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For debate in the Standing Committee see Rule 47
Pour débat ŕ la Commission permanente – Voir article 47 du Rčglement
Doc. 8331
15 February 1999
Examination of credentials of members of the Assembly
Report
Committee on Rules of Procedure and Immunities
Rapporteur: Mrs Pilar Pulgar, Spain, Group of the European People's Party
Summary
The Assembly decides to supplement its Rules of Procedure on credentials to specify that Representatives and Substitutes must be elected within the national or federal parliament or appointed from among the members of the national or federal parliament.
I. Draft resolution
1. The Assembly recalls that Article 25.a of the Statute of the Council of Europe was amended in October 1970 to make clear that Representatives and Substitutes of the Parliamentary Assembly must be members of their national parliaments.
2. Following Order No. 309 (1971), the wording and layout of the credentials form referred to in Rule 6, paragraph 1, of the Assembly’s Rules of Procedure were changed so that Representatives’ and Substitutes' membership of their national parliament was indicated.
3. The Assembly furthermore recalls that regional authorities are represented in the Congress of Local and Regional Authorities of Europe (CLRAE).
4. To avoid any possible doubt about the meaning of Article 25.a. of the Statute, the Assembly therefore decides to supplement the first sentence of Rule 6, paragraph 1, of the Rules of Procedure as follows:
«The credentials of the Representatives and Substitutes, elected within the national or federal parliament or appointed from among the members of the national or federal parliament, 1shall be sent to the President of the Assembly by the competent authorities of member states, if possible not less than one week before the opening of the session. »
II. Explanatory memorandum by Mrs Pulgar
Introduction
1. On 26 May 1998, the Bureau of the Assembly referred a motion for a resolution concerning Rule 6 of the Rules of Procedure on the examination of credentials to the Committee on Rules of Procedure (see Doc. 8103, Ref. 2285). In the Motion, Mr Gross and others focused on the fact that some member States were federal countries and that members of the Assembly from these States should be drawn only from the federal parliament.
2. In a letter addressed to the President of the Assembly on 17 July 1998, the Speakers of the Senate and of the Chamber of Representatives of Belgium asked for a considered opinion from the Assembly on their proposed reform of representation to the Parliamentary Assembly. In particular, they gave notice of their intention, following the next parliamentary elections in Belgium, to submit to the Assembly the credentials of members of the federal Chambers as well as of members of the community and regional assemblies which exist in Belgium (see Appendix).
3. The Committee on Rules of Procedure considered this matter at its meetings on 22 September and 10 November 1998 and approved the draft report and adopted the preliminary draft resolution at its meeting on 26 January 1999.
Relevant provisions of the Statute and of the Rules of Procedure
4. Article 25.a of the Statute of the Council of Europe provides as follows:
“The Consultative Assembly shall consist of Representatives of each Member, elected by its Parliament from among the members thereof, or appointed from among the members of that Parliament, in such a manner as it shall decide...”
5. Rule 6, paragraph 1, of the Rules of Procedure of the Assembly provides as follows :
« The credentials of the Representatives and Substitutes shall be sent to the President of the Assembly by the competent authorities of member States, if possible not less than one week before the opening of the Session... »
Interpretation of Article 25.a of the Statute
6. As a result of Assembly Recommendation 600 (1970), the Committee of Ministers approved an amendment of Article 25.a of the Statute on 14 October 1970. The amendment added the words « from among the members thereof, or appointed from among the members of that Parliament », which made it clear that Representatives must be members of their national parliament. In the explanatory report which led to the adoption of Recommendation 600, the following was stated : « In most countries, Representatives are required either by law or by practice to be members of their national parliaments. The amendment of the Statute would merely reflect an obligation accepted by member States. At the same time, its main purpose is to ensure that instances where members of the Assembly are not members of parliament should not be repeated.» (Doc. 2745)
7. Order No. 309 (1971) confirmed this view. In addition, it instructed the Secretary General « to change the wording and layout of the credentials forms referred to in Rule 6, paragraph 1, of the Rules of Procedure so that Representatives’ and Substitutes’ membership of their national parliament is indicated. »
Designation of national delegations to the Assembly
8. The Statute leaves it to national parliaments either to elect the members of their national delegations or to appoint them in accordance with whatever procedure the parliaments themselves have chosen. However, it is clear that seats in a parliamentary delegation must be divided between the national parliament’s political groups either on a proportional basis or on the basis of an agreement between the groups. In most of the bicameral national parliaments, there are rules on the distribution of seats between the two chambers. This pluralistic representation in national delegations was reinforced by an amendment of the Rules of Procedure agreed by the Assembly in November 1996 (see Doc. 7627 and Rule 6, paragraphs 5 and 6).
9. In addition, it should be recalled that there exists within the Council of Europe the Congress of Local and Regional Authorities of Europe (CLRAE) which represents the local and regional authorities. Its Chamber of Regions is composed of regional authorities such as the Swiss cantons, the German and Austrian Länder, the entities of the Russian Federation, the Italian regions, the Spanish autonomous communities and the Belgian regions. In a letter dated 29 April 1994 the Permanent Representative of Belgium to the Council of Europe stated that, as regards the Belgian delegation to the Chamber of Regions, “its exact composition will be determined by agreement between the federal entities of Belgium (regions and communities).
Structure and functioning of local and regional democracy in Belgium
10. A detailed study of the complex structure and functioning of federalism in Belgium would be beyond the remit given to this Committee by the Motion for a Resolution. It should suffice to give certain general characteristics. Useful information in this respect can be found in a report on the structure and functioning of local and regional democracy in Belgium drawn by the CLRAE in 1997.
11. According to Articles 1 to 3 of the Belgian Constitution, Belgium is a federal State composed of communities and regions. It comprises three communities (the French Community, the Flemish Community and the Germanophone Community) and three regions (the Wallon Region, the Flemish Region and the Brussels Region). As their name already indicates, their territorial basis is in effect linked to a linguistic region.
12. As regards the division of powers, the CLRAE report indicates that the communities and regions have powers in the areas of general administration, education, public health, social action, urbanism and housing, environment, culture, transport and economic services. All other powers remain with the Federal State. The report concludes that as long as the exclusive federal powers have not been exhaustively laid down in the Constitution, the residual powers will remain with the Federal State (see Article 35 of the Constitution).
13. An interim « legal opinion » drawn up by the Directorate of Legal Affairs of the Council of Europe on 13 September 1995 also dealt with the composition of the Belgian delegation to the Assembly. After pointing to the wording of Article 25 of the Statute, which seems to indicate that representatives should be members of the national parliament, it considered in particular whether, under the Belgian Constitution, the assemblies of the Belgian communities could be seen as constituent elements of the national parliament. It did not provide an answer to that particular question as this would have required a detailed comparative study of the situation in other federal States. However, it came to the conclusion that, in the last analysis, it was up to the Assembly to decide on the legitimacy of a Belgian delegation in case it included representatives from the communities, taking into account both the legal aspects (Article 25 of the Statute) and the political aspects. As there was no precedent, the Assembly would certainly be mindful of the fact that its decision on the particular case would constitute an important precedent for the future.
Proposed amendment to Rule 6
14. In the light of the above considerations and for the avoidance of any possible doubt about the meaning of Article 25.a of the Statute in the Rules of Procedure, it is proposed to supplement the first sentence of Rule 6, paragraph 1 as follows:
«The credentials of the Representatives and Substitutes, elected within the national or federal parliament or appointed from among the members of the national or federal parliament,2 shall be sent to the President of the Assembly by the competent authorities of member States, if possible not less than one week before the opening of the Session. »
Final remarks
15. The Assembly is invited to adopt the draft resolution, in particular the proposed amendment of Rule 6, paragraph 1, which should enter into force immediately.
APPENDIX
KINGDOM OF BELGIUM
FEDERAL LEGISLATIVE ASSEMBLIES
(Translation)
17.07.1998
The President of the Senate/President of the Chamber of Representatives
Re: Membership of the Belgian delegation to the Assemblies of the Council of Europe and the Western European Union
Dear Ms Fischer,
Article 1 of the Belgian Constitution stipulates that Belgium is a federal state composed of communities and regions. In addition to the federal chambers and federal government, Belgium also has community and regional governments and community and regional assemblies of elected representatives. Moreover, Belgian federalism is based on the following principles: (a) a division of power which is based mainly on the rule of
exclusivity - rather than concurrent powers - and which also applies at international level; and (b) equality in law between the three tiers - federal, community and regional - which precludes any hierarchy of legal standards.
On the basis of the aforementioned principles and features of Belgian federalism, we, together with the presidents of all the community and regional assemblies, consider it appropriate that after the forthcoming legislative elections due to take place in Belgium, the delegation to the Council of Europe and the Western European Union (WEU) Assemblies should in future comprise not only members of the federal chambers but also members of all the community and regional assemblies. Furthermore, the aforementioned delegation ought ultimately to be divided into a delegation to the Council of Europe Assembly and a delegation to the WEU Assembly. However, we consider that it is and remains best to grant voting rights in the WEU Assembly mainly and even exclusively to members of the Belgian federal chambers. In addition, the new membership of the Belgian delegation or delegations, including members of the community and regional assemblies, will continue to be communicated to the Council of Europe and WEU Assemblies by the Belgian federal chambers.
We should add that in accordance with a framework agreement concluded on 30 June 1994 between the federal, community and regional governments, these governments are already suitably represented, notably in the Council of Europe.
Finally, by way of comparison, we refer you to the representation of the Belgian community and regional assemblies since March 1997 in the Benelux Interparliamentary Advisory Council which, in accordance with Article 1 of the convention of 5 November 1955 setting up the Board, is composed of "49 members, 21 of whom are chosen among and appointed by members of the Belgian Parliament". Moreover, on 26 July 1996, the Benelux Committee of Ministers already stated in its reply to the Interparliamentary Council (CICB) "that (the Committee of Ministers considers it) unnecessary to amend the convention setting up the CICB, given that it guarantees a sufficient degree of flexibility (…). It is up to the Belgian parliamentary assemblies themselves to decide how they wish to be represented in the CICB" (Doc. No. 513/7, page 4).
Before the federal chambers and community and regional assemblies decide whether to modify the membership of the Belgian delegation in this way, we would like to have the reasoned opinion of the Parliamentary Assembly of the Council of Europe on this matter.
Thank you in advance.
Yours sincerely,
(signed) F SWAELEN
President of the Senate
(signed) R LANGENDRIES
President of the Chamber of Representatives
Reporting committee: Committee on Rules of Procedure and Immunities
Budgetary implications for the Assembly: none
Reference to committee: Doc. 8103 and Reference N° 2285 (1998)
Draft resolution adopted by the committee on 26 January 1999
Members of the committee: Mrs Pulgar (Chairperson), MM. Gjellerod, Mozetic, Blaauw (Vice-Chairpersons), MM. Andreoli, Averchev, Besostri (Alternate: Lorenzi), MM. Bianchi, Bilinski (Alternate: Mrs Smereczynska), Dias, Enright, Gehrecke, Sir Alistair Goodlad, Goovaerts, Goulet, Kandare, Kittis, Korakas (Alternate: Liapis), Kostytsky, Kresák, (Alternate: Tkác), Kroupa, Laakso, Mrs Lentz-Cornette, Magnusson, Maltsev, Mrs Markovic-Domova, MM. Michels, Minarolli, Nastase (Alternate: Mrs Ionescu), Mrs Ojuland, M. Pokol, Mrs Ragnarsdottir, MM. Rusu, Sandrier (Alternate: Neuwirth), Schieder, Seiler (Alternate: Gross), Silay, Simonsen, Sinka, Vis, Yordanov.
N.B. The names of members who took part in the vote are printed in italics.
Secretary of the committee: Mr Schade.
1 See Article 25 of the Statute.
2 See Article 25 of the Statute.