Link to Mr Polakiewicz’s presentation -

Legal challenges and opportunities raised by EU participation in Council of Europe treaties

Contents

Introduction. 1

EU accession to the ECHR.. 2

General issues of EU participation in CoE treaties. 6

1) Drafting of treaties. 6

2) Conclusion of treaties. 7

3) Participation and voting rights of the EU in follow-up and monitoring mechanisms. 8

4) Financial contribution. 9

Next steps in Strasbourg and/or Brussels?. 9

Concluding remarks. 10

Introduction

First of all, I would like to thank the Bulgarian Council Presidency for having invited me to speak at this meeting. As you know, the Council of Europe (CoE) and the European Union (EU) have a common history, having been born out of the chaos and destruction of the Second World War, and formed with a mission to ensure peace, democracy and respect for human rights. The Council of Europe now counts 47 Member States, with 820 million citizens benefitting from the protection of the European Convention on Human Rights (ECHR). Recent enlargements of the EU have followed the expansion of membership in the CoE. With 28 states as members of both institutions, EU members now represent a majority in the Committee of Ministers.

In addition to overlapping geographical scope, convergence in mandates has created a dual system of rights in some areas. Our complementary mandates can only operate efficiently through close cooperation, as the Memorandum of Understanding signed between our institutions in 2007 recognised.[1]

From October 2010 to April 2013 I personally participated in the negotiations on EU accession to the ECHR. Already then, non-EU member states delegations raised genuine concerns about the impact of the membership of a steadily increasing number of CoE member states in the more closely integrated EU. These concerns still exist and we encounter challenges in our cooperation, but in my view they can be overcome.

Speaking as the CoE’s Legal Adviser, I would like to share with you some personal reflections on how to overcome challenges raised by the accession of the EU to CoE treaties, starting with our most important treaty, the ECHR.

EU accession to the ECHR

Three years and four months have passed since the ECJ declared the draft ‘Agreement on Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms’ (“DAA”)^[2] incompatible with EU law, in its now infamous Opinion 2/13. Despite solemn declarations by President Jean-Claude Juncker,[3] Vice-Presidents Timmermans[4] and Mogherini[5] on the continued commitment of the Commission to accession, we have still not received any concrete proposals on the way forward.

In a certain sense, the ball is in the EU’s court. However, whatever proposals the European Commission puts forward, they will obviously be the subject of negotiations in Strasbourg.

CoE member states have so far not adopted any conclusions on Opinion 2/13 or its consequences other than to reiterate their commitment to accession, most recently at The High Level Conference held in Copenhagen 11-13 April 2018, with a view to ensuring coherence in the protection of human rights across the continent for the benefit of all.^[6]

Only the Union’s accession to the ECHR can ensure the necessary coherence of human rights standards all over Europe. As the EU Convention’s Working Group II on the EU Charter and accession emphasised already in 2002, “accession would be the ideal tool to ensure a harmonious development of the case-law of the two European Courts in human rights matters.” It “would give a strong political signal of the coherence between the Union and the ‘greater Europe’, reflected in the [Council of Europe] and its pan-European human rights system.” ^[7] In my view, this reflection could apply to all Council of Europe conventions which are relevant to the EU competencies.

Making the EU Charter of Fundamental Rights (“CFREU”) binding was a major step in further enhancing human rights protection in the EU. At the same time, the resulting complexity of the overall system of fundamental rights in Europe is not conducive to legal certainty. In their report on the longer-term future of the ECHR system, the Steering Committee for Human Rights (CDDH) concluded that “[i]n case of non-accession, there is a real risk of the two main European legal systems drifting apart.”^[8] The CDDH currently prepares a report, due to be finalised in 2019, on the place of the Convention in the European and international legal order which will also examine the consequences of non-accession.

With opinion 2/13, the ECJ went against the unequivocally expressed views of the Commission, all intervening EU member states, the Council and the European Parliament. While some amendments required by the ECJ are rather technical in nature and could in my view be relatively simply incorporated into the DAA, others concern central issues such as the need to coordinate the EU Charter with the ECHR, EU legislation in the area of justice and home affairs (“JHA”) or the EU’s common foreign and security policy (“CFSP”).

What is particularly striking in Opinion 2/13 is the absence of any argument referring to the constitutional significance of article 6 (2) TEU which formulates an obligation to accede. Instead, the ECJ confirms its previous case-law, in particular the Melloni judgment,^[9] insisting that “the unity, primacy and effectiveness of EU law” must not be affected by EU accession.

The accession agreement had been painstakingly negotiated and approved by experts from 47 European states and the European Commission who were fully aware of the EU and international law implications. Like in all international negotiations, the solutions eventually found were sometimes the result of difficult compromises. The negotiators had to strike a fair balance between accommodating “the specific characteristics of the Union and Union law”^[10] and preserving the essential features of the Convention system.

The ECJ has called into question the delicate compromise that had been reached. The challenge is to overcome objections which are not only of an exceptional magnitude, but also, at least partially, of questionable legal relevance.[11]

One example is the question of how the principle of joint responsibility would affect member states’ reservations to the ECHR.[12] Any reservation made by an individual member state can only refer to national legislation in force when that reservation was made (article 57 (1) ECHR), but not to “a provision of (primary or secondary) EU law.” By definition, existing reservations made by individual member states cannot cover EU law; only (future) reservations to be made by the EU itself may apply to EU law.

Another objection, which could be seen as fundamental, is that of mutual trust between EU member states. From a Strasbourg perspective, it would be ideal if this problem could be overcome through case-law development and through dialogue. Recent case-law from both the ECJ and the ECtHR is indeed converging in the sense that national authorities have a duty to effectively ensure respect for basic human rights.^[13] I would argue that there are indeed no compelling grounds to exempt EU legislation related to judicial cooperation from the ECtHR’s full jurisdiction.

A former ECtHR judge has described the opinion as “a political decision disguised in legal arguments.”^[14] It has even been proposed to overcome the current deadlock through amendments to the EU treaties, allowing for EU accession notwithstanding opinion 2/13.^[15] This is certainly a legally possible solution, but would neither be respectful of the ECJ’s role under the EU treaties nor realistic in political terms.

What remains realistically possible is to address the objections one by one, identifying solutions which respect both the requirements of EU constitutional law and the integrity of the ECHR system. Here are some general recommendations on how to proceed:

• Keep formal amendments to the text of the DAA to a minimum. At the end of the negotiations in Strasbourg, non-EU member states had the impression that they had gone as far as possible in accommodating “the specific characteristics of the Union and Union law”. Any further exceptions risk being perceived as undue privileges for the EU.

• In particular, do not use so-called ‘disconnection clauses’.^[16] They are out of place in treaties guaranteeing human rights (minimum) standards.^[17] Avoid including provisions on internal EU matters into an international treaty to which non-EU member states are or will become parties and which will ultimately be interpreted by the ECtHR.

• Instead use, wherever possible, the EU’s internal rules to codify provisions whose purpose it is to ensure that EU member states comply with EU law when implementing the accession agreement.

• Interpretative declarations by the EU and its member states as well as reservations by the EU may also be useful to overcome certain objections. I recall that the DAA allows the EU to make reservations “in respect of any particular provision of the Convention, to the extent that any law of the European Union, then in force is not in conformity with the provision. Reservations of a general character shall not be permitted.”^[18] Reservations may be made in respect to both EU ‘primary’ and ‘secondary’ law.^[19]

  If all ECJ objections are met by formal amendments to the DAA, there is a real risk that, as a result, the ECtHR’s jurisdiction over EU legal acts will be more restricted than it is today. Such a solution would not only undermine the whole purpose of accession, but may also be inacceptable to non-EU member states.

  Today, EU member states remain collectively responsible for ensuring that powers conferred to the EU are exercised in conformity with the ECHR. The ECtHR has interpreted the “securing” of the Convention guarantees referred to in article 1 ECHR as applying comprehensively not only to the direct exercise of powers at national level but also to the exercise of powers conferred to supranational EU institutions.^[20] Only the question whether it is also possible to bring applications before the ECtHR concerning the exercise of powers directly by EU institutions themselves has so far remained open. Without accession, such applications can only be brought against the EU member states collectively.[21]

  As I told already the European Parliament’s Committee on Constitutional Affairs on 20 April 2016, we stand ready to do whatever possible to take this file forward, assisting the EU institutions in their search for solutions.

General issues of EU participation in CoE treaties

Since the signing of the 2007 Memorandum of Understanding, the CoE and the EU have developed a strategic partnership based on mutual values. Our partnership aims to ensure coherence and has in my view been successful in fostering an environment of cooperation in which human rights, democracy and the rule of law can be encouraged to flourish. Indeed, the CoE and the EU have a shared responsibility for upholding the effectiveness of their respective legal frameworks and ensuring that any overlapping competences do not create conflict. This applies not merely to the ECHR, but generally to CoE treaties.

The question is thus of practical relevance for the Council of Europe.

Indeed, since so many of our conventions have a direct impact on the protection of fundamental rights, the question of EU participation becomes very important. Currently, the CoE, the EU and its member states are at various stages of negotiation and conclusion of conventions and protocols concerning issues as diverse as data protection, terrorism, or preventing and combating violence against women.

Where CoE member states have transferred their competences in certain areas to the EU, it becomes increasingly important for the effective functioning of international treaties that the EU should participate to avoid potential gaps in protection. Indeed, EU member states must not be able to escape their obligations by transferring competences to the EU, but once this has occurred, the relevant control mechanisms must reflect the changed balance of powers and responsibilities for compliance.

I would like to highlight four issues regarding (1) the drafting process, (2) the conclusion of treaties, (3) the participation of the EU in monitoring and follow-up mechanisms, including related voting rights and (4) the EU’s financial contribution.

1. Drafting of treaties

The drafting process of treaties within the CoE raises questions of both a procedural and substantive nature concerning the potential participation of the EU.

Procedurally, the CoE’s current legal framework recognises only states as members. The fact that EU member states have conferred substantial competences to the EU and may no longer be entitled to exercise them internationally has so far been largely ignored and is accommodated practically on an ad hoc basis through coordination and compromise. It should be emphasised that CoE rules governing the drafting of treaties provides a rather flexible framework which may be adapted in particular cases.[22]

Substantively, the joint action of EU member states within the Council of Europe, however beneficial it may be in terms of combining the action of 28 member states, affects the multilateral character of negotiations and risks alienating non-EU member states. We witness indeed a certain apprehension on their part because, due to their numerical minority in the CoE, those member states feel that their views do not carry much weight in the negotiations.

The dynamics of negotiations in Strasbourg are different if EU member states do not contribute individually and substantially to the discussions. A striking example of this has been the on-going negotiations on the modernisation of the Data Protection Convention (ETS 108).

Our treaties are essential building blocks of a common European legal space. Using the language of our Statute, CoE treaties aim at fostering “closer unity between all like-minded countries of Europe.” Participation of all member states on an equal footing is an important element for establishing genuine ownership which in turn facilitates actual compliance.

2. Conclusion of treaties

Under the CoE Statute, it is up to each member state to decide individually whether to become party to a particular treaty or not.

Practical problems have arisen because of uncertainty over the procedures to be followed within the EU. If for the conclusion of a ‘mixed agreement’ consensus between the EU and its member states is required,^[23] this will mean in practice that a single CoE member state can prevent more than half of our member states from joining a treaty duly adopted by the Committee of Ministers. Such a situation risks seriously affecting our capacity to conclude treaties.

Due to the increase of EU competences under the Maastricht, Amsterdam and Lisbon treaties, almost all CoE treaties nowadays contain at least some provisions falling within exclusive EU competence. These may be substantive or horizontal, often rather ancillary provisions, for example on judicial cooperation or data protection.

Another issue concerns the existence of exclusive EU competence which so far has not been contemplated in the final clauses of any CoE treaty. As regards the expression of consent to be bound in such situations, there appear to be two options: either the EU alone signs and ratifies the treaty in question, or the Council of the EU may adopt a decision authorising the EU member states to sign/ratify the treaty “in the interest of the Union”.^[24]

3. Participation and voting rights of the EU in follow-up and monitoring mechanisms

A strength in particular of more recent CoE conventions lies in the fact that they do not only formulate general standards, but also provide for effective follow-up and monitoring mechanisms.

When evaluating the extent to which treaty obligations are implemented by states parties, the various mechanisms apply a holistic approach which does not take into consideration whether and to what extent a certain conduct by a state party is based on EU law.

The CoE Convention on preventing and combating violence against women and domestic violence (“Istanbul Convention”) which has been signed but not yet ratified by the EU provides a good example. The Convention establishes a specific monitoring mechanism consisting of a Committee of the Parties and a Group of Experts on Action against Violence against Women and Domestic Violence (“GREVIO”) in order to ensure effective implementation of its provisions by the parties. By committing to the implementation of the Convention, the EU will confirm its engagement in combating violence against women. However, since both the EU and its member states have competence in the fields covered by the Convention, issues of attribution and responsibility will have to be addressed as well as related voting rights.

The issue of voting rights was also one of the main difficulties in the context of the revision of Data Protection Convention 108.

There are arguments both in favour and against the proposition that the EU should have the number of votes corresponding to the number of its member states. Non-EU member states have argued during recent discussions on the revision of Data Protection Convention 108 that the EU should have one vote as other contracting parties.

In the alternative, if the EU is given the number of votes corresponding to the number of its member states which are party to the convention, special voting rules, for example qualified majorities, will be necessary in order to counterbalance the otherwise decisive majority of the EU and its member states. When dealing with the monitoring of compliance either by the EU alone, or by one or more of its member states acting within the scope of EU law, EU member states are obliged to express positions and to vote in a coordinated manner.

Without special voting rules, non-EU member states will be systematically in a minority which risks undermining the independence, credibility and effective functioning of our monitoring mechanisms. In some cases, such voting rules may be included in the treaty itself, in others this issue is left to the rules of procedure of the monitoring bodies. The latter has the advantage of providing more flexibility.

4. Financial contribution

As regards the EU’s financial contribution, voluntary contributions are currently the only way to make the EU participate in the costs of monitoring or follow-up mechanisms which are in some cases quite substantial. As an alternative, it could be foreseen to have special provisions on the EU’s financial contribution in future conventions.

Personally I remain sceptical as regards the use of specific clauses on financial contributions. I vividly remember the highly complex discussions we had when drafting such a clause for the agreement on the accession by the EU to the ECHR. In any case, this issue has to be considered not just from the CoE perspective, but also in light of the EU’s own budgetary and financial arrangements which contain specific requirements as to the legal basis of compulsory contributions.

Next steps in Strasbourg and/or Brussels?

Many of the issues which I have mentioned today have already and will continue to come up naturally in the context of specific accession negotiations.

Many of these need to be addressed in Strasbourg. Our legal framework – the Statute, rules of procedure of the Committee of Ministers or of intergovernmental committees - does not reflect realities post-Lisbon.

However, clarity must also be forthcoming from the EU concerning its internal rules and procedures. Transparency and dialogue is fundamental to effective cooperation.

In my view, it would serve both legal certainty and transparency to agree on a series of basic principles of horizontal application such as voting rights, speaking rights, or financial arrangements. Similar rules exist in the United Nations[25] and our Parliamentary Assembly has now recommended to consider their adoption by the CoE in its Recommendation 2114 (2017). Of course, such rules would still be open to ad hoc adjustments to take account of specific situations.

I would like to invite EU member states and institutions to consider the added value and feasibility of such a general framework. Many issues will in any case be determined to a large extent by EU law and the willingness of the EU to enter into an agreement. Each time the CoE sets out to draw up a new or revise an existing convention, legal experts in Brussels, Strasbourg and the capitals spend much time and effort examining issues of procedure instead of focusing on the real substantive issues.

I am convinced that we would save a lot of energy and make a real positive impact if we were to draft a common framework which sets out the applicable principles which can be referred to every time.

Concluding remarks

As experts in fundamental rights, I do not have to convince you of the CoE’s relevance in the EU’s geopolitical environment, both in a wider Europe and worldwide. An increasing number of our conventions have taken on global significance, either because they are signed by non-European states, or because they are the sole international standards on their respective subject matters. I have mentioned some of them today.

You must be aware that the positive relationship between the CoE and the EU would be seriously undermined if the CoE is no longer able to effectively play its role as a standard setter.

I fully share the European Commission’s evaluation of its cooperation with the CoE for the period 2000-2010, which found that the CoE’s “comparative advantage is in its expertise … its legal and moral authority and its unique combination of roles.”[26]

I think it is in the interest of all of us, and Europe as a whole, that this expertise, legal and moral authority, in particular in the domain of fundamental rights, be maintained and strengthened through cooperation between our institutions, including through the amplification of CoE standards through EU accession.

Enormous progress has been made to better coordinate the work of the EU and the CoE, in particular on the basis of the 2007 Memorandum of Understanding whose 10th anniversary we celebrated last year.

Nevertheless, some questions remain on the table:

• The CoE draws its expertise from the active participation of national experts in drafting and follow-up committees. How will their involvement change as a result of increased EU participation? Whatever form the participation of the EU may take in the future, it will be essential to preserve the role of national experts who contribute with their knowledge and expertise to multilateral negotiation processes.

• Can Europe afford a continuous multiplication of legal instruments and protection mechanisms? Failure to address the challenges I have mentioned risks creating duplication of work. Rather than providing added value, the result will be a weakening of existing mechanisms and confusion among citizens and practitioners about applicable standards.

• Would it not be much more efficient to join forces and to invest in the effective implementation of our common standards?

  A Bulgarian proverb says “В мътна вода лесно се лови” which translates into English as “it is good fishing in troubled waters.” I think we have a common interest to clarify legal issues related to EU participation in CoE treaties with a view to finding practical solutions which respect both the requirements of EU constitutional law and the integrity and effectiveness of the CoE convention system.

  I would like to thank again the Bulgarian Presidency for having invited me and hope that this intervention will be first step in an ensuing dialogue.

  I am convinced that only together we can achieve a coherent system of human rights and rule of law protection for the whole continent that ensures maximum benefit for all citizens and countries concerned.

  Thank you very much for your attention.