1. Introduction
and scope of the report
1. In my capacity as rapporteur of the Political Affairs
Committee on the impact of the Lisbon Treaty on the Council of Europe,
I initially visited Brussels on 9-10 June 2010 and presented to
the committee a few days later an information note on this visit
which was made public by decision of the committee.
The visit enabled me to meet representatives
of all institutions of the European Union based in Brussels, namely
the Commission, the Council and the European Parliament. It was
efficiently organised by the Liaison Office of the Council of Europe
with the European Union (Brussels Office) and I particularly thank
Ambassador Frøysnes, Director of the Office and Special Representative
of the Secretary General of the Council of Europe, as well as Mr
Humbert de Biolley, Deputy Director, who also accompanied me to
the various meetings.
2. Since June 2010, I have held a number of additional high-level
meetings with representatives of EU institutions in Strasbourg,
Brussels and Luxembourg, but also with representatives of the Council
of Europe, to discuss aspects of my report. I have been regularly
reporting orally to the committee on my contacts and important developments
linked to the preparation of my report. On 23 June 2011, I presented
to the Committee an introductory memorandum offering a preliminary
written account of main developments as well as some concluding
remarks. A week later, on 30 June 2011, I held a meeting with the
Executive Secretary General of the new European External Action
Service (EEAS), Mr Vimont, which was organised very efficiently
by the Head of the EU Delegation to the Council of Europe, Ambassador
Pavan-Woolfe.
3. According to the terms of the motion for a resolution for
which I was appointed rapporteur, the report covers several aspects
with regard to the relations between the European Union and the
Council of Europe in the post-Lisbon era, such as the impact of
the Lisbon treaty on:
- the
democratic functioning of the decision-making process of the reformed
European Union and, in particular, the impact of the treaty on:
- the role and powers of the European Parliament;
- the role of national parliaments in the EU decision-making
process;
- the role and powers of EU citizens (European Citizens’
Initiative as the first tool of direct and transnational democracy
in Europe);
- the participation of the European Union in Council of
Europe work, in particular in the areas of standard-setting and
monitoring, including:
- EU accession to Council of Europe instruments, the most
important one (but not the only one) being the European Convention
of Human Rights (ETS No. 5, “the Convention”);
- the implementation of the Stockholm Programme of
the European Union and the Council of Europe’s contribution in this
context, in particular through its monitoring bodies and mechanisms;
- the interaction between the European Union and its member
states in the negotiation of Council of Europe conventions and participation
in Council of Europe steering committees;
- the representation of the European Union in the Council
of Europe’s statutory organs and bodies;
- the overall co-operation between the Council of Europe
and the European Union.
4. Although EU accession to the European Convention on Human
Rights is only one of the matters with which I deal in my report,
it was by far the main issue of my discussions with all members
of the European Parliament and other EU and Council of Europe representatives
I met. In particular, I have discussed thoroughly the issue of EU
accession to the Convention, on the EU side, with the President
of the Court of Justice of the European Union, Mr Vassilios Skouris;
prominent members of the European Parliament, and in particular
members of its Foreign Affairs Committee, such as Ms Heidi Hautala
(then Chair of the Subcommittee on Human Rights), Mr Helmar Brock
and Mr Roberto Gualtieri; the Legal Adviser to Viviane Reding (Vice-President
of the European Commission and the EU Commissioner for Justice,
Fundamental Rights and Citizenship), Mr Michael Shotter; the European
Ombudsman, Mr Nikiforos Diamandouros; the Chair of the Informal
Working Group on the Accession of the European Union to the European
Convention of Human Rights (CDDH-UE), Ms Tonje Meinich, as well
as representatives of civil society, including Amnesty International,
the Advice on Individual Rights in Europe Centre (AIRE) and the
International Commission of Jurists. I have also discussed the issue
of EU accession to the Convention with the President of the European Court
of Human Rights, Mr Jean Paul Costa, the President of our Assembly,
Mr Mevlüt Cavuşoğlu, the outgoing Chairman of the Ministers’ Deputies,
Ambassador of Turkey, Mr Daryal Batibay, as well as the Secretary
General of the Organisation, Mr Thorbjørn Jagland, and the Commissioner
for Human Rights, Mr Thomas Hammarberg.
5. The second most discussed subject during my meetings with
European Union and Council of Europe officials was the need to ensure
a common space for human rights protection in Europe, beyond EU
accession to the Convention, and more generally a stronger Council
of Europe-European Union partnership, in which the Council of Europe
plays fully its role of benchmark for human rights, rule of law
and democracy in Europe. In particular, I raised the issue of EU
accession to other key Council of Europe conventions, as well as
the need to strengthen synergies in the monitoring of implementation
of standards, especially in the context of the implementation of
the Stockholm Programme of the European Union. I have also raised
the need for the European Union to promote, in its external relations,
key Council of Europe instruments (such as the conventions on data
protection and on cybercrime) towards non-EU member states and beyond
the European borders, as this would contribute to the construction
of a coherent and solid European model on the continent and on the
global scene.
6. In particular, I discussed at length the latter issues during
my meeting with EU Commissioner for Home Affairs, Ms Cecilia Malmström,
partly responsible (together with Ms Reding) for the implementation
of the Stockholm Programme, including in the areas of the fight
against corruption, migration and asylum, as well as with the Executive
Secretary General of the European External Action Service (EEAS),
Mr Pierre Vimont.
7. As the Lisbon Treaty has put emphasis on issues related to
human rights, the rule of law and democracy in the Union’s co-operation
with neighbouring countries, and prompted also by recent events
throughout the Southern Mediterranean, I also discussed, with interlocutors
from the European Parliament, as well as with Mr Vimont, the new
opportunities opened up for the Council of Europe to enhance its
partnership with the European Union with respect to the countries
participating in the EU enlargement and neighbourhood policies, in
particular
as
regards the Southern Mediterranean.
8. In the context of the preparation of my report, the committee
held two hearings, one on 18 November 2010 with Ms Heidi Hautala,
then Chair of the Subcommittee on Human Rights of the Foreign Affairs Committee
of the European Parliament, and one on 23 June 2011, organised jointly
with the Committee on Legal Affairs and Human Rights and the Committee
on Migration, Refugees and Population, with the participation of
the Chair of the Informal Working Group on the Accession of the
European Union to the European Convention of Human Rights (CDDH-UE),
Ms Tonje Meinich, and the Director of the EU Fundamental Rights
Agency, Mr Morten Kjaerum.
9. Last but not least, in my capacity as rapporteur on the impact
of the Lisbon Treaty on the Council of Europe, I was appointed member
of the Parliamentary Assembly/European Parliament (PACE/EP) Joint Informal
Body, established early 2011 upon the initiative of the European
Parliament “in order to co-ordinate information sharing”, which
initially met in the context of the EU accession to the Convention,
and had the chance to participate in the two meetings it held on
14 March and 15 June 2011, in Brussels and in Paris respectively.
2. Main
changes introduced by the Lisbon Treaty
2.1. In general
10. Following ratification by the Czech Republic (the
last EU member state to do so) on 3 November 2009, the Lisbon Treaty
entered into force on 1 December 2009. The Treaty abolishes the
former three-pillar structure set up by the Maastricht Treaty, by
merging the Community pillar with the two intergovernmental pillars
into a single European Union. It should, however, be noted that,
despite the fact that the Lisbon Treaty merges the three former
pillars into a single legal framework, the distribution of competences
in the different policy areas is divided into the categories of
exclusive (mostly in fields not of direct relevance to the Council
of Europe), shared (for example in the field of social policy and
in the area of freedom, security and justice) and supporting (for
example in the field of culture, education, youth and sport) competences.
The Lisbon Treaty has clearly enhanced the European Union’s role
in the traditional areas of activity of the Council of Europe, namely freedom,
security and justice.
11. The general aim of the Lisbon Treaty is to provide the European
Union with modern institutions and optimised working methods so
as to enhance the efficiency and the democratic legitimacy and accountability of
the Union, as well as to improve the coherence of its action. The
Treaty puts the values on which the European Union is based and
which are commonly shared with the Council of Europe, namely respect
for human rights, democracy and the rule of law, to the forefront
of EU policies. It also aims to bring Europe closer to its people
and create an open and secure space for all. The main changes which
the Lisbon Treaty brought about to fulfil these objectives include:
- the granting of legal personality
to the European Union;
- the creation of two new key posts of President of the
European Council and High Representative for Foreign Affairs and
Security Policy;
- the creation of a European External Action Service (EEAS);
- the creation of an EU Public Prosecutor;
- greater use of qualified majority voting in the Council
of Ministers and an 18-month rotating presidency of the Council
of Ministers shared by a troika of member states;
- the extension of the mandate of the European Ombudsman;
- an increase in the legislative powers of the European
Parliament;
- a greater role for national parliaments in the legislative
processes;
- the introduction of the European Citizens’ Initiative
giving the right to one million European citizens to propose legislation ;
- an obligation for the European Union to accede to the
Convention;
- the possibility for the European Union to accede to other
international human rights legal instruments, such as the United
Nations Convention on Persons with Disabilities which the European
Union already joined in 2010;
- a legally binding force for the European Union’s own bill
of rights, namely the Charter of Fundamental Rights;
- the introduction of an emergency procedure at the Court
of Justice of the European Union, which will allow the Court to
act with a minimum delay when a case involves an individual in custody;
- the provision for mutual solidarity if a member state
is the object of a terrorist attack or man-made disasters;
- new possibilities to deal with cross-border effects of
energy policy, civil protection and combating serious cross-border
threats to health;
- common action on dealing with criminal gangs who smuggle
people across frontiers;
- common rules to avoid “asylum shopping” where multiple
applications are made to different member countries;
- tackling terrorism through the freezing of assets, while
full judicial review is guaranteed by the European Union Court of
Justice.
12. As an amending treaty, the Lisbon Treaty is not intended to
replace the existing treaties. It consists of a number of amendments
to the Treaty on the European Union (TEU) and the Treaty establishing
the European Community, the latter being renamed Treaty on the Functioning
of the European Union (TFEU).
13. The Belgian Prime Minister, Mr van Rompuy, was appointed,
on 19 November 2009, as President by the European Council for two
and a half years. The mandate is renewable once. His role is to
promote cohesion and consensus within the European Council that
he is presiding. He has also the power to call a European Council
meeting if international events require it.
14. The current High Representative for Foreign Affairs and Security
Policy, Baroness Ashton, was also appointed on 19 November 2009
by the European Council. She is also Vice-President of the Commission
and therefore her appointment has been approved by the Commission’s
President and the European Parliament. She also chairs the Foreign
Affairs Council. The creation of this post is, in fact, the result
of the merger of the functions of the Commissioner for External
Relations and the European Neighbourhood Policy and the High Representative
for the Common Foreign and Security Policy. The High Representative
is assisted by the EEAS, a functionally autonomous body of the European
Union, separate from the Commission and the General Secretariat
of the Council. The EEAS, which has been composed of officials from
the Commission, the General Secretariat of the Council and diplomats
of EU member states, is intended to help build a common diplomatic culture
and ensure the consistency of the EU’s external action.
15. Critics argue that the new system is too heavy and, instead
of making the European Union more efficient, has created unnecessarily
complicated procedures and made relations between the various EU
institutions more difficult. Mr Vimont, referring to these critics,
told me that, following difficult negotiations with the European
Commission and the European Parliament, the EEAS had only become
fully operational as of January 2011. It is thus too early to assess
its impact and efficiency. Time is also needed to achieve the necessary
balances between the various EU institutions, whether new or old.
16. That said, as Mr Vimont also underlined, the fact is that,
with the Lisbon Treaty, the European Union, having acquired legal
personality, has also acquired a new status and voice within international
and regional organisations, including in the United Nations. Former
European Commission delegations (some 130 all over the world) have
become EU delegations under the authority of High Representative
Catherine Ashton. Recently, the European Union made a very important
step in terms of its participation at the United Nations General
Assembly, with the adoption, on 3 May 2011, of a resolution which
allows the European Union to speak early on in the General Assembly
among major groups and to be invited to the General Debate of the
General Assembly. The new system has also the advantage that the
European Union is more frequently represented by the same political
representatives – the President of the European Council, the President
of the Commission, the High Representative for Foreign Affairs and
Security Policy, and not by rotating member state presidencies –
a fact that has facilitated relations with third countries and major
partners such as the United States, China or Brazil.
17. As regards international agreements, in the context of the
Common Foreign and Security Policy (CFSP), it is the role of the
EU Council to: decide upon the opening of negotiations on the basis
of a recommendation of either the High Representative, if the agreement
concerns exclusively or principally the CFSP, or the Commission
in the other cases; designate the negotiator (no longer the presidency);
set up the negotiating guidelines; authorise the signature and adopt
the decision to conclude the agreement. Throughout the procedure,
the Council shall act by qualified majority. However, it shall act
unanimously for agreements covering a field for which unanimity
is required, for association agreements, for agreements concerning economic,
financial and technical co-operation with the states which are candidates
for accession and for the accession of the European Union to the
European Convention on Human Rights.
18. Except where agreements relate exclusively to CFSP, the consent
of the European Parliament will be necessary (introduced by the
Lisbon Treaty). This will notably be the case for the agreement
on accession to the Convention. In other cases, consultation of
the Parliament is sufficient. If the agreement contains CFSP and
non-CFSP elements, it will be treated according to the procedure
linked to the principal object of the agreement.
19. A member state, the European Parliament, the Council or the
Commission can ask the Court of Justice of the European Union for
an opinion on the compatibility of the agreement with the existing
treaties.
2.2. Institutional aspects
of Council of Europe–European Union relations
20. As with all international organisations, relations
with the Council of Europe are now under the overall authority of
High Representative Catherine Ashton. Ambassador Pavan-Woolfe (former
European Commission representative) has become Head of the EU Delegation
to the Council of Europe. High Representative Ashton opened the
EU Delegation to the Council of Europe on 19 January 2011. On that
occasion, she stressed the need for the two organisations to “continue
to back one-another up, to improve shared values. As Europe is changing,
our co-operation is changing. Our goal is more democracy, peace,
and prosperity”, she said.
21. As the Lisbon Treaty has extended EU competences in the traditional
fields of activities of the Council of Europe, such as freedom,
justice and security, it has also enhanced the role the European
Union plays within the Organisation.
22. The participation of the European Commission in the meetings
of the Council of Europe Committee of Ministers and of its rapporteur
groups, without the right to vote, has been authorised by decision
of the Committee of Ministers since December 1996. This participation
has, however, been much more active since Ambassador Pavan-Woolfe
took up her functions. With the entry into force of the Lisbon Treaty,
it is now she who takes the floor on behalf of the European Union
in the Committee of Ministers’ meetings in her capacity of Head
of the EU Delegation to the Council of Europe and no longer – as
was the case in the past – the country representing the Presidency
of the European Union.
23. As regards the EU presence in Council of Europe steering committees,
the European Commission was participating in all of them already
before the Lisbon Treaty, by virtue of decisions taken by the Committee
of Ministers,
with equal status as that enjoyed by
Council of Europe observer states, that is with the right to speak
but without the right to vote. What has changed with the Lisbon
Treaty concerns mainly the scope of such participation. More specifically,
the exact role played by the European Union in a steering committee depends
on whether the matter discussed falls within EU exclusive, shared
or supporting competencies. In the former case, it is the European
Union that speaks on behalf of its member states. Equally, when
a new Council of Europe convention is being elaborated within a
steering committee, if the subject matter of the new convention
falls within EU exclusive competence, it is the latter that will
negotiate the new convention within the Council of Europe on behalf
of the EU member states, if a negotiating mandate has been sought,
and obtained, from the EU Council. To quote a recent example, a
convention on neighbouring rights of broadcasting corporations is
currently being elaborated within the Council of Europe. As the
subject matter falls within EU exclusive competence, the European
Commission has asked from the EU Council such a negotiating mandate. Equally,
the European Commission intends to ask shortly for a negotiating
mandate to represent the EU member states in the negotiations on
the revision of the Council of Europe Convention for the Protection
of Individuals with Regard to Automatic Processing of Personal Data
(ETS No. 108) as the matters covered by this convention fall almost
entirely within exclusive EU competence.
24. As of the entry into force of the Lisbon Treaty and by virtue
of its first article, the European Union has succeeded the European
Community as a contracting party to international agreements, treaties
or conventions, including 11 Council of Europe treaties.
25. For the rest, the Lisbon Treaty should not affect the overall
goal of the 2007 Memorandum of Understanding, currently guiding
and structuring relations between the two organisations and confirming
the Council of Europe’s role as “the benchmark for human rights,
rule of law and democracy in Europe”
.
The modalities of co-operation may, however, be adapted, as deemed
necessary. The EU officials that I met in Brussels as well as Council
of Europe representatives told me that they consider that the 2007
Memorandum of Understanding offers a valuable basis for co-operation
between the two organisations and that they were very satisfied
with how it works in practice. Its revision was therefore not on
the agenda, at least for the moment. It is recalled, in this respect,
that the Memorandum of Understanding foresees that both organisations
“will regularly evaluate the implementation of the Memorandum of
Understanding. In the light of this evaluation, it will be decided
by common agreement, not later than 2013, to revise, if necessary,
the Memorandum of Understanding with a view to including new priorities
for their co-operation”.
2.3. Increased democratic
accountability
26. The entry into force of the Lisbon Treaty has significantly
increased the legislative, budgetary and appointment powers of the
European Parliament.
27. A considerable number of new fields have been brought within
the "ordinary legislative procedure” (the former “co-decision" procedure),
under which the European Parliament has become co-legislator, together
with the EU Council. They include a number of key policy areas,
which fall within the Council of Europe’s remit, such as freedom,
security, justice.
28. As mentioned above, except where agreements relate exclusively
to the Common Foreign and Security Policy, the consent of the European
Parliament on international agreements to be concluded by the European Union,
including on accession to the Convention, is necessary. In the CFSP
context, the European Parliament has the right to be informed and
to be consulted by the High Representative, but it has no role in
the decision-making process. It can formulate recommendations and
hold a debate twice yearly on progress achieved in the CFSP and
the Common Security and Defence Policy (CSDP).
29. According to the Declaration on Political Accountability,
made by the High Representative when seeking the European Parliament’s
approval on the proposal for a Council decision establishing the
organisation and functioning of the EEAS in July 2010,
in
her relationship with the European Parliament, the High Representative
“will build on the consultation, information and reporting engagements
undertaken during the last legislature by the former Commissioner
for external relations, the former High Representative for the Common
Foreign and Security Policy, as well as by the rotating Council
Presidency.” In particular, on CFSP, the High Representative “will
seek the views of the European Parliament on the main aspects and
basic choices of this policy in conformity with Article 36 TEU”.
30. In budgetary terms, the Lisbon Treaty has given the Parliament
full parity with the EU Council in approving all expenditures related
to the annual budget.
31. As regards appointment powers, in accordance with the Lisbon
Treaty, the Parliament elects the Commission’s President on the
basis of a candidate proposed by the European Council taking into consideration
the outcome of the European Parliament elections.
32. In my discussions with MEPs, in particular Mr Brock and Mr
Gualtieri, they expressed their satisfaction about the increase
of European Parliament’s powers by the Lisbon Treaty and about the
way the relevant provisions have so far been implemented in practice,
as well as about their strengthened position vis-à-vis the newly
created post of the High Representative in the light also of the
above-mentioned Declaration on Political Accountability, which they
considered a considerable success. As regards the relations of the
post-Lisbon European Parliament with our Assembly, I will deal with
this matter and proposals for the future in a subsequent chapter
when dealing in general with the reinforced partnership between
the post-Lisbon European Union and the Council of Europe.
33. Protocol No. 1 to the Lisbon Treaty on the role of national
parliaments of member states in the European Union aims to encourage
greater involvement of national parliaments in the activities of
the European Union and to enhance their ability to express their
views on draft legislative acts of the Union as well as on other matters
which may be of particular interest to them. For this purpose, draft
legislative acts sent to the European Parliament and the Council
are also forwarded to national parliaments. National parliaments
may send to the Presidents of the European Parliament, the Council
and the Commission, a reasoned opinion on whether a draft legislative
act complies with the principle of subsidiarity, in accordance with
the procedure laid down in the Protocol on the application of the
principles of subsidiarity and proportionality. With the exception
of urgent cases (for which due reasons are stated in the act or
position of the Council), no agreement may be reached on a draft
legislative act for eight weeks as of the date when this draft is
made available to national parliaments in the official languages
of the Union.
34. Protocol No. 1 to the Lisbon Treaty also provides that the
European Parliament and national parliaments shall together determine
the organisation and promotion of effective and regular inter-parliamentary
co-operation within the Union. A conference of Parliamentary Committees
for Union Affairs may submit any contribution it deems appropriate
for the attention of the European Parliament, the Council and the Commission.
That conference shall, in addition, promote the exchange of information
and best practices between national parliaments and the European
Parliament, including their special committees. It may also organise
inter-parliamentary conferences on specific topics, in particular
to debate matters of common foreign and security policy, including
common security and defence policy. Contributions from the conference
shall not bind national parliaments and shall not prejudge their
positions.
35. In its legislative resolution of 8 July 2010 on the proposal
for a Council decision establishing the organisation and functioning
of the EEAS, the European Parliament expressed its determination
to reinforce its co-operation with national parliaments of member
states as required by the Treaty.
36. During discussions with MEPs, they did not seem to be fully
satisfied with the way that the relevant provisions of the Treaty
concerning the role of national parliaments and their relations
with the European Parliament are being implemented in practice.
I believe that our Assembly, as a body bringing together members
of national parliaments of all EU member states, should consider
ways of facilitating the implementation of the above-mentioned provisions,
for instance during a future European Conference of Presidents of
Parliament. The Assembly could also organise, jointly with the European
Parliament, inter-parliamentary conferences on issues of common
interest.
2.4. Increased commitment
to fundamental rights
37. The entry into force of the Lisbon Treaty, as of
the end of 2009, not only paved the way for EU accession to the
Convention, but also offered the European Union a legally binding
bill of rights of its own, namely the Charter of Fundamental Rights
of the European Union. The Treaty of Lisbon thus forms the new “legal backbone
of the EU”
which
should over time provide for increased access to justice and greater
democratic participation of the EU citizens.
38. Under Article 6 of the TEU, the Charter of Fundamental Rights
of the European Union is granted the same legal value as the EU
Treaties. It should be noted that this same article stipulates that
the Charter may “not extend in any way the competences of the Union
as defined in the Treaties”.
The
provisions of the Charter are addressed to the institutions and
bodies of the Union and the member states only when they are implementing
Union law.
39. Accordingly, the Luxembourg Court can rule on the compatibility
of the laws of a member state or the acts of an EU institution with
the Charter with respect to the implementation of EU law. The legally
binding nature of the Charter implies judicial oversight of EU institutions’
and members states’ compliance with the Charter when acting in the
field of EU law, as well as increased monitoring within the European
Union of respect for fundamental rights throughout the Union’s legislative
and decision-making work.
40. I discussed the extended jurisdiction of the EU Court of Justice
when I met its President, Mr Vassilios Skouris, who referred to
the fact that, after the entry into force of the Lisbon Treaty,
which extended the competence of the European Union in the area
of justice and home affairs, the Court had started dealing with civil
and criminal cases, including terrorist cases. However, he recalled
that the Court had no jurisdiction over issues of foreign and security
policy and this should not be modified by a future EU accession
to the Convention.
41. Since the date the Lisbon Treaty conferred on the Charter
of Fundamental Rights the status of primary law (1 December 2009),
it has been cited in some 30 judgments of the Luxembourg Court.
Therefore, as the Presidents of the two Courts, President Costa
of the Strasbourg Court and President Skouris of the Luxembourg
Court, underlined in their Joint Communication after their meeting
on 17 January 2011, it is important to ensure that there is the
greatest coherence between the Convention and the Charter insofar
as the Charter contains rights which correspond to those guaranteed
by the Convention. As the Charter provides that, in that case, the
meaning and scope of the rights under the Convention are to be the
same, a “parallel interpretation” of the two instruments could prove
indispensable.
42. As of the entry into force of the Lisbon Treaty, all EU institutions
underlined and refreshed their commitment to fundamental rights
in their respective areas of competence.
43. In its Resolution of 15 December 2010 on the situation and
effective implementation of fundamental rights in the European Union
(2009) – effective implementation after the entry into force of
the Treaty of Lisbon, the European Parliament emphasised the need
to take the Charter into account in decision-making processes as
well as in the implementation of legislation.
44. The European Commission, for its part, concluded in its Communication
on the strategy of fundamental rights implementation in the autumn
of 2010 that “all the components of an ambitious fundamental rights
policy are therefore present”.
The
Commission also stated that the Union’s work in the area of fundamental
rights extends beyond its internal policies and that the Charter
applies also to its external action. Representatives of civil society
whom I met both in Strasbourg and in Brussels insisted on the need
that, after joining the Convention, and in order to ensure coherence
with both the Charter and the Convention, the European Union should
look into ways to ensure it is accountable for human rights in its
external action.
45. Moreover, since December 2009, the European Union Council
has a new permanent Working Party on Fundamental Rights, Citizens’
Rights and Free Movement of Persons (FREMP). The role of this new
group is to deal with matters relating to fundamental rights and
citizens’ rights including negotiations on accession of the European
Union to the Convention, follow-up of reports from the Fundamental
Rights Agency and free movement of persons.
46. The Lisbon Treaty has also enhanced the role of the European
Ombudsman. It has, in particular, extended his mandate to cover
all EU institutions and bodies, including the Court of Justice in
its non-judicial functions, as well as complaints about maladministration
in the areas of foreign and security policy. Thus, the European
Ombudsman can, for instance, receive complaints from a member of
European Union military troops operating upon a decision of the
Council. Moreover, Article 41 of the Charter of Fundamental Rights
includes a legally binding right to good administration requiring
that the EU citizens’ affairs be dealt with “fairly”. The European
Ombudsman, Mr Diamandouros, told me that, even before the Charter
became legally binding, he had always taken into account its provisions
as well as those of the Convention and the relevant case law in his
own decisions, including when specifying rules and principles to
define what “good administration” or “maladministration” means.
47. With respect to relations between the European Ombudsman and
the Council of Europe Commissioner for Human Rights, both Mr Diamandouros
and Mr Hammarberg told me that they were very satisfied with their co-operation,
including in the context of co-ordinating European Ombudspersons,
as the former is co-ordinator for EU member states Ombudspersons
and the latter co-ordinator for Council of Europe, non-EU, member states
ombudspersons. They had developed excellent, although informal,
working relations. For instance, they had successfully carried out
a joint project supporting Ombudspersons institutions in the Balkans.
They both seemed to want to see their co-operation further developed,
in particular on all matters related to individuals’ rights.
48. As regards the Fundamental Rights Agency and its relations
with the Council of Europe, the hearing organised by our committee,
jointly with the Committee on Legal Affairs and Human Rights and
the Committee on Migration, Refugees and Population, in June 2011,
with the participation of its Director, Mr Kjaerum, revealed that
the Lisbon Treaty had not really affected the work of the Agency
or its relations with the Council of Europe. I therefore prefer
to refer in this respect to the relevant work carried out by the
Committee on Legal Affairs and Human Rights, which regularly follows
the issue of relations between the Council of Europe and the Fundamental
Rights Agency and, in particular, last year’s report by Mr Boriss
Cilevics which covers all relevant aspects.
2.5. Increased citizens’
participation in the European Union
49. With the European Citizens’ Initiative, the Lisbon
Treaty introduced a new form of public participation in the European
Union.
Article 11(4) of the Treaty
on the European Union (TEU) provides that “not less than one million
citizens who are nationals of a significant number of member states
may take the initiative of inviting the European Commission, within
the framework of its powers, to submit any appropriate proposal
on matters where citizens consider that a legal act of the Union
is required for the purpose of implementing the Treaties”. The Citizens’
Initiative should help make EU citizens more aware of the important
issues of European integration.
50. The details for operating this new direct and transnational
democracy instrument are outlined in a regulation of the European
Parliament, to which the EU Council agreed at the end of 2010. The
regulation was officially adopted on 14 February 2011. It stipulates
that the required one million signatures should come from at least
one quarter of all member states (that is seven member states).
51. With the regulation in place, EU member states need to organise
structures and procedures at national level to facilitate the gathering
of one million signatures needed to launch the Citizens’ Initiative.
52. The European Ombudsman, Mr Diamandouros, told me that he intervened
in the process of elaboration of the relevant regulation to ensure
that complaints regarding the process surrounding the initiative
(for instance the collection of signatures) can be lodged with the
EU Court of Justice and his own office. He expressed the hope that
the national structures and procedures to be set up will be as flexible
as possible. Only when the first initiative is actually launched,
will the efficiency and flexibility of the new system be actually tested.
For the European Ombudsman, it is, for instance, important that,
even if a citizens’ initiative does not fall “within the powers
of the Commission” and is thus inadmissible, the Commission replies
with “citizen-friendly” letters, and not formalistic ones, so as
to encourage the dialogue with citizens, which is one of the main objectives
of the Lisbon Treaty.
3. Towards a common
space for human rights protection across Europe
3.1. European Union
accession to the European Convention of Human Rights
3.1.1. A long-standing
objective for increased protection of individuals
53. It is worth noting that the almost simultaneous entry
into force of the Lisbon Treaty and of Protocol No. 14 to the European
Convention on Human Rights, which paved the way for EU accession
to the Convention, marked a new and important stage in the building
of the Europe of Human Rights.
54. Accession of the European Union to the Convention has been
discussed for well over thirty years and our Assembly has adopted
numerous resolutions and recommendations calling for this accession,
the most recent ones being
Resolution
1610 (2008) and
Recommendation
1834 (2008).
55. On the EU side, the Resolution adopted by the European Parliament,
on 19 May 2010, on the institutional aspects of the accession of
the European Union to the Convention
,
expressed strong support for rapid EU accession to the Convention
and the overall human rights protection system of the Council of Europe
(see also below). The European Parliament’s resolution is a comprehensive
report, in which all the main issues are thoroughly analysed.
As
accession to the Convention affects not only the EU institutions, but
also the Union's citizens, the European Parliament also insisted
that it should be consulted and involved throughout the negotiation
process, and associated and immediately be fully informed at all
stages of the negotiations, in accordance with the Lisbon Treaty.
It also suggested that, in order to raise awareness of the added
value of the accession to citizens, the Council of Europe and the
European Union should develop guidelines with clear explanations
of all the implications and effects of accession. Finally, it stressed
that it is important to have an informal body in order to co-ordinate
information sharing between the European Parliament and the Parliamentary
Assembly of the Council of Europe.
56. In our talks in Brussels, in June 2010, the members of the
European Parliament that I met, including Mr Jáuregui Atondo, rapporteur,
and Mr López Aguilar, Chairperson of the Committee of Civil Liberties,
Justice and Home Affairs, who presented an opinion to the report
and organised several hearings on the matter, as well as Ms Heidi
Hautala, then Chairperson of the Subcommittee on Human Rights of
the Foreign Affairs Committee, told me that the report was warmly
received by a large majority of MEPs, who generally supported EU
accession to the Convention as well as by the Commissioner for Justice,
Freedom and Security, Ms Reding, who stressed the historical importance
of the process of EU accession to the Convention and of this debate.
During the debate, some
MEPs underlined that a number of issues had to be further analysed,
such as the relations between the two European courts. Only a few
MEPs questioned the added value of accession.
57. On 11 May 2011, the European Parliament adopted a new resolution
on “the EU as a global actor: its role in multilateral organisations”,
in which it referred,
inter alia,
to EU relations with the Council of Europe and reiterated its support
for EU accession to the Convention as well as to Council of Europe
mechanisms and bodies, namely the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT),
the European Commission against Racism and Intolerance (ECRI) and
the European Commission for the Efficiency of Justice (CEPEJ).
58. In summarising today the arguments in favour of EU accession
to the European Convention on Human Rights, let me underline that
EU accession to the Convention offers a unique opportunity to achieve
a coherent system of human rights’ protection across Europe, in
which 47 governments and the institutions of the European Union
will be bound by the same set of human rights standards and scrutinised
by the same human rights court.
In
fact, while the European Union is founded on the respect for fundamental
rights – the observance of which is ensured by the Court of Justice
of the European Union, as well as by the domestic courts of the
EU member states – accession of the European Union to the Convention
will enhance the coherence of the judicial protection of human rights
in Europe. It will thus afford citizens protection against the action
of the Union similar to the one they already enjoy against action
by all its member states. This is all the more relevant at present
since, following the entry into force of the Lisbon Treaty, the
EU member states have transferred substantial powers to the Union.
It is also crucial in cases where the protection granted by the European
Union is inferior to that provided by the Convention.
59. Accession will also allow for external control over the EU’s
legal order and, consequently, enhance the credibility of the EU’s
commitment – internally and externally – to fundamental rights.
In a situation in which the European Union Charter of Fundamental
Rights becomes an internal “Bill of Rights” which sets limitations
on the EU institutions’ powers, the Convention mechanism will offer
an external control and check on EU activities. Accession will further
contribute to the harmonious development of the case law of the
two European courts, the European Court of Justice in Luxembourg
and the European Court of Human Rights in Strasbourg, particularly
because of the increased need for dialogue and co-operation, and
thus will create an integral system in which the two courts will
function in harmony.
60. While all these arguments in favour of EU accession to the
European Convention on Human Rights were also valid before the entry
into force of the Lisbon Treaty, what has changed now is that the
Lisbon Treaty has not only provided the legal basis to initiate
negotiations with a view to such accession, but has also made this accession
an obligation of result (see Article 6 of the Lisbon Treaty). Further
to this, the EU Stockholm Programme called for a “rapid” accession
to the Convention.
61. On the Council of Europe side, the entry into force of Protocol
No. 14, on 1 June 2010, has provided the legal basis for the accession
(see Article 59 of the Convention as amended by Protocol No. 14).
At the Ministerial Session of 11 May 2010, the Council of Europe
Ministers welcomed the commitment of the European Union to accede
to the Convention and called for the early completion of negotiations
and a rapid accession. One year later, in their declaration adopted
at the Ministerial Session of 11 May 2011, in Istanbul, Mr Ahmet
Davutoğlu, outgoing Chair of the Committee of Ministers, and Mr
Kostyantyn Gryshchenko, incoming Chair of the Committee of Ministers,
reiterated their commitment “to the rapid conclusion of the negotiations
on accession by the European Union to the Convention, thus completing
the construction of a coherent area of protection of human rights
across Europe” and called on all parties “to conclude as soon as
possible the work on the draft accession agreement”.
3.1.2. Accession negotiations
62. To negotiate an Accession Agreement with the Council
of Europe, the EU Council provided a negotiating mandate to the
European Commission in June 2010 and negotiations in summer 2010.
63. The adoption of a negotiating mandate (negotiating directives)
by the EU Council was a priority of the Spanish Presidency. In the
EU Council, a large majority of countries were in favour of rapid
negotiations. Some (for example the United Kingdom and Poland),
however, have warned that negotiations might take time and argued
that the need for quality in the preparations should take priority
over urgency. The fact is that the EU Council adopted the negotiating
directives authorising the Commission to negotiate the Accession
Agreement on 4 June 2010, that is even earlier than initially expected
at the end of June.
64. By so doing, the EU Council gave a strong political signal
of its commitment to a rapid accession. Although the content of
the negotiating directives is confidential, I was told that, in
order to rapidly reach a positive decision, the EU Council left
some difficult legal issues unsolved by formulating the directives
in a manner that allows for flexibility in making the final choices
during negotiations.
65. On the Council of Europe side, the Ministers’ Deputies, on
26 May 2010, entrusted the Steering Committee for Human Rights (CDDH)
with the task of elaborating, by 30 June 2011 at the latest, a legal instrument
setting out the modalities of accession of the European Union to
the Convention, including its participation in the Convention system,
and in this context to examine any related issue. They invited the Secretary
General to ensure that this activity is carried out effectively
with a view to its swift completion. The CDDH elected 14 members
(7 coming from EU member states and 7 coming from non-member states
of the EU) to participate in an informal working group on the accession
of the European Union to the Convention (CDDH-UE) with the European
Commission, with a view to implementing the above ad hoc terms of
reference.
66. The CDDH-UE informal working group, under the Chairmanship
of Ms Tonje Meinich (Norway), held in total eight working meetings
with the European Commission, reporting regularly to the CDDH on
the progress and on the outstanding issues. The group also held
two exchanges of views with representatives of civil society, who
regularly submitted comments on the working documents. During its
eighth and final meeting, on 20-24 June 2011, the group finalised
a draft Accession Agreement and its draft explanatory report, as
well as a new draft Rule to be added to the Rules of the Committee
of Ministers for the supervision of the execution of judgments and
the terms of friendly settlements. Participants were sitting in
the working group in their capacity as experts, and not as representatives
of their respective member states of the Council of Europe. Similarly, the
draft instruments prepared by the group do not commit the respective
governments and the conclusions of the group are without prejudice
to the discussion in the CDDH.
67. Upon a request by the latter, the Committee of Ministers’
deputies, on 25 May 2011, agreed to extend the deadline for the
submission of the draft Accession Agreement to 31 December 2011
at the latest, since delegations in the CDDH, and in the Committee
of Ministers, considered that given the importance of this issue, it
was preferable to give delegations sufficient time, i.e. over the
summer break, to examine the draft Agreement and its explanatory
report. It was agreed that the CDDH should discuss the final version
of these documents, with a view to their adoption, at an extraordinary
meeting to be held from 11 to 14 October 2011.
68. I had a working lunch with Ms Meinich at the beginning of
the year and have since been following, on a regular basis, the
progress of negotiations within the informal working group whose
work is confidential but whose working documents are put on the
website and allow for a wide public consultation. The whole committee
had the chance to hear from Ms Meinich an account of the progress
achieved in the negotiations within the Group on 23 June 2011.
69. As Ms Meinich also told the committee, negotiations within
the working group were conducted smoothly and, to use the words
of the Secretary General, “have been marked by a very promising
spirit of mutual understanding and constructive outlook”.
However,
many complex legal issues are still at stake and all decisions will
ultimately have to be taken by governments and parliaments.
3.1.3. Main issues under
negotiation
3.1.3.1. The scope of EU
accession to the Convention system
70. In this respect, the European Parliament, in its
resolution of 19 May 2010, had expressed itself in favour of accession
to all Convention protocols “concerning rights corresponding to
the Charter of Fundamental Rights, regardless of whether they have
been ratified by all member states of the EU”. A second option was the
accession of the European Union to all Convention protocols, regardless
of whether they have been ratified by all member states of the European
Union and of whether they concern “rights corresponding to the Charter of
Fundamental Rights”, a criterion which some of my interlocutors
told me was difficult to apply. A third option, and the most restrictive
one, was the accession of the European Union to the Convention and
only to those of its protocols which all EU member states have ratified.
71. Finally, the draft Accession Agreement proposes that, as a
first stage, the European Union will accede to the European Convention
on Human Rights and to Protocols Nos. 1 and 6. The entry into force
of the Accession Agreement will have the simultaneous effect of
amending the Convention and including the European Union among its
parties, without the need for a further deposit of an instrument
of accession to the Convention by the European Union. The same applies
for the EU’s accession to Protocols Nos. 1 and 6. Accession of the
European Union to all other Protocols to the Convention will be
possible in the future, but will require the deposit of separate
accession instruments.
3.1.3.2. Institutional
issues: the participation of the European Union in Council of Europe
bodies which exercise functions related to the Convention
72. Two main issues have been dealt with under this heading,
namely that of the election of judges to the European Court of Human
Rights following EU accession to the European Convention on Human
Rights and the participation of the European Union in the Committee
of Ministers of the Council of Europe.
73. In accordance with the principle of ensuring the accession
of the European Union on an “equal footing” with the other High
Contracting Parties to the Convention, the judge elected with respect
to the European Union should participate equally with the other
judges in the work of the European Court of Human Rights and have the
same status and duties.
74. As regards details related to the election of judges following
EU accession to the Convention, this issue will be the object of
a specific report to be prepared by my colleague, Mr Serhiy Holovaty
(Ukraine, ALDE), for the Committee on Legal Affairs and Human Rights.
In the meantime, the Parliamentary Assembly/European Parliament
EP joint informal body, after two meetings held on 14 March and
on 15 June, with Mr Christos Pourgourides (Cyprus, EPP/CD), Chairperson
of the Assembly’s Committee on Legal Affairs and Human Rights, and
Mr Carlo Casini (Italy, EPP), Chairperson of the European Parliament’s
Committee on Constitutional Affairs, in the chair, reached agreement
that, following EU accession to the Convention, the European Parliament
would be entitled to participate in the sittings of the Parliamentary
Assembly of the Council of Europe and its relevant bodies when the
latter exercises their functions related to the election of judges
to the European Court of Human Rights under Article 22 of the Convention.
75. In particular, it was agreed that, when the Parliamentary
Assembly elects judges, the European Parliament delegation would
be entitled to participate in the Parliamentary Assembly with the
same number of representatives as states entitled to the highest
number of representatives (at present 18 members). This principle
has also been incorporated in the draft Accession Agreement which,
for the rest, provides that the modalities of the participation
of representatives of the European Parliament in the sittings of
the Parliamentary Assembly and its relevant bodies “shall be defined
by the Parliamentary Assembly of the Council of Europe, in co-operation
with the European Parliament”.
76. In the latter respect, the joint informal body has further
reached agreement as to the manner in which representatives of the
European Parliament will take part and vote within the Assembly’s
different bodies in the election process. More specifically, the
European Parliament would be entitled to four titular and four alternate seats
when participating in the Assembly’s 84-member Committee on Legal
Affairs and Human Rights, whenever need for this was to arise; whenever
the election of judges is on the agenda of the Assembly's Bureau,
one representative of the European Parliament would take part, with
a right to vote on the matter; one representative of the European
Parliament (with an alternate) would be entitled to sit ex officio, with a right to vote,
on the Assembly’s Sub-Committee on the Election of Judges to the
European Court of Human Rights (of the Committee on Legal Affairs
and Human Rights).
77. These arrangements must be approved by the Parliamentary Assembly
and the European Parliament, in accordance with their respective
procedures, in due time. I find it, however, of utmost importance
that, in only two meetings, we managed to solve a difficult and
technically complicated matter with our colleagues from the European
Parliament in a spirit of good faith and constructive dialogue.
78. As regards the question of the participation of the European
Union – and of its right to vote – in the Committee of Ministers,
in particular when the latter exercises its function of supervision
of the execution of judgments of the Strasbourg Court, this has
proved to be one of the most difficult issues on the negotiations’ agenda,
from both a technical and also political point of view. While the
principle that the European Union should participate in the supervision
of the execution of judgments (see Article 46 of the Convention)
seemed to be understood by all members of the negotiating group,
what seemed to raise problems was to grant voting rights in the
Committee of Ministers to an entity which is not a member of the
Council of Europe. Although it is commonly known that voting in
the Committee of Ministers in the supervision of the execution of
judgments is rather the exception than the rule, as decisions are
regularly adopted by consensus, some Council of Europe member states
fear that the European Union and its member states (in total amounting
to 28 out of 48 parties after accession) could take co-ordinated
positions in the event of a vote (“block voting”). The need to find appropriate
guarantees to safeguard the effective functioning of the system
of supervision of the execution of judgments in all cases has generally
been recognised in the CDDH-UE group.
79. After lengthy discussions, the draft Accession Agreement recognises
the EU’s right to participate, with the right to vote, in the Committee
of Ministers when the latter exercises functions by virtue of the
Convention. This is the case when the Committee of Ministers takes
decisions in the exercise of functions explicitly conferred upon
it by the Convention itself, such as, in particular, the supervision
of the execution of the Court’s judgments (under Article 46) and
of the terms of friendly settlements (under Article 39),
but also when the Committee
of Ministers deals with a number of questions directly linked with
the functioning of the Convention system and its implementation
which, however, are not explicitly dealt with in the Convention
itself, namely: when the Committee of Ministers takes decisions
regarding the adoption of protocols to the Convention, as well as
the adoption or implementation of any other instrument or text addressed
to the Court or to all High Contracting Parties to the Convention,
or related to the functions exercised by virtue of the Convention
by the Committee of Ministers or the Assembly.
80. A combination of provisions included in the draft Accession
Agreement itself and in a draft Rule to be added to the relevant
rules of the Committee of Ministers regulate voting when the Committee
of Ministers supervises the execution of judgments or of friendly
settlements in cases to which the European Union is a party to ensure
that the applicable EU rules as regards co-ordination of the position
of the European Union and its member states (including possible
“block voting”) do not jeopardise the effective exercise by the
Committee of Ministers of its supervisory functions under Articles
39 and 46 of the Convention. Moreover, the draft Accession Agreement
clearly states that, when the Committee of Ministers exercises its
supervisory functions with respect to cases against an EU member
state, the European Union is precluded – for reasons pertaining to
its internal legal order – from expressing a position or exercising
its right to vote. In such cases, the EU member states have no obligation
under the EU treaties to express positions or to vote in a co-ordinated manner.
Similarly, the EU member states have no such obligation in cases
against a non-member state of the European Union, even if, in the
latter cases, the European Union expresses its position or exercises
its right to vote.
81. Although these provisions add complexity to a procedure which
in reality rarely makes use of votes (decisions on the execution
of judgments are normally taken by consensus within the Committee
of Ministers), they limit the alteration to exceptional cases, and
seem to constitute the only proposal currently under consideration
by the capitals which is at the same time politically acceptable
and technically feasible.
3.1.3.3. Legal issues:
the co-respondent mechanism and relations between the Court in Luxembourg
and the Court in Strasbourg
82. It is a special feature of the EU legal system that
acts adopted by its institutions may be implemented by organs of
its member states and, conversely, that provisions of the EU founding
treaties agreed upon by its member States may be implemented by
organs of the European Union. With the accession of the EU to the European
Convention on Human Rights, there arises thus the unique situation
in the Convention system in which the High Contracting Party enacting
a legal act and the High Contracting Party implementing that act may
not be one and the same.
83. In order to accommodate the specific situation of the European
Union – as a non-state entity with an autonomous legal system –
becoming a party to the Convention alongside the EU member states,
a new mechanism is being introduced to allow the European Union
to become a co-respondent in proceedings instituted against one
or more of its member states and, conversely, to allow one or more
EU member state(s) to become co-respondent(s) in proceedings instituted
against the European Union.
84. Discussions regarding the precise modalities of the co-respondent
mechanism have been quite lengthy and complex.
85. For my part, I have discussed the issue with several interlocutors
on the European Union and Council of Europe side and also with representatives
of non-governmental organisations. I was happy to see that the CDDH-UE
heard the views of representatives of civil society organisations
and human rights groups who were officially invited for consultation
at its meetings in January and June 2011. I hope that this constructive
dialogue with representatives of civil society will continue throughout
the negotiation process and that the consultation will extend to
the discussions in the working party in Brussels (FREMP) on the
necessary adjustments of the EU legal order.
86. Both in their written and oral contributions to the CDDH-UE,
NGOs have insisted on the need to avoid undue burdens on the individual
applicant, who may have to face multiple defendants, in particular
the European Union, in order to preserve the right of individual
petition and the equality of arms. Therefore, the co-respondent
mechanism should only be used in limited circumstances. This is
a concern I fully share and have raised in my various meetings with
EU and Council of Europe representatives.
87. A wording that has been proposed during the informal negotiations
within the CDDH-UE was taking care of the concern to limit the scope
of application of the co-respondent mechanism as it provided that
this mechanism would only apply to cases “if the act or omission
underlying the alleged violation would only have been avoided by
the respondent party by disregarding an obligation under the EU
law”.
However, discussions in the CDDH-UE
led to the provision of wider criteria for triggering the mechanism.
More specifically, the draft Accession Agreement currently provides
that the mechanism is triggered and the European Union may become
a co-respondent in the proceedings in the case of applications notified
to one or more EU member states if it appears that the alleged violation
“calls into question the compatibility with the Convention rights
at issue of a provision of EU law, notably when that violation could
have been avoided only by disregarding an obligation under EU law”.
That
said, the draft explanatory report to the draft Accession Agreement
refers to the fact that, on the basis of the relevant case law of
the Court, it can be expected that such mechanism may be applied
only in a limited number of cases.
88. Representatives of civil society have proposed that, when
the co-respondent mechanism is activated, deadlines for third party
interventions should be extended to allow sufficient time and flexibility
for third parties to intervene in cases of increased complexity.
It will also be essential to ensure, in such cases, adequate legal aid
for applicants.
89. Issues related to the articulation of the relations between
the Court of Justice of the European Union in Luxembourg and the
European Court of Human Rights in Strasbourg, following EU accession
to the Convention, including the need to preserve the monopoly of
the Court of Justice of the European Union in the interpretation
of EU law, have also been complex. However, the situation became
much clearer from the moment that the Presidents of the Courts,
Mr Costa and Mr Skouris, issued a joint communication in January 2011
in which they gave their own views on how the matter should be handled.
90. It is clear that, in cases where the Strasbourg Court will
have to review the consistency with the Convention of measures adopted
by EU institutions, the condition relating to the exhaustion of
domestic remedies will oblige applicants wishing to apply to the
Strasbourg Court to refer the matter first to the EU courts. It
is thus guaranteed that the review exercised by the Strasbourg Court
will be preceded by the internal review carried out by the Luxembourg
Court and that subsidiarity will be respected.
91. Where applications to the Strasbourg Court are directed against
acts adopted by the authorities of EU member states in implementing
EU law, the situation is, however, more complex: the applicant will
have, first, to refer the matter to the courts of the member state
concerned which, in turn, may or, in certain cases, must refer a
question to the Luxembourg Court for a preliminary ruling on the
interpretation and/or validity of the provisions of EU law at issue.
However, if, for whatever reason, such a reference for a preliminary
ruling were not made, the Strasbourg Court would be required to
decide on an application calling into question provisions of EU
law without the Luxembourg Court having had the opportunity to review
the consistency of that law with the fundamental rights guaranteed
by the Charter of Fundamental Rights of the European Union.
92. In their joint communication, the two Presidents take the
view that, in order that the principle of subsidiarity may be respected
also in the latter cases – which should be relatively rare – a procedure
should be put into place which is flexible and would ensure that
the Luxembourg Court may carry out an internal review before the
Strasbourg Court carries out an external review. In order to prevent
proceedings before the Strasbourg Court from being unduly delayed,
the Luxembourg Court could give a ruling under an accelerated procedure.
93. The draft Accession Agreement explicitly provides that the
European Union shall ensure that the assessment by the Luxembourg
Court is made “quickly” and that the prior involvement of the Luxembourg Court
will not affect the powers of the Strasbourg Court. The draft explanatory
report further explains that the assessment by the former will not
bind the latter and that the Court of Justice will not assess the
act or omission complained of by the applicant, but only the EU
legal basis for it. It also specifies that the parties involved
– including the applicant, who will be given the possibility to
obtain legal aid – will have the opportunity to make observations
in the procedure before the Luxembourg Court. According to the report,
the examination of the merits of the application by the Strasbourg
Court should not resume before the parties and any third parties have
had the opportunity to assess properly the consequences of the ruling
of the Luxembourg Court. As regards timing, the report notes that
an accelerated procedure before the Court of Justice already exists
under which the latter has been able to give rulings within 6 or
8 months.
94. When discussing the issues related to the prior involvement
of the Luxembourg Court in cases involving the European Union as
co-respondent with the Presidents of the two Courts, both were pleased
with the fact that negotiations within the CDDH-UE have been based
on their position as expressed in their joint communication of January
2011.
95. President Costa also told me that, according to a study of
the case law of the Strasbourg Court over the last fifteen years,
carried out by lawyers from both the European Union and the Council
of Europe, in only three cases would there have been a need to apply
the co-respondent mechanism and in no case would there have been
a need for the prior involvement of the Luxembourg Court during
the proceedings before the Strasbourg Court.
3.1.4. Procedure for the
adoption of the Accession Agreement
96. Once the draft Accession Agreement and its explanatory
report are approved by the CDDH in October 2011, the procedure for
its adoption will be put into motion. This procedure, according
to the Lisbon Treaty, is quite complex and demanding on the EU side:
unanimity in the EU Council; consent by the European Parliament;
ratification by all EU member states.
97. On the basis of what I heard from my interlocutors on the
EU side, including the President of the Court of Justice and the
Legal Advisor of Ms Reding, the EU Court of Justice will also be
seized by the European Commission for an opinion on the draft Accession
Agreement before the latter submits it to the EU Council. More specifically,
the Luxembourg Court will be requested to assess the issues of competence,
legal basis and compatibility of the Accession Agreement with EU
primary law. In the past, the Luxembourg Court had rejected the
idea of EU accession to the Convention arguing that there was no
legal basis for such an accession.
98. It is clear that, following the entry into force of the Lisbon
Treaty, the European Union has competence to accede to the Convention
and there is a legal basis for such an accession. The main issue,
therefore, for the Court of Justice to assess will be the compatibility
of the Agreement with EU primary law. President Skouris referred
in particular to the need to ensure compatibility with Protocol
8 to the TEU, which refers to Article 6(2) of the Treaty on EU accession
to the Convention.
99. On the Council of Europe side, the draft Accession Agreement
will have to be endorsed by the Committee of Ministers after the
Parliamentary Assembly and the European Court of Human Rights have
given their Opinions on it. It will ultimately have to be ratified
by all the member states of the Council of Europe.
100. It is clear that, if the ratification of the Lisbon Treaty
and of Protocol No. 14 to the Convention have marked the member
states of both Organisations’ political will for EU accession to
the Convention, there will be need for renewed commitment and the
active support of both our governments and our parliaments to ensure
the necessary ratification process of the Accession Agreement in
the near future, and this in the interest – I repeat it once more
– of the people in Europe.
3.2. Coherence of Council
of Europe standards and EU law and of evaluation of implementation by
European states: the Stockholm Programme
101. European society is today facing major challenges,
including transnational threats, such as international terrorism,
threats to privacy and cybercrime, trafficking in human beings etc.
Old plagues, such as torture, violence against women, exploitation
of children or corruption, also acquire transnational dimensions
and call for action at pan-European level. In many of these areas,
traditionally within the remits of the Council of Europe, the post-Lisbon
European Union has acquired new or enlarged powers and competences.
Therefore, there is an increased need for the two Organisations
to join efforts to provide adequate replies to such challenges and ensure
a common space for human rights protection across the continent,
on the basis of common values and comparative advantages, beyond
EU accession to the Convention.
102. In particular, the Lisbon Treaty has increased the need to
ensure coherence between the standards of the Council of Europe
and EU law, as well as a coherent evaluation or monitoring of implementation
of these standards by European states, while avoiding duplication
and monitoring fatigue, in particular at a time when an unprecedented
economic crisis is plaguing our continent.
103. On the Council of Europe side, the reform process launched
by the Secretary General, aims at “enhancing (the Organisation’s)
political relevance and impact in European affairs,
inter alia, through a reinforced
partnership with the European Union, building on the 2007 Memorandum
of Understanding between the two Organisations”.
This
reform process is meant to fully enable the Council of Europe to
play a major role, in particular by ensuring democratic – “soft”/”deep”
– security at pan-European level and by reaffirming itself as “the
benchmark for human rights, the rule of law and democracy in Europe”.
3.2.1. Coherence of standards
104. During my meetings in Brussels, I raised the need
to ensure coherence of standards of the Council of Europe and the
EU law, including through EU accession to key Council of Europe
conventions other than the European Convention on Human Rights,
which tackle such major challenges to European society as the ones mentioned
above. In particular, I urged my interlocutors to consider EU accession
to the following Council of Europe conventions: the Convention on
the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(ETS No. 126); the Convention on Action against Trafficking in Human
Beings (CETS No. 197); the Convention on the Protection of Children
against Sexual Exploitation and Sexual Abuse (CETS No. 201); the
Convention on Preventing and Combating Violence against Women and
Domestic Violence (CETS No. 210); the Convention for the Protection
of Individuals with Regard to Automatic Processing of Personal Data (ETS
No. 108); the Convention on the Prevention of Terrorism (CETS No.
196); the Criminal Law Convention on Corruption (ETS No. 173); the
Civil Law Convention on Corruption (ETS No. 174); the Convention
on Cybercrime (ETS No. 185), as well as to the revised European
Social Charter (ETS No. 163). I insisted on the fact that accession
to Council of Europe conventions would ensure that common minimum
standards would apply at pan-European level, thus contributing to
the creation of a common European legal space for the benefit first
and foremost of the people in Europe. This should not prevent the
European Union from going further and ensuring higher standards
for its members, as actually any Council of Europe member state,
in its domestic legislation, can provide for higher standards than
those guaranteed by Council of Europe conventions. But both duplication
and lowering of standards should clearly be avoided.
105. The European Parliament, for its part, has already taken a
clear position on this matter by stating in its Resolution of 19
May 2010 that accession to the Convention constitutes an essential
first step which should be completed by EU accession to other Council
of Europe conventions, such as the revised European Social Charter.
106. Officials from the Commission argued that accession to other
Council of Europe conventions should be considered only after accession
of the European Union to the Convention has been completed. A step-by-step approach
was chosen since otherwise there was a risk of jeopardising accession
to the Convention. The Executive Secretary General of the EEAS,
Mr Vimont, referred to a “pragmatic approach” and the consideration of
EU accession to other Council of Europe conventions “on a case-by-case
basis”. Accession to each convention should be considered on its
own merits after balancing arguments in favour or against, with
the help of the European Commission. As for my interlocutors from
the EU Council, they seemed to agree that accession to other Council
of Europe conventions could be considered before the completion
of the EU accession to the Convention.
107. I was particularly pleased in this respect with my meeting
with Commissioner Malmström, who told me that EU accession to other
Council of Europe conventions was under consideration and specifically
referred to the Convention on Cybercrime (ETS No. 185). Also, I
was happy to learn that negotiations will soon start on accession
of the European Union to the Council of Europe Convention for the
Protection of Individuals with Regard to Automatic Processing of
Personal Data.
108. For my part, I believe that the Council of Europe itself can
help the European Union form a long-term and more strategic vision
on synergies with the Council of Europe and possible accession to
Council of Europe instruments – beyond a case-by-case or pragmatic
approach – building also on the favourable position already taken
by the European Parliament in this respect. I see two practical
ways to achieve this. First of all, the currently ongoing review
of Council of Europe conventions, initiated by the Secretary General,
explicitly aims,
inter alia,
to identify ways of facilitating EU accession to Council of Europe
conventions.
I
hope that this process will soon be successfully completed while
ensuring that each convention system is preserved as it stands with
only minor adjustments. Secondly, I would suggest that the Council
of Europe Secretariat prepare a list of concrete implications and
advantages of EU accession to key Council of Europe conventions
which the Secretary General could then present to EU officials at
the highest political level and thus promote a wider debate on closer
Council of Europe/Εuropean Union synergies in the interest of all
the people in Europe.
109. Let me also underline that arrangements agreed in the context
of EU accession to the Convention regarding the participation of
the European Union and its voting rights within the Council of Europe
Committee of Ministers might serve as a precedent for future EU
accession to other Council of Europe conventions.
110. Beyond the issue of EU accession to Council of Europe conventions
and in order to allow for an adequate overall assessment of EU activities
against the human rights benchmarks set up by the Council of Europe,
the European Union should moreover ensure systematic and open consultations
with the relevant bodies of the Council of Europe, throughout the
EU legislative processes. Thus, for instance, in the field of criminal
justice, the EU Council has undertaken the commitment to ensure
that all its legislative initiatives in the field of procedural
rights of suspects in criminal proceedings are “Strasbourg-proof”
and “ensure full implementation and respect of Convention standards”,
as well as “where appropriate, expand existing standards or make
their application more uniform”.
111. As regards future normative initiatives to be taken by the
European Union or the Council of Europe, all my interlocutors insisted
on the need for prior consultations between the two organisations,
at as early a stage as possible and also at a higher political level.
I confirmed that this is also the position of the Council of Europe. I
underlined that it was essential that, prior to embarking on new
normative initiatives, the European Union considers the full potential
and advantages of Council of Europe conventions, promotes accession
of its member states (and also of non-member states in the framework
of its external relations) and, when applicable, accedes to them.
112. In response to the need for prior consultations, regular contacts
have been established, as of the end of 2009, at both political
and operational level between the Council of Europe Secretary General
and high officials, on the one hand, and Commissioners Reding and
Malmström and their cabinets, on the other.
113. Following contacts between the Secretary General and these
Commissioners in June-July 2010, regular consultations are taking
place which cover, in particular, matters raised in the Stockholm
Programme and the Memorandum of Understanding, such as: racism and
xenophobia, the rights of the child, criminal justice and protection
of personal data, fight against trafficking in human beings, terrorism,
organised crime, cybercrime, money laundering, corruption and the
protection of children against sexual abuse.
114. An example of recent successful mutual support between the
two Organisations was provided in the field of children’s rights
when the Council of Europe programme “Building a Europe for and
with Children” supported the process leading to the development
of an EU strategy on the Rights of the Child.
115. Another area calling for co-ordinated action between the European
Union and the Council of Europe is nowadays that of migration and
asylum. Referring to the
MSS judgment
v. Greece and Belgium and events in North Africa which
led to the arrival of asylum seekers and migrants in South Europe,
I raised the need for co-ordinated action in this area in my meeting
with Commissioner Malmström.
I mentioned
in particular that Council of Europe/European Union co-operation
should focus on: developing common minimum standards on protection
of the rights of migrants (for instance as regards detention conditions
for irregular migrants and asylum seekers); assisting the member
states (both EU member states and Council of Europe member states that
are not EU member states) to increase their capacities to deal with
this challenge adequately, efficiently and in full respect of European
human rights standards; and putting in place a contribution from
the Council of Europe monitoring bodies, such as ECRI, CPT and the
European Committee of Social Rights, to the European Union's efforts
to improve the Dublin II Regulation. It is worth noting in this
respect the lack of human rights monitoring at EU level as regards
EU member states’ border control and Frontex operations.
116. Moreover, the follow-up to the Council of Europe High-Level
Conference on Roma issues, held in Strasbourg in October 2010, at
a time when such issues had raised serious concerns in some EU member states
and had led to increased tensions between these states and EU institutions,
has already provided a further opportunity to work closely with
the European Union in this area, for example through joint action
in the area of capacity-building at local level (Roma mediators,
promotion and dissemination of good practice, etc.)
117. In order to deepen further priority matters for co-operation
and facilitate a reciprocal flow of information, discussions between
the Council of Europe secretariat and the respective European Commission
Directorates General of Justice and Home Affairs resulted in an
agreement to establish an informal Mutual Information Mechanism
(MIM), consisting of European Union and Council of Europe officials.
Regular meetings of the mechanism would provide information on the
normative initiatives, which would in turn trigger bilateral expert consultations
between the Council of Europe and the European Union, as appropriate.
3.2.2. Coherence of monitoring
of implementation of standards
118. The Lisbon Treaty enables the European Union (the
Council in collaboration with the Commission) to conduct objective
and impartial evaluations of the implementation of the Union policies
in the areas of freedom, security and justice by member states’
authorities, in particular in order to facilitate full application
of the principle of mutual recognition.
119. In line with the Lisbon Treaty, “The Stockholm Programme –
An open and secure Europe serving and protecting the citizen”, adopted
by the European Union in December 2009 to set forth the EU’s agenda
of priorities in these areas for the period 2010-2014, puts a new
emphasis on evaluation of the implementation of the Union policies
in these areas. In this respect, the European Council considers
that “duplication with other evaluation mechanisms should be avoided,
but synergies and co-operation should be sought, in particular with the
work of the Council of Europe. The Union should take an active part
in and should contribute to the work of the monitoring bodies of
the Council of Europe.”
120. Against this background, in all my meetings since last year,
I have raised the need for strengthening synergies between the European
Union and the Council of Europe in the monitoring of implementation
of standards in the context of the implementation of the Stockholm
Programme of the European Union. The Council of Europe monitoring
bodies, such as the European Committee for the Efficiency of Justice
(CEPEJ), which is monitoring judicial systems in Council of Europe
member states, and the Group of States against Corruption (GRECO),
have an important experience in their respective fields of competence
and represent an
acquis for
Europe as a whole. They can therefore make an effective contribution
to the evaluation process that the European Union may set up in
the framework of its Stockholm Programme
.
121. In addition to CEPEJ and GRECO, the Council of Europe has
several other monitoring bodies coming into play on issues relating
to justice and home affairs for which the European Union has now
enlarged competences and with which stronger synergies should be
encouraged, in particular: the European Committee of Social Rights
(ECSR), whose findings concern, inter
alia, minimum social and economic rights for migrants and
asylum seekers and the situation of Roma; the Committee for the
Prevention of Torture, whose findings cover conditions of detention
of irregular migrants and foreigners under deportation orders; the
European Commission against Racism and Intolerance (ECRI), whose
findings cover integration policies, racism and hate speech; the
Group of Experts on Action against Trafficking in Human Beings (GRETA),
an independent body established under the Council of Europe Anti-trafficking
Convention, whose findings cover specific needs and rights of victims
of trafficking; MONEYVAL, as regards the fight against money laundering.
I stressed that accession to existing Council of Europe monitoring
mechanisms should be considered before embarking on creating new
mechanisms in order to avoid duplication and thus the risk of incoherence,
diverging results, “forum shopping” and low impact. Stronger synergies
should also be encouraged of course with the Council of Europe Commissioner
for Human Rights.
122. Here again, with the exception of GRECO, I found a strong
partner in the European Parliament which, in its Resolution of 19
May 2010, clearly called for EU accession to Council of Europe bodies
such as the CPT, the ECRI, the CEPEJ, the ECSR and for the strengthening
of co-operation between the EU institutions and Council of Europe
specialised bodies. MEPs I met in Brussels reiterated this position.
In its more recent resolution of 11 May 2011, the European Parliament
reaffirmed that, in order to increase its effectiveness in the field
of human rights at pan-European level, the European Union should
accede to Council of Europe bodies such as the CPT, the ECRI and
the CEPEJ. The position of the European Parliament is to be most welcomed.
123. As regards more specifically GRECO and the fight against corruption,
EU accession to GRECO is envisaged in the Stockholm Programme. This
Programme invites the Commission “to develop indicators, on the
basis of existing systems and common criteria, to measure efforts
in the fight against corruption, in particular in the areas of the
European Union acquis (public
procurement, financial control etc.) and to develop a comprehensive
anti-corruption policy, in close co-operation with GRECO”; it also
invites the Commission to submit in 2010 “a report on the modalities
for the Union to accede to GRECO”. Intensive consultations between the
GRECO representatives and representatives from the Commission and
the EU Council have taken place since last year.
124. When meeting Commissioner Malmström in April 2011, and after
consulting Council of Europe officials assisting GRECO, I stressed
that full accession of the European Union to GRECO and evaluation
of EU institutions by GRECO should remain the ultimate objective
of co-operation in this area and this should be visible in any participation
agreement. Pending EU accession, enhanced EU participation in GRECO proceedings
should be pursued as soon as possible, including participation by
EU representatives in the evaluation of member states of GRECO.
As a matter of reciprocity, GRECO should be able to participate
in the anti-corruption reporting mechanism to be set up by the European
Union.
125. I was particularly pleased to hear from Commissioner Malmström
that there was strong political will within the European Union not
to duplicate Council of Europe structures and use the latter’s existing
monitoring mechanisms, to the extent possible, including GRECO with
respect to the fight against corruption.
126. Two months later, the Commission, having analysed the possible
modalities for EU participation in GRECO and considering that GRECO
is the most exclusive existing instrument relevant for the European Union,
in as much as all EU member states are participating in it, has
decided to ask for the authorisation of the EU Council to start
negotiations in this regard. In its Communication of 6 June 2011
on Fighting Corruption in the European Union,
the Commission considers that, through
GRECO, “the Council of Europe contributes to ensuring minimum standards
in a pan-European legal area” and asks EU member states to support
the Union’s application to participate in GRECO within the Committee
of Ministers of the Council of Europe.
127. The Commission proposed EU participation in GRECO alongside
the creation of the mechanism of an EU Anti-Corruption Report. In
its Communication, the Commission underlines that EU participation
in GRECO would create synergies between the two mechanisms and that
GRECO could provide input to the EU mechanism in the form of comparative
analyses of the existing GRECO evaluation and compliance reports
on the EU member states and indication of key outstanding recommendations
requiring additional follow-up. Thus GRECO would contribute to the
definition of common anti-corruption indicators and criteria, and
its findings would be one of the elements on which the Commission
should base its own evaluation of anti-corruption efforts by EU
member states.
128. These positive developments will hopefully lead to a future
full accession of the European Union to GRECO. They should also
further facilitate the creation of appropriate synergies between
other Council of Europe monitoring mechanisms and any new evaluation
mechanisms to be set up by the European Union in other areas falling
within the remit of both Organisations.
129. I also consider it important that the European Union enhance
consultations with the Council of Europe Commissioner for Human
Rights as regards the implementation of human rights standards,
not only by non-EU member states – in the context of its enlargement
and neighbourhood policies – but also by its own member states.
The European Parliament expressed itself in favour of such an enhanced
consultation and co-operation with the Council of Europe Commissioner
for Human Rights in its resolution of 19 May 2010.
130. In conclusion, while welcoming the steps already taken in
the right direction and the ongoing developments, I feel that the
role of the Council of Europe as “the benchmark for human rights,
rule of law and democracy in Europe” has still to be further enhanced
and fully and effectively recognised by all EU institutions and
this for the benefit of all the people in Europe. Building on the
2007 Memorandum of Understanding between the two Organisations,
the Lisbon Treaty and the perspectives opened up by the ongoing
reform of the Council of Europe, the recently reinforced partnership
between the two Organisations should in particular be further consolidated
and regular policy co-ordination should be further developed at
all levels.
4. Towards a reinforced
Council of Europe–European Union partnership
131. The Lisbon Treaty has also allowed the European Union
to strengthen the delivery of its foreign policy: co-operation with
neighbouring countries has now been broadened to cover the full
range of issues in an integrated and more effective manner, including
issues related to human rights, rule of law and democracy, thus
opening up new opportunities for enhanced co-operation with the
Council of Europe also in this respect. This is all the more the
case to the extent that European Union enlargement and neighbourhood
policies apply to countries which are either full Council of Europe
member states, and thus benefit from the Organisation’s advice and
monitoring procedures, or belong to its neighbourhood and have thus
joined or may join Council of Europe conventions open to non-member
states or partial agreements, such as the Venice Commission and the
North-South Centre, and whose parliaments have been or may be granted
partner for democracy status with our Assembly.
132. Recent events throughout the Southern Mediterranean have indeed
given additional topicality to the development of a new Council
of Europe policy towards its neighbouring regions proposing a demand-driven co-operation
with the countries concerned. The partner for democracy status created
by the Assembly for parliaments in these regions is a key element
of this policy. Our Assembly granted the status to the Parliament of
Morocco on 21 June 2011, while a request from the Palestinian National
Council is currently being examined and it is not to be excluded
that other parliaments in the neighbouring regions may follow, for
instance Tunisia once the necessary conditions are met.
133. The same events throughout the Southern Mediterranean have
also given impetus to the review of the European Union Neighbourhood
Policy (ENP), initiated since the entry into force of the Lisbon
Treaty and in particular as of summer 2010, and have recently led
to two Joint Communications from the European Commission and the
High Representative of the European Union for Foreign Affairs and
Security Policy.
The latter
propose “a new approach to the ENP”, which “must be based on mutual
accountability and a shared commitment to the universal values of
human rights, democracy and the rule of law”.
In
the terms of the Communication of 25 May 2011 entitled “A new response
to a changing Neighbourhood”, “the EU needs to rise to the historical
challenges in our neighbourhood”. The Communication also insists
that “co-ordination between the EU, its member states and main international
partners is essential and can be improved” and when referring to
human rights commitments it mentions that “boosting co-operation
with the Council of Europe could also help in promoting compliance”.
It
is also worth noting that the European Commission and the EU High Representative
for Foreign Affairs and Security Policy, in their Joint Communication
of 8 March 2011, proposed a “Partnership for Democracy and Shared
Prosperity with the Southern Mediterranean”
for
those countries for the parliaments of which our own Assembly created
the status of partner for democracy in 2009.
134. While regular consultations at operational level between the
European Union and the Council of Europe with respect to candidate
countries and potential candidates of EU accession is a long-standing
practice, recently regular contacts have been established at a high
political level, in particular between the Secretary General of
the Council of Europe and the Commissioner responsible for Enlargement
and European Neighbourhood Policy, Mr Stefan Füle. The latter also
addressed the Council of Europe Committee of Ministers in July 2011.
Intensified
high-level contacts have also been established with High Representative
Catherine Ashton and senior officials of the new EEAS.
135. For my part, I discussed the opportunities for increased co-operation
between the two Organisations in relation to a revised ENP in my
discussions with MEPs, as well as more recently in the meeting I
had with Mr Vimont. In my meetings, I stressed the need for the
European Union to make better use of the Council of Europe’s expertise
and benchmarking and advisory role in the context of its enlargement
and neighbourhood policies.
136. In presenting more specifically the added value offered by
the new partner for democracy status, designed for parliaments in
the Council of Europe neighbouring regions, I underlined, in particular,
the fact that, as a parliamentary tool, the new status offers concrete
benchmarks and also provides for a follow-up/evaluation mechanism
(to be carried out by the Political Affairs Committee on behalf
of the Assembly). It is thus seen as the beginning and not the end
of the process.
137. Mr Vimont confirmed that the European Union is very much interested
in the newly created partner for democracy status, precisely because
it provides for concrete benchmarks and political monitoring and
thus corresponds to the European Union “more for more” approach,
that is the fact that the EU wants to link increased assistance
to progress with respect to democratic transformation in the context
of its co-operation with neighbouring countries, including in the
Southern Mediterranean. For Mr Vimont, whereas one could hardly
speak of a long-term EU vision or strategy for co-operation with
the Council of Europe in the context of EU neighbourhood policy,
there seemed to be a good ground for enhanced practical co-operation,
again based on a pragmatic approach. He thus quoted the Eastern
Partnership as a model also for developing co-operation in the Southern
Mediterranean and referred, among relevant Council of Europe institutions,
in particular to the important role of the Venice Commission in
view of its experience in assisting countries in the context of constitutional
reforms. Rather than duplicating or trying to reinvent the wheel,
the European Union had significantly enhanced its co-operation with
the Venice Commission in this respect and would continue to do so.
138. At the same time, joint programmes between the Council of
Europe and the European Commission, financed largely by the European
Union, remain a unique tool to support the reform agenda in Council
of Europe member states or in countries in its neighbouring regions
and promote democracy and respect for human rights and the rule
of law in these countries. I believe that, in the present post-Lisbon
era and in the context of the currently reinforced partnership between
the two organisations, joint programmes, as well as, more generally,
joint actions, should be further developed, including through a
more stable financial partnership with the Council of Europe (“facility”
financing), which would allow for increased strategic co-operation
and joint long-term planning.
139. For its part, the Assembly has improved its co-operation with
the European Parliament following the entry into force of the Lisbon
Treaty, under which the latter has become co-legislator, together
with the EU Council, in a number of key policy areas falling within
the Council of Europe’s remit.
140. For more details on the current state of relations, I refer
to a document
recently prepared for the attention of
the Bureau of the Assembly. To quote here only a few recent examples,
let me reiterate that the Parliamentary Assembly/European Parliament
Joint Informal Body, established early 2011 upon the initiative of
the European Parliament “in order to co-ordinate information sharing”,
succeeded in only two meetings in solving difficult and technically
complicated matters related to the participation of the European
Parliament in the election of judges after EU accession to the Convention,
in a spirit of good faith and constructive dialogue. Increased contacts
with the European Parliament led to a fruitful exchange of views
of our Committee with the then Chair of the Subcommittee on Human
Rights of the Committee of Foreign Affairs of the European Parliament,
Ms Heidi Hautala, in November 2010, and the participation of several
members of the Assembly in meetings or hearings organised by the
Subcommittee. The Presidential Committee of the Assembly will meet with
the Conference of Presidents of the European Parliament on 22 September
2011.
141. In my meetings with members of the European Parliament, in
particular Mr Brock, Mr Gualtieri and Ms Hautala, I also discussed
the opportunities for increased co-operation between our Assembly
and the European Parliament with respect to countries participating
in the ENP, as many issues of common interest appear on our agendas,
including the situation in countries of the Eastern Partnership,
such as for instance Belarus, or the Southern Mediterranean. Here
again, MEPs expressed great interest in the partner for democracy
status created by our Assembly for parliaments in Council of Europe
neighbouring regions, as well as in the Assembly’s monitoring or
post-monitoring procedure for Council of Europe member states which
are part of the EU enlargement or neighbourhood policies.
142. As a result also of my discussions with MEPs and colleagues
in the Assembly, I propose that the Assembly further enhance its
relations with the European Parliament, building on the “Agreement
on the strengthening of co-operation between the Parliamentary Assembly
of the Council of Europe and the European Parliament” of 28 November
2007, in particular through:
- reinforcing
the practice of regular meetings between, on the one hand, the respective
Presidents and, on the other hand, between its Presidential Committee
and the Conference of Presidents of the European Parliament on an
agenda-driven basis;
- pursuing the work of their Joint Informal Body, created
upon the initiative of the European Parliament to improve information
sharing between the two bodies and which initially met within the
context of EU accession to the Convention, with a view to discussing
other topical issues of common interest, in a variable composition,
as appropriate;
- further pursuing exchanges of views, joint activities
and information exchange between members of the Assembly and of
the European Parliament at committee level, and establishing regular
meetings of chairpersons of relevant committees from the two bodies;
- considering ways to contribute to the effective strengthening
of relations between the European Parliament and the national parliaments
of EU member states, as a body bringing together members of all
these parliaments;
- organising jointly with the European Parliament inter-parliamentary
conferences on specific topics of common interest;
- enhancing co-operation in joint electoral observation
missions.
143. I also believe that, after EU accession to the European Convention
on Human Rights, the participation of European Parliament representatives
in the Assembly sittings and its subordinated bodies when the latter exercises
their functions in relation to the election of judges to the Strasbourg
Court, will create concrete opportunities for further contacts between
members of the Assembly and MEPs. In this context, a special role can
also be played by the Assembly’s political groups, which could consider
ways of facilitating contacts with MEPs from respective political
groups.
144. Last but not least, I suggest that the governments and the
parliaments of Council of Europe member states, as well as the European
Union and civil society organisations promote visibility of the
reinforced partnership between the Council of Europe and the European
Union in the present post-Lisbon era and raise public awareness
about the need to further consolidate such partnership in the interest
of all people in Europe. The parliaments of EU member states could
in particular do so through regular debates on issues related to the
relations between the two organisations, including those between
the Assembly and the European Parliament, as well as through parliamentary
questions to the government.
145. The Council of Europe Liaison Office with the European Union
(Brussels Office), for its part, is playing an increasing role for
the purposes of promoting the visibility of Council of Europe-European
Union relations, by providing regular reporting on co-operation
between the two organisations, facilitating high-level and operational
contacts, as well as regularly presenting the Council of Europe
bodies and activities to EU institutions and to the press. I hope
that the potential of the Brussels Office will be further developed
in the near future.
5. Conclusions
146. It has been clearly demonstrated from my report that
the entry into force of the Lisbon Treaty has opened up new opportunities
for a reinforced partnership between the Council of Europe and the
European Union, based on each other’s acquis and
comparative advantages. In my view, such a partnership should aim
at ensuring coherence between, on the one hand, the pan-European
project promoted by the Council of Europe and, on the other, the
integration process initiated by the European Union. It should ultimately
lead to a common space for human rights protection across the continent
in the interest of all the people in Europe.
147. Many steps have recently been taken in the right direction.
To quote some of them:
- Negotiations
for EU accession to the Convention, a long standing objective which
will eventually lead to the creation of a common space of human
rights’ protection across Europe, have progressed smoothly and led
to a draft Accession Agreement.
- The Parliamentary Assembly/European Parliament Joint Informal
Body, established early 2011 upon the initiative of the European
Parliament “in order to co-ordinate information sharing”, succeeded
in only two meetings in solving difficult and technically complicated
matters related to the participation of the European Parliament
in the election of judges after EU accession to the Convention,
in a spirit of good faith and constructive dialogue.
- Increased contacts with the European Parliament led to
a fruitful exchange of views with the then Chair of the Subcommittee
on Human Rights of the Committee of Foreign Affairs of the European
Parliament, Ms Heidi Hautala, last November, and the participation
of several Assembly members in meetings or hearings organised by
the Subcommittee.
- Intensified high-level contacts between the Secretary
General of the Council of Europe and EU Commissioners as well as
the High Representative for Foreign Affairs and Security Policy
have improved policy co-ordination.
- Recent events throughout the Southern Mediterranean have
given rise to new opportunities for increased co-operation between
the two organisations in the context of a revised European Neighbourhood
policy, on the EU side, and a new policy towards neighbouring regions
on the Council of Europe side, of which the partner for democracy
status with our Assembly is an essential element. While the European
Union proposed in March 2011 the status of “Partnership for Democracy
and Shared Prosperity” for the countries of the Southern Mediterranean,
our Assembly had already created the status of partner for democracy
for the parliaments of the countries of the same region back in
2009. Our Assembly granted this status for the first time in June
2011 to the Parliament of Morocco, and a request from the Palestinian
National Council is currently being examined.
- As regards coherence of standards between the European
Union and the Council of Europe, a Convention review has been initiated
within our Organisation which should create conditions to facilitate EU
accession to Council of Europe conventions other than the European
Convention on Human Rights. EU accession to the Council of Europe
conventions on data protection and on cybercrime seems for instance
to be on the agenda.
- As regards the coherence of monitoring of standards and
the implementation of the Stockholm Programme, negotiations for
EU participation in GRECO should soon start and hopefully will pave
the way for future accession. In a recent resolution, the European
Parliament has reiterated its call for EU accession to other Council
of Europe bodies or monitoring mechanisms, such as the CPT, ECRI
and CEPEJ.
148. However, while welcoming these positive steps, I believe that
the role of the Council of Europe as “the benchmark for human rights,
rule of law and democracy in Europe” has to be further enhanced
and fully and effectively recognised by all EU institutions in the
present post-Lisbon era. A more long-term or strategic vision should
be developed on the relations between the two organisations. Building
on the 2007 Memorandum of Understanding between the two organisations,
the Lisbon Treaty and the perspectives opened up by the ongoing
reform of the Council of Europe, the recently reinforced partnership
between the two organisations should be further consolidated and
regular policy co-ordination should be further developed at all
levels.
149. For the purpose of pursuing the building of a
common space for human rights protection
at pan-European level and ensuring coherence of standards and of
monitoring of their implementation by member states throughout the
continent, there is now a need for the active support of all European
governments and parliaments, as well as of the European Union, which
will have to:
- renew the political
commitment they undertook when ratifying the Lisbon Treaty and/or
Protocol No. 14 to the European Convention on Human Rights, in order
to enable rapid conclusion of the Agreement on the Accession of
the European Union to the Convention, its endorsement and its entry
into force, guided by the principle that such accession aims to
increase the human rights protection of individuals;
- promote and facilitate EU accession to other key Council
of Europe conventions, monitoring mechanisms and bodies, inter alia through the ongoing review
of Council of Europe conventions, while preserving the essence of
each convention system and without prejudicing the effective functioning
of each mechanism and body;
- co-ordinate action with the European Union in the areas
of migration and asylum and jointly ensure appropriate follow-up
to the high-level conference on Roma issues organised by the Council
of Europe in October 2010;
- ensure coherence of normative activities within the two
organisations, in particular through prior consultations at an early
a stage as possible and at a high political level, in addition to
inter-secretariat information sharing at operational level;
- develop appropriate synergies between Council of Europe
monitoring mechanisms and bodies and any new evaluation mechanisms
to be set up by the European Union.
150. Building, inter alia,
on the opportunities opened by the Lisbon Treaty and recent events
throughout the Southern Mediterranean, the Council of Europe’s expertise
and benchmarking and advisory role should further be enhanced in
the context of the EU enlargement and neighbourhood policies, in
particular to the extent that these policies apply to countries
which are either full Council of Europe member states or belong
to its neighbourhood.
151. A number of concrete proposals for further enhancing relations
between the Assembly and the post-Lisbon reinforced European Parliament
are put forward in the draft resolution. A number of more concrete recommendations
to governments, national parliaments, and the European Union are
included in the same text, whereas recommendations to the Council
of Europe Committee of Ministers are addressed in the draft recommendation.
152. I reiterate that it is of particular importance that the governments
and parliaments of Council of Europe member states, as well as the
European Union, promote the visibility of the reinforced partnership
between the Council of Europe and the European Union in the present
post-Lisbon era and raise public awareness about the need to further
consolidate such partnership, including through parliamentary debates
and a better use of the potential of the Council of Europe.
153. In closing my report, let me put on the table a proposal already
formulated in 2006 by the Prime Minister of the Grand Duchy of Luxembourg,
Mr Jean-Claude Juncker, in the report he prepared in his own name
on relations between the Council of Europe and the European Union,
at the request of Council of Europe Heads of State and Government
at the Warsaw Council of Europe Summit. Mr Juncker, in concluding
his report five years ago, wrote: “it follows logically from the
complementary relationship between the Council of Europe and the
EU … and from the increased co-operation between the two bodies,
which is necessary for the democratic security of people in our
continent, that a further step in the relationship should be envisaged,
once the EU has acquired legal personality – EU membership of the
Council by 2010 … This will allow it to speak directly for itself
in all the Council bodies, on all issues which affect its interests
and which fall within its area of competence – all within the context
of a pan-European dynamic which it will help to push ahead in the
general interest of the continent”.
154. Today, I believe that the entry into force of the Lisbon Treaty,
with all its legal and political consequences and the ensuing reshaping
of the European architecture, gives fresh topicality to the words
of Mr Juncker when he referred to the Council of Europe and the
European Union as “a sole ambition for the European continent” and
to the perspective of EU accession to the Council of Europe Statute.
The time is now ripe to give this perspective serious consideration.