21 January 2003
Contribution of the Council of Europe to the Constitution-making process of the European Union
Political Affairs Committee
Rapporteur: Mr Theodoros Pangalos (Greece, SOC)
The work of the Convention on the future of Europe gives new impetus to the process of European construction and constitutes an opportunity for wide-ranging debate on the future of European political integration, to which the Council of Europe and its Parliamentary Assembly have always been committed. The Assembly hopes that this exercise will result in a great European design, commensurate with the challenges of the Laeken Declaration, and will pave the way for a European Constitution, which it earnestly desires.
The Council of Europe’s involvement in this exercise of reflection is essential because the Union, given the deepening and expansion of its tasks since the Treaty on European Union (Maastricht, 1992), now operates in fields (area of freedom, security and justice, fundamental rights, certain aspects of common foreign and security policy) where the Council of Europe’s expertise is undisputed. The Convention should therefore take into account, in its revision of the existing treaties, the Council of Europe's structures and work.
Among other measures, the rapporteur proposes that the Parliamentary Assembly calls on the European Union, on the one hand, to incorporate the European Convention on Human Rights in the future constitutional treaty to strengthen the legally-binding mechanisms for the protection of human rights in Europe and, on the other hand, to bear in mind and include in the future constitutional treaty the Council of Europe's conventional acquis so as to put in place a coherent legal order.
I. Draft Resolution
1. The work of the Convention on the future of Europe gives new impetus to the process of European construction and constitutes an opportunity for wide-ranging debate on the future of European political integration, to which the Council of Europe and its Parliamentary Assembly have always been committed.
2. The Assembly hopes that this huge consultation exercise will result in a great European design, commensurate with the challenges of the Laeken Declaration, and will pave the way for a European Constitution, which it earnestly desires.
3. In this respect, the Assembly congratulates the Convention Praesidium which, eight months after beginning work, submitted a preliminary draft treaty establishing a Constitution for Europe at the plenary session of 28 and 29 October 2002.
4. This future Constitution must in any case include a section on fundamental rights. The Assembly accordingly favours the inclusion of the European Union's Charter of Fundamental Rights in the basic treaty and the accession of the European Union (once it has acquired legal personality) to the European Convention on Human Rights (ECHR) to strengthen the legally-binding mechanisms for the protection of human rights in Europe. The Assembly is convinced that effective protection of human rights continent-wide can be achieved solely if the Union's institutions and organs are bound not only by the Charter but also by the ECHR.
5. The Assembly considers that accession to the ECHR 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 the Court of Justice of the European Communities, on the other hand. It will make it possible for anyone coming within the jurisdiction of a Union member state to lodge a direct application with the Court of Human Rights in Strasbourg and thereby verify the compatibility with the European Convention on Human Rights of decisions taken under the Union's legal system, in the same way as those taken under the national legal systems.
6. In addition, the Assembly points out that the Council of Europe and the European Union share the same values and pursue common objectives with regard to the protection of democracy, respect for human rights and fundamental freedoms and the rule of law. Moreover, by fostering multicultural and inter-religious dialogue, the Council of Europe integrates the religious dimension of the different European heritages in its pluralist system, thus offering a model of tolerance to the whole of Europe.
7. The Assembly attaches the greatest importance to strengthening the co-operation that has developed between the Council of Europe and the European Community in recent years. In this respect, it considers that interaction between the enlarged European Union and the Council of Europe should be mentioned in the future constitutional treaty.
8. Title IX of the preliminary draft constitutional treaty, entitled "The Union and its immediate environment", suggests defining a privileged relationship between the Union and its neighbouring states. In that case, the opportunity must not be lost to capitalise on the role that the Council of Europe would have to play in such a scheme, owing to its pan-European character and the fact that all its member states co-operate on an equal footing. The Convention should take this state of affairs into account and give priority to making full use of this institution, rather than setting up new bodies or other institutional arrangements, which would result in duplication of efforts and wasted resources.
9. The members of the Convention should also bear in mind that the Parliamentary Assembly of the Council of Europe is the sole genuinely pan-European assembly, in which all national parliaments in Europe are represented. It therefore constitutes a vital forum meeting regularly for dialogue between the parliamentarians of the present and future member states of the European Union and those of the non-member states.
10. The Assembly welcomes the quadripartite meetings between the European Union and the Council of Europe. It reiterates its view that these meetings must have a parliamentary dimension. It therefore wishes that the Presidents of the Parliamentary Assembly of the Council of Europe and of the European Parliament should be invited to forthcoming co-ordination meetings.
11. The Assembly asks the Convention to envisage, in its revision of the existing treaties, consideration by the European Union of the Council of Europe's structures and work when framing and implementing its policies so as to avoid overlapping. To that end, it would be desirable to extend the scope of Article 303 of the Treaty establishing the European Community to all matters coming within the European Union's jurisdiction.
12. Many conventions concluded within the Council of Europe have helped to establish an area of freedom, security and justice, an objective shared with the European Union. The Assembly accordingly urges the European Community to adopt the Council of Europe's conventional acquis in the field covered by Community law so as to put in place a coherent legal order.
13. The Assembly calls on the EC/EU and its member states:
i. to incorporate the European Union's Charter of Fundamental Rights and the European Convention on Human Rights in the constitutional treaty, so as to give them binding legal force;
ii. to include in the future constitutional treaty a clause on accession to the ECHR;
iii. to agree to amend Article 230§4 of the Treaty establishing the European Community with a view to broadening the use of direct appeals by individuals to the Court of Justice of the European Communities. An individual should have the right to appeal against a community measure where that measure damages or may damage their interests to a substantial extent;
iv. to consider redefining the concept of European Union citizenship by basing it on a criterion other than nationality. This could entail establishing a citizenship founded on legal residence. This criterion would be a means of both laying emphasis on the extremely original nature of the Community process in the history of international relations and defining the Union's population through an autonomous concept specific to the Community's legal order;
v. to take into account the role and the specific characteristics of the Council of Europe by advocating organic relations geared to complementarity and co-operation with it;
vi. to bear in mind and include in the future constitutional treaty:
a. a reference to the revised European Social Charter, which constitutes one of the pillars of the European social model and the standard-setting reference text with regard to fundamental social rights, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, the Charter of Local Self-Government, the European Cultural Convention, the Convention on the Participation of Foreigners in Public Life at Local Level, the Framework Convention for the Protection of National Minorities, the European Charter for Regional or Minority Languages and the Convention on Human Rights and Biomedicine;
b. the contribution of the Council of Europe in establishing an area of freedom and security, a common objective to both organisations;
c. the role of the Council of Europe as a pan-European forum in which the representatives of the whole of Europe at parliamentary, governmental and regional levels co-operate on an equal footing;
d. the work of the Council of Europe in preventing conflicts and consolidating peace under its commun foreign and security policy;
e. the work of the Council of Europe concerning the monitoring of obligations and commitments entered into by member states upon accession in order to achieve the standards of the Organisation on democracy, human rights and the rule of law.
II. Explanatory memorandum
1. In the declaration on the future of the Union appended to the Nice Treaty (December 2000), European Union heads of state and government expressed their desire to deepen and widen debate on the future of the Union and involve all “interested parties”: the representatives of national parliaments and all those reflecting public opinion, namely political, economic and university circles, and the candidate states.
2. The European Council meeting in Laeken (14-15 December 2001) then adopted a declaration aimed at positioning the debate by setting out the key challenges the European Union will have to face as it moves towards enlargement. In particular, the declaration states that the Union will have to take up three fundamental challenges:
- bringing European institutions closer to citizens;
- determining the Union’s new role in a globalised world;
- organising politics and the European political area in an enlarged Union.
3. To meet these challenges, the Laeken Declaration proposes looking at four specific areas;
- a better division and definition of competence in the European Union;
- simplification of the Union’s instruments;
- more democracy, transparency and efficiency in the European Union;
- a possible Constitution for European citizens.
4. These topics form the basis for the work of the Convention on the Future of Europe convened in accordance with the Laeken Declaration. Comprising representatives of heads of state or government, members of national parliaments, members of European Parliament and representatives of the European Commission, the Convention has based its methods on the successful experience of the Convention responsible for drawing up the Charter of fundamental rights of the European Union. However, the Union's initiative in involving the representatives of the candidate countries is to be welcomed here, even if they have not been granted the right to vote.
5. The Convention on the Future of Europe has the task of considering the key issues arising for the Union’s future development and trying to identify the various possible responses so as to make the broadest and most transparent possible preparations for the Intergovernmental Conference in 2004.
6. However, although the Council of Europe was invited to take part in the work of the Convention on the Charter of Fundamental Rights of the European Union, it has not been invited to take part in the Convention on the Future of Europe, which has therefore begun its work without it having been deemed necessary to involve representatives of the oldest (1949) and largest (44 member states) genuinely pan-European organisation.
7. Yet the integration of Europe, from the Atlantic to the Caspian Sea, on a political and constitutional basis was the original aim of the European integration aspired to by the founding fathers of the Council of Europe.
8. Consequently, even though the Council of Europe is not directly represented at the Convention, it is therefore crucial that it takes part in the broad debate called for in the Declaration on the Future of the Union and this in the hope of being heard. The Council must be “present” at the Convention to put forward its proposals and its ideas so as to contribute to the best of its ability to the building of Europe’s future.
9. The Council of Europe’s involvement in this exercise is all the more essential since the Union, given the deepening and expansion of its tasks since the Treaty on European Union (Maastricht, 1992), now operates in fields (area of freedom, security and justice, fundamental rights, certain aspects of common foreign and security policy) where the Council of Europe’s expertise is both undisputed and highly appreciated.
10. Moreover, in view of the potential problems that enlargement may pose, care must be taken not to create new divides, as the European cultural and institutional geostrategic area goes beyond the 25 countries that will make up the Union. The Convention must accordingly be invited to take account of the fact that the Council of Europe is an institution that enables those states which will remain outside the European Union to take part in the European project, thereby avoiding the creation of new divides. Indeed, even after enlargement, almost half of European states will continue to co-operate through the Council of Europe and will remain outside the EU. The EU enlargement process must not be allowed to create divisions, and the Council of Europe therefore has a historic role to play in this connection. Realising this to be the case, the Convention has included among its working documents the contributions by the Secretary General of the Council of Europe entitled "800 million Europeans - Involving the Greater Europe in responding to key Laeken questions" (Conv. 157/02) and "Freedom, security and justice for the whole of Europe – Involving the greater Europe in the realisation of an area of freedom, security and justice" (Conv 427/02).
11. Through the various resolutions and recommendations it has adopted on the subject, the Parliamentary Assembly of the Council of Europe (PACE) has always led the way in reflection about new European political projects and the role the Council of Europe should play in them. It would therefore be desirable for the Parliamentary Assembly to be able to make its voice heard in this debate and contribute the wealth and weight of its experience. In this connection, it is most satisfying that Mr Van der Linden’s report on “the future of co-operation between European institutions”, which was adopted at the Parliamentary Assembly session in June 2002, has also been included in the Convention’s working documents (Conv. 193/02).
12. Furthermore, following the adoption of that report, an ad hoc Bureau committee on the Convention on the future of Europe was set up. Through this committee, members of the PACE, some of whom also sit on the Convention, will be able to meet periodically and submit proposals on the participation of the Council of Europe in the activities of the Convention.
13. The present report will look at four avenues the Council of Europe could take to give greater weight to its involvement in the debate on the future of Europe. Although none of these is really new, their combination would seem to increase the importance of a Parliamentary Assembly contribution to discussion about the drafting of a European Constitution.
II. Progressing on the basis of the preliminary draft Treaty establishing a Constitution for Europe presented by the Praesidium of the Convention
14. The European Union now has eight treaties (Appendix I) comprising an inextricable mass of rules that form an incoherent and increasingly unintelligible whole, built up over half a century of European construction. This is a source of confusion and inconsistency, which prevents the EU from acting with the requisite efficiency. On the eve of an unprecedented enlargement, it is essential to introduce some degree of streamlining in the whole process.
15. It seems only logical that this pressing need for simplification and clarity, which was already apparent in the first phase of the Convention's work (the listening phase), should lead to the treaties being reorganised in the context of a “constitutional process”, in which the Union’s values, objectives and resources would be defined alongside the role and respective responsibilities of its various institutions.
16. Recognition of the single legal personality of the Union is decisive in this respect. The merging of the Union and the Community implies the merging of treaties and the abolition of the pillar structure. In that case the preparation of a constitutional treaty may be envisaged.
17. Moreover, and as mentioned by final report of the Working group on Legal Personality, assigning a single legal personality to the Union would enable it to become an entity recognised under international law, entitling it to conclude treaties, make representations to international bodies, accede to international conventions such as the European Convention on Human Rights and accede to international organisations such as the Council of Europe. It should be noted that the latter step would ensure better co-ordination between the two institutions and would be ideal for institutional rationalisation.
18. However, for the debate to be conducted on a clearer basis, the concept itself had to be defined more clearly. In this respect, I wish to congratulate the Praesidium, which, eight months after the Convention on the future of Europe started work, submitted a preliminary draft treaty establishing a Constitution for Europe at the plenary session of 28 and 29 October 2002.
19. This will now form the backdrop for debate on what form the European Union of tomorrow will take and how it will function. The Constitution which the heads of state and government will have to propose to the citizens of the European Union enlarged to 25 members is still a long way off, but we now have a framework providing an initial idea of how the final document will look.
20. According to the preliminary draft, the future constitutional treaty will replace the existing treaties and comprise three parts:
- a first part setting out provisions of a constitutional nature;
- a second part concerning the Union's policies and their implementation;
- a third part covering general and final provisions, ensuring the legal continuity of the Union.
21. This draft, far more than a mere outline, contains a great many constitutional innovations, notably: recognition of the legal personality of the Union (article 4); incorporation of the Charter of fundamental rights (article 6); definition of categories of competence within the Union (Title III), merging of the three pillars of the Union and introduction of a single institutional framework. However, failure to mention the European Ombudsman and the lack of reference to national parliaments in the text are particularly regrettable. This "backbone" offers a relatively general framework that is going to be fleshed out thanks to the conclusions of the different working groups (Appendix II) and plenary session debates.
22. Since the structure of the future constitutional treaty now seems to have been established, common policies should form part of the final document. The Parliamentary Assembly of the Council of Europe would then have to consider means of developing closer co-operation between the European Union and the Council of Europe in areas where their action may overlap or the added value of the Council of Europe is greater (culture, environment, education, etc). This point will be discussed in detail later.
23. One question, however, remains unanswered: will it be a Constitution for Europe (as indicated by the preliminary draft constitutional treaty) or will the aims of this constitutional project be confined to the European Union?
24. The Laeken Declaration refers to a Constitution for European citizens. Under Article 17 of the Treaty Establishing the European Community, every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union therefore depends on possession of the nationality of one of the member states. But laws concerning the definition of nationality fall soley within the competence of the State and are characterised by the diversity of domestic legislation. The Convention might therefore consider redefining the concept of citizenship of the European Union and basing it on a criterion other than nationality. This could involve establishing citizenship based on legal residence and “living together” within a community. This criterion would both reinforce the uniqueness of the Community process in the history of international relations and define the population making up the Union on the basis of an autonomous concept specific to the Community legal order. Two of the rights set out in the section on citizenship of the Union in the Treaty Establishing the European Community, i.e. the right of petition and the right to apply to the Ombudsman, actually give weight to this hypothesis insofar as they provide that the beneficiaries include “any natural or legal person (…) having its registered office in a Member State”. What is more, Article 45 of the Charter of Fundamental Rights of the European Union states that “freedom of movment and residence may be granted, in accordance with the Treaty establishing the European Community, to nationals of third countries legally resident in the territory of a Member State.”
25. In order to give a different dimension to the European political project, the Council of Europe and the European Union could also join together in drafting a charter on the foundations of a European identity, bringing together the principles and values developed by the Council of Europe, in particular in the European Convention on Human Rights, the European Social Charter, the Framework Convention for the Protection of National Minorities, the European Charter of Local Self-Government, the Convention on the Participation of Foreigners in Public Life at Local Level and the Charter for Regional or Minority Languages. The drafting of a text of this kind should ensure the emergence of a Europe in which enlargement of the Union followed a consistent development process within a single frame of reference.
III. Calling for the Charter of Fundamental Rights of the European Union to be legally binding and for the European Union to accede to the European Convention on Human Rights
26. The long-term effectiveness of the protection of fundamental rights in Europe will depend on the European Convention on Human Rights system and European Union law being consistent and in harmony with each other.
27. The current body of law in the fundamental rights field within the EU is the result of a number of processes:
- the inclusion of specific but disparate provisions in the treaties;
- the case-law built up by the European Court of Justice in establishing the precedence of Community law;
- the enshrining of the European Court of Justice’s case-law in the founding texts of the Union with Article 6 (2) of the Treaty on European Union;
- the introduction in the Treaty of Amsterdam of Article 6 (1), laying down the founding principles of the Union, and Articles 7 and 49 of the Treaty on European Union, under which the European Union may impose sanctions on its member states in the event of serious and persistent breaches of these principles;
- lastly, the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000.
28. The Laeken Declaration of 15 December 2001 went a step further. The European Council in Laeken instructed the Convention on the Future of Europe to consider the possible inclusion of the Charter of Fundamental Rights of the European Union in the basic treaty, as well as the question of accession by the EC/EU to the European Convention on Human Rights. The strengthening of the protection of fundamental rights in the EU and in Europe will therefore depend on the answers to these two questions. According to Mr Vitorino, the chair of the working group on the Charter of Fundamental Rights set up within the Convention, these are complementary questions and not alternatives. The fact that they are being dealt with together underlines both the autonomy and the interdependence of the EU and ECHR fundamental rights protection systems.
A. Incorporation of the Charter in the basic treaty
29. Given EU member states’ desire to build a genuine political community, the ambitious project to boost fundamental rights in the Union and the fact that these rights have been codified in a charter are to be welcomed.
30. The time has now come to give the Charter the legal force needed to develop its effects in the legal order of the Union to the full, as the enforceability of fundamental rights depends on their effectiveness and efficiency. Progress in this area within the EU would be a driving force for improving European human rights protection. Before going into this point, however, a number of comments have to be made.
31. Although it is to be welcomed that the Charter recognises certain rights and freedoms that are not included expressis verbis in the ECHR (such as the right to respect for physical and mental integrity, the prohibition of trafficking in human beings and the right of asylum), it is unfortunate that the level of protection it guarantees does not always come up to that afforded by the corresponding Council of Europe instruments, in particular the revised Social Charter, which is the benchmark standard for fundamental social rights and one of the pillars of the European social model.
32. Furthermore, were the incorporation of the Charter to make it legally binding, the Convention would then have to consider amending Article 230 (4) of the Treaty Establishing the European Community in order to extend direct appeals to the European Court of Justice to individuals. An individual should have the right to appeal against a community measure where that measure damages or may damage their interests to a substantial extent.
33. It is essential to support the incorporation of the Charter in the basic treaty in a form making it legally binding and giving it constitutional force. Incorporating the Charter in this way will increase its credibility among EU citizens and strengthen the legally binding human rights protection machinery in Europe. In this respect, I welcome the conclusions of the working group on the Charter, which has stated that it favours this option.
34. It is inconceivable for the EU to have an up-to-date constitution without a binding declaration of fundamental rights. If the Convention draws up a new treaty not containing the Charter, it would lack the necessary and desirable institutional impact.
B. Accession by the European Union to the ECHR
35. Accession was already considered by the European Commission as far back as 1979 and received the support of the European Parliament at the time. The Commission subsequently took up the proposal again and submitted a communication to the Council of Ministers on 19 November 1990. Being divided on the issue, the Council, acting under Article 300 of the treaty (ex Article 228), referred the matter to the Court of Justice of the European Communities, which found, in opinion 2/94, that accession was not possible without amendment of the Community treaties. It therefore referred the decision on whether to amend the treaties on this point back to the Council. To date, however, a lack of political will has prevented member states from adding any clause to the treaties to enable the Community or the Union to accede to the European Convention on Human Rights. In this connection, the conclusions of the working group on the Charter, indicating that all the group's members either strongly support or would not rule out giving favourable consideration to incorporating a constitutional clause authorising the Union to accede to the ECHR, are to be welcomed. Nevertheless, in conformity with the Laeken Declaration, the Convention should not just include a single clause making accession possible, but should make a clear statement in favour of accession, if necessary through a declaration accompanying the adoption of the constitutional treaty.
36. Assuming the Charter were to become legally binding, steps would have to be taken to prevent potential applicants being faced with a multiplicity of systems that could lead to inconsistent or, indeed, incompatible outcomes, which would undermine legal certainty. Care must be taken to ensure that incorporation of the Charter and accession to the ECHR go hand in hand. Negociations between the European Union and the Council of Europe must therefore be started without deplay, so that the necessary amendments to the ECHR and to its Protocols are drawn up.
37. The European Court of Justice could end up developing case-law that conflicted both with that of the organs of the European Court of Human Rights and with that of the supervisory organs of the Social Charter with regard to economic and social rights. The question is therefore deciding what to do to prevent the possible and dangerous overlapping of the powers and actions of these various bodies, which would undermine the credibility of Europe’s entire legal architecture.
38. European Union accession to the ECHR would therefore appear to be the most appropriate response. It is quite clear today that such accession would make a major contribution to establishing a consistent human rights protection system throughout Europe.
39. The Council of Europe’s prime concern is to make sure that specific rights are not the subject of diverging or, indeed, contradictory interpretations, depending on whether they are interpreted by the European Court of Justice or the Strasbourg Court. Articles 52 (3) and 53 of the Charter appear to be clear and precise enough to rule out any limitations more extensive than those allowed under the ECHR or a lower level of protection than it provides for.
40. The "explanations" concerning Article 52(3) clearly state that the reference to the ECHR applies to both the ECHR and its protocols. I consider this most important insofar as the Charter includes certain rights set out in Protocols Nos 1, 4 and 7 to the ECHR (such as property rights, the right to education and the prohibition of collective expulsions). This will make it clear that these rights are still covered by the safeguards contained in the “horizontal clauses”. It is necessary, therefore, to stress the importance of the "explanations" drafted under the auspices of the Praesidium of the previous Convention, as they constitute a valuable tool of interpretation, which will guarantee that the Charter is correctly understood. Thus, as the working group on the Charter points out in its final report, upon possible incorporation of the Charter, attention should then be drawn in an appropriate manner to the explanations which, though they have no legal value, are intended to clarify the provisions of the Charter.
41. However, the reference to the ECHR and the case-law of the Strasbourg Court in the Charter itself is inadequate, as it leaves two loopholes:
- Firstly, the conformity with the ECHR of the implementation of the provisions borrowed from it by the Charter is not subject to scrutiny by the Strasbourg Court, which basically means that individuals whose rights and fundamental freedoms are violated by Union law are denied the protection of the ECHR;
- Secondly, the reference in the preamble does not solve the problem stemming from the fact that the organs of the Communities and the EU are not subject to external scrutiny by the ECHR machinery - unlike member states, which, in lieu of the Community organs, must answer to the Strasbourg Court for the effects of Community law in their domestic legal orders.
42. In the 1999 Matthews judgment, for instance, the Strasbourg Court held the United Kingdom responsible for the effects under domestic law of a provision of primary Community legislation that denied the inhabitants of Gibraltar the right to vote in the elections to the European Parliament. Similarly, in the Cantoni case in 1996, the Court found that the fact that a provision of national legislation was based almost word for word on a Community directive did not mean that it was not covered by the ECHR. It is therefore possible in some situations for individuals to bring cases against Community measures before the Strasbourg Court without even first going through the European Court of Justice.
43. The growth in the areas covered by Community and EU law is likely to lead to ever more cases of this type in future and hence also to greater differences in case-law.
44. This shows the extent to which the possibility of the Charter becoming a legally binding instrument once again puts the focus on the question of accession by the European Community - and the EU when Community law so permits - to the ECHR.
1. The benefits of accession
45. Accession would have the advantage of:
- increasing the consistency and uniformity of the human rights protection system in Europe and ruling out any risk of parallel interpretations: the Charter would not be seen as an alternative to the ECHR but as an instrument supplementing it;
- subjecting actions and decisions of Community institutions to external scrutiny by the European Court of Human Rights if they were felt not to respect the rights enshrined in the Charter and guaranteed under the ECHR. Such scrutiny would ensure perfect harmony between the two instruments in the interests of the clarity and legal certainty which European citizens want. Moreover, it would put an end to the contradiction between the human rights obligations that the EU seeks to impose on certain third countries and the absence of any external scrutiny of the EU’s own actions. It would also put an end to the paradoxical situation arising from the fact that ratification of the ECHR is one of the requirements imposed on countries wishing to join the EU, whereas the EU itself and its legal measures continue to escape scrutiny by the machinery set up under the ECHR;
- making practical improvements to the protection of all individuals affected by Community law;
- enabling Community organs to take part in proceedings before the Strasbourg Court involving the effects of Community measures in member states’ domestic legal orders. Essentially, there would be a judge "elected" in respect of the Union at the Strasbourg Court, who would provide the Court with specific expertise in the area of Union law. There would also be a Union representative participating in specific activities of the Committee of Ministers for supervision of the execution of judgments but not in the general work of the Committee unconnected with the ECHR.
46. Accession would therefore appear to be the natural and logical step to follow adoption of the Charter.
2. The false arguments against accession
47. Just as there is no hierarchical relationship between the Strasbourg Court and national courts, there can be no question of such a relationship being established between the Strasbourg and Luxembourg Courts if accession took place. The Strasbourg Court’s powers are limited to checking whether measures by national authorities are in line with the ECHR. If they are not, the Court finds that violations have occurred, but is not able to quash or modify the measures in question or to impose measures that the state concerned must take to remedy the situation. The relationship between the Strasbourg Court and national courts is not therefore hierarchical, but is based on co-operation. That would also be the case with the ECJ if the European Union acceded to the ECHR.
48. The fact that proceedings would take longer is not valid as an argument. The overall length of the proceedings would only increase on the initiative of the individuals concerned, and the increase would be in the latter’s interests, as they would have an additional legal remedy. Moreover, as the relevant appeals would not have suspensive effect, the European Court of Justice’s rulings would remain fully enforceable.
49. Some people claim that the existence of the Charter as an independent legal instrument would make accession unnecessary. Yet the fact that national constitutions recognise fundamental rights has not made accession to the ECHR by member states pointless.
50. Attitudes have changed and the political will that was lacking to date is now developing, as demonstrated by the declaration adopted by the European Council in Laeken. What is more, on the occasion of the start of the judicial year on 31 January 2002, the Presidents of the Court of Justice of the European Communities and the European Court of Human Rights voiced support for the principle of accession.
51. The underlying objectives of the proposed accession are to offer European citizens a comprehensive system for protecting their rights, while improving existing machinery and guaranteeing the effectiveness of the ECHR.
52. While the technical difficulties can be solved quickly, it will not be possible to overcome the various political objections unless a clear will in favour of accession emerges within the Community institutions and the member states.
3. Arrangements for accession
53. The Report adopted by the Steering Committee for Human Rights (25-28 June 2002) entitled "Study of technical and legal issues of a possible EC/EU accession to the European Convention on Human Rights" indicates the paths to be explored and put forword some solutions :
- It would be necessary to amend the Community treaties in accordance with the ECJ’s opinion of 28 March 1996, inserting an explicit legal basis for accession;
- Accession could be achieved through the adoption of an accession treaty or a protocol to the ECHR containing the requisite additions and amendments. The fact that the concepts of country and state in the ECHR also applied to the Community would then have been mentioned;
- Some changes would have to be made to the text of the ECHR, in particular Article 59 (1) and (4), which provide that only Council of Europe member states may sign and ratify the ECHR.
IV. Strengthening and intensifying co-operation between the European Union and the Council of Europe
54. The Council of Europe and the European Community share the same values and pursue common objectives with regard to the protection of democracy, respect for human rights and the fundamental freedoms and the rule of law. This being the case, it is quite natural that relations between these two institutions should be based on partnership rather than rivalry, in accordance with Article 303 of the Treaty on the European Communities, which provides that “the Community shall establish all appropriate forms of co-operation with the Council of Europe”.
55. The Convention must not overlook the importance of the assets made available by the Council of Europe in that partnership, namely its vast geographical scope, its rich and varied experience in the field of drawing up legal standards and supervising their application and its crucial role in building democratic institutions.
56. Since 1989, this partnership has led to the regular organisation of so-called “quadripartite” meetings. These theoretically biannual meetings are attended by the Chairman of the Committee of Ministers and the Secretary General, representing the Council of Europe, and by the Presidents of the Council and Commission on behalf of the Union. However, it is hard to see why the Presidents of the Parliamentary Assembly and the European Parliament are not invited to attend. An enormous variety of subjects are dealt with at these quadripartite meetings, ranging from co-ordination of action against terrorism to provision of assistance to central and East European countries, particularly in the cultural and educational or judicial and home affairs fields.
57. Joint programmes of technical assistance between the Council of Europe and the European Commission aimed at democratic and legal reform and the proper management of public affairs in numerous countries and regions in transition (Southern Caucasus, Northern Caucasus including Chechnya, Ukraine, Moldova, Albania) have also been gradually set up. In this connection it is satisfying to note the agreement of May 2002 on a new joint initiative for Turkey, aimed in particular at assisting that country in its efforts to bring Turkish legislation and practice into line with European standards.
58. Also noteworthy is the "Joint Declaration on Co-operation and Partnership between the Council of Europe and the European Commission" signed by the Council of Europe Secretary General and the European Commissioner Chris Patten on 3 April 2001. In this Declaration both organisations undertake to endeavour to intensify their dialogue with a view to identifying all the countries and objectives on which joint action would represent a bonus for their respective activities.
59. Furthermore, the European Commission participates in the sessions of the Council of Europe Committee of Ministers and in the meetings of the Ministers' Deputies and their subordinate political bodies (GR-EDS, GR-OSCE, GR-EU). Moreover, the annual meetings of senior officials held with the European Commission are supplemented by regular specific meetings concerning the respective enlargement processes.
60. Furthermore, following directly on from the Treaty on the Economic Communities, which recommends close co-operation with the Council of Europe in the fields of education (Article 149(3)) and culture (Article 151(3)), informal dialogue in the educational and cultural fields is now a firmly established practice.
61. The strengthening of these links primarily benefits those countries which are currently applying for membership of the European Union. Their membership of the Council of Europe not only provides evidence of their democratic credentials but also helps to prepare them for accession to the EU, particularly thanks to the reports drawn up by the PACE Monitoring Committee, the Committee of Ministers and the Congress of Local and Regional Authorities of Europe. However, other monitoring procedures, particularly those of the GRECO, ECRI or CPT, should also be taken into account.
62. In more general terms the Laeken Declaration stresses that relations between the Union and the other neighbouring European states are particularly important, both for the Union itself and for those states. A further indication of this is Title IX of the preliminary draft constitutional treaty entitled "The Union and its immediate environment", suggesting the possibility of a privileged relationship between the Union and its neighbouring states. In that case, the opportunity must not be lost to capitalise on the role that the Council of Europe would have to play in such a scheme, owing to its pan-European character and the fact that all its member states co-operate on an equal footing.
63. Moreover, in view of the potential problems that enlargement may pose, care must be taken not to create divides, as the European cultural and institutional geostrategic area goes beyond the 25 countries that will make up the Union. The Convention must accordingly be invited to take account of the fact that the Council of Europe is an institution that enables those states which will remain outside the European Union to take part in the European project, thereby avoiding the creation of new divides. Indeed, even after enlargement, almost half of European states will continue to co-operate through the Council of Europe and will remain outside the EU. The EU enlargement process must not be allowed to create divisions, and the Council of Europe therefore has a historic role to play in this connection.
64. The Council of Europe is a forum in which the representatives of the whole of Europe at parliamentary, governmental and regional levels can meet and discuss matters of common interest on an equal footing. The European Community is already an important player within the Council of Europe. However, in the interests of building greater understanding and awareness of their respective activities, existing arrangements and practices for information exchange and co-operation between the Council of Europe and the European Community should be extended and stepped up on an everyday basis.
65. The Council of Europe should be used as a framework for examining pan-European problems and contributing to the development of common European positions in debates at worldwide level.
66. At the level of the European Union's joint foreign and security policy, the Convention must also take account of the role played by the Council of Europe in preventing conflicts and consolidating peace. Through its commitment to the basic principles and values of pluralist democracy, respect for human rights, particularly those of minorities, and the rule of law, and also through its efforts to make the best possible use of education, culture and our common cultural heritage, the Organisation has the necessary means to assist post-war rehabilitation and the successful introduction of lasting peace and democratic stability throughout the European continent.
67. The Convention must not forget that better information exchange and regular contact with other organisations are the guarantees of improved interaction between the various partners involved in prevention processes.
68. As regards justice and home affairs, many conventions concluded within the Council of Europe have helped to establish an area of freedom, security and justice, an objective shared by our institutions. The effort to meet the challenges confronting our democratic societies cannot stop at the Union's borders (terrorism, combating racism and xenophobia, action against people trafficking, anti-crime and corruption measures etc). The conclusions of Working group X “Freedom, Security and Justice” quite rightly state that “the activities of the Council of Europe in this context are particularly relevant.”
69. The Council of Europe provides the framework for intensive work on the formulation of treaties. A great many conventions (188) on a wide variety of subjects have been adopted under its auspices and opened for signature not only by member states but also by countries that are not party to the Council’s Statute.
70. Some of these conventions are particularly important in that they form a compendium of nearly all the rights proclaimed by the Council of Europe since it was set up: civil and political rights, social rights, rights of local authorities, cultural rights, rights of foreigners and rights of national minorities. These are:
- the European Convention on Human Rights and its protocols;
- the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which complements the ECHR by setting up a European Committee for the Prevention of Torture (CPT);
- the European Social Charter and the revised Social Charter, under which the member states may undertake to guarantee a wide range of economic and social rights for their nationals;
- the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data;
- the Convention for the protection of human rights and dignity of the human being with regard to the application of biology and medicine : Convention on Human Rights and Biomedidine;
- the European Charter of Local Self-Government;
- the European Cultural Convention;
- the Convention on the participation of foreigners in public life at local level;
- and the Framework Convention for the protection of national minorities and the European Charter for Regional or Minority Languages. Protecting national minorities has become one of the most serious and pressing problems in Europe today.
71. The European Community as such is not a party to those conventions. Its involvement is still rather limited in that it is a party to only eight of the Council of Europe’s conventions but none of those conventions listed above. What is more, some of these conventions are not yet open to accession by the European Community. However, a reference to these texts in the future constitutional treaty would help to ensure that the development of Europe or the enlargement of the Union would follow a consistent pattern within the same reference framework.
72. Therefore, despite the similarity of the field of responsibilities, the Council’s treaty-formulating activities have prompted little interest on the part of the European Community. These convention-based links should consequently be strengthened. The work of the Council of Europe in the conventions field is helping to build unified law on a European scale that would be undermined were the Union not to recognise the rules identified at the level of the Council as a minimum legal standard.
73. The Community should therefore be encouraged to adopt the Council of Europe's conventional acquis within the field covered by community law.
74. Notwithstanding that effort, it also appears desirable to consider strengthening the institutional presence of the Union within the Council of Europe. Two of the proposals set out in Recommendation 1578 "The Council of Europe and the new issues involved in building Europe" (rapporteur: Mr Prisacaru) would help to achieve that aim. Acceding to the statute of the Council of Europe and opening a European Union office in Strasbourg could ensure genuine institutional co-ordination between the European Union and the Council of Europe. These proposals could be added as part of Article 41 of the preliminary draft constitutional treaty concerning the external representation of the Union.
75. As the Secretary General points out in his memorandum entitled “800 million Europeans - Involving the Greater Europe in responding to key Laeken questions”, “the future enlarged European Union must be built on the solid foundations of the Council of Europe’s existing legal instruments and institutions, as the Convention provides a unique opportunity to ensure a coherent architecture of interlocking European institutions.”
V. Consolidating relations between the Parliamentary Assembly of the Council of Europe and the European Parliament
76. While the PACE should obviously have no say in what role national parliaments should play in the European Union, it ought perhaps to be involved in deciding whether national parliaments should be represented in any new institution.
77. A proposal has been put forward for a second European legislative assembly made up of representatives of national parliaments, to exercise legislative powers at the European level. It would discharge two duties: firstly, conducting “supervision of subsidiarity” in proposed legislation from the European Commission, and secondly, exercising control in areas coming under the second and third pillars.
78. I would like to preface this section with the remark that the Council of the European Union is already a co-legislator at the European level, which makes it a de facto second legislative assembly. Consequently, the setting up of a second chamber would only encumber the European decision-making process even further.
79. Moreover, despite the increasing transfer of responsibilities to the Community level, it should not be forgotten that the national parliaments are still the main means by which citizens can exercise their democratic rights. Their role must not be confined to rubber-stamping agreements which have already been finalised elsewhere. Without regular, down-to-earth, meaningful debates on European issues within the national parliaments, people are bound to see the European political project as being cut off from their own real concerns, undemocratic and bureaucratic.
80. In this connection the working group on national parliaments is convinced of the role to be played by national parliaments in establishing the Union's legitimacy and recommended that the Convention ensure that the future constitutional treaty clearly recognises the role of those parliaments. According to the group, they must be in a position to ensure that governments keep a closer eye on European policies and to monitor the subsidiarity principle. The group also recommends that consultation and exchange be stepped up between national parliaments where their role in European affairs is concerned. Moreover, a number of ideas were expressed on how to involve national parliaments more in debate on the main strategies of the European Union, in particular by setting up a forum (Congress of peoples of Europe) where national and European parliamentarians would meet periodically.
81. On this count, it should not be forgotten that the PACE is the sole genuinely pan-European assembly, in which all national parliaments in Europe are represented. It therefore constitutes a forum for dialogue between the parliamentarians of the present and future member states of the European Union and those of the non-member states. It is unnecessary, therefore, to create a second chamber or an independent institution with separate specific powers. The PACE is uniquely placed to serve as a bridge between European and national policies and to organise information flow in both directions. Ideally it would be the national parliaments represented within the PACE that become the key talking partners of the European Union.
82. Where the relations of the PACE with the European Parliament are concerned, regular meetings take place between the Conference of Presidents of the European Parliament and the Committee of Presidents of the Parliamentary Assembly. Similarly, contacts are maintained between the respective committees and their rapporteurs, but the PACE and the European Parliament have never signed a formal co-operation agreement.
83. The first ever joint meeting between the European Parliament and the PACE, on 24 September this year, was a successful experiment. Over and above the topic chosen ("The development of Europe as an area of freedom, security and justice"), the meeting took on a symbolic value contrasting with the oft cited image of two institutions working simultaneously but too rarely together. A joint presidential statement from Peter Schieder and Pat Cox reiterated their unequivocal commitment to democracy, justice and human rights.
84. That meeting was not an isolated event. In fact, seven joint meetings have been held at the level of the committees, covering topics such as equality between men and women or the situation in the Kaliningrad region. Prior to the session, the two assemblies had already presented a common European platform at the Johannesburg conference on sustainable development, jointly organised a meeting on illegal migration and participated in observing elections in Bosnia and Herzegovina.
85. In Resolution 1290 (2002) on the future co-operation between European institutions, the PACE invited the European Parliament to extend and improve their mutual co-operation at different levels (political groups, bureaux, committees) by formally acknowledging their common values and interests. The setting up of a joint EP-PACE committee was evoked. These two institutions have always expressed willingness to co-ordinate their activities and co-operate more closely. However, if such communication and co-ordination are to become a reality, members of the PACE and the European Parliament will have to meet up regularly, which necessitates the creation of specific parliamentary structures in which members could meet, discuss and co-operate directly on the various issues.
86. These structures could consider initiatives, exchange information and promote co-operation in order to avoid as much overlapping and waste of time, effort and other resources as possible and to launch joint initiatives in a number of European countries.
87. Some might retort that we already have the Conference of Community and European Affairs Committees (COSAC), which holds biannual meetings attended by 6 national parliamentarians from each member state, 6 MEPs and 3 observers from each EU applicant country. However, the frequency of these meetings is unsatisfactory, too few parliamentarians attend them, and lastly, the COSAC has no real power in that all it produces are draft contributions.
88. The PACE is made up of members appointed by the national parliaments, which makes it, precisely, a Chamber representative of national parliaments. Its functions within the Council of Europe also make it a centre specialising in pan-European affairs.
89. Therefore, the principle of institutional economy, that is to say the need to avoid institutional duplication within one organisation and also between several organisations, militates for giving serious thought to this fact. The Convention should accordingly concentrate on securing optimum exploitation of the Parliamentary Assembly of the Council of Europe rather than setting up new structures or institutional arrangements that would entail duplication.
90. Let us hope that the Convention and the forthcoming Intergovernmental conference take advantage of the real and potential complementarity between these two institutions.
91. The Council of Europe and the European Union share the same overall goal: to construct a democratic, stable and prosperous Europe, now that they both pursue their objectives from the angle of a comprehensive European strategy geared to creating a vast area of democratic security and social solidarity to be reinforced by consolidating and intensifying co-operation between both institutions.
92. Europe will always be bigger than the EU, and a number of European States will always be Union non-members. This explains the importance, in view of the role and specific function of the Council of Europe, of organising practical relations between the Council of Europe and the EU based on complementarity and co-operation.
93. Such co-operation must be based on reliable information exchange concerning the work of each institution, in order to enhance the two organisations’ mutual experience and initiatives. This will make their actions more effective and improve the co-ordination of their initiatives with a view to preventing duplication of efforts as far as possible.
94. There are many ways and means of turning the responsibilities and potential of the Council of Europe to better account. All it takes is the political will and long-term vision for the future of Europe.
European integration is based on four founding treaties:
• The Treaty establishing the European Economic Community (EEC);
• The Treaty establishing the European Atomic Energy Community (Euratom), which was signed (along with the EEC Treaty) in Rome on 25 March 1957 and entered into force on 1 January 1958. These treaties are often referred to as the “Treaties of Rome”. When the term “Treaty of Rome” is used, only the EEC Treaty is meant;
• The Treaty on European Union, which was signed in Maastricht on 7 February 1992 and entered into force on 1 November 1993, created the political Union amongst the Member States and brought about considerable changes to the existing Treaties. The treaty created the European Union, a concept which comprising the European Communities (which had also been amended to the term European Community on the same occasion), as well as other forms of co-operation.
Moreover, the founding treaties have been amended on several occasions, in particular when new Member States acceded in 1973 (Denmark, Ireland and the United Kingdom), 1981 (Greece), 1986 (Spain and Portugal) and 1995 (Austria, Finland and Sweden). There have also been more far-reaching reforms bringing major institutional changes and introducing new areas of responsibility for the European institutions:
• The Merger Treaty, signed in Brussels on 8 April 1965 and in force on 1 July 1967, provided for a Single Council and a Single Commission of the then three European Communities,
• The Single European Act (SEA), signed in Luxembourg and the Hague and entered into force on 1 July 1987, provided for the adaptations required for the achievement of the Internal market;
• The Treaty of Amsterdam, signed on 2 October 1997 and entered into force on 1 May 1999, it amended and renumbered the EU and EC Treaties. Consolidated versions of the EU and EC Treaties are attached to it. The Treaty of Amsterdam changed the articles of the Treaty on European Union, identified by letters A to S, into numerical form;
• The Treaty of Nice, signed on 26 February 2001. will amend the existing Treaties. It will enter into force once the 15 member states have ratified it according to their respective constitutional procedures. The ratification process is currently under way and will continue in 2002.
Working Groups of the Convention on the Future of Europe
WORKING GROUP XI : Social Europe
Reporting Committee : Political Affairs Committee
Reference to Committee: Doc. 9157, Ref. 2636, 25.09.01
Draft Resolution and draft Recommendation adopted by the Committee on 15 January 2003 with 2 abstentions
Members of the Committee : Jakic (Chairman), Rogozin (Vice-Chairman), Feric-Vac (Vice-Chairperson), Spindelegger (Vice-Chairman), Aguiar, Aliyev (alternate: Seyidov), Andican, Aristegui, Atkinson, Azzolini, Bakoyianni (alternate: Liapis), Behrendt, Berceanu, Bergqvist, Bianco, Björck, Blaauw, Blankenborg, Bühler, Cekuolis, Clerfayt, Curdova, Davern, Dreyfus-Schmidt, Durrieu, Frey, Glesener, Gligoroski, Gönül, Goulet, Gross, Henry, Hornhues, Hovhannisyan, Hrebenciuc, Iwinski, Judd, Karpov, Kautto, Klich, Koçi, Kostenko, Lloyd (alternate: Tomlinson), Loutfi, Margelov, Martinez-Casan (alternate: Puche), Medeiros Ferreira, Mignon, Mutman, Naudi Mora, Neguta, Nemeth, Oliynyk, Ouzky, Paegle, Pangalos, Pourgourides, Prentice (alternate: Kilclooney), Prisacaru, de Puig, Ragnarsdottir, Ranieri (alternate: de Zulueta), Schloten (alternate: Lörcher), Severinsen, Tabajdi (alternate: Eörsi), Timmermans (alternate: Zwerver), Toshev, Turjacanin, Vakilov (alternate: Mollazade), Vella, Volpinari Voog, Weiss, Wielowieyski, Wohlwend, Wurm, Yarygina, Zacchera, Ziuganov (alternate: Slutsky), Zhvania
N.B. : The names of those members present at the meeting are printed in italics
Secretariat of the Committee : Mr Perin, Mr Chevtchenko, Mr Dossow, Ms Entzminger, Ms Alleon