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Resolution 2273 (2019)
Establishment of a European Union mechanism on democracy, the rule of law and fundamental rights
1. In October 2016, the European Parliament
adopted a resolution proposing that the European Union establish
a comprehensive, binding and permanent mechanism to monitor the
situation of democracy, the rule of law and human rights in the
28 member States and to ensure compliance with the fundamental values
of the European Union enshrined in Article 2 of the Treaty on European
Union and the implementation of the European treaties in the member
States. In response to the lack of action by the competent European
Union institutions, the European Parliament, in a resolution of
14 November 2018, reiterated its call to establish such a mechanism
without delay.
2. The Parliamentary Assembly recognises that such an initiative
is legitimate and consistent from the European Union perspective,
the European Parliament itself noting that the existing instruments
implemented by both the European Commission and the European Council
have limited scope.
3. The Assembly considers that the initiative of the European
Parliament, which is still under discussion, requires serious reflection
as the proposed mechanism makes specific reference to the Council
of Europe framework and aims to create synergies between the two
organisations. The proposed mechanism would, on account of its substance
and scope, have a clear impact on the Council of Europe, its standard-setting acquis and the implementing mechanisms
of its conventions. The mechanism refers to the Council of Europe acquis and includes in its “legal
basis” several Council of Europe conventions – in particular the
European Convention on Human Rights (ETS No. 5) and the European
Social Charter (revised) (ETS No. 163) – to which the European Union
is not a party. Several Council of Europe bodies will be called
upon to collaborate with the European Union under this mechanism:
the European Commission for Democracy through Law (Venice Commission),
the Group of States against Corruption (GRECO), the Commissioner
for Human Rights of the Council of Europe, the Congress of Local
and Regional Authorities of the Council of Europe and the European Commission
for the Efficiency of Justice (CEPEJ).
4. The Assembly recalls that the Council of Europe and the European
Union rely on strong standards in the field of human rights, the
rule of law and democracy to achieve their respective institutional
goals. Since the 2007 Memorandum of Understanding, the Council of
Europe and the European Union have developed a strategic partnership
based on these common values, which make synergy and convergence
of action indispensable. Today, both organisations have a shared
responsibility for upholding the effectiveness of their respective
legal frameworks, ensuring that any overlapping of competences does
not create conflict, and making sure that this set of shared core
values and principles is interpreted in a coherent way, in order
to avoid fragmentation of understanding of the fundamental values
and their implementation on the European continent.
5. On many occasions in recent years, the Assembly has taken
a position on how to achieve complementarity of action between the
two organisations, in particular in Resolution 1427 (2005) and Recommendation 1696 (2005) on
plans to set up a Fundamental Rights Agency of the European Union, Recommendation 1744 (2006) “Follow-up
to the Third Summit: the Council of Europe and the Fundamental Rights
Agency of the European Union”, Resolution 1756 (2010) and Recommendation 1935 (2010) on
the need to avoid duplication of the work of the Council of Europe
by the European Union Agency for Fundamental Rights, Resolution 1836 (2011) and Recommendation 1982 (2011) on
the impact of the Lisbon Treaty on the Council of Europe, Recommendation 2027 (2013) “European
Union and Council of Europe human rights agendas: synergies not
duplication”, Resolution
2029 (2015) and Recommendation
2060 (2015) on the implementation of the Memorandum of
Understanding between the Council of Europe and the European Union and Resolution 2041 (2015) and Recommendation 2065 (2015) on
European institutions and human rights in Europe.
6. The Assembly strongly reaffirms that under the 2007 Memorandum
of Understanding, the co-operation between the two organisations
will be based on “the principles of indivisibility and universality
of human rights, respect for the standards set out in this field
by the fundamental texts of the United Nations and the Council of Europe,
in particular the Convention for the Protection of Human Rights
and Fundamental Freedoms, and the preservation of the cohesion of
the human rights protection system in Europe”. Moreover, “the European
Union regards the Council of Europe as the Europe-wide reference
source for human rights” and “the Council of Europe will remain
the benchmark for human rights, the rule of law and democracy in
Europe”. It welcomes the fact that many Council of Europe conventions
and Committee of Ministers recommendations contain standards considered
today as acquis communautaires,
without the operational logic of the Organisation being called into question.
The Memorandum of Understanding also invited the European Union
institutions to cite the relevant Council of Europe norms “as a
reference in European Union documents” and to take the decisions
and conclusions of the Council of Europe bodies into account “where
relevant”.
7. The Council of Europe has a large number of bodies empowered
to collect data from member States, evaluate their compliance with
general obligations and specific or conventional commitments, or
formulate observations and recommendations on democratic governance,
the rule of law and human rights for the attention of member States.
The Assembly notes that the Council of Europe acts as a partner
of the European Union, providing the basis for the European Union
decision-making process in respect of countries which are also member
States of the Council of Europe. The Council of Europe’s input to
current European Union rule of law initiatives, especially with
the Venice Commission opinions, has already proven substantial.
8. The Assembly recalls that since 1993 it has had a procedure
for monitoring the obligations and commitments undertaken by the
member States upon their accession to the Council of Europe, the implementation
of which is the responsibility of the Committee on the Honouring
of Obligations and Commitments by Member States of the Council of
Europe (Monitoring Committee). All member States may be subject
to this procedure. Furthermore, when closing a monitoring procedure,
a post-monitoring dialogue is carried out with the State concerned.
This procedure allows for the examination of questions relating
to the functioning of democratic institutions in the member States.
Lastly, it ensures compliance with the obligations assumed by member
States which are not the subject of specific monitoring procedures
through periodic review reports carried out on a country-by-country
basis.
9. The Assembly invites the European Union to refer to the work
of the Monitoring Committee as necessary.
10. The Assembly should ensure that its own relevant work is also
a source of reference for the European Union in the framework of
its various existing rule of law procedures or initiatives, including
the work of the Assembly’s Monitoring Committee and relevant work
by its general committees, in particular country-specific findings
and recommendations in country-specific thematic reports and resolutions.
11. The Assembly recognises that the co-operation established
between the Council of Europe and the European Union institutions
and agencies, in particular the Fundamental Rights Agency, has been
positive and has strengthened the European framework for the promotion
of fundamental rights and the mutual trust on which co-operation
between European States is based.
12. In response to increased concerns within the European Union
over the democratic deficit in relation to several of its member
States, some European Union rule of law monitoring mechanisms have
been triggered and other initiatives aimed at monitoring respect
for the rule of law have been taken, involving various European
Union institutions and based on different paradigms, which differ
in their nature and their coercive effects.
13. In reaction to previous initiatives of the European Union
to set up mechanisms for monitoring the respect for the rule of
law or human rights, the Assembly has often expressed reservations
and highlighted the risks of the duplication of mechanisms and standards,
fragmentation or inconsistency of applicable standards and “forum
shopping”, as well as the risk of wasting limited budgetary resources
where such a mechanism already exists within the framework of the
Council of Europe. It therefore considers it essential to maintain
the primacy of the Council of Europe in the assessment of the respect
by European Union member States, as well as non-European Union member
States, of common fundamental values.
14. The Assembly also recalls that the current enforcement and
monitoring procedures aimed at upholding the values of human rights,
the rule of law and democracy, set up by the Council of Europe or
the European Union, rely on co-operation with national authorities
and institutions. The Assembly therefore expresses concern that,
if taken from the perspective of national authorities, the multiple
recommendations produced by the various European bodies may result
in institutional fatigue and compromise the ability to develop a
sound public policy.
15. The Assembly considers that a strong political commitment
has been expressed by the Council of Europe and the European Union
to making more effective use of existing standards and procedures
in order to create an enabling environment for the effective realisation
of human rights and the freedoms of citizens. The Assembly believes,
however, that a number of practical arrangements could effectively
reinforce the above political commitments, clarify and optimise
their respective roles and missions and, at the same time, remove or
minimise the risk in the long term of the duplication of standards,
mechanisms or action. It recalls, in line with its previous recommendations,
that unnecessary duplication of work in the field of human rights,
the rule of law and democracy must be avoided.
16. Therefore, the Assembly invites the European Union, in the
framework of its existing procedures and its initiatives to ensure
compliance with the values guaranteed in Article 2 of the Treaty
on European Union, to:
16.1. support
the effective application of benchmarks at European level, using
the Council of Europe’s “rule of law standards”, including the case
law of the European Court of Human Rights, relevant recommendations
of the Committee of Ministers, standards and opinions of the Venice
Commission (including the “Rule of Law Checklist”) and recommendations,
opinions and/or conclusions of other relevant Council of Europe
bodies;
16.2. use the available reports, opinions or recommendations
of the Council of Europe’s advisory or monitoring bodies, not only
citing them as references in the documents produced by the European
Union bodies, but taking into account the conclusions of these bodies
in the assessment by the institutions of the European Union to determine
whether a rule of law issue has arisen, as well as to guide proposals for
any action to be taken;
16.3. when assessing whether a rule of law deficiency has been
remedied or has ceased to exist, liaise with the relevant Council
of Europe bodies which issued the opinion or the recommendation
to ensure consistency of views and conclusions. The initiative for
political action in the event of alleged non-compliance with the
European Union legal framework would remain with the European Union,
with the Council of Europe offering legal and technical assessment
in accordance with its monitoring or advisory bodies’ competences;
16.4. provide for safeguards in all mechanisms of the European
Union to ensure that the assessment or action of the European Union
will not affect existing procedures arising from Council of Europe advisory
or monitoring mechanisms, along similar lines to Article 53 of the
Charter of Fundamental Rights of the European Union.
17. The Assembly welcomes the increased participation of the European
Union in the work of a number of Council of Europe bodies, which
contributes to strengthening consistency in the respective organisations’ approaches
in the fields addressed and in relation to the countries concerned.
This sound co-operation must continue without necessarily leading
to formal institutional arrangements. However, in a number of cases, establishing
a formal basis would not only help to reinforce the concept of shared
values in the field of human rights, the rule of law and democracy,
but would also avoid the risk of fragmentation and dividing lines
in the application of standards in Europe.
18. Therefore, with a view to developing the European Union’s
participation in the Council of Europe’s monitoring bodies, the
Assembly calls on the European Union to:
18.1. resume the negotiation process of accession to the European
Convention on Human Rights in order to ensure the convergence of
human rights standards all over Europe;
18.2. accede to the Criminal Law Convention on Corruption (ETS
No. 173) and speed up the negotiations on its participation in GRECO,
with a view to contributing to more co-ordinated anti-corruption
policies in Europe.
19. Furthermore, with a view to the accession of the European
Union to the European Social Charter (revised), which has been repeatedly
called for by the European Parliament, the Assembly calls on the European
Union to strengthen the convergence of European Union law with the
European Social Charter and calls on the member States to introduce
an accession clause into the European Social Charter to allow for accession
by the European Union.
20. In addition, the European Parliament resolution on the need
for a comprehensive EU mechanism for the protection of democracy,
the rule of law and fundamental rights gives national parliaments
an important role in the envisaged mechanism and calls for a reinforced
interparliamentary dialogue between the European Parliament and
national parliaments. Like the European Parliament, the Assembly
is convinced that national parliaments are, upstream, well-positioned
to identify shortcomings and frame indicators to measure compliance
with the shared values. However, it also considers that, downstream,
the lack of information in national parliaments on recommendations
made by the various European institutions in the context of rule
of law compliance mechanisms is detrimental to the consolidation
of the system of protection of human rights and the rule of law
in Europe.
21. The Assembly considers that, as a pan-European forum for interparliamentary
dialogue whose adopted texts provide guidance to national governments
and parliaments on the standards to be promoted in Europe, it could
be the privileged place for regular interaction between the European
Union institutions and the national parliamentary delegations which
sit in the Assembly. Thus, it stands ready to hold an annual parliamentary debate
on the rule of law, which would provide a timely opportunity to
bring European decision makers and monitoring bodies closer to national
parliaments.
22. Therefore, the Assembly decides to invite the European Union
to co-operate on establishing an annual parliamentary debate on
the rule of law, using the Parliamentary Assembly platform to:
22.1. better inform national parliaments
about the conclusions and recommendations of the various reports
on member States’ compliance with the standards of human rights,
the rule of law and democracy produced by the Council of Europe
and the European Union, and by doing so to contribute to converting
recommendations, advice and conclusions into national compliance
policies;
22.2. enable national parliaments to inform the European institutions
of their priority issues;
22.3. help to create a common feeling that a country’s situation
is not unique and that the same problems are shared by others.
23. The Assembly calls on the European Parliament to reinforce
their mutual co-operation in order to further strengthen the parliamentary
dimension of rule of law related matters.
24. Finally, the development of European Union rule of law mechanisms,
ongoing initiatives and their implications for the Council of Europe
deserve further analysis and reflection at the level of the Assembly
itself with regard to the potential impact on its own mode of operation
in terms of compatibility with its procedure for monitoring the
obligations and commitments entered into by the member States.