Committee Opinion | Doc. 14862 | 08 April 2019
Establishment of a European Union mechanism on democracy, the rule of law and fundamental rights
Committee on Legal Affairs and Human Rights
A. Conclusions of the committee
(open)
Recommendation 2027 (2013) “European Union and Council of Europe human rights agendas:
synergies not duplication”, and Resolution 1756 (2010) and Recommendation
1935 (2010) on the need to avoid duplication of the work of the
Council of Europe by the European Union Agency for Fundamental Rights, as
well as an Opinion on the report behind Resolution 1836 (2011) on the impact of the Lisbon Treaty on the Council of
Europe. The
committee has welcomed the synergies developed between the European
Union and Council of Europe bodies and the good co-operation with
the European Union Fundamental Rights Agency (FRA). At the same
time, it stressed that the expansion of the European Union’s activities
into areas covered by the statutory mandate of the Council of Europe
and touching upon democracy, human rights and the rule of law created
risks of overlap and unnecessary duplication of work.B. Proposed amendments
(open)Amendment A (to the draft resolution)
At the end of paragraph 1, add the following sentence:
“Following a lack of action by the competent European Union institutions, the European Parliament, in a resolution of 14 November 2018 reiterated its call for establishing such a mechanism without delay”.
Amendment B (to the draft resolution)
In paragraph 4, third sentence, replace
“that this set of shared core values and principles is not interpreted independently either by the European Union or the Council of Europe”
by
“ensuring that this set of shared core values and principles is interpreted in a coherent way”.
Amendment C (to the draft resolution)
In paragraph 6, first sentence, after “under the 2007 Memorandum of Understanding”, add the following:
“the co-operation between both organisations will be based on “the principles of indivisibility and universality of human rights, respect for the standards set out in this field by the fundamental texts of the United Nations and the Council of Europe, in particular the Convention for the Protection of Human Rights and Fundamental Freedoms, and the preservation of the cohesion of the human rights protection system in Europe”. Moreover,”
Amendment D (to the draft resolution)
In paragraph 9, replace “various European Union rule of law monitoring and enforcement mechanisms have been established” by “some European Union rule of law monitoring mechanisms have been triggered and other initiatives aimed at monitoring respect for the rule of law have been taken”.
Amendment E (to the draft resolution)
At the end of paragraph 12, add the following sentence:
“It recalls, in line with its previous recommendations, that unnecessary duplication of work in the field of human rights, the rule of law and democracy shall be avoided.”
Amendment F (to the draft resolution)
At the end of paragraph 13.1, replace “opinions and/or conclusions of the relevant Council of Europe advisory or monitoring bodies” by “recommendations, opinions and/or conclusions of other relevant Council of Europe bodies”.
Amendment G (to the draft recommendation)
In paragraph 5, after “Council of Europe expert bodies” delete “on the basis of standards common to both organisations”.
C. Explanatory memorandum by Lord Richard Balfe, rapporteur for opinion
(open) The Memorandum
of Understanding also contains detailed provisions concerning arrangements for
co-operation between both organisations. All its provisions should
be taken into account by European institutions when launching and
implementing any initiative in this field. It also called on member
States of the Council of Europe which are also member States of
the European Union to exercise their influence in such a way as
“to avoid any unnecessary duplication of work in the field of democracy,
human rights and rule of law” and to re-open as rapidly as possible
the negotiations on the accession of the European Union to the European
Convention on Human Rights, to give high political priority to this
issue. The Assembly also welcomed the European Commission’s
proposal of 2014 on “A new European Union Framework to strengthen
Rule of Law” and invited the European Union to make use of the Council
of Europe’s relevant expertise and to inform it of any subsequent
developments. The report by Mr McNamara, on which Resolution 2041 (2015) was based, also took stock of the already existing “fragmented”
tools such as the European Union Anti-Corruption Report, the EU
Justice Scoreboard, the Co-operation and Verification Mechanism
(for Bulgaria and Romania) and certain annual reports prepared by
European institutions and agencies. On 13 November 2018, the European Parliament
adopted a Resolution
on the rule of law in Romania expressing concern about the recently adopted Romanian
criminal legislation which could potentially undermine judicial
independence and the rule of law. On 15 November 2017, it also adopted
a Resolution
on rule of law in Malta and on 28 March 2019 – a Resolution on
“Situation of rule of law and fight against corruption in the EU,
specifically in Malta and Slovakia”. In May 2018, the European Commission published a proposal
to make European Union funds conditional on the sound functioning
of the rule of law as a part of its Multiannual Financial Framework
package 2021-2027. Very recently, on 19 March 2019, Germany
and Belgium presented to the General Affairs Council an initiative
to set up a regular (annual) peer review mechanism on the rule of
law. Therefore, European institutions
continue to launch various initiatives based on different paradigms
in order to “discipline” European Union member States. The Assembly’s Committee on Legal
Affairs and Human Rights is currently preparing reports on rule
of law-related issues in Poland and in Malta. Moreover, in its Resolution 2187 (2017) on the Venice Commission’s Rule of Law Checklist, the
Assembly endorsed the latter document and invited the Council of Europe
and the European Union to refer regularly to it. Several times, the European Commission
for Democracy through Law (Venice Commission) has delivered – often
at the request of the Assembly – critical opinions on the developments
concerning judicial and other issues related to the rule of law
in Poland, Hungary, Romania, Malta and Bulgaria. These opinions
have been used by the European Union in assessing compliance with
rule of law standards by these countries.1. Explanatory notes
1.1. Amendment A (to the draft resolution)
The implementation of the European Parliament’s resolution of 25 October 2016 requires an interinstitutional agreement between the European Parliament, the European Commission and the Council of the European Union. As neither the European Commission nor the Council has responded to this proposal, in another resolution of 14 November 2018 on the “Need for a comprehensive Democracy, Rule of Law and Fundamental Rights mechanism”, the European Parliament regretted that such an agreement had not been concluded and called again for “a comprehensive, permanent and objective EU mechanism for the protection of democracy, the rule of law and fundamental rights”. It also stressed that such a mechanism “is more urgently needed now than ever before” (see also paragraph 87 of Ms De Sutter’s report).
1.2. Amendment B (to the draft resolution)
According to the Memorandum of Understanding, the Council of Europe “will remain the benchmark for human rights, the rule of law and democracy in Europe” (paragraph 10). The current wording of the sentence in question in paragraph 4 of the draft resolution gives the impression that the Council of Europe, which has been set up to protect and promote these values, should not (sic!) interpret them independently, which if nothing else would preclude the European Court of Human Rights from exercising its role under the European Convention on Human Rights. Moreover, the Memorandum of Understanding often uses the term “coherent” (see in particular its paragraph 16 referring to “cohesion of the human rights protection system in Europe” and paragraph 24 referring to “ensuring coherence between Community and European Union law and the standards of Council of Europe conventions” in the context of the rule of law and legal co-operation). Therefore, it would be better to speak about ensuring a “coherent” interpretation of the shared values and principles.
1.3. Amendment C (to the draft resolution)
It is important to add a reference to the wording of paragraph 16 of the Memorandum of Understanding between the Council of Europe and the European Union, as this provision puts emphasis on the indivisibility and universality of human rights, the need to respect the European Convention on Human Rights and preserve the cohesion of the human rights protection system in Europe.
1.4. Amendment D (to the draft resolution)
As indicated in paragraph 9 of the draft resolution, the measures taken by the European Union to ensure compliance with the rule of law by its member States were based on “different paradigms”, differed in their nature and their coercive effects and were taken by different EU institutions. Those measures include, on one hand, more structured mechanisms (such as the Rule of Law Framework of the European Commission or the Co-operation and Verification Mechanism Reports on Romania and Bulgaria), and political actions such as resolutions of the European Parliament or discussions in the General Affairs Council.
1.5. Amendment E (to the draft resolution)
This amendment is aimed at underling the need to avoid unnecessary duplication of work between the European Union and the Council of Europe, as stressed, in particular, in the Assembly’s Resolution 2041 (2015), Resolution 1756 (2010) and Recommendation 2027 (2013).
1.6. Amendment F (to the draft resolution)
When speaking about the implementation of the Council of Europe’s standards, it is necessary to mention not only its opinions and conclusions, but also its recommendations. Moreover, the term “the relevant Council of Europe advisory or monitoring bodies” could be replaced by a broader term “other relevant Council of Europe bodies” to include explicitly bodies like the Commissioner for Human Rights or the Congress of Local and Regional Authorities of the Council of Europe.
1.7. Amendment G (to the draft recommendation)
The sentence in question refers to the assessments provided by various Council of Europe expert bodies and those bodies refer mainly to Council of Europe’s standards (although they also refer to pertinent international standards), which are sometimes very detailed. Although the European Union shares the same values as the Council of Europe (see Article 2 of the Treaty on the European Union), it does not have the same tasks and expertise as the Council of Europe and therefore has relied on the latter’s conclusions in assessing the rule of law situation in some of its member States (for example, Hungary and Poland).