28 January 2003
Contribution of the Council of Europe to the Constitution-making process of the European Union
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Georges Clerfayt, Belgium, Liberal, Democratic and Reformers' Group
I. Conclusions of the Committee
The Committee on Legal Affairs and Human Rights supports the resolution presented by the Political Affairs Committee. It wishes, however, to table the following amendments:
In the draft resolution, after paragraph 5, insert the following paragraph:
"The Assembly is determined to do its utmost to ensure that the Committee of Ministers agrees to EU accession to the ECHR and enters into negotiations with the competent EU authorities with a view to drafting the legal instruments that will make such accession possible."
In the draft resolution, delete paragraph 13.i.
In paragraph 13.ii of the draft resolution, after "accession", add the words "of the EC/EU".
After paragraph 13.ii of the draft resolution, insert the following paragraph:
“to start negotiations with the Council of Europe and its member states without delay so as to prepare the legal instruments needed for this accession.”
In paragraph 13.iii of the draft resolution, last sentence, after the word “interests” add “or rights”.
In paragraph 13.v of the draft resolution, after the words “Council of Europe”, add the following:
", inter alia, in its specific fields of activity, namely the protection of human rights, democracy, the development of culture and education and protection of the environment,"
In paragraph 13.vi of the draft resolution, replace the words “to bear in mind and include in the future constitutional treaty” with “to bear in mind” and, in sub-paragraph a., delete the words “a reference to”.
II. Explanatory memorandum
by Mr Clerfayt, rapporteur
1. The Committee on Legal Affairs and Human Rights believes that the time is particularly ripe for a debate on the future of European integration, as 10 Council of Europe member states prepare to join the 15 existing members of the European Union. The European Union (EU) will thus soon be in the majority in the Council of Europe, something that is bound to have a number of repercussions.
2. The Committee on Legal Affairs and Human Rights has already been asked to examine various concerns expressed by those states which will not be joining the EU in the foreseeable future. These concerns have to do with the reduction in their citizens’ freedom of movement due to the enlargement of the Schengen area. This matter is dealt with in another report being prepared within the Committee.
3. These states must not be treated as outcasts by the European Union, still less by the Council of Europe which will continue to act as a bridge between them and the Union.
4. The protection of human rights must be a prime concern in this context. The rapporteur of the Political Affairs Committee, indeed, gives considerable emphasis to this in the Resolution which he has presented to the Assembly.
5. It is mainly on this aspect, therefore, that the present opinion will focus, even though other proposals also merit further discussion, such as the proposal for European citizenship which is part of the debate being conducted by the Committee on Legal Affairs and Human Rights on the concepts of nationhood and national minorities, or the proposal to step up the co-operation established between the two Parliaments at the September 2001 session.
6. The Assembly has already expressed support for EU accession to the European Convention on Human Rights on several occasions.
7. Thus, to give only the most recent examples, in Resolution 1210 (2000) adopted on 25 January 2000 on the Charter of Fundamental Rights of the European Union, the Assembly responded to the decision taken at the Cologne Summit in June 1999 to draw up a Charter of Fundamental Rights of the European Union and to entrust the drafting of this instrument to a “convention”. The Assembly accordingly called on the European Union:
“to pronounce itself in favour of accession to the European Convention on Human Rights of the Council of Europe and to make the necessary amendments to the Community treaties.”
8. Similarly, in Recommendation 1439 (2000), it recommended that the Committee of Ministers of the Council of Europe “pronounce itself in favour of accession to the European Convention on Human Rights of the Council of Europe and make the necessary amendments to the Community treaties.”
9. A few months later, in Recommendation 1479 (2000) adopted on 29 September 2000, it recommended that the Committee of Ministers “enter into negotiations with the European Union without delay in order to enable the Union to accede to the European Convention on Human Rights as soon as possible by drawing up the necessary amendments to both the European Union treaties and the European Convention on Human Rights.”
10. Since then, the Laeken Summit (14-15 December 2001), which established the Convention on the Future of Europe, has asked it to determine whether the Charter of Fundamental Rights should be incorporated into the basic treaty and to consider the question of accession by the European Community to the ECHR.
11. At Council of Europe level, the CDDH, at the request of the Committee of Ministers, has prepared a study on the technical and legal issues of a possible EC/EU accession to the ECHR. The Committee of Ministers, however, has still not expressed support for such accession.
12. It is not enough, therefore, to simply invite the European Union, as the Resolution does in paragraph 13 ii, “to include in the future constitutional treaty a clause on accession to the ECHR”. The Assembly should go a step further and invite the Union to enter into negotiations with the Council of Europe and prepare the legal instruments that will make accession possible. I will therefore propose that paragraph 13.ii be amended along these lines.
13. Before incorporating the Convention into the constitutional treaty, the EU first needs to ratify it, which is why I will also propose an amendment to paragraph 13.i.
14. It is not enough, either, to simply urge the Union on: the Council of Europe must itself do more to facilitate accession, starting with a pronouncement by the Committee of Ministers in favour of EU accession.
15. Since the report concerns the Council of Europe’s contribution to the Constitution-making process of the EU, more should be said about the role and specific characteristics of the Council, in particular the areas where it has a recognised function: protection of human rights, democracy, the development of culture and education and protection of the environment.
16. To suggest that the future constitutional treaty should include a reference to other conventions, including the revised European Social Charter is to go too far, however, as these instruments do not carry the same legal weight as the ECHR. The Committee on Legal Affairs and Human Rights has already commented on this subject and has spoken out against including these rights in the ECHR. I will leave this matter to the rapporteur of the Political Affairs Committee, however, and will propose an amendment.
Reporting committee: Political Affairs Committee
Committee for opinion: Committee on Legal Affairs and Human Rights
Reference to committee: Doc 9157 and Reference No 2636 of 25 September 2001
Opinion approved by the committee on 28 January 2003
Secretaries to the committee: Ms Coin, Ms Kleinsorge, Mr Ćupina, Mr Milner
1 See Doc 9666 tabled by the Political Affairs Committee.