on the admissibility of the application is annexed hereto.   16.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   17.   The applicant applied on 12 April 1994 to the Electoral Registration Officer for Gibraltar to be registered as a voter at the elections to the European Parliament.   The Electoral Registration Officer replied on 25 April 1994 that:        "The provisions of Annex II of the EC Act on Direct Elections of      1976 limit the franchise for European Parliamentary Elections to      the United Kingdom.   This act was agreed by all member states and      has treaty status.   This means that Gibraltar will not be      included in the franchise for the European Parliamentary      Elections."   B.    Relevant non-Convention law   18.   Gibraltar is a dependent territory of the United Kingdom.   It is largely self-governing.   The Gibraltar Constitution Order 1969 provides for a Governor, who is the representative of the sovereign in the territory.   He has very wide powers, executive authority is vested in him, and he is directly responsible for external affairs, defence and internal security.   Certain "defined domestic matters" are allocated to the locally elected chief minister and his ministers (called "the Government", although there are in fact two separate bodies, the Gibraltar Council and the Council of Ministers).   These domestic matters include public utilities, social services and matters clearly affecting the economy of Gibraltar, such as tourism, trade and commerce. The Gibraltar House of Assembly is allowed to make laws on defined domestic matters, but may not consider a Bill which is not a "defined domestic matter" without the consent of the Governor, who in all cases retains power to refuse assent to legislation passed by the House of Assembly.   The United Kingdom Parliament retains ultimate power to legislate in Gibraltar, and the United Kingdom Government has residual power to legislate by Order in Council.   19.   European Community legislation which requires transposition into domestic law before it can take effect enters Gibraltar law in one of three ways.   Section 23 of the Interpretation and General Clauses Ordinance 1984 enables the Government of Gibraltar to make regulations for transposition without recourse to the House of Assembly.   According to the applicant, this is the most common method of transposition. Community legislation can be also transposed by Ordinance of the Gibraltar Government.   Acts on Accession of new member states have been transposed in this way.   The third manner of giving effect to Community legislation is under the European Communities Ordinance 1972, which gives the Governor power to make regulations subject to the approval of the House of Assembly.   According to the Government, this is the method of transposition generally used to give effect to Community legislation.   20.   Gibraltar is part of the territory of the European Union because the United Kingdom is responsible for its external relations within the meaning of Article 227 (4) of the EC Treaty.   EC law is therefore applicable in Gibraltar.   Certain areas of EC law, such as the rules on the Common Agricultural Policy, the Common Commercial Policy, and Value Added Tax, do not apply.   21.   The EC Act on Direct Elections of 1976 is annexed to Council Decision 76/787/ ECSC, EEC, Euratom.   The Council Decision itself is signed by the President of the Council and by the Ministers representing the Member States as members of the Council.   The Decision recommends States to adopt the provisions of the Act in accordance with their respective constitutional requirements, and requires them to notify the Council when the procedures have been completed.   The Act, signed on behalf of the Member States, declares that the representatives of the States shall be elected by direct universal suffrage, and creates the framework for direct elections to the European Parliament.   Annex II, which is stated in the Act to be an integral part thereof, declares "The United Kingdom will apply the provisions of the Act only in respect of the United Kingdom".   Its provisions were enacted into United Kingdom domestic law by the European Parliamentary Elections Act 1978.   22.   The Treaty on European Union (TEU) entered into force on 1 November 1993.   The following matters are of particular relevance in the present case (references to TEU are to the provisions which were introduced by that Treaty; references to the EC Treaty are to pre-existing provisions).   1.    Article 138b TEU entitles the European Parliament formally to      request the Commission for appropriate proposals on "matters on      which it considers that a Community act is required ...".   2.    Article 189 TEU lists as the bodies which make regulations and      issue directives the European Parliament acting jointly with the      Council, the Council acting alone, and the Commission.   3.    Article 189b TEU provides for an increased role for the      Parliament in the passing of certain types of legislation.   Under      Article 189b the Parliament has a genuine power of co-decision      with the Council: that is, both Parliament and Council must agree      before an act may come into being under Article 189b.   Any act      passed under Article 189b is signed by the President of the      Parliament and the President of the Council.        Article 189b applies where "reference is made in this Treaty to      this Article for the adoption of an act".   In the context of      legislative measures, the Article 189b procedure is used mainly      for acts relating to the completion of the internal market.   4.    Article 189c TEU provides for an increased role for the European      Parliament in connection with other types of legislation.   Under      Article 189c, if the European Parliament rejects a common      position (adopted by the Council after a procedure involving the      Commission), the Council may ultimately only adopt the act by      unanimity.   The full text of Article 189c is set out in the Annex      to the present decision.   Article 189c applies where "reference      is made in this Treaty to this Article for the adoption of an      act".   The Article 189c procedure is used as a consultation and      co-operation   mechanism in   connection with, for example, certain      transport matters (Article 75 TEU), the implementation of the      Social Fund (Article 125 TEU) and certain environmental measures      (Article 130s TEU).   5.    Article 158 (2) TEU increases the European Parliament's influence      and powers in the appointment of the President and members of the      Commission; the power to pass a motion of censure (Article 144 EC      Treaty) is retained, and in addition to its power to put      questions to members of the Commission (Article 140 EC Treaty),      the European Parliament may now set up Commissions of Inquiry      (Article 138c TEU).   6.    The TEU does not affect the powers of financial control of the      European Parliament over the other organs of the European Union.   23.   It appears that in 1994 some 21 Regulations and Directives were adopted pursuant to Article 189b, of which nine were applicable to Gibraltar, including Directives relating to vehicle emissions and credit institutions.   In 1995, some 10 Regulations and Directives were adopted pursuant to Article 189b, of which five were applicable to Gibraltar, including Directives relating to insurance, noise emission and data protection.   In the first half of 1996, two Regulations and Directives were adopted pursuant to Article 189b (relating to credit institutions and the legal protection of data bases) both of which were applicable to Gibraltar.   According to information provided by the parties, in 1994 there were a total of 3385 (or 3373) Regulations adopted by the Council and Commission and published in the Official Journal of the European Communities.   The equivalent figure in 1995 was 3096 (or 3082) and, in the first half of 1996, 1116.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   24.   The Commission has declared admissible the applicant's complaints concerning her inability to vote in elections to the European Parliament elections from Gibraltar.     B.    Points at issue   25.   Accordingly the points at issue in the present case are:   -     whether there has been a violation of Article 3 of Protocol No. 1      (P1-3) to the Convention, and   -     whether there has been a violation of Article 14 of the      Convention, taken together with Article 3 of Protocol No. 1      (Art. 14+P1-3).   C.    As regards Article 3 of Protocol No. 1 (P1-3) to the Convention   26.   Article 3 of Protocol No. 1 (P1-3) provides as follows:        "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."   27.   The Government contend that the Commission has no jurisdiction to entertain the present application and, in the alternative, that the applicant's claim falls outside the scope of Article 3 of Protocol No. 1 (P1-3).   Three principal grounds are relied on by the Government for their contention.   28.   (a)   The Government's first principal objection is that the Act which gave rise to the direct elections to the European Parliament, and the Annex which limited its applicability to the United Kingdom, fall within the European Community legal order and are therefore not subject to review by the Convention organs.   29.   As to Annex II, the Government point out that the Annex is an integral part of the Act, unlike the German declaration to the Act which was unilateral and could be (and was) unilaterally amended by Germany, and that any amendment to the Annex would have to be agreed by all member states of the Union.   The exclusion of Gibraltar from the European Parliament elections therefore derives from an act for which the United Kingdom has no responsibility under the Convention.   30.   As to the Act itself, the Government underline that although the Act was annexed to a Council decision and has equivalent status to a Community treaty, it is a treaty of a special nature.   This special nature stems both from the origin of the treaty - the obligation in Article 138 (3) EC to lay down appropriate provisions for elections to the European Parliament - and from the requirement in the Decision to which the Act is annexed that the Council is to be notified of the procedures for its adoption.   The Act itself is therefore not an ordinary international treaty for which the United Kingdom may be responsible under the Convention, but is part of European Community law, a distinct legal order for which the United Kingdom cannot bear responsibility under the Convention.   31.   In the Government's submission, the Commission's inability to consider these matters is underscored by the debate on Community accession to the Convention: it is because Community acts are not subject to scrutiny by the Convention organs that Community accession is being considered.   Until such accession, Community acts cannot be considered by the Convention organs.   32.   In this connection, the Government add that there is no doubt that at the time of the EC Act on Direct Elections, the European Parliament (or Assembly, as it then was) was not a legislature within the meaning of Article 3 of Protocol No. 1 (P1-3), and even on the applicant's analysis, the Government have not taken any specific step since then which could give rise to the responsibility of the United Kingdom under the Convention.   33.   (b)   The Government's second principal contention is that the European Parliament is not a "legislature" within the meaning of Article 3 of Protocol No. 1 (P1-3) to the Convention, so that the provision does not apply in any event.   34.   The Government suggest, as a working definition of what is a "legislature", that a legislature may normally be said to have two particular characteristics: the power to initiate legislation, and the power to adopt it.   In the Community legal order, the Council of Ministers corresponds most closely to a legislature as it is understood at national level.   35.   For the Government, the European Parliament's only legislative powers in the strict sense are the powers contained in Article 95 (3) of the European Coal and Steel Community Treaty, which provides for the Parliament to adopt, on its own and by a majority of three quarters of the votes cast, certain minor amendments to the powers of the Commission in the field of coal and steel.   The powers have apparently not been used since 1960, and were regarded as negligible by the Commission in the Alliance des Belges case (No. 8612/79, Dec. 10.5.79, D.R. 15, p. 259).   36.   Article 138b of the EC treaty defines the role of the Parliament as being "to participate in the process leading up to the adoption of Community Acts", which participation amounts to neither a right to initiate nor a power to enact legislation on its own account.   37.   As to the right to initiate legislation, the Government point out that Article 138b provides only that the European Parliament may request the European Commission to submit a proposal on a matter on which it considers a Community Act is required.   Such a provision merely emphasises the paramount role of the Commission in proposing new legislation.   38.   As to the right to enact legislation, the Government recall that there are large areas of European Union activity in which the European Parliament plays no significant part at all:   in particular, it plays no part in the implementation of the common commercial policy and a marginal role only is ascribed to the Parliament in the field of economic and monetary union.   Further, the European Parliament never has any independent power to adopt legislation, but rather, at most, can have an influence on, or block, the content of legislation.   Only the Article 189b procedure is new since the last time the Commission considered questions relating to the European Parliament in the case of Tête v. France (No. 11123/84, Dec. 9.12.87, D.R. 54, p. 52).   The Article 189b procedure merely expands what was a veto power which could only be exercised with any one member state in the Council, into a unilateral veto.   However, the Article 189b procedure itself is only used in limited fields, and it is used relatively rarely.   39.   (c)   The Government contend that the European Parliament does not in any event in Convention terms form the "legislature" or part of it in Gibraltar because the term "legislature" in Article 3 of Protocol No. 1 (P1-3) must be taken to mean the national legislature of the Contracting Parties, and not the organs of supranational organisations such as the Community.   40.   The Government consider that the question of whether the European Parliament is capable of forming part of the national legislature (and thus rendering applicable Article 3 of Protocol No. 1 (P1-3)) has always been left open by the Commission in the case-law.   They add that it cannot be said that the member states have delegated their powers to legislate to the European Parliament since the European Parliament, as an institution of the Community, operates within the Community legal order, and not that of the member states.   41.   Further, Gibraltar falls outside the scope of considerable areas of the law of the European Communities:   it does not form part of the customs territory;   it is treated as a third country for the purposes of the Common Commercial Policy;   it is excluded from the common market in agriculture and trade in agricultural products; and it is exempt from Community rules of value added and other turnover taxes.   In addition, Gibraltar makes no financial contribution to the Community's finances.   In these circumstances, the Government regard it as even more difficult to conceive of the European Parliament as part of the legislature in Gibraltar than it would be in, for example, the United Kingdom or France.   42.   The applicant contests each of these submissions made by the Government.   43.   (a)   The applicant does not agree that the EC Act on Direct Elections with Annex II falls outside the scope of the Convention organs' jurisdiction.   She agrees with the Government that the Act is a treaty, but does not accept that it has any special status.   For her, it is a treaty like any other treaty and if a State, having become a party to the Convention, subsequently concludes a treaty which disables it from performing its obligations under the Convention, it is answerable for any resulting breach of its obligations under the Convention.   She refers to Convention case-law to this effect (No. 235/56, Dec. 10.6.58; the above-mentioned Tête decision).   44.   As to Annex II to the Act, the applicant underlines that the Annex was included in the Act as a result of the unilateral wish of the United Kingdom, that the United Kingdom was under no obligation to add Annex II, that the real aim of Annex II was to exclude the Channel Isles and the Isle of Man from the scope of EC elections (because the Channel Isles do not form part of the EU, unlike Gibraltar) and moreover, that nothing required the United Kingdom to interpret, or continue to interpret, Annex II in such a way as to exclude Gibraltar from the application of the Act on Direct Elections.   45.   The applicant recalls that Gibraltar is the United Kingdom's responsibility in the European Community, and in signing the treaty of direct elections, the United Kingdom had the power, and the obligation, to provide for the enfranchisement of citizens of the Union who live in Gibraltar.   46.   The applicant argues that, when she applied for registration as a voter in the 1994 elections to the European Parliament, the European Parliament had become part of the legislature in Gibraltar by virtue of the accretions of power to that body culminating in the Treaty on European Union, and that the United Kingdom is responsible for the ensuing breach of Article 3 of Protocol No. 1 (P1-3) because of its declaration extending the scope of the Convention to Gibraltar.   She does not accept that the fact that the European Parliament was not a legislature in 1976, the date of the EC Act on Direct Elections, can affect the Government's responsibility under the Convention, pointing out that the assembly of the Flemish Region and Community had likewise not existed when Belgium ratified Protocol No. 1 (Eur. Court HR, Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113).   47.   (b)   In contesting the Government's second principal submission, the applicant again relies on the case-law of the Convention organs. She underlines that, whilst the Commission has left open the question of whether the European Parliament is a "legislature" within the meaning of Article 3 of Protocol No. 1 (P1-3), it has consistently referred to the European Parliament as "not yet" constituting a legislature.   Further, the Commission has repeated that it "cannot ... be accepted that by means of transfers of competence the High Contracting Parties may at the same time exclude matters normally covered by the Convention from the guarantees enshrined therein" (above mentioned Tête decision).   In the light of this case-law, she considers that the Commission itself has acknowledged the possibility that the European Parliament may, if it acquires sufficient powers, become a "legislature" within the meaning of Article 3 of Protocol No. 1 (P1-3). The applicant submits that, whether or not the Commission was correct in concluding that, even after the entry into force of the Single European Act, the European Parliament was still not yet a "legislature", the matter was put beyond doubt by the fundamental changes to the powers of the Parliament made by the Treaty on European Union.   48.   (c)   The applicant submits that it is particularly clear that the European Parliament is, or is part of, "the legislature" of Gibraltar for the purposes of Article 3 of Protocol No. 1 (P1-3).   49.   The applicant has calculated that, in 1995, approximately one third of all legislation adopted by the Gibraltar authorities was as a direct consequence of Gibraltar's membership of the European Union, a proportion which is especially large because there is relatively little domestic legislation in a small community like Gibraltar.   50.   With specific reference to the procedure under Article 189b of the Treaty on European Union, the applicant points, by way of example, to directives on insurance (which increase the potential for Gibraltar authorised insurers to have access to the European market), on deposit guarantee schemes (which increase investor confidence in credit institutions authorised in Gibraltar), on data protection, on recreational craft (two new businesses have started in the field) and on standards on the supply of petrol.   51.   The Commission first recalls that the Convention applies to Gibraltar by virtue of declarations made by the United Kingdom under Article 63 of the Convention, the most recent on 3 April 1984. Protocol No. 1 (P1) to the Convention applies to Gibraltar by virtue of a declaration made by the United Kingdom on 25 February 1988 under Article 4 of Protocol No. 1 (P1-4).   Individual petitions are permitted in connection with Protocol No. 1 (P1) by virtue of the United Kingdom's declarations under Article 25 (Art. 25) of the Convention, which apply to the Protocol pursuant to its Article 5 (Art. 5).   The Commission is therefore competent to consider individual complaints under Protocol No. 1 against the United Kingdom in respect of Gibraltar.   52.   It is convenient to examine first the question whether the European Parliament can be considered a "legislature" within the meaning of Article 3 of Protocol No. 1 (P1-3) and, if so, whether it is properly to be regarded as "the legislature" of Gibraltar for the purposes of that provision.   53.   The Commission recalls that the status of the European Parliament in terms of Article 3 of the Protocol (P1-3) has been the subject of consideration in the Commission's earlier case-law.   54.   In Lindsay v. the United Kingdom (No. 8364/78, Dec. 8.3.1979, D.R. 15, p. 247), which was concerned with the voting system laid down in the European Assembly Elections Act 1978 for Northern Ireland which differed from that provided for in the rest of the United Kingdom, the Commission noted that the wording of Article 3 (Art. 3) showed that the national legislature was meant by the drafters of the Convention when the Article was adopted.   Nevertheless, the Commission went on to say that this did not exclude the possibility that developments in the structure of the European Communities would require the High Contracting Parties to grant the right protected under Article 3 (Art. 3) "in respect of new representative organs partly assuming the powers and functions of national legislatures."   The Commission however found (without finally deciding the point) that at that time (1979) the European Parliament had no legislative power in the strict sense except for Article 95 para. 3 of the ECSC Treaty:   it was in the view of the Commission an advisory organ as to legislation, enjoying certain budgetary and control powers.   55.   In Alliance des Belges de la Communauté Européene v. Belgium (No. 8612/79, Dec. 10.5.1979, D.R. 15, p. 259), decided two months later in May 1979, the Commission in a case concerning residence requirements for voting in the direct elections for the European Parliament again found that the Parliament had no legislative powers in the strict sense, but concluded that in any event the residence requirements were not inconsistent with Article 3 (Art. 3).   56.   In Tête v. France (11123/84, Dec. 9.12.1987, D.R. 54, p. 52) and Fournier v. France (No. 11406/85, Dec. 10.3.1988, D.R. 55, p. 130), which were both decided after the coming into effect of the Single European Act which conferred additional powers on the European Parliament, the Commission was concerned with the compatibility with Article 3 of the Protocol of various provisions of French law governing the election of French representatives to the European Parliament. After referring to its decision and reasoning in the Alliance des Belges case, the Commission observed that the Parliament's role had increased since that decision, particularly as a result of the entry into force of the Single European Act.   The Commission nevertheless found that the European Parliament did not yet constitute a "legislature" within the ordinary meaning of the term, although it went on to declare the application inadmissible on different grounds.   In André v. France (No. 27759/95, Dec. 18.10.95, unpublished), the Commission left open the question of the status of the European Parliament as the application was inadmissible on other grounds.   57.   Since the Commission last considered the question of the status of the European Parliament, the Treaty on European Union has entered into force.   That Treaty has given the European Parliament new competences.   In particular, the Treaty not only repealed the words "advisory and supervisory" which previously qualified the reference to the powers of the Parliament in Article 137 of the EC Treaty but enacted the new procedure in Article 189b of the Treaty, which conferred on the Parliament a power of co-decision in addition to its pre-existing powers under the basic or consultative procedure and co-operation procedure.   58.   The Government claim that the provisions of Article 189b represent only a modest incremental development from the co-operation procedure which was considered by the Commission in Tête v. France, merely extending the Parliament's power of veto.   It is argued that the new procedure does not give the Parliament the sole right to adopt legislation, nor even to compel the Council to adopt a measure that the Council does not want.   Nor, it is argued, does the Article 189b procedure give the Parliament any opportunity to initiate legislation itself.   It is, moreover, emphasised that the European Parliament plays no role or a very limited role in certain of the most important areas of the Community Treaties, notably the common commercial policy and the field of economic and monetary union.   59.   The applicant claims that the arguments of the Government understate the impact and importance of the additional legislative powers conferred on the Parliament by the Treaty of European Union. As the applicant points out, the Article 189b procedure is applicable in fourteen areas of EC legislation, including internal market harmonisation, the right of establishment and the freedom to provide services.   Within the field of legislation covered by Article 189b the European Parliament is not only given an effective and unilateral power of veto against which not even a unanimous Council can prevail:   the procedure envisages the full participation of the Parliament in the elaboration of EC legislation and in determining the content both directly and through the new Conciliation Committee on which the Parliament is equally represented with the Council.   In addition, as pointed   out by the   applicant, the   European Parliament enjoys certain other powers (notably, control over the adoption and implementation of the budget and over the appointment and dismissal of the Commission) which are common attributes of national legislatures.   60.   The Commission considers that the introduction of a formal right of co-decision in important areas of legislation, in addition to the powers formerly enjoyed by the European Parliament, represents a significant development in the powers of the Parliament.   However, for reasons which appear below the Commission is not required finally to decide whether the European Parliament is yet endowed with sufficient of the powers and functions of national legislatures to be regarded as a legislature within the ordinary meaning of that term.   61.   Although, as noted above, the Commission has in several previous decisions examined the powers and functions of the European Parliament in the context of a complaint under Article 3 of Protocol No. 1, it has never finally decided the question whether the expression "the legislature" in that Article is capable of extending beyond national legislative bodies to include supra-national bodies which exercise functions in a legislative process having a direct impact within the State concerned.   In the present case - which concerns a complaint relating to a complete absence of elections to the European Parliament, rather than the manner in which such elections are held - this central question falls to be answered.   62.   It is true, as pointed out by the applicant, that in its previous decisions the Commission, while finding that the European Parliament had not yet acquired sufficient legislative powers to amount to a legislature, contemplated that Article 3 might become applicable to the Parliament in the event of its assuming the powers and functions of a national legislature.   However, the Commission further observed that the wording of Article 3 showed that national legislative bodies were intended to be referred to by the drafters of the Convention when the Article was adopted.   The Commission finds confirmation for this interpretation in the Travaux Préparatoires to the Convention.   In particular, the Commission recalls that the Court in the above-mentioned Mathieu-Mohin case noted, by reference to the Travaux, that the provision applies "only to the election of the 'legislature', or at least one of its chambers if it has two or more" (p. 23, para. 53).   It thus appears that Article 3 does not require more than one level of elected assembly, although if the domestic constitution divides legislative competence between regional and central assemblies, the provision applies to elections to both organs.   63.   On reviewing its earlier dicta, the Commission considers that to hold Article 3 of Protocol No. 1 to be applicable to supra-national 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.   The Commission considers that the 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.   While the Commission accepts that the legislation emanating from the different institutions of the European Union, including the European Parliament, has an increasingly important impact on Gibraltar and that such legislation may be transposed into the domestic law of the territory without recourse to the House of Assembly, the Commission does not consider that such non-national institutions are properly to be regarded as, or forming part of, "the legislature" of Gibraltar for the purposes of Article 3 of Protocol No. 1.   Accordingly, the Commission finds that Article 3 of Protocol No. 1 is inapplicable in the present case.        CONCLUSION   64.   The Commission concludes by 11 votes to 6 that in the present case there has been no violation of Article 3 of Protocol No. 1 to the Convention.   D.    As regards Article 14 of the Convention, taken together with      Article 3 of Protocol No. 1   65.   Article 14 of the Convention provides as follows:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, race, colour, language, religion, political or other      opinion, national or social origin, association with a national      minority, property, birth or other status."   66.   The applicant claims that, because of her status as a Gibraltarian, she is deprived of the right to vote in European elections.   She also alleges a violation of Article 14 in this connection as, pursuant to EC   Council Directive 93/109/EC, she is entitled to vote in European Parliament elections in any territory in the European Union in which she resides save Gibraltar.   She sees discrimination between citizens of Gibraltar in this respect.   67.   The Commission recalls that it has found that the European Parliament does not fall within the scope of Article 3 of Protocol No. 1 and that, accordingly, Article 3 of the Protocol is inapplicable in the present case.   In these circumstances, Article 14 which guarantees the enjoyment without discrimination   of the rights and freedoms set forth in the Convention is similarly inapplicable in the present case.        CONCLUSION   68.   The Commission concludes by 12 votes to 5 that in the present case there has been no violation of Article 14 of the Convention, taken together with Article 3 of Protocol No. l.   E.    Recapitulation   69.   The Commission concludes by 11 votes to 6 that in the present case there has been no violation of Article 3 of Protocol No. 1 to the Convention (para. 64).   70.   The Commission concludes by 12 votes to 5 that in the present case there has been no violation of Article 14 of the Convention, taken together with Article 3 of Protocol No. l (para. 68).           M. de SALVIA                         S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission                                                    (Or. English)                CONCURRING OPINION OF Mr E. BUSUTTIL        I concur with the decision of the majority of the Commission that there has been no violation of Article 3 of Protocol No. 1 in the present case but would base the decision on the following reasoning in preference to that adopted by the majority.        While the Commission is competent to consider individual applications under Protocol No. 1 against the United Kingdom in respect of Gibraltar by virtue of declarations made by the United Kingdom under Article 63 para. 1 of the Convention and Article 4 of Protocol No. 1, the Convention and Protocol must be applied in Gibraltar with due regard to "local requirements".   Indeed, the territory is nowadays to be considered as something of an anachronism, and the "legislature" in Gibraltar must be interpreted in the light of the particular constitutional structure there operative.        The constitutional status of Gibraltar is that of a dependent territory of the United Kingdom.   The Governor is vested with executive authority and is directly responsible for external affairs, defence and internal security, on which he is entitled to legislate.   The local House of Assembly is permitted to legislate on defined domestic matters, such as public utilities, social services, tourism, trade and commerce, but may not consider matters not defined as domestic without the consent of the Governor, who also retains the power to veto all legislation passed by the House of Assembly.   Furthermore, the United Kingdom Parliament retains a concurrent power to legislate for Gibraltar, and the United Kingdom Government has residual power to legislate by Order-in-Council.        In this amorphous framework, where legislative power is so broadly diffused across the constitutional spectrum, the "legislature" of Gibraltar becomes impossible to identify unl