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1 December 1995
Doc. 7434
COMMUNICATION FROM THE COMMITTEE OF MINISTERS
Interim Reply to Recommendation 1267 (1995)
on the general policy of the Council of Europe
and
Recommendation 1279 (1995)
on the 1996 Intergovernmental Conference
of the European Union
(adopted by the Committee of Ministers on 22 November 1995
at the 550th meeting of the Ministers' Deputies)
1. The Committee of Ministers have studied with care Recommendation 1267 (1995) on the general policy of the Council of Europe and Recommendation 1279 (1995) on the 1996 Intergovernmental Conference of the European Union.
2. Following a first examination in May 1995 of Recommendation 1267 (1995), the Ministers' Deputies decided to transmit it to governments. With regard to the proposals concerning the 1996 Intergovernmental Conference, they prepared, taking account of the Assembly's reports and debates, including that held on 27 September 1996 at which Recommendation 1279 (1995) was adopted, a document on the "Place and role of the Council of Europe in European construction, with the prospect of the European Union's 1996 Intergovernmental Conference (IGC)" (document CM(95)128 revised) appended to this reply. This document, to which Recommendation 1279 (1995) was appended, was officially transmitted to the Chairman of the Reflection Group preparing the Intergovernmental Conference, and included in the files of the 97th Session of the Committee of Ministers (Strasbourg, 9 November 1995). On this occasion, the Ministers noted with satisfaction the spirit of co-operation which had motivated the Council of Europe inputs to the European Union's preparations.
3. The Committee will reply in due course to the detailed points raised in the the two Recommendations.
APPENDIX
Strasbourg, 19 October 1995 CM(95)128 revised
PLACE AND ROLE OF THE COUNCIL OF EUROPE
IN EUROPEAN CONSTRUCTION, WITH THE PROSPECT OF THE
EUROPEAN UNION'S 1996 INTERGOVERNMENTAL CONFERENCE (IGC)
Considerations which the Ministers' Deputies
wish to bring to the attention of
the Reflection Group
The Council of Europe and the Intergovernmental Conference.
The reasons for interest
Although profoundly different, and each following its own logic, the Council of Europe and the European Union have a similar overall purpose: to continue building a stable, democratic and prosperous Europe in a context radically altered by the collapse of communism. With this prospect, one of the concerns shown during the preparatory work for the Intergovernmental Conference is to make enlargement of the European Union possible.
This is why the Ministers' Deputies are anxious to put a number of considerations to the Reflection Group responsible for preparing the European Union's Intergovernmental Conference. These considerations are intended to promote greater cohesion of the European institutional system in the long term.
They coincide, if only partly, with the points already made by the Parliamentary Assembly in Recommendation 1279 (1995), adopted on 27 September 1995, which the Deputies have decided to append (Appendix 1) to this document, so that the Reflection Group chaired by Mr Westendorp can have maximum information to work from.
The Council of Europe in European construction. A specific mandate. Points of contact with the dynamics of the European Union
The aim of the Council of Europe is to "achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage" (Statute, Article 1), and on which European construction is based: democracy, human rights, including the protection of national minorities, the rule of law and a common cultural heritage enriched by its diversity. Another aim is to facilitate "their economic and social progress" (same Article).
Under the policy of enlargement pursued since 1990, much of this is now being done as part of an overall European strategy aimed at creating a vast area of security. Enhancing the political role of the Organisation, enlargement opens the way for integrating the new Members into European construction. It encourages the development of democratic institutions and respect for human rights and the rule of law in Europe as a whole. In this way, the Council of Europe contributes to the reinforcement of democratic security.
Intergovernmental co-operation between all the member States on an equal footing is at the centre of its action. This has a two-fold purpose: to enrich the joint heritage referred to above, and to find political and, if possible, legal solutions to a set of common challenges which lend themselves particularly well to action at greater European level.
These challenges partly concern questions of freedom and security which, as a result of the Maastricht Treaty, are now dealt with by the Union (Justice and Home Affairs) as well: treatment of refugees and migrants, international co-operation against crime and drug dependency, legal co-operation in civil matters, etc. In these fields, the Council of Europe has built up an extensive network of conventions. Working relations with the Union might usefully be developed here.
Co-operation also encompasses culture and education, health, some social policies, protection of the natural and manmade environment, regional planning and transfrontier co-operation. In some of these fields, in which the Community is also active, working relations exist with the Union.
Safeguarding human rights in Europe
Human rights protection lies at the heart of the Council of Europe's action.
Exceptionally, its approach in this field is aimed at integration, since the central instrument, the European Convention on Human Rights has the originality of giving competence to a supranational body - the Court - to take decisions directly binding on member States, which are required to accede to the Convention without delay.
The Preamble to the Single European Act and Articles F2 and K2 of the Treaty on the European Union refer to the Convention.
The Convention must remain an essential reference point, in terms both of rights guaranteed and its judicial mechanisms, for the protection of human rights in Europe as a whole.
It is in this context that consideration of the possibility of the Community's acceding to the Convention and its protocols might be placed. The Parliamentary Assembly is in favour of such an option, and the President of the European Court of Human Rights, Mr Rolv Ryssdal, also supported the idea at the end of a paper (appended), which he delivered at a recent round table (Appendix 2).
It will be remembered that the Council of Europe has introduced several other instruments for the protection of human rights. These are based on co-operation, rather than integration, and involve more or less ambitious supervision procedures. They are:
- the European Social Charter, also referred to in the Preamble to the Single European Act;
- the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment;
- the Framework Convention for the Protection of National Minorities, which is not yet in force.
These instruments constitute basic texts of reference for the protection of human rights in Europe.
The European Union and the Council of Europe : a reinforced partnership
There are many fields in which both the European Union and the Council of Europe are active, and this has been particularly true since the Single European Act and the Treaty on European Union.
Increased co-operation between the two institutions is thus essential. Allowing for the difference in their natures, such co-operation will try to take maximum advantage of the ways in which they complement each other and to promote a better use of resources.
From co-ordination to the setting up of joint programmes or even agencies, reinforced partnership would make for better exploitation of the more notable achievements of European co-operation in central fields of the Council of Europe's action, such as the protection of human rights, the promotion of democracy and the rule of law, legal co-operation, development of a European legal area, migration, and also education and culture, which are vital elements in bringing all Europe together, while respecting its diversity. Co-operation would also continue on certain more specialised topics, such as medicaments, drug dependency and social security. It might also include some evaluation exercises and initiatives of a political nature aimed at guaranteeing democratic security and bringing the central and eastern European countries into the European system.
Partnership between the two institutions is at present based on Article 230 of the Rome Treaty and on Articles 126, 128, 129 and 130 of the Treaty on the European Union. This legal basis needs to be expanded to permit co-operation in all areas of European Union action which lend themselves to it, including justice and home affairs.
Without prejudice to the solutions which might be found regarding the legal personality of the Union, an article could be imagined, inspired by the present Article 230 of the Treaty of Rome, providing that the Union shall establish all appropriate forms of co-operation with the Council of Europe.
Considerations concerning the revision of this Article 230 are contained in the Recommendation of the Parliamentary Assembly.
For its part, the Committee of Ministers has already suggested that the 1987 Arrangement between the Council of Europe and the Commission of the European Community should be revised, and discussion of this question is getting under way.
On this new and broader legal basis, quadripartite meetings could provide the necessary impetus for inter-action, whenever possible and desirable, between integration/co-operation within the Union and co-operation within the Council of Europe.
Appendix
Cour (95) 261
ROUND TABLE ON THE DEVELOPING ROLE
OF THE EUROPEAN COURT OF JUSTICE
Brussels, 12 May 1995
Address by Mr Rolv Ryssdal,
President of the European Court of Human Rights
Ladies and gentlemen,
May I first thank the organisers of the round table for inviting me to address such a distinguished gathering. I was honoured to be asked, but it was not without some hesitation that I accepted, because, as President of the European Court of Human Rights, I am somewhat reluctant to comment on the role of the Court of Justice of the Communities, except in so far as its activity extends into the sphere of action of my own Court. You will therefore understand that my comments are confined essentially to the topic to be addressed in your first session. That being said, your invitation and the decision to take that topic first indicates the importance which you attach to human rights protection and its relevance to any discussion of the future of the European Union and its institutions.
Next year the Member States of the European Union are to hold the Intergovernmental Conference for the revision of the Treaty on European Union signed at Maastricht. One of the areas to be discussed will be that of human rights protection within the Union, a problem that has been a preoccupation of the European Communities since their very early days.
The issue facing the Union today is, as I understand it, not whether to protect human rights, but how best to do so. It is to the credit of the member States, which have all accepted the European Convention on Human Rights and its control mechanism, that they have placed on the agenda of their institutional conference the question of effective human rights protection.
1. The European Community has frequently expressed its commitment to human rights, in particular since the German Constitutional Court, concerned about a possible curtailment of citizens' rights and freedoms under Community law, initiated with its well-known "Solange Beschluss" of 25 May 1974 discussion as to human rights protection in respect of Community action. In their Joint Declaration of 5 April 1977 the European Parliament, the Council and the Brussels Commission proclaimed "the prime importance they attach to the protection of fundamental rights as derived in particular from the constitutions of the member States and the European Convention on Human Rights". This statement of principle was reaffirmed in the Preamble to the Single European Act and again in Article F paragraph 2 of the Treaty on European Union; in both of these instruments express reference is made to the European Convention. However, this recognition of the Convention is not regarded as having led to the incorporation of the Convention into the legal order of the Community. This means that while today all the Community member States are Parties to the Convention, the Community itself is not. Consequently, whatever the status of the Convention in the Community's legal system, no action for alleged violation of the Convention may be brought before the Convention institutions against the Community itself.
2. Initially the lack of specific protection of human rights and freedoms in the European Community was not perceived to be particularly serious as, given the relatively limited scope of the Community's field of action, confined essentially to economic matters, the risk of the Convention's protection being denied to citizens as a result of the transfer of power to the Community, seemed minimal. However, as the Community's role expanded into different areas, the potential for Community law to encroach on citizens' rights increased. The Court of Justice was quick to recognise this and through a series of cases established a practice of referring to the Convention for guidance.
Thus in Stauder v. Stadt Ulm1 the Court of Justice acknowledged that "fundamental rights form an integral part of the general principles of law, the observance of which [the Court] ensures". This was followed by the Internationale Handelgesellschaft2 and Nold3 cases which consolidated the Court of Justice's practice of deriving its competence to address human rights issues from the general principles of law. In its judgment in the 1975 Rutili4 case the Court of Justice referred expressly to the European Convention on Human Rights. In a number of cases since then the Court of Justice has pursued the same approach, applying the Convention and the Strasbourg case-law through the notion of general principles of law.
3. So the Community in general and the Court of Justice in particular have taken steps to meet the challenge of adapting the Community system to take account of the needs of human rights protection and they have done this through a process of constantly referring to the European Convention on Human Rights. Yet the situation remains unsatisfactory. The citizens of the member States cannot take legal proceedings directly against the Community before the European Commission and Court of Human Rights. The Court of Justice applies human rights standards guaranteed under the Convention indirectly, but the danger of doing so in a way which conflicts with the authoritative interpretation and application of the Convention by the European Court of Human Rights exists and may increase. Human rights protection within the Union may be effective, but it lacks the solid legal basis which might be expected of a "community based on the rule of law".
4. This problem has provoked much debate. Broadly speaking three solutions have been canvassed: (a) the continuation of the Court of Justice's practice of relying indirectly on the Convention; (b) the elaboration and adoption by the Community of its own human rights catalogue; and (c) the accession of the Community to the European Convention on Human Rights.
(a) The first solution, "la solution prétorienne", is in effect the preservation of the status quo. The Court of Justice, so the argument goes, in practice applies the Convention in a way that ensures that the Community citizen is adequately protected. There is some strength in this argument. I would not wish to detract from the important role the Court of Justice has played over the years since the Stauder decision. There are, however, inherent weaknesses in this approach.
In the first place there is a difference between applying standards de facto and being bound by them de jure. However willing the Court of Justice may be to follow the Convention, it is not obliged in law to do so. Clearly it would be more appropriate for a community professing democratic ideals and the dedication to the promotion of the rule of law to bind itself to a catalogue of fundamental rights rather than relying on a de facto practice, however well observed.
There is in addition, as I have already said, a risk of divergent interpretation and application of the Convention as between the Luxembourg and Strasbourg Courts, which could ultimately lead to inconsistent lines of case-law. This would in turn create problems for the national courts seeking to apply the Convention, which, as you know, has been incorporated into the legal systems of the overwhelming majority of the Convention States. There is after all a difference of approach between the two courts, which is well-illustrated by judgments from each court.
In the Hoechst5 judgment of 21 September 1989 the Court of Justice declined to extend the protection of Article 8 of the Convention, which guarantees a person's right to respect for his home and correspondence, to business premises. In doing so, it expressly observed that there was no Strasbourg case-law on this point, although it could, in my view, have referred to the Chappell6 judgment of 30 March 1989 in which the Strasbourg Court had applied Article 8 in connection with an order to search the applicant's business premises, which were in fact also his home. Three years later the Strasbourg Court found Article 8 to be applicable in the Niemietz7 case, which involved the search of a lawyer's office in connection with criminal proceedings against a third party. These judgments are an indication that the scrutiny effected by the Luxembourg Court may be different from that of its Strasbourg counterpart.
Perhaps an even more telling example is to be found in the Grogan and Others8 case decided by the Court of Justice on 4 October 1991. The case concerned the dissemination in Ireland of information regarding abortions lawfully carried out in the United Kingdom. The Court of Justice approached the case from the point of view of the provision of services within the meaning Article 60 of the EC Treaty, finding that the link between the service and those providing the information was too tenuous for the injunction restraining its dissemination to be regarded as a restriction on the freedom to supply services (Article 59 of the EC Treaty). Despite being invited to do so by the Advocate General, the Court of Justice declined to consider whether an issue was raised under Article 10 of the Convention, which guarantees the freedom to impart information. When similar facts came before the Court of Human Rights in the Open Door and Dublin Well Woman9 case, it held that the injunction granted by the Supreme Court of Ireland restraining the applicants from imparting or receiving information amounted to a breach of Article 10. The difference of approach is hardly surprising given that one court has responsibility for protecting the operation of the common market, while the other is charged with protecting fundamental rights. At the same time, these judgments are a clear indication of the need for a specialised court to deal with human rights issues. As the Community powers expand into new areas where such issues are more and more likely to arise, the Court of Justice's current pragmatic, piecemeal approach may prove increasingly unsuitable.
(b) I now turn to the second solution. Ladies and gentlemen, the adoption by the Community of its own catalogue of human rights would on the face of it appear to be a move in the right direction. There are, however, a number of problems related to this solution.
Firstly, I think it would be hard to underestimate the political difficulty of securing agreement to a new catalogue of human rights affording an acceptable level of protection. When the European Convention was opened for signature in 1950, the memories of the horrors of the previous two decades were still sufficiently fresh in everyone's minds. Experience has shown since then that, without that impetus, Governments are reluctant to concede further - or indeed even the same - ground in this area.
Secondly there is an evident danger in the proliferation of human rights protection instruments. The member States of the Community are already subject to the European Convention. The addition of another catalogue would increase the risk of divergent case-law and standards and thus create distinctions in an area where common standards are essential. A problem inherent in this approach is the risk that it would re-erect the sort of invisible barriers in Europe that both the Community and the Council of Europe have long striven to dismantle. Do we really want to see a two-speed Europe of human rights?
(c) There are therefore drawbacks to both the solutions discussed above, but neither are wholly incompatible with the third solution, which is the one that appears to me to present the most advantages.
The accession of the Community to the European Convention on Human Rights is not a new idea. As early as 1979 the Brussels Commission raised the matter in a memorandum designed to encourage discussion of the issues involved. In this the Commission was successful, but the suggestion did not meet with enthusiasm on the part of all the member States. The idea was not, however, entirely extinguished and in November 1990 the Commission revived the question by a communication to the Council seeking authority to negotiate accession. Since then the European Parliament has adopted a resolution pressing for accession (January 1994) following a favourable report by the Committee on Legal Affairs and Citizens' Rights (the Bontempi report). In April 1994 the Council of Ministers requested the Court of Justice for an opinion on whether the accession of the Community to the Convention would be compatible with the Treaty establishing the European Community.
What are the arguments for and against?
(i) It has been suggested that the main argument in favour of the Community's accession is its symbolic importance. I would not dispute that such a move would be of great symbolic significance in terms of the message it would send out to a world in which human rights protection and particularly such protection through regional treaties has a crucial role to play. By illustrating the Community's commitment to human rights protection not only within its borders, but also for the wider European community and beyond, it would help to anchor the younger democracies, particularly those for whom membership of the Community is a far-off prospect, in the fellowship of democratic law-governed States. As the Community lays more and more emphasis in its relations with non-member countries on the need to respect human rights, it would be seen to be leading the way by binding itself to the Convention.
There are, however, more concrete benefits to be gained from accession. Accession would provide the constitutional basis for the protection of human rights within the Union which has been lacking hitherto and with it an increase in legal certainty. It would compel the Union's legislative and executive authorities to have regard to potential human rights issues before adopting a particular course of action. It would prevent the Court of Justice from developing case-law on human rights which is inconsistent with the Strasbourg jurisprudence. Above all it would open the way for the Union's citizens to seek redress in Strasbourg in respect of Community measures. Thus the Community's autonomous legal system would be subject to the same external scrutiny as the legal systems of its member States.
(ii) There is no doubt in my opinion that Community law will in any event come under review by the European Court of Human Rights whether the Community is a party to the Convention or not, and this too argues in favour of the Community's acceding to the Convention. There are at least two situations where the Convention institutions may have to consider Community law.
First, a member State of the Community may, under certain circumstances, be brought before the Convention institutions on account of a Community decision or measure which is alleged to be incompatible with the European Convention on Human Rights. It is difficult to accept that the Contracting States of the Convention should be able to shed their Convention obligations simply by transferring certain of their competences to the Community. In a decision of 9 February 1990 on the admissibility of an application10 filed by a company against Germany the European Commission of Human Rights considered, correctly in my opinion, that a transfer of powers does not necessarily exclude a State's responsibility under the Convention with regard to the exercise of the transferred powers. The application concerned a writ issued by the German authorities for the execution of a judgment of the Court of Justice requiring the applicant company to pay a fine for having violated Article 85 of the EC Treaty. The applicant company had submitted essentially that in its case the Luxembourg Court had breached the principle of the presumption of innocence and the right of every accused to defend himself in person, rights guaranteed by Article 6 §§ 2 and 3 c) of the Convention. The Commission found the application to be inadmissible in so far as the Court of Justice, in the exercise of its jurisdiction to review Community measures with reference to human rights standards, had found that the applicant company had received a fair hearing. This shows - although the Commission declared the application incompatible ratione materiae with the Convention rather than manifestly ill-founded - that a route to the European Commission and Court of Human Rights does exist for an applicant who complains of a breach of his human rights by a member State deriving from a legal act or measure of the European Community.
The second situation in which the Community might come within the field of review of the European Commission and Court of Human Rights is where reference is made in the Convention to the "law" of the Contracting States, because Community law is domestic law in the member States of the European Community. Lawfulness of detention, lawfulness of interferences with the right to respect for private and family life, with the freedoms of thought, conscience and religion, of expression, of peaceful assembly and of association or with the right of property - these are some of the areas where the Commission and Court in Strasbourg have to examine whether the measure complained of has a basis in domestic law. In such cases the European Court of Human Rights will not only have to satisfy itself that the competent national authorities complied with Community law where this was the legal basis for the measure complained of; it may also have to consider whether the relevant Community law, as applied by a Community member State, itself meets the standard required under the European Convention for legal provisions permitting regulation of or interference with the guaranteed rights and freedoms.
(iii) Set against, what appear to me to be, very strong arguments in favour of accession, there are a number of objections which naturally merit attention. I do not have the time here to go into the detail of the technical issues. Suffice it to say that there seems now to be general agreement that if the political will can be found, the legal complexities of accession are unlikely to prove insurmountable. In addition the situation has evolved since the matter was first raised and a number of the technical objections no longer appear relevant. Thus as regards the legal basis for accession, since Maastricht it can no longer seriously be contended that human rights do not constitute one of the Community's objectives within the meaning of Article 235 of the EC Treaty. Equally the impending reform of the Convention machinery through Protocol No. 11 will remove some of the obstacles. For instance the problem posed by the possibility of cases being determined by the Committee of Ministers of the Council of Europe will no longer exist. There will no longer be any question concerning acceptance of the right of individual petition, which becomes compulsory under the Protocol (Article 34). Furthermore Strasbourg proceedings should become shorter. Of course technical problems remain, but I repeat, they now appear to be outweighed by the advantages.
It is feared that accession would be a threat to the jurisdictional autonomy of the Court of Justice guaranteed under Article 164 of the EC Treaty. Well, accession would entail the Court of Justice being bound, in theory as in practice, by the Convention as applied and interpreted by the European Court of Human Rights, as indeed are the Supreme Courts and the Constitutional Courts of the Convention States. But the Court of Human Rights is not a court of appeal. As the Court has frequently declared, the Convention machinery is of a subsidiary nature. It is primarily for the national authorities, particularly the courts, to ensure that the Convention standards are complied with and in this respect they have a certain "margin of appreciation". This would apply equally to the Community authorities and the Court of Justice.
In its Opinion on the European Economic Area Agreement (Opinion No. 1/91, December 1991), the Court of Justice accepted the principle that "the Community's competence in the field of international relations and its capacity to conclude international agreements necessarily entails the power to submit to the decisions of a court which is created or designated by such an agreement as regards the interpretation and application of its provisions". We await its opinion on the compatibility with the EC Treaty of Community accession to the Convention.
It is further argued that the Convention standards are not designed to meet the Community's needs. As I said at the beginning of my address, initially there was little overlap. This situation has changed dramatically as Community legislation moves into areas such as data protection, consumer rights, the environment and so on. It is true that the Convention's catalogue of rights and freedoms are limited and are not always adapted to the myriad complexities of modern life. The Court however regards the Convention as a "living instrument", a technique which enables it to interpret the Convention standards in the light of present day conditions11. There also exists the possibility of extending the catalogue through the adoption of further additional protocols, notably to protect economic and social rights and the rights of national minorities. Indeed, as Mr Bontempi, the European Parliament's rapporteur, suggested, it would be possible for the Community to act as a driving force behind the adoption of new protocols.
5. Ladies and gentlemen, the next few years are crucial ones for Europe. It will be a time of challenges and opportunities. The Intergovernmental Conference will define the contours of the Community's future development. At the same time the reform of the Convention system will produce a streamlined and efficient control mechanism, better equipped to deal with the needs of the end of the century and to assume full responsibility for human rights protection in Europe. As such its task will be entirely complementary to that of the Court of Justice. In this context the Community's accession to the Convention would appear a logical step forward. It would strengthen both the Community and the Convention and, Ladies and Gentlemen, post cold-war Europe needs a strong Community and a strong Convention. It needs a strong Court of Justice and a strong Court of Human Rights.
I thank you for your attention.
1 1 [1969] ECR 419.
2 2 [1970] ECR 1125,1134.
3 3 [1974] ECR 491, 507.
4 4 [1975] ECR 1219.
5 1 [1989] ECR 2859.
6 2 Series A 152-A.
7 3 Niemietz v. Germany, 16.121992, Series A no.251-B.
8 4 [1991] ECR 4685.
9 1 Open Door and Dublin Well Woman v. Ireland, 29.10.92, Series A no. 246.
10 1 Application no. 13258/87, M. & Co. v. the Federal Republic of Germany, Decisions and Reports, vol. 64, p. 138.
11 1 See for example the cases of Marckx v. Belgium, 13.6.79, Series A No. 31, and Burghartz v. Switzerland, 22.2.94, Series A. no. 280-B.