1. Introduction
1.1. Procedure
1. During its June 2012 part-session, the Parliamentary
Assembly agreed to a request for a current affairs debate entitled,
“European institutions and human rights in Europe”. The request
was prompted by the decision of the European Union to appoint a
Special Representative for Human Rights and fears of overlap with,
and duplication of, the Council of Europe’s activities. On 29 June,
the Assembly referred the topic to the Committee on Legal Affairs
and Human Rights for report.

I was appointed rapporteur
on 6 September 2012.
2. On 3 March 2014, the committee held a hearing with the participation
of Mr Jean-Claude Trichet, Honorary Governor of the Bank of France
(Paris) and former President of the European Central Bank (ECB), and
Mr Morten Kjaerum, Director, European Union Agency for Fundamental
Rights (FRA), Vienna. On 12 and 13 June 2014, I carried out a fact-finding
visit to Brussels, where I met a number of officials from the European External
Action Service, the Council of the European Union, the European
Commission and the European Parliament, and representatives of Amnesty
International and the think tank CEPS (Centre for European Policy Studies).
1.2. Issues at stake
3. During the debate in the Assembly in June 2012, many
participants called for the need to broaden the discussion beyond
the potential duplication that may arise from the appointment of
a European Union Special Representative for Human Rights and the
increasing duplication of roles and functions of the European Union (EU)
and the Council of Europe.

They stressed the need to look at
the emerging trends in the development of the European Union and
its compliance with core tenets of the Council of Europe, namely
human rights, the rule of law and democracy in Europe. Moreover,
the emerging discussion in Europe about co-decision and the so-called
“democratic deficit” in the EU were raised in the current affairs
debate. Following the political developments in Hungary and various
initiatives taken by certain EU institutions and politicians to
establish a mechanism to monitor the observance of the “Copenhagen
criteria” in its member States, the Assembly, during its October
2013 part-session, decided to hold an urgent debate on “European
Union and Council of Europe human rights agendas: synergies not
duplication”. The Committee on Legal Affairs and Human Rights was seized
for a report and I was appointed rapporteur. On 3 October 2013,
the Assembly adopted
Recommendation
2027 (2013),

in which it recalled that the setting
up of parallel mechanisms could lead to double standards, “forum
shopping” and create new dividing lines in Europe. In December 2013,
the committee held an exchange of views – on this and related subjects
– with the vice-chair of the European Parliament’s Committee on
Civil Liberties, Justice and Home Affairs (LIBE), Ms Kinga Göncz.
4. Therefore, in view of these concerns expressed by the Assembly,
I propose to examine the potential “dangers” of further duplication
of work in the area of human rights that may arise between the institutions
of the EU and the Council of Europe, despite the existence of the
Memorandum of Understanding of 2007, concluded between both organisations
(whose aim is, in part, to avoid such duplication). Although it
would be interesting to explore how co-operation and co-ordination
at all levels, and in particular between the European Parliament
and our Assembly, can be enhanced, I do not intend to duplicate
the work of our colleague Ms Kerstin Lundgren (Sweden, ALDE), whose
report on “The implementation of the Memorandum of Understanding
between the Council of Europe and the European Union” was debated
by the Assembly at its January 2015 part-session.

In my report, I will focus on the
EU’s remit in the field of human (fundamental) rights and on the
actions taken in this area by its institutions – the European Parliament,
the European Council, the Council of the European Union, the European
Commission, the Court of Justice of the European Union (CJEU) and
the European Central Bank (ECB). Although the activities of some
EU agencies – especially the Fundamental Rights Agency (FRA) and
Frontex, co-ordinating member States’ actions relating to the management
and control of the EU’s external borders would also deserve attention
in this context, I will only focus on the former (which has already
been the subject of a couple of reports by our committee), as the
role of the latter was recently examined by the Assembly following
the presentation of a report by the Committee on Migration, Refugees
and Displaced Persons (rapporteur: Mr Mikael Cederbratt).

While
examining the competences and actions of the EU institutions in
the field of human rights, I will focus on those which aim to promote
and protect human rights externally (outside the EU) and internally
(within the 28 member States of the EU). A report on the “Accession
of the European Union to the European Convention on Human Rights: Election
of judges” is to be prepared, in due course, by our committee (rapporteur:
Mr Jordì Xuclà, Spain, ALDE); I have therefore decided not to cover
this issue in the present report.
5. Furthermore, I propose to look at the role of some EU institutions
in promoting, and indeed imposing, austerity measures in certain
member States belonging to the eurozone, at a time of economic and
financial crisis. This concerns, in particular, some of the relatively
newer institutions of the European Union, such as the European Central
Bank (ECB), and the European Stability Mechanism (ESM). I propose
to examine the extent to which decisions of such institutions are
guided or influenced by the effect that they may have on human rights,
including socio-economic rights.

That is why I took part in the
High-level Conference on the European Social Charter, which took
place in Turin (Italy) on 17-18 October 2014, in the context of
the Italian Presidency of the EU.
1.3. General co-operation
between the European Union and the Council of Europe
7. In
Resolution 1836
(2011) on the impact of the Lisbon Treaty on the Council of
Europe,

the
Assembly noted that the post-Lisbon partnership between both organisations
should “ultimately lead to a common space for human rights protection”
across the European continent, in particular through the European
Union’s accession to the European Convention on Human Rights (ETS
No. 3, “ECHR”) and other key Council of Europe conventions and monitoring
mechanisms. Duplication and monitoring fatigue would thus be avoided,
especially at a time of economic crisis, and the Council of Europe’s
role as “the benchmark for human rights, rule of law and democracy
in Europe” should further be enhanced. In its
Recommendation 2027 (2013) “European Union and Council of Europe human rights agendas:
synergies not duplication”, the Assembly called on the EU to continue
to make use of its expertise, explore possible synergies and accelerate
the EU’s accession to the European Convention on Human Rights.
2. The EU
institutions and human rights: general legal framework
8. The Lisbon Treaty, which entered into force on 1
December 2009, introduced several changes in the areas of activity
traditionally undertaken by the Council of Europe. Firstly, it pointed
out the EU’s attachment to the main values of the Council of Europe
in Article 2 of the Treaty on European Union (“TEU”), stipulating
that the EU is “founded on the values of respect for human dignity,
freedom, democracy, equality, the rule of law and respect for human
rights, including the rights of persons belonging to minorities
…”. Secondly, the Lisbon Treaty also granted the Charter of Fundamental
Rights the same legal value as the EU Treaties (Article 6.2 of the
TEU) and, thirdly, it contains a legal basis for the EU’s accession
to the European Convention on Human Rights (Article 6.1 of the TEU).
Fourthly, by merging the Community pillar with the two-intergovernmental pillars,
the scope of the EU in the field of human rights has further expanded
to areas such as justice, freedom and security, which are closely
related to the issue of fundamental rights. This merger became fully
applicable as of 1 December 2014; since then, in the field of police
and judicial co-operation in criminal matters, the usual powers
of the European Commission and the Court of Justice apply as well.
9. Besides the above-mentioned changes, one should also mention
two other provisions of the TEU, which existed beforehand: Article
6.3 and Article 7. Article 6.3 of the TEU stipulates that “[f]undamental
rights, as guaranteed by the European Convention for the Protection
of Human Rights and Fundamental Freedoms and as they result from
the constitutional traditions common to the Member States, shall
constitute general principles of the Union’s law”.
10. Article 7 of the TEU contains the so-called “nuclear option”:
it can be triggered in case of a “clear risk” of a “serious breach”
of values enshrined in Article 2 of the TEU or in case of “serious
and persistent breach” of them. If the European Council finds the
existence of a “serious and persistent breach” of these values,
the Council of the EU may decide to suspend certain of the rights
deriving from the application of the Treaties, including voting
rights of the member State in question. This mechanism, which remains
mainly of a political nature, has so far never been used.
11. Following the entry into force of the Lisbon Treaty, the EU
Council adopted the “Stockholm Programme – An open and secure Europe
serving and protecting citizens” for 2010-2014, following which,
inter alia, a number of directives
on procedural rights in criminal proceedings were adopted. There
is no new programme of that kind envisaged for the next five years.
In its conclusions of 26-27 June 2014, the European Council adopted
the new “Strategic Guidelines for Legislative and Operational Planning
within the EU’s Area of Freedom, Security and Justice”

for
the period 2015-2020, in which it pointed out that its priority
now was to consistently implement and consolidate the adopted legal
instruments and policies with respect to asylum, immigration, border
control, police and judicial co-operation. It recalled the need
to ensure full respect of fundamental rights in this area, but regrettably
did not mention accession of the EU to the ECHR as a priority. Co-operation
with the Council of Europe in the framework of the implementation
of the Stockholm Programme has been positively assessed by Ms Lundgren
in her report on “The impact of the Lisbon Treaty on the Council of
Europe”. However, as noted by her, although the EU referred to the
Council of Europe’s expertise, the way in which it consulted our
Organisation was not consistent.

12. The EU has expressed its interest in acceding to the Group
of States against Corruption (GRECO)

and the feasibility
and modalities of such an accession are now being studied by the
European Commission. EU accession to GRECO would mean that EU institutions
would be subject to periodical and thematic assessment by GRECO.
3. The European Union
and observing human rights within its member States
3.1. The application
of the Charter of Fundamental Rights
13. The Charter of Fundamental Rights (“the Charter”)
is divided into six chapters – Dignity, Freedoms, Equality, Solidarity,
Citizens’ Rights and Justice. It contains a series of individual
rights and freedoms, including those enshrined in the ECHR, social
and economic rights and a number of “third generation” rights such
as data protection, guarantees on bioethics, and transparent administration.
When a right is contained both in the Charter and in the ECHR, its
meaning and scope is the same. Although introduced into the treaty
law, the Charter is binding on EU institutions, bodies, offices
and agencies of the Union and on the member States when they are
implementing Union law.

14. Since the entry into force of the Lisbon Treaty, the European
Commission prepares annual reports on the application of the Charter
of Fundamental Rights. It also screens the compatibility of legislative
proposals with the Charter. The first report was issued in 2010.
15. According to the latest report of the European Commission,

in 2013, there
was an increase of cases in which national jurisdictions seized
the EU Court of Justice asking for guidance about the applicability
of the Charter when implementing EU law at national level (preliminary
rulings)

and the Court of Justice gave more precise
indications on this subject in its judgment
Åkerberg
Fransson. 
National
judges are more and more aware of the Charter standards. The number
of decisions in which EU courts (Court of Justice, General Court and
Civil Service Tribunal) quoted the Charter in their reasoning has
been on the rise in the last few years: 43 in 2011, 87 in 2012 and
114 in 2013.
16. The European Commission launched a number of infringement
proceedings in which fundamental rights, enshrined in the EU Charter,
played a role.

It also proposed a number
of legislative acts to defend the rights guaranteed by the Charter,
such as the rights of suspects and accused in criminal proceedings
or to strengthen access to asylum procedure.

A few directives have been adopted
in the framework of the Stockholm Programme:
Directive 2010/64/EU on the right to interpretation and translation
in criminal proceedings,
Directive
2012/13/EU on the right to information in criminal proceedings,
and
Directive 2013/48/EU on the right of access to a lawyer in criminal
proceedings, and on the right to have a third party informed upon
deprivation of liberty and to communicate with third persons and
with consular authorities while deprived of liberty. A proposal
for a directive on the presumption of innocence was approved by
the Council on 4 December 2014 and should soon be examined by the
European Parliament.
17. There is a scrutiny of draft legislation as to their compatibility
with the Charter in the EU institutions: by the European Commission,
the Council of the EU and the European Parliament. However, despite
the fact that all European Commission departments are supposed to
ensure such scrutiny with respect to their proposed policies and
legislation, this control does not seem to be very thorough, as
some departments work on issues which are not directly related to
fundamental rights or are unaware of their policies’ impact on the
latter. Despite some efforts by DG Justice to “educate” other directorates,
it seems that the European Commission does not possess sufficient
staff to perform such checks of all proposals.

18. The Court of Justice has delivered a number of judgments in
which it found that EU legislation and decisions addressed to individuals
did not comply with the Charter. One good example is the
Kadi II judgment, in which the CJEU
found that the decision to freeze the assets of the applicant (implementing
a decision of the United Nations Security Council’s Sanctions Committee),
who was suspected of terrorist acts, violated the right to an effective
remedy and the right to a fair trial (Articles 41 and 47 of the
Charter).

Another
one is the
Besselink judgment,
in which the General Court found a violation of the right of access
to documents (Article 42 of the Charter), due to the Council of
the EU decision refusing the applicant access to a document on EU accession
to the ECHR.

3.2. EU mechanisms to
monitor compliance with certain aspects of the rule of law within
its member States
19. Although there is no internal mechanism within the
EU to monitor on a regular basis compliance with the fundamental
values enshrined in Article 2 of the TEU, some fragmented tools
have been developed within its institutions to provide for an overview
of certain aspects of the human rights and rule of law situation.
These are: the EU Anti-Corruption Report; the EU Scoreboard for
Justice; the Cooperation and Verification Mechanism; and certain
annual reports prepared by EU institutions and agencies. As noted
by some authors, these tools show “variable degrees of proximity
to the EU legal framework established in the Lisbon Treaty”.

20. The EU Anti-Corruption Report was prepared by the European
Commission and it analyses EU member States’ performance in the
field of corruption and the steps taken to prevent and fight it. This
is a new tool, as the first report on this subject was published
on 3 February 2014.

21. Another new information tool of the European Commission is
the EU Scoreboard for Justice, which is aimed at providing data
on civil and commercial justice in EU member States. Its first edition
was published in March 2013

and
the latest one was issued a year later.

Although the Scoreboard
puts emphasis on the right of access to justice as a fundamental
right and on the need to achieve more effective justice systems within
the EU, it has been designed in the context of the so-called “European
Semester”, an annual review of the co-ordination process of the
member States’ economic policies and is hence aimed at contributing
to “fostering economic growth in the EU”. That is why it does not
examine the situation of criminal justice in EU member States. The
Scoreboard is an example of good co-operation between the European
Union and the Council of Europe, as most of the data on which it
is based come from the Council of Europe’s European Commission for
the Efficiency of Justice (CEPEJ).
22. Since 2007, the European Commission has been using the Cooperation
and Verification Mechanism to assess observance of the rule of law
– justice systems and the fight against corruption – in Bulgaria
and Romania. In the case of Bulgaria, it also examines the progress
in the fight against organised crime. Within this framework, the
European Commission reports every six months.

23. In addition, there are a number of various non-binding reports
by EU institutions and agencies which include,
inter alia, the European Commission’s
Annual Report on the Application of the Charter of Fundamental Rights,

the
European Parliament’s Annual Report on the Situation of Fundamental
Rights in the EU,

the EU
Fundamental Rights Agency’s Annual Report on the Situation of Fundamental
Rights in Member States,

the European Ombudsman’s Annual
Report,

focusing on the complaints received
by this institution, and the European Commission’s Anti-Fraud Office
(OLAF) Annual Report.

3.3. The “Rule of Law
Mechanism”
24. Over the last few years, several “crises” in EU member
States (such as that in Austria in 2000, the problem of Roma eviction
in France over the summer of 2010, the Romanian constitutional crisis
in 2012 and the controversial constitutional and legal changes in
Hungary begun in 2011) have shown that the EU still has difficulty
in ensuring the continuing adherence of its member States to democracy,
human rights or the rule of law, core tenets of the Council of Europe.
The usual approach of political and diplomatic persuasion has not always
been successful and the – last resort – “nuclear option” of Article
7 of the TEU has never been applied, due to the high threshold required
for it to be triggered. Although the European Commission can start infringement
proceedings against a member State which does not comply with the
Treaties, it has – in effect – either acted only on some fragmentary
aspects of rule of law problems

or
omitted to launch such a procedure altogether.

25. In my previous report on “European Union and Council of Europe
human rights agendas: synergies not duplication”, which was discussed
by the Assembly in October 2013, I described the first initiatives
taken by some EU institutions and politicians to introduce a mechanism
to monitor the respect for the values mentioned in Article 2 of
the TEU by EU member States, as well as the origin of this idea.
One of these initiatives came from the European Parliament and its
Committee on Civil Liberties, Justice and Home Affairs (LIBE), whose rapporteur,
Mr Louis Michel, prepared a a draft resolution on the situation
of fundamental rights in the European Union in 2012. In this resolution,
adopted by the European Parliament on 27 February 2014,

the
European Parliament proposed to establish a “Copenhagen mechanism”,
which would be triggered by a decision of the European Commission,
in co-operation with FRA, whose remit should be widened. It also
called for a revision of Article 7 of the TEU and the creation of
a “Copenhagen Commission” composed of independent high-level experts.
More recently, on 12 March 2014, the European Parliament adopted
another resolution on “Evaluation of justice in the field of criminal
justice and the rule of law”,

which
also calls on the European Commission to address the issue of a
rule of law mechanism and stresses that the future tool “should
seek complementarity with the work of other international institutions,
such as the Council of Europe and its Venice Commission”.
26. Since the debate in the Assembly back in October 2013, there
have been other developments

which eventually led to the adoption
by the European Commission, in March 2014, its Communication “A
new EU Framework to strengthen Rule of Law”.

27. In this document, the European Commission reiterated that
the rule of law is the backbone of any modern constitutional democracy
and a precondition for EU membership and stressed that various bodies
had called upon it to develop a method to tackle situations where
there was a systematic threat to the rule of law. The framework
would address systematic threats to the rule of law within a member
State that cannot be appropriately addressed by other enforcement
mechanisms currently available.
28. The procedure is to contain three stages – assessment, recommendation
and follow-up monitoring:
a. Assessment:
in order to assess whether a systematic threat to the rule of law
exists. The framework is to make use of a number of sources, including
the Council of Europe. If such a systematic threat exists, then
the European Commission will send a “rule of law opinion” containing
its concerns and provide the member State the opportunity to respond.
This process will be kept confidential and the State’s compliance
is expected as a result of the “duty of sincere co-operation” within
Article 4.3 of the TEU.
b. The European Commission will then, if the matter has not
been satisfactorily resolved, issue a “rule of law recommendation”
to the State concerned. The recommendation will indicate the reasons
for the European Commission’s concerns and a fixed time limit for
the member State to address these concerns. The recommendation may
also include specific measures that should be taken in order to resolve
shortcomings; the member State should reply indicating steps taken
towards this goal. The recommendation and its main content will
be made public.
c. The European Commission will then follow up the recommendation
by monitoring the steps taken by the member State to resolve the
situation. If there is no satisfactory follow-up, the European Commission will
consider the use of the mechanism envisaged in Article 7 of the
TEU.
29. The Communication does not fully set out the legal basis for
the creation of this framework

or specifically
define the scope of such a mechanism due to the controversies concerning
the definition of the “rule of law”.

The new mechanism will apply where the
integrity and functioning of national institutions that aim to uphold
the rule of law have allegedly been compromised. The Commission
highlights that the framework will only apply to
systematic threats to the rule of
law and not individual breaches, which can be dealt with by national
judicial systems and the ECHR procedure.
30. According to the European Commission, “the Framework will
be complementary to all the existing mechanisms already in place
at the level of the Council of Europe to protect the rule of law”.

The
European Commission emphasises the importance of co-operation between
various institutions in the putting into effect of this framework.
As a rule, it will seek the advice of, and co-ordinate with FRA,
the Council of Europe and its Venice Commission in matters that
are under their consideration and analysis. It is convinced that
the proposed framework is based on its competences, as provided
by the Treaties, and does not exclude any future amendment to them.
31. During my visit to Brussels in June 2014, I discussed the
proposed framework with civil servants from the European Commission,
the Council of the EU and the European Parliament. I was informed
that the Council of the EU was critical of the European Commission’s
proposal, claiming that it lacked a legal basis in the Treaties
and that, due to the fact that it was issued relatively late in
the term of both the Commission and Parliament, the European Parliament
did not have enough time to examine it before the elections which
took place in May 2014.
32. The European Commission’s framework puts emphasis on “systematic
threats” and co-operation with the Venice Commission. I agree with
Ms Lundgren that “systemic rule of law problems in Europe are normally revealed
by judgments of the European Court of Human Rights, by analytical
country reports prepared by the Council of Europe, including reports
by its monitoring bodies in the appropriate areas”.

Although the expertise of the Venice Commission,
which has been assisting numerous States in drafting legislation
compatible with international human rights standards, is of primordial
importance in this context, other sources of information and expertise
– such as the judgments of the Court, reports of Council of Europe
monitoring bodies and the Commissioner for Human Rights – should
not be neglected. In order to assess whether there is a “systematic threat”,
one should, first of all, refer to the judgments of the Court, and
in particular its pilot judgments, and to the findings of the Committee
of Ministers, which supervises the execution of the Court’s judgments.
33. It is difficult to predict, at this stage, what follow-up
will be given to the Commission’s Communication of 19 March 2014.
The new Commissioner for “Better Regulation, Inter-institutional
Relations, the Rule of Law and the Charter of Fundamental Rights”,
Mr Frans Timmermans, who is also Vice-President of the European Commission,
took up his duties on 1 November 2014. On 12 November 2014, Mr Timmermans
met the Secretary General of the Council of Europe, Mr Thorbjørn
Jagland, with whom he discussed the state of human rights and democracy
in Europe, the EU’s rule of law framework and the European Union’s
accession to the European Convention on Human Rights. The fact that
the President of the European Commission, Mr Jean-Claude Juncker,
entrusted Commissioner Timmermans with a special responsibility
for “rule of law” and the Charter of Fundamental Rights shows his
and the Commission’s commitment to solving the problem of the EU’s
apparent difficulty in monitoring its own member States from this
perspective. In its conclusions of the General Affairs Council meeting
of 16 December 2014, the Council of the EU and EU member States committed
themselves to establishing an annual dialogue to “promote and safeguard
the rule of law in the framework of the Treaties”, which would be
developed in a way “which is complementary with other EU Institutions
and International Organisations, avoiding duplication and taking
into account existing documents and expertise in this area”.

34. For a long time, civil society has called on the EU to introduce
a “Copenhagen mechanism” to monitor respect of the values enshrined
in Article 2 of the TEU. For example, according to the Centre for
European Policy Studies (CEPS), such a mechanism should be a monitoring
one and should consist of a periodic evolution or scoreboard of
member States’ compliance with the said values, on the basis of
expertise from academics, the United Nations, the Council of Europe
and other non-EU bodies. It could be co-ordinated by the European
Commission and would not require a treaty change in the short-term.

35. In this context, I would also like to refer to the recent
Assembly’s decision to revise its monitoring procedure, by inviting
its Committee on the Honouring of Obligations and Commitments by
Member States of the Council of Europe (Monitoring Committee) to
“introduce a periodic overview of groups of countries in accordance
with its internal working methods” and to “launch issue-based, cross-country
monitoring in close co-operation with the relevant committees”.

These two new procedures would allow
the Monitoring Committee and the Assembly to conduct a more thorough
monitoring of all member States of the Council of Europe, including
member States of the EU, as, so far, the majority of States under
stricto sensu monitoring of the
Assembly (monitoring and post-monitoring dialogue) were non-EU States
(with the exception of Bulgaria). Once these new mechanisms have
been set up, there will be additional room for co-operation between
the Assembly and the relevant EU institutions, including the European
Commission.
3.4. EU accession to
the European Convention on Human Rights: a long way to go?
36. The impact of the accession of the EU to the European
Convention on Human Rights was recalled in the current affairs debate
in June 2012. The European Union’s accession to the European Convention
on Human Rights is required under Article 6 of the Lisbon Treaty
and foreseen by Article 59 of the ECHR as amended by Protocol No.
14 (CETS No. 194). On 17 March 2010, the European Commission proposed
negotiation Directives for the EU's accession to the Convention.
On 4 June 2010, EU Justice Ministers gave the European Commission
the mandate to conduct the negotiations on their behalf. On 26 May
2010, the Committee of Ministers of the Council of Europe gave an
ad-hoc mandate to its Steering Committee for Human Rights (CDDH)
to prepare with the EU the necessary legal instrument for EU accession
to the ECHR. This ad hoc group was subsequently replaced by the
CDDH Ad Hoc Negotiation Group and the European Commission on the
Accession of the EU to the ECHR. On 5 April 2013, negotiations resulted
in agreement on the draft accession instruments and on 4 July 2013
the European Commission asked the Court of Justice of the EU to give
its opinion on the compatibility of the draft agreement with EU
law, according to Article 218.11 of the Treaty on the Functioning
of the EU (TFEU).

Twenty-four
member States intervened in the procedure before the CJEU. In its
opinion of 13 June 2014, Advocate General Kokott found that the
draft agreement was compatible with EU law.
37. On 18 December 2014, the CJEU delivered its opinion on the
draft agreement on EU accession to the ECHR. It found that it was
incompatible with EU law and found many obstacles in the draft agreement,
with the result that the EU accession to the ECHR has become very
difficult, even, according to some commentators, impossible.

The Court of
Justice referred to the autonomy of the EU law and its specific
characteristics, pointing out that, in case of accession to the
ECHR, its findings on EU law could not be called into question by the
European Court of Human Rights. In this respect, firstly, it found
that there was no provision in the draft agreement to ensure co-ordination
between the ECHR and the Charter of Fundamental Rights in case the
latter provided higher standards of protection. Secondly, the ECHR
would require each member State to check that the other member States
had observed fundamental rights, which would undermine the principle
of mutual trust between member States under EU law (highly relevant
in the area of freedom, security and justice, and especially in
cases of European arrests warrants) and there was no provision to
avoid that in the draft agreement. Thirdly, the mechanism established
by Protocol No. 16 to the ECHR (CETS No. 214)

(allowing national courts to refer to the
European Court of Human Rights for clarification about the interpretation
and application of the rights and freedoms enshrined in the ECHR)
could affect the autonomy and effectiveness of the preliminary ruling
procedure under Article 267 of the TFEU and there was nothing on
this in the draft agreement, either. The CJEU also argued that the
draft agreement did not exclude the possibility for the European
Court of Human Rights to settle disputes between EU member States,
which would be contrary to EU law (Article 344 of the TFEU) and
criticised the “co-respondent mechanism”

proposed in
the draft agreement, as the granting of the status of co-respondent
would require the Court to assess the rules of EU law governing
the division of powers between the EU and its member States. Moreover,
the CJEU elaborated on the procedure for its “prior involvement”

before
a procedure before the European Court of Human Rights: it found
that the draft agreement did not reserve to the CJEU only the power
to rule on whether it has already dealt with an issue (i.e. it did
not exclude the European Court of Human Rights from ruling on that)
and did not permit the CJEU to rule on the interpretation, but only
on the validity of the EU law. Lastly, the CJEU, which has only
limited jurisdiction over acts taken within the common foreign and
security policy (CFSP), held that the draft agreement failed to
have regard to the specific characteristics of EU law with regard
to the judicial review of acts in this area. This was due to the
fact that under the draft agreement the European Court of Human
Rights would itself review EU law in the context of the CFSP.
38. EU accession to the ECHR is a priority for most European institutions,
and in particular for the European Commission, as announced by its
new President, Mr Juncker, in his opening statement to the European Parliament

and Commissioner Timmermans in
his statement on the occasion of the 5th anniversary of the entry
into force of the Charter of Fundamental Rights.

However, regrettably, it was not
mentioned in the European Council Conclusions concerning the area
of Freedom, Security and Justice and some related horizontal issues.
The list of problems with the draft agreement pointed out by the
CJEU is so long that it calls into question, in my view, the Luxembourg
Court’s willingness to accept the very idea of EU accession to the ECHR.
It is particularly disappointing now, at a time when the EU’s powers
have been further expanded in the area of co-operation in criminal
matters, where human rights are particularly relevant.
3.5. The Fundamental
Rights Agency: an area of special concern?
39. The creation of the European Union Agency for Fundamental
Rights (FRA) in 2007 gave rise to concern within the Council of
Europe and the Assembly

about unnecessary duplication of
Council of Europe work by the Agency. In 2008, an agreement was
concluded between the European Community and the Council of Europe
on co-operation between the European Union Agency for Fundamental
Rights and the Council of Europe.

Since then, FRA and the Council of
Europe have established appropriate forms of co-operation and have
consulted each other in their daily work. Although both institutions
sometimes work on the same or similar issues, they use different
tools in carrying out their respective activities. FRA’s data collection
and evidence-based analyses might complement the work undertaken
by the Council of Europe’s monitoring bodies.
40. This change of context was noted in Assembly
Resolution 1756 (2010) and
Recommendation
1935 (2010) on the need to avoid duplication of work of the Council
of Europe by the European Union Agency for Fundamental Rights, on
the basis of the report of our committee colleague, Mr Boriss Cilevičs
(Latvia, SOC).

However, the Assembly recalled that
FRA should retain – in its work – the Council of Europe’s
acquis in the human rights field
as its main point of reference. It also called on the EU member
States and institutions to reflect “once again on the allocation
of financial and other resources to the different European human
rights protection mechanisms in order to distribute them in a way
which ensures their most effective use” and regretted that the funding
of the Council of Europe’s core human rights activities was far
lower than that of FRA.

41. In its reply to Assembly
Recommendation 2027 (2013) “European Union and Council of Europe human rights agendas:
synergies not duplication”, the Committee of Ministers recalled
the “very good co-operation” developed between the Council of Europe
and FRA “in various areas on the basis of their respective mandates, strengths
and skills” and that both parties agreed that “the 2008 Agreement
between the European Community and the Council of Europe remains
a valid basis for co-operation between the FRA and the Council of Europe”.

This good co-operation was also
stressed by the Director of FRA, Mr Morten Kjaerum, at the hearing
before our committee in March 2014. He stressed that FRA had interacted
closely with Council of Europe staff and there was a complementarity
between both institutions. The Council of Europe was represented
by an independent member in FRA’s Executive and Management Boards,
and it was consulted on FRA’s Annual Work Programme. Jointly, with
the European Court of Human Rights, FRA had published handbooks
on non-discrimination, asylum and data protection, and a publication
on children’s rights would come out soon. FRA also recently focused
on hate crime, on which it organised a conference in 2013, and had elaborated
– together with ECRI (European Commission against Racism and Intolerance)
– its general policy recommendations, conducted surveys on discrimination
of minorities and produced a report on anti-Semitism. FRA had also
had an exchange of views with the ECB on human rights considerations,
but its mandate is too narrow to examine in detail the impact of
the decisions of the Troika (the European Commission, the ECB and the
International Monetary Fund) on social and economic rights.
4. Human rights in
EU external action
42. According to Article 21.1 of the TEU, the EU’s “action
on the international scene shall be guided by the principles which
have inspired its own creation, development and enlargement, and
which it seeks to advance in the wider world: democracy, the rule
of law, the universality and indivisibility of human rights and
fundamental freedoms, respect for human dignity, the principles
of equality and solidarity, and respect for the principles of the
United Nations Charter and international law”.
43. The Human Rights Working Group (COHOM) of the Council of the
EU, which is comprised of experts from member States and the European
Commission, examines human rights issues in the EU’s external relations.
It meets regularly and examines human rights issues of urgent concern
and promotes the inclusion of human rights problems on the agenda
of other expert meetings with third countries.
44. In 2012, the EU adopted the “Strategic Framework and Action
Plan on Human Rights and Democracy”, which focuses on a coherent
promotion of human rights in its external relations, including policy
areas such as trade, investment, and development, as well as the
Common Security and Defence Policy (CSDP) and the external dimensions
of justice and home affairs and employment and social policy.

To
implement this framework, it also adopted an Action Plan, which
expired on 31 December 2014. In 2013, it adopted nearly 150 human
rights country strategies in this framework and held human rights
consultations with 30 partner countries and regional groupings.
Every year the Council of the EU adopts its Annual Report on Human
Rights and Democracy in the World.

45. In July 2012, the Council of the EU appointed Mr Stavros Lambrinidis
as the European Union Special Representative for Human Rights. Council
Decision 2012/440/CFSP of 25 July 2012, appointing the Special Representative,
established a budget of €712 500 for activities up to the end of
the first half of 2013 and a mandate to:
a. contribute to the implementation of the Union’s human
rights policy, in particular the EU Strategic Framework on Human
Rights and Democracy and the EU Action Plan on Human Rights and Democracy,
including by formulating recommendations in this regard;
b. contribute to the implementation of Union guidelines,
toolkits and action plans on human rights and international humanitarian
law;
c. enhance dialogue with governments in third countries and
international and regional organisations on human rights as well
as with civil society organisations and other relevant actors in
order to ensure the effectiveness and the visibility of the Union’s
human rights policy;
d. contribute to better coherence and consistency of the
Union policies and actions in the area of protection and promotion
of human rights, notably by providing input to the formulation of
relevant policies of the Union.
46. As indicated in the 2013 Annual Report on Human Rights and
Democracy,

Mr Lambrinidis focused “on strengthening
the EU's human rights engagement with EU strategic partner countries;
on addressing human rights challenges with countries in transition
in pivotal world regions; on elevating the EU's visibility and engagement
with multilateral and regional human rights mechanisms (United Nations,
Council of Europe, Organization for Security and Co-operation in
Europe (OSCE), Association of Southeast Asian Nations (ASEAN), African
Union, Organisation of Islamic Cooperation); and on heightening
EU co-operation with and empowering civil society throughout the
world”. Thematically, he continued to work on “protecting NGOs and human
rights defenders and expanding the space in which they operate;
advancing the universality of human rights; raising the effectiveness
of EU human rights dialogues; and promoting key EU thematic priorities, including
those reflected in recently adopted human rights guidelines”. He
works under the authority of the EU High Representative for Foreign
Affairs and Security Policy/Vice-President of the European Commission
and the guidance of the Political and Security Ambassadors, and
in co-ordination with the European External Action Service (EEAS),
the European Commission and the European Parliament.
47. During my visit to Brussels, the President of the COHOM, Mr
Bert Theuermann, explained to me that the main added value of the
Special Representative was his visibility, as Mr Lambrinidis was
seen as a key face on EU human rights policy. Moreover, he often
mobilises other EU institutions to have a closer look at human rights
issues, for example in the area of migration, energy, business activities,
and has identified a number of third countries as strategic actors.
He assured me that there was no risk of duplication of work of the
Council of Europe, as the Special Representative’s work was aimed
at the external relations of the EU and that he often referred to
the expertise of the Council of Europe and, in particular, that
of the Venice Commission.
48. Moreover, the EU has adopted a number of guidelines to promote
in its external human rights policy,

such as, more recently – in 2013
“
EU
Guidelines on the promotion and protection of freedom of religion
and belief”, “
EU
Guidelines on the Death Penalty”, “Guidelines to promote and protect the enjoyment of
all human rights by lesbian, gay, bisexual, transgender and intersex
(LGBTI) persons” and in 2014 “
EU
Human Rights Guidelines on Freedom of Expression Online and Offline”. These guidelines have been adopted at ministerial level
and, although they are not legally binding, they show the EU’s strong
political commitment to promote the rights in question.
49. Through the European Instrument for Democracy and Human Rights
(EIDHR), the EU supports, inter alia,
NGOs promoting human rights, democracy and the rule of law. Between
2014 and 2020, the financial support will amount to €1.3 billion.
50. As far as Council of Europe member States which are candidates
for EU membership are concerned, the European Commission has regular
consultations with the Council of Europe relevant instances and
bodies. As regards the human rights dimension in EU trade agreements,
the European Commission carries out an “impact assessment” which
takes into account this problematic before the opening of the negotiation process.

In
its agreements with third countries, the EU regularly includes “human
rights, democracy and rule of law clauses” to promote its values
and political principles. The non-respect of such clauses, which
are considered as essential element clauses, allows it to take restrictive
measures, including the suspension of all or part of an agreement
as a measure of last resort.

51. Moreover, sanctions – also referred to as restrictive measures
– against third countries, individuals or entities, are an essential
EU foreign policy tool and are applied in accordance with the principles
of the Common Foreign and Security Policy. They are adopted as “common
positions” of the Council of the EU. Their implementation is carried
out by the European Commission and member States. They are open
to very limited, if any, judicial review.

52. The European Parliament regularly follows the human rights
situation in third countries through the work of its Subcommittee
on Human Rights (DROI), which drafts the European Parliament’s Annual
Report on Human Rights and often invites civil society representatives
and human rights defenders to its sessions.

Following the
entry into force of the Lisbon Treaty and the increase of the European
Parliament’s powers in concluding international agreements, its
Committee on Foreign Affairs (AFET) and Committee on International Trade
(INTA) have also important roles in this area. The European Parliament
also annually awards its Sakharov Prize for Freedom of Thought.
5. The European Union,
the economic crisis and fundamental rights
53. Within the Council of Europe, the impact of the crisis
on human rights has already been examined by the Assembly,

in
particular in its
Resolution
1884 (2012) “Austerity measures – a danger for democracy
and social rights”,

and by other instances of the Council
of Europe.

During
the January 2015 part-session, the Assembly debated,
inter alia, the report of the Committee
on Equality and Non-Discrimination on “Equality and the crisis”.

I
do not intend to duplicate the work of my colleagues.
54. Although the European Court of Human Rights has remained rather
silent on this issue (as, in principle, the ECHR does not guarantee
social and economic rights), the European Committee of Social Rights
(ECSR) – following several collective complaints – has found a number
of violations of the European Social Charter (revised) with regard
to austerity measures in some countries.

For example, in the case of Greece,
the legislation allowing dismissal without notice or compensation
of employees with contracts of indefinite duration during a probationary
period of twelve months was considered as being in breach of Article
4.4 of the European Social Charter (which grants the right of all
workers to a reasonable period of notice for termination of employment)
despite being a condition of Greece’s loan arrangement with the
EU institutions and the International Monetary Fund (IMF).

Moreover, cuts in old-age pensions,
also undertaken to honour an agreement with the Troika, were considered
as contrary to its Article 12.3, which provides for an obligation
to raise progressively the system of social security to a higher
level.

A comparison of
the case law of the European Court of Human Rights and of the ESCR
in connection with the economic crisis shows that their approaches
are different: while the Court allows a certain margin of appreciation
to member States when they take austerity measures, the ESCR has
taken a clear stance on the protection of core rights protected
by the European Social Charter.

55. I would also like to reflect on whether the decisions taken
by some EU institutions in relation to the economic and financial
crisis in the eurozone were taken in accordance with the principles
of democracy and respect for human rights. First of all, the Troika,
which, in its agreements on financial assistance with Cyprus, Greece,
Ireland and Portugal, imposed a number of conditions such as fiscal
increases and expenditures cuts, structural measures aimed at liberalising
the labour market and certain protected sectors appears to be subject to
very little, if any, accountability. Similarly, in its judgment
in the
Pringle case,

the Court of Justice of
the EU found that when member States established the European Stability
Mechanism (in which, as indicated, the European Commission and the
ECB play a major role) as a separate international organisation
acting as a permanent crisis resolution mechanism for the eurozone,
they were not implementing EU law, as there was nothing in the Treaties
conferring the EU any specific competence to this effect. Therefore,
the Charter of Fundamental Rights does not apply to the establishment
of the ESM by member States within the meaning of Article 51 of
the Charter. The European Stability Mechanism was established by
European Council Decision 2011/199 amending Article 136 of the TFEU.
56. Since I wished to examine whether the decisions of the ECB
were taken in accordance with the principles of democracy and respect
for human rights, I invited Mr Jean-Claude Trichet, former President
of the ECB, to a hearing before our Legal Affairs Committee on 3
March 2014. I am very grateful to Mr Trichet for having accepted
the invitation to appear before the committee. In his very interesting
presentation, the former President of the ECB gave us his views
on the measures taken by the EU, and in particular the ECB, to combat the
economic and financial crisis.
57. Mr Trichet stressed that all ECB decisions had been taken
in accordance with the European treaties. According to the legal
services of the European Commission, the Council of the EU and the
ECB, it was up to the Court of Justice of the EU to assess their
compatibility with EU law. The financial and economic crisis had been
going on since 2007 and it had been the greatest crisis in advanced
countries since the Second World War. EU States finding themselves
in a situation of economic and financial imbalance would not have
been in such a state had they observed the Maastricht Treaty and
the Stability and Growth Pact and they should have paid more attention
to their competitiveness. Mr Trichet also acknowledged that some
States, notably Ireland which had adhered to the Maastricht criteria
but had failed to heed warnings about a property price bubble, also found
themselves in a similar crisis. Investors and finance houses had
lost confidence in them, as could be seen from the prices of credit
default swaps. In the last phase of the crisis, only two solutions
were conceivable, he explained: either the help of a generous philanthropist
prepared to continue financing ongoing deficits, to replace investors
scared off by the size of the deficits; or adjustments by the States
concerned limiting deficits to a level considered sustainable by
investors. In the absence of such a philanthropist, the International Monetary
Fund and/or other European institutions and governments stood ready
to assist the countries concerned in achieving the inevitable adjustment.
He stressed that no States were forced into an assistance programme;
they could also refuse the aid and make the necessary adjustments
autonomously. He went on to state that the speed of the economic
adjustment should not now be questioned, but rather its fairness
or unfairness and that it should be held accountable in this regard
through the democratic processes in the States in question. People’s
incomes should be decreased in a proportionate way, because that
was the only way to protect employment, he maintained. However,
he acknowledged that the “bargaining power” of people holding jobs
or generally stronger positions in society was stronger than that
of jobless or otherwise disadvantaged people whose benefits not
only could be, but would have to be, reduced considerably. Whilst
acknowledging that this could lead to the democratic processes in
the countries concerned producing imbalanced or unfair results as
regards the sharing of the burden of the adjustment, he did not
accept that the ECB should have regard to the Charter of Fundamental
Rights when making proposals. Knowing that excessive budgetary deficits
always catch up with the countries concerned and lead to a catastrophe,
they should insist on proper management, implement procedures for
supervising macroeconomic balance, finalise the work on the banking union
and have instruments like the European Stability Fund. Damage to
economic and social rights was not the fault of the IMF or the Troika:
deficits needed to be reduced, when a “world philanthropist” could
not be found.
58. Mr Trichet was of opinion that the European Parliament should
have more power to control EU institutions’ decisions concerning
the functioning of the eurozone. The decision-taking process in
solving the crisis was indeed long, but this was due to the fact
that States were operating within the EU and they had to follow
democratic procedures.
59. Despite the ECB having been established as an institution
of the European Union in the TEU, Mr Trichet saw little relevance
of the Charter of Fundamental Rights or the Fundamental Rights Agency
to its work or any benefit in having the FRA review the effects
of its policy. He also dismissed the suggestion that the right to engage
in work, set out in the Charter, had to be considered when determining
the monetary policy of the ECB, the primary objective which, as
mandated in Article 2 of the Statute of the ECB, is to maintain
price stability within the eurozone.
60. Mr Trichet’s presentation obviously reflected the opinions
of an economist and a former president of a central bank. As regards
the responsibility of the Troika for the austerity measures, he
clearly stressed that the primary political responsibility for the
acceptance of such measures lay with the States which had accepted
the financial help of the European Union and the IMF. Similar views
were heard by the rapporteur of the Committee on Equality and Non-discrimination,
Mr Villumsen, when he met Troika representatives in Lisbon and he subsequently
spoke about “shared responsibility”.

Within the EU, the lack of the accountability
of the Troika, the lack of transparency of the agreements concluded
with it and the overall lack of democratic control in this respect
was criticised by the European Parliament in two resolutions adopted
on 13 March 2014.

The European
Parliament has raised doubts as to whether the European Commission
had not abused its competences as the “guardian of the Treaty” and
contested the role of the ECB. The European Parliament rapporteur,
Mr Alejandro Cercas, even considered that the measures proposed
by the Troika were contrary to Article 9 of the TEU, which stipulates
that the EU “shall observe the principle of equality of its citizens,
who shall receive equal attention from its institutions, bodies,
offices and agencies” in all EU activities.
61. Mr Trichet declined to comment specifically on the legality
of the outright monetary transactions. In this context, I would
also like to note that a case concerning the legality of the ECB’s
decision of 6 September 2012 outlining a programme for the purchase
of government bonds issued by States of the eurozone – transactions known
as Outright Monetary Transactions (OMTs) – is pending before the
Court of Justice of the EU, following a request for a preliminary
ruling from the German Federal Constitutional Court (
Bundesverfassungsgericht).

The
Bundesverfassungsgericht has
doubts whether the said decision of the ECB is compatible with Article
119 and Articles 127.1 and 127.2 of the TFEU (whether the OMT was
an economic policy, and not monetary policy, measure) and Article
123.1 of the TFEU (on the prohibition of monetary financing). In
its very recent opinion of 14 January 2015, Advocate General Cruz
Villalón proposes that the Court of Justice reply that an OMT, if
it is being implemented, is compatible with the Treaties only under
some conditions. It is compatible with Article 119 and Articles
127.1 and 127.2 of the TFEU provided that, “the ECB refrains from
any direct involvement in the financial assistance programmes to
which the OMT programme is linked …” and with Article 123.1 of the
TFEU, provided that, “the timing of its implementation is such as
to permit the actual formation of a market price in respect of government
bonds”

.
62. During my visit to Brussels, I had a discussion with officials
from the European Commission about the social consequences of the
decisions it had taken in relation to the economic crisis. My interlocutors
from the European Commission (DG Employment) indicated to me that
more social impact assessment was indeed needed. However, the European
Commission had taken some action to strengthen the social and employment dimension
of the economic and monetary union. In its “Communication on Strengthening
the Social Dimension of the Economic and Monetary Union”,

the Commission included some key social
and employment indicators (such as unemployment or risk of poverty)
to better identify, and at an earlier stage, major employment and social
problems.

It also called for
better co-ordination and monitoring of employment and social policies
as part of the European Semester process and for boosting the role
of social dialogue. Moreover, employment and social considerations
were part of the two Regulations, of 21 May 2013, on budgetary surveillance:
472/2013 (EU)

and 473/2013 (EU).

The
first one stipulates that member States, when preparing their draft macroeconomic
adjustment programmes, shall seek the views of social partners and
relevant civil society organisations. The second one obliges them
to provide general information on expenditure on education, health
care and employment.
63. My interlocutors from the European Commission also claimed
that there existed no risk of duplication of work in the area of
social and economic rights in the EU and the Council of Europe,
as the latter’s standards (the European Social Charter) were adopted
a long time ago. There is obviously a role for the Court of Justice of
the EU which has the power to interpret these rights as enshrined
in the Charter. However, there is a risk of divergences between
the EU (CJEU) standards and those of the Council of Europe (mainly
the European Committee of Social Rights), as shown by the case
Swedish Trade Union Confederation (LO) and
Swedish Confederation of Professional Employees (TCO) v. Sweden, concerning
the right to bargain collectively and the right to strike.

64. On the occasion of the High-level conference in Turin on 17
and 18 October 2014, in which I took part, the Sub-Committee on
the European Social Charter of the Committee on Social Affairs,
Health and Sustainable Development adopted a declaration in which
it deplored the fact that “many austerity and fiscal consolidation programmes
were implemented without prior consultation with social partners
and are not in conformity with the European Social Charter, or the
Charter of Fundamental Rights of the European Union”. The sub-committee
called on European governments and parliaments to strengthen the
protection of social rights and related mechanisms, by “assessing
the impact of past austerity measures on social and democratic rights,
and encouraging the adoption of programmes for the restoration of
rights and of institutions for social dialogue where necessary”
and “ensuring that fiscal objectives and structural reforms do not
hamper decent work and employment for all, and promote fair income
distribution”. It also called for the reinforcement of the pivotal
role of the European Social Charter and the ensurance of coherence
between the EU and the Council of Europe’s standards, statements
to which I fully subscribe.
6. Conclusions
65. All EU member States are members of the Council of
Europe and are Parties to the European Convention on Human Rights.
The EU itself is based on the same values core – democracy, rule
of law and human rights. In certain areas, it even strives to ensure
higher protection, which is well illustrated by the material scope
of its Charter of Fundamental Rights, a modern human rights instrument.
In its external relations with third countries, the EU promotes
human rights by inserting “human rights clauses” in trade agreements
or applying targeted sanctions. However, two primordial problems
remain unresolved: the EU, which is a powerful organisation with
an enormous bureaucracy, has not yet acceded to the ECHR (although
all its member States had to do so before they joined it) and it
has difficulties in disciplining its own member States, when there
is a risk of serious and systemic breaches of the values enshrined
in Article 2 of the TEU. Moreover, the EU institutions’ response
to the economic crisis is highly controversial, due to the lack
of transparency – and accountability – of the decision-makers.
66. During my visit to Brussels, civil society representatives
also complained of the following: lack of access to some procedures
and documents; lack of a formalised procedure for third party interventions
before the CJEU; the inactivity of the European Commission in case
of serious human rights violations (such as the lack of infringement
proceedings in the case of violations of the rights of Roma or asylum
seekers); the decoupling of migration issues from human rights,
the weak role of the FREMP (Working Party on Fundamental Rights, Citizens’
Rights and Free Movement of Persons) of the Council of the EU; and
the fact that the European Parliament did not seize the FRA for
opinions on all legislative drafts and proposed amendments to proposals on
which the FRA has provided guidance. Although these remarks should
be addressed directly to the EU leaders and institutions, they are
also pertinent to fellow parliamentarians from EU member States.
67. The European Convention on Human Rights remains the cornerstone
of the human rights protection system in Europe and the EU should
accede to the ECHR. EU accession to the ECHR would resolve many problems
stemming from the co-existence of the legal orders of the EU and
Council of Europe and it should be a political priority for EU decision-makers.
Opinion 2/13 of the CJEU puts on hold, for a long time, the whole process
and apparently shows the Luxembourg Court’s deeply rooted reluctance
towards any external control of the EU’s actions. Renegotiating
the draft agreement in such a way that it would take into account
the concerns expressed by the CJEU will require many months, if
not years, and the goodwill of EU institutions, EU member States
and the 19 Council of Europe member States which are not member
States of the EU. EU accession to the ECHR is – as stipulated in
Article 6 of the TEU – a legal obligation placed upon the EU and its
member States. I call on governments of all member States of the
EU, and the EU itself (Council, Commission and European Parliament)
to take appropriate measures to accelerate the process of EU accession
to the ECHR. This process should also be more transparent than it
has been to date (see also the above-mentioned
Besselink judgment of the CJEU).

68. Although the “Copenhagen criteria” are strictly verified before
a candidate joins the EU, the existing tools do not allow a full
and coherent monitoring of their continued observance by EU member
States. Despite the existence of high EU standards in this field
– those stemming from Article 2 of the TEU, its Charter of Fundamental
Rights and the fact that all member States are States Parties to
the ECHR –, the situation is far from perfect. Some member States
still face serious risks of breaches of the rule of law principle
due to interferences with “checks and balances” in their constitutional
systems (for example in Hungary and Romania), systemic problems
with the functioning of their judiciary (for example, due to corruption
scandals, in Bulgaria or Romania or, due to excessively lengthy
proceedings in Italy) and many serious and/or widespread human rights
violations have not been properly investigated (such as the CIA
retention centres. the use of member States’ airspace or airports
for rendition flights or involvement of some western States in mass surveillance
carried out by the United States National Security Agency (NSA)).
69. As pointed out by Amnesty International, within the EU, violence
against women, migrants, Roma and LGBTI people remains pervasive,
and border control measures put at risk refugees and asylum seekers,
who often lose their life in their attempts to reach the EU. Amnesty
International stressed the EU’s “responsibility to develop protective
migration policies and practices that respect the human rights of
migrants, refugees and asylum-seekers, and prevent further loss
of life at sea”.

It also called upon the leaders
of the EU to “ensure that human rights form the bedrock of EU internal
(and external) policies and practices”.

70. Human rights problems persist within EU member States and
one should welcome any action aimed at improving EU internal monitoring
in this respect. However, any initiative in this direction, such
as the European Commission’s proposal on “the rule of law framework”,
should be examined with caution and the Council of Europe should
remain vigilant in order to avoid any unnecessary duplication of
tasks by both organisations and the waste of scarce resources. Regrettably,
despite the Assembly’s criticism, other Council of Europe bodies remain
rather silent on the issue, which might be explained by the fact
that the major part (almost 86%) of the technical assistance and
co-operation activities to promote respect for human rights and
rule of law of this institution are financed by the EU via the so-called
“joint programmes”.

71. In its reply to Assembly
Recommendation 2027 (2013) of February 2014, the Committee of Ministers fully supported
the Secretary General, who indicated to his EU interlocutors that
“a possible future European Union framework should take into account
the instruments and expertise of the Council of Europe and co-operate
closely with it”.

The Committee of Ministers
also considered that it was premature to perceive this initiative
as “undermining the role of the Council of Europe or of the Convention
system”, due to the absence of detailed information

(at
that time, i.e. before the European Commission issued its Communication
in March 2014). It seemed to be less concerned about the risk of
duplication of work and unnecessary waste of resources and failed
to reflect on how the Council of Europe could be involved in the
process of elaboration of the said initiative and ensure that the
EU takes into account its expertise. I am fully convinced that the Committee
of Ministers should reconsider its position, draw more attention
to the recent initiatives within the EU concerning the “rule of
law framework” and take more steps to promote the expertise of our
Organisation and establish/pursue co-operation between the two organisations,
as specified in the 2007 Memorandum of Understanding.
72. During my visit to Brussels, many of my interlocutors within
the EU institutions called for more structured co-operation with
the Council of Europe and I fully agree with them. There are many
colleagues in our Organisation who have more or less regular working
relations with their EU counterparts; however, this co-operation
is often fragmentary, thematic and scattered. This also concerns
our Assembly, which should try to establish more regular and structured
working contacts with the relevant committees of the European Parliament
(in the case of our committee – primarily with the LIBE Committee).
73. As regards the EU’s role in imposing austerity measures on
some States threatened by the economic and financial crisis in the
eurozone, much remains to be elucidated. Such measures often undermine
social rights and target the most vulnerable groups (young people,
the elderly, migrants, women and people with disabilities) and can
lead to the upsurge of extremism, racism, hate crime and intolerance.
The interventions of the Troika or of the European Commission alone
are often presented as the only way out of the crisis; that is,
in particular, the opinion of Mr Trichet, former President of the
ECB. Without necessarily “judging” the appropriateness or otherwise
of political decisions taken by governments in accepting international
and/or EU financial assistance, I would like to stress that the
circumstances in which such decisions were taken often lacked transparency
and that they were not subjected to any judicial scrutiny. EU decision-makers
should reflect on how best to make such processes more transparent
and democratic. Perhaps the EU and/or the Council of Europe could
draw up a catalogue of “compliance criteria for the imposition of
austerity measures”, following the example of the United Nations
Office of the High Commissioner for Human Rights?
