Doc. 9849

24 June 2003

The Council of Europe and the Convention on the Future of Europe

Opinion1

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Michael Spindelegger, Austria, Group of the European People's Party

I.       Conclusions of the Committee

The Committee on Legal Affairs and Human Rights fully supports the draft Resolution and Recommendation tabled by the Political Affairs Committee, but would like to table two amendments aimed mainly at further strengthening the points made in relation to the Council of Europe's activities in the legal field and the EU's co-operation with the Council of Europe therein.

II.       Proposed amendments to the draft Recommendation and the draft Resolution

Amendment A:

In the draft Recommendation, reformulate paragraph 4.i. as follows:

Amendment B:

In the draft Resolution, reformulate paragraph 8.v.a as follows:

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III.       Explanatory memorandum

by Mr Spindelegger, Rapporteur

1.       The Committee on Legal Affairs and Human Rights was invited by the Bureau of the Assembly to present on opinion on the Report prepared by the Committee on Political Affairs (Rapporteur: M. Theodoros Pangalos) in view of the urgent debate on 26 June 2003 on “The Council of Europe and the Convention on the future of Europe” (AS/Pol (2003) 11 of 20 June 2003).

A.       Amendment A (regarding the accession of the European Union to the ECHR)

2.       In January of this year the Assembly has held a debate on “the Contribution of the Council of Europe to the constitution-making process of the European Union” based on a report submitted by Mr Pangalos.

3.       Following that debate, the Assembly adopted Resolution 1314 (2003) which was addressed to the European Community/European Union and its members states. This Resolution was based on the draft treaty establishing a constitution for Europe adopted at the plenary session of the Convention on 28 and 29 October 2002. It was intended to remind the Union some of the preoccupations of the Council of Europe and in particular of its Parliamentary Assembly. It recalled for instance that the Assembly considers that the accession to the European Convention on Human Rights by the European Union will eliminate the present risk of divergence in the case-law of the European Court of Human Rights, on the one hand, and of the Court of Justice of the Communities on the other hand.

4.       It accordingly called on the Union:

5.       It is not necessary here to repeat the reasons behind this request. They are explained in two previous resolutions: Resolution 1210 (2000) and Resolution 1228 (2000) on the Charter of Fundamental Rights, and summed up very aptly in Mr. Pangalos’ Explanatory Memorandum

6.       Since then, the Convention has adopted a draft for a European Constitution which was submitted to the European Council in Thessaloniki last week.

7.       It is therefore possible to see whether the wishes of the Assembly have been taken into consideration.

8.       First of all, the Charter is included in the Constitution as Part II.

9.       The text of the Constitution itself devotes Title II to “Fundamental Rights and Citizenship of the Union” and foresees the accession of the Union to the ECHR in the following terms:

10.       On the one hand, this article is along the lines of the Assembly’s request, on the other hand the formulation is ambiguous. One can interpret it as a call to the Council of Europe to invite the Union to accede to the ECHR. And in fact one has to regret that so far the Committee of Ministers of the Council of Europe has never expressly taken position on that question.

11.       The Legal Affairs Committee therefore recommends that the Parliamentary Assembly shall invite the Committee of Ministers once again to address an express invitation to the European Union to accede to the ECHR as soon as possible. This is the purpose of Amendment A to the draft recommendation.

12.       Regarding the provisions in the Draft Constitution on accession of the European Union to the ECHR is concerned, the Legal Affairs Committee also noted that Article III-222 paragraph 9 in fine foresees the requirement of unanimity for Union accession to this convention, by derogation of the general rule of qualified majority in paragraph 9 phrase 1 relating to the EU entering into international agreements in general. This could make the fulfilment of the intention expressed in article I-7 unnecessarily difficult. Given that the expression of intention to join the ECHR is already foreseen in the Draft Constitution itself, the requirement of unanimity for merely implementing this intention does not appear to fulfil any additional protective function.

13.       The Legal Affairs Committee therefore welcomes the fact that the Political Affairs Committee has agreed to include in the draft resolution it is proposing a passage calling on the framers of the future Constitution to apply the same qualified majority requirement for the Union’s accession to the ECHR as for the conclusion of other international agreements.

B.       Amendment B (regarding the consequences of the “communitisation” of the “third pillar” for legal and other intergovernmental cooperation in the greater Europe)

14.       Part Three Title III Chapter IV – Area of Freedom, Security and Justice – foresees a number of new competences for the future European Union as a legal person that were previously left to intergovernmental cooperation (judicial cooperation in civil and criminal matters; police cooperation).

15.       In addition, Chapter V foresees new “areas where the Union may take coordinating, complementary or supporting action” (inter alia, public health; culture; education, vocational training, youth and sport; civil protection, and administrative cooperation).

16.       While it is true that Title III Chapters IV and V concern the internal relations among EU member countries and the European Union in the fields concerned, they also have an impact on relations with countries remaining outside the Union, and with the Council of Europe. Article III-216 paragraph 3 phrase 1 reads as follows: “Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and the competent international organisations.” It is likely – and this may not in itself be a negative development – that the Union, in its fields of competence, will gradually take the place of its member states in relation to third countries, and to international organisations, although Article III-216 para. 3 (in fine) of the Draft Constitution stresses that the Union’s competences “shall be without prejudice to Member States’ competence to negotiate in international bodies and to conclude international agreements.

17.       In these fields, the Council of Europe has built up over more than 50 years a network of multilateral conventions. These have contributed to the creation of an area of freedom, security and justice which is a common goal of the Council of Europe and the European Union. In this way, they form part also of a wider European acquis which forms the basis of cooperation covering the whole of the European continent, and beyond, with the Council of Europe’s observer states.

18.       For example, the conventional acquis in the criminal field comprises 25 treaties, including conventions on extradition, mutual assistance in criminal matters, on terrorism, on money laundering, and the transfer of sentenced persons.

19.       In recent years, the fight against corruption became one of the Council of Europe’s priorities. Two conventions, covering criminal law and civil law measures, aim at harmonising national laws and fostering international cooperation. This is but a particularly obvious example showing that cooperation in the legal field must not be limited to the member states of the European Union, present and future.

20.       Multilateral conventions concluded within the Council of Europe replace hundreds of bilateral treaties. They are flexible and allow even the participation of non-member states. The recent Convention on Cybercrime, for example, was signed by all four non-member States of the Council that had participated in its elaboration (Canada, Japan, South Africa and the United States).

21.       Even after the enlargement process currently under way, almost half of the states of Europe will remain outside the European Union. Therefore, the Council of Europe will remain the only truly European organisation in which all European states cooperate on an equal footing.

22.       An express reference to cooperation with the Council of Europe is included in the above-mentioned Chapter V of the Draft Constitution in relation to Culture (Article III-176 paragraph 3.), and to Educational, Vocational Training, Youth and Sport (Article III-177 paragraph 3.). Unfortunately, such references were omitted as regards the fields of legal cooperation, where the work of the Council of Europe is particularly important. Express references to the Council of Europe are also missing in the chapters dealing with cooperation in the social and public health fields, and in the general provisions dealing with the Union’s cooperation with third countries and international organisations (Article III-216) and on the Union’s possibility to enter into international agreements (Articles III-220 to 222).

23.       In view of the above, the Assembly should make the following additional recommendations aimed at further improving cooperation between the European Union and the Council of Europe:

i.       The Assembly should once again stress the importance of concrete cooperation between the European Union and the Council of Europe, in all fields of common interest, and in particular in the field of legal cooperation. Such cooperation could take the following forms:

ii.       The Assembly should therefore urge the European Council which will finalise the text of the Constitution to include express references to cooperation with Council of Europe also in the fields of legal cooperation as well as in those on social cohesion and health policies, and in particular to provide expressly for the conclusion of an association agreement between the European Union and the Council of Europe.

24.       These issues are the object of Amendment B.

Reporting committee: Political Affairs Committee

Committee for opinion: Committee on Legal Affairs and Human Rights

Reference to committee: Reference No 2846 of 23 June 2003 (request for urgent procedure)

Opinion approved by the committee on 24 June 2003

Secretaries to the committee: Ms Coin, Mr Schirmer, Mr Ćupina, Mr Milner


1 See Doc. 9846 tabled by the Political Affairs Committee.