Opinion No.
250 (2004)1
The Principality
of Monaco’s application for membership of the Council of Europe
1. The
Principality of Monaco applied for membership of the Council of Europe on
15 October 1998. In its Resolution (98) 30 of 10 November 1998, the Committee
of Ministers asked the Parliamentary Assembly to prepare an opinion on this
application, in accordance with Statutory Resolution (51) 30.
2. The
Bureau of the Assembly asked two eminent lawyers, Mr Pastor Ridruejo and Mr
Ress, judges at the European Court of Human Rights, to assess the conformity
of the legal structure in Monaco with Council of Europe fundamental
principles. In the course of the examination of Monaco’s application for
membership, the Parliamentary Assembly has maintained ongoing dialogue with
the Monégasque authorities, focusing in particular on the conclusions and
recommendations put forward by the eminent lawyers.
3. The
Assembly welcomes the major constitutional and legislative changes implemented
by Monaco in response to the recommendations of the eminent lawyers and
rapporteurs. These are primarily the constitutional amendments adopted on
28 March 2002, concerning, in particular, the enlarged powers of the National
Council (the parliament) in respect of introduction of laws, the right to
amend legislation, decisions on budgetary matters and the ratification of
certain international instruments, as well as matters relating to the
acquisition of Monégasque nationality and the enjoyment of civil rights.
4. The
Assembly stresses the importance of the reform of the electoral law, adopted
on 28 March 2002, which strengthens the representative nature and authority of
the National Council, on the one hand, by introducing an element of
proportional representation in the parliamentary elections, ensuring a
pluralist composition of the parliament, and, on the other, by reinforcing its
democratic basis by lowering the voting age from 21 to 18 and granting the
right to vote to naturalised Monégasque citizens.
5. The
Assembly notes that the amended electoral law was in force for the
parliamentary elections held in Monaco on 9 February 2003. In accordance with
established practice whereby observation of elections in an applicant country
is part of the application examination procedure, these elections were
observed by an ad hoc committee of the Bureau of the Assembly. They concluded
that, given the specific nature of the situation in Monaco, the organisation
and conduct of the elections were broadly in compliance with the standards of
the Council of Europe.
6. The
Assembly notes that Monaco has official relations at diplomatic or consular
level with almost all Council of Europe member states. It acceded to the
United Nations on 28 May 1993 and is a participating state in the Organisation
for Security and Co-operation in Europe. None the less, with regard to
Monaco’s sovereignty, the Assembly is mindful of the opinion of the eminent
lawyers who commented that “the exercise of Monaco’s sovereignty was seen to
be significantly limited by the treaties with France”. Regarding this, the
Assembly welcomes the fact that, on 24 October 2002, Monaco and France signed
a treaty confirming their friendship and co-operation which replaces the 1918
treaty while upholding the principle of sovereign equality between states, in
accordance with the United Nations Charter, and also that the ratification
procedure is in hand.
7. With
regard to the Franco-Monégasque Convention of 1930, the Assembly is obliged to
note that certain provisions in the said convention stipulate that senior
Monégasque government and civil service posts are reserved for French public
servants on secondment, thereby depriving Monégasque nationals from gaining
access to these posts. This runs counter to the principle of
non-discrimination and it would seem necessary that the situation be brought
into line with European standards. The Assembly notes that on 19 June 2003 the
two states began discussions on revising the 1930 convention and sincerely
hopes that this will be an opportunity to secure full enjoyment by the
citizens of Monaco of the political and civic rights enshrined in the European
Convention on Human Rights. It is aware that this is the wish of the
Monégasque authorities, and is confident that France, for its part, will want
to take advantage of the discussions currently under way to reach a solution
compatible with European standards. The Assembly considers that the final
decision on the application for membership by Monaco should not be taken until
the Joint Committee has noted that this opportunity has been used for this
purpose.
8. Monaco
has acceded to the following Council of Europe conventions: the European
Cultural Convention (ETS No. 18), the Convention on the Conservation of
European Wildlife and Natural Habitats (ETS No. 104), the European Convention
on the Protection of the Archaeological Heritage (ETS No. 66) and the
Convention on Laundering, Search, Seizure and Confiscation of the Proceeds
from Crime (ETS No. 141).
9. The
Assembly acknowledges the particular situation of a country such as Monaco
where the indigenous population is numerically smaller than the total number
of people working and/or living there. It considers that, in interpreting the
commitments which Monaco is to honour, the Council of Europe should take
account of this situation which has led the authorities to introduce
preferential schemes, chiefly benefiting Monégasque nationals, in respect of
work and employment, housing and social welfare. It notes, in this connection,
that the social security system is accessible to all people working in Monaco.
It stresses in this context the importance of the European Social Charter (revised) (ETS
No. 163), the flexibility of which enables it to take account of the specific
nature of parties, and it welcomes the intention of the Monégasque authorities
to accede to it.
10. The
Assembly expects the Monégasque authorities to accept the commitments required
by the Organisation for Economic Co-operation and Development (OECD) under its
policy against harmful tax practices, as defined in the 2000 progress report
and modified in the 2001 progress report, in order for a state to be taken off
the OECD’s list of unco-operative tax havens.
11. The
Assembly recommends the Monégasque authorities to further broaden, within five
years of its accession, the powers of the National Council, particularly as
regards supervision of government action, the annual presentation of the
governmental programme, the right of legislative initiative, and the budgetary
debate.
12. The
Assembly takes note of the letters from the Monaco authorities and observes
that Monaco is committed to honouring the following undertakings:
i. in
respect of conventions:
a.
to sign, upon accession, the European Convention on Human Rights (ECHR)
and Protocols Nos. 1, 4, 6, 7 and 13;
b.
to ratify, at the earliest opportunity and at the latest within one year
the ECHR and Protocols Nos. 1, 4, 6, 7 and 13;
c.
to sign Protocol No. 12 to the ECHR within one year of its coming into
force, and to ratify it within five years of signing it;
d.
to examine on an ongoing basis the compatibility of all legislation with
the ECHR and its relevant protocols;
e.
to sign and ratify, within one year of accession, the European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (ETS No. 126);
f.
to become party, within one year of accession, to the General Agreement on
Privileges and Immunities of the Council of Europe (ETS No. 2), its
additional protocol of 6 November 1952 (ETS No. 10) and its sixth
additional protocol (ETS No. 162);
g.
to sign, upon accession, the European Social Charter (revised) (ETS
No. 163) and to
ratify it within two years;
h.
to sign and ratify, within two years of accession, the following
conventions:
–
the European Convention on Mutual Assistance in Criminal Matters (ETS
No. 30);
–
the European Outline Convention on Transfrontier Co-operation between
Territorial Communities or Authorities (ETS No. 106) and its protocols;
–
the European Convention on the Suppression of Terrorism (ETS No. 90);
–
the Criminal Law Convention on Corruption (ETS No. 173);
i.
to sign and ratify, within five years of accession, the Convention on
Cybercrime (ETS No. 185);
ii.
in respect of domestic legislation:
to
pass, within one year of accession where this has not already been done,
the following laws in conformity with the standards of the Council of
Europe:
–
the law on stating reasons for negative administrative acts and on
judicial review;
–
the law on nationality;
–
the law on the freedom of the media;
–
the law on freedom of assembly and freedom of association;
–
amendments to civil law, incorporating the principle of equality between
women and men, including as parents or spouses;
iii.
in respect of the monitoring of commitments:
to
co-operate fully in the implementation of Assembly Resolution 1115 (1997) on
the setting up of an Assembly committee on the honouring of obligations and
commitments by member states of the Council of Europe (Monitoring Committee)
and the monitoring procedure set up in accordance with the declaration of
the Committee of Ministers of 10 November 1994.
13. In the
light of these undertakings, the Assembly believes that Monaco is capable of
and is intent on complying with the provisions of Article 3 of the Statute
setting forth the required conditions for acceding to the Council of Europe:
“Every member of the Council of Europe must accept the principles of the rule
of law and of the enjoyment by all persons within its jurisdiction of human
rights and fundamental freedoms, and collaborate sincerely and effectively in
the realisation of the aim of the Council as specified in Chapter I.”
14. In order to
ensure compliance with these undertakings, the Assembly decides, in
application of its Resolution 1115 (1997), to start the monitoring procedure
with respect to Monaco six months following the date of accession with a view
to assessing Monaco’s progress in fulfilling:
– the commitments
listed in paragraph 12 above; and
– the
recommendations in paragraphs 10 and 11 above.
15. In the
light of the above commitments, the Assembly recommends that the Committee of
Ministers:
i.
invite Monaco to become a member of the Council of Europe as soon as the
Assembly and the Committee of Ministers have noted in their Joint Committee
that the consultations between Monaco and France on the revision of the 1930
convention have opened the possibility for implementing, in the near future,
the principle of non-discrimination, by allowing Monégasque citizens to be
appointed to the senior Monégasque governmental and public posts that are
currently reserved for French nationals;
ii.
allocate to Monaco two seats in the Parliamentary Assembly.
16. In the meantime, the Assembly asks the
Bureau to grant Special Guest status to the National Council of Monaco,
allocating them two seats, if the National Council asks for this status.
1.
Assembly debate
on 27 April 2004 (10th Sitting) (see
Doc.10128,
report of the Political Affairs Committee, rapporteur: Mr Slutsky; and
Doc. 10138,
opinion of the Committee on Legal Affairs and Human Rights, rapporteur: Mr
Manzella).
Text adopted by the Assembly on 27 April 2004 (10th
Sitting).
