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Committee Opinion | Doc. 14860 | 08 April 2019
Establishment of a European Union mechanism on democracy, the rule of law and fundamental rights
Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
A. Conclusions of the committee
(open)1. The Monitoring Committee has
been seized for opinion on the report on the establishment of a
European Union mechanism for democracy, rule of law and fundamental
rights, which Ms Petra De Sutter (Belgium, SOC) has prepared on
behalf of the Committee on Rules of Procedure, Immunities and Institutional
Affairs.
2. On 25 October 2016, the European Parliament adopted a resolution
recommending that the European Commission create a mechanism on
democracy, the rule of law and fundamental rights, described at
length in the draft interinstitutional agreement annexed to it.
Faced with the European Commission's refusal, a position shared
by the Council of the European Union, the European Parliament reiterated
the need to provide the European Union with a “comprehensive mechanism
for the protection of democracy, the rule of law and fundamental
rights” in another resolution adopted on 14 November 2018.
3. The Monitoring Committee does not believe that the implementation
of the mechanism as presented in the 2016 Resolution will take place
in the near future. At the same time, it is well aware that, on
the one hand, the European Union has been greatly involved in the
field of the three pillars of the action of the Council of Europe,
and secondly, that co-operation between the latter and the European
Union in the field of monitoring procedures has greatly intensified
over the last years, as the report of Ms De Sutter outlines in great
detail. In other words, as the Committee on Rules of Procedure has
fully understood, the debate on this mechanism is the perfect opportunity
to reflect on the future of the Council of Europe's co-operation
with the European Union in this area, and in more practical terms,
on the place and role that the Parliamentary Assembly would like
to, should and could play in it.
4. In this respect, the Monitoring Committee fully shares the
conclusions of the Committee on Rules of Procedure, in particular
when it recalls that the Council of Europe is the source of reference
in the field of human rights and that it must also maintain its
primacy when the respect of common fundamental values by the
member States of the European Union, as well as non-EU member States,
is assessed.
5. It considers that the accession of the European Union to the
European Convention on Human Rights (ETS No. 5) would fit perfectly
into this perspective.
6. In addition, the Monitoring Committee believes that the proposal
that the Parliamentary Assembly hold an annual debate on the rule
of law with the participation of representatives of the European
institutions is a practically feasible, politically relevant and
strategically clever way to foster co-operation between the institutions
of the European Union and the Council of Europe, while guaranteeing
the Assembly a place within it. The Monitoring Committee also considers
that this place is entirely legitimate, given the nature of the Assembly:
a forum for interparliamentary dialogue bringing together elected
representatives from national parliaments.
7. The Monitoring Committee also fully subscribes to the recommendations
made by the Committee on the Rules of Procedure to the Committee
of Ministers, in particular to paragraphs 4 (intensification of
political action by the Committee of Ministers), 7 (risks to the
coherence of the standard-setting system in Europe) and 9 (recommended
measures to maintain the primacy of the Council of Europe) of the
draft recommendation.
8. Therefore, the Monitoring Committee has only one amendment
to submit. Moreover, it takes this opportunity to draw the attention
of the members of the Assembly to a number of points made in the
following explanatory memorandum.
B. Proposed amendment to the draft resolution
(open)Amendment A (to the draft resolution)
After paragraph 7, insert the following paragraphs:
“The Assembly recalls that since 1993 it has had a procedure for monitoring the obligations and commitments made by the member States upon their accession to the Council of Europe, the implementation of which is the responsibility of the Monitoring Committee. All Member States can be submitted to this procedure. Furthermore, when closing a monitoring procedure, a post-monitoring dialogue is carried out with the State concerned. This procedure allows for the examination of questions relating to the functioning of democratic institutions in the member States. Lastly, it ensures compliance with the obligations entered into by member States which are not the subject of specific monitoring procedures through periodic review reports carried out on a country-by-country basis.
The Assembly invites the European Union to refer to the work of the Monitoring Committee as necessary.”
Explanatory note:
As the draft resolution does not mention the Assembly's monitoring procedure, which has more than 20 years’ experience, the addition of these two paragraphs seems to be amply justified. Ten countries are now under the monitoring procedure, three engaged in a post-monitoring dialogue and the functioning of democratic institutions is currently under consideration in one country.
C. Explanatory memorandum by Mr Andrej Šircelj, rapporteur for opinion
(open)1. The work on the European mechanism
conducted by the Committee on Rules of Procedure and the Monitoring
Committee, in which I took part, 
and the various exchanges
I have had have helped me to come to the following conclusions.
and the various exchanges
I have had have helped me to come to the following conclusions.2. In 2000, even though the European Union already had at its
disposal Article 7 of the Treaty on European Union (TEU), which
is sometimes referred to as a “procedure of political infringement”,
it chose to ask the President of the European Court of Human Rights
to appoint three “wise men” to solve a crisis related to a possible
violation of “common European values” in Austria. It
is clear that this era is completely over. The list of instruments
put in place by the European Union to monitor the rule of law, as
described in Ms De Sutter's report, speaks for itself. It makes
it possible to measure the progress made since the Copenhagen Declaration of
1993, which laid down the political criteria to be fulfilled by
any State wishing to join the Union: stability of institutions guaranteeing
democracy, the rule of law, human rights, and respect for and protection
of minorities.
It
is clear that this era is completely over. The list of instruments
put in place by the European Union to monitor the rule of law, as
described in Ms De Sutter's report, speaks for itself. It makes
it possible to measure the progress made since the Copenhagen Declaration of
1993, which laid down the political criteria to be fulfilled by
any State wishing to join the Union: stability of institutions guaranteeing
democracy, the rule of law, human rights, and respect for and protection
of minorities.3. At the same time, the use of the work of the Council of Europe
by the European Parliament and the European Commission has increased.
Today it takes two main forms. Either the work of the Council of
Europe is directly integrated into the European Union's monitoring
activities, or the standards produced
by the different Council of Europe entities serve as an explicit
reference base for the decisions taken by the European institutions
in terms of monitoring. As Ms De Sutter's report rightly notes,
this concerns in particular the Committee of Ministers, the European
Commission for Democracy through Law (Venice Commission), CEPEJ, the
Group of States against Corruption (GRECO) and the Committee of
Experts on the Evaluation of Anti-Money Laundering Measures and
the Financing of Terrorism (MONEYVAL).
or the standards produced
by the different Council of Europe entities serve as an explicit
reference base for the decisions taken by the European institutions
in terms of monitoring. As Ms De Sutter's report rightly notes,
this concerns in particular the Committee of Ministers, the European
Commission for Democracy through Law (Venice Commission), CEPEJ, the
Group of States against Corruption (GRECO) and the Committee of
Experts on the Evaluation of Anti-Money Laundering Measures and
the Financing of Terrorism (MONEYVAL).4. My conviction is that this expansion of the European Union
into the field of the Council of Europe is not about to stop, whether
we like it or not. Paradoxically, the cumbersome nature of Article
7 of the Treaty on European Union and its eminently political nature
have led the European Commission and the European Parliament to
develop other monitoring tools and I do not see what could deter
them from doing so in the future. The founding purpose of European
construction remains, according to its Preamble, “an ever-closer
union”. Moreover, the movement in this direction is continuing as
the European Parliament's Committee on Civil Liberties, Justice
and Home Affairs established a Rule of Law Monitoring Group on Corruption
and Freedom of the Press focused on Malta and Slovakia in December
2017 and that the European Commission announced in October 2018
that it intended to strengthen its rule of law framework.
5. The mechanism proposed by the European Parliament in its 2016
resolution has, in my view, no chance of being adopted as it stands.
The European Commission and the Council of the European Union have explained
their opposition: the proposed mechanism would be seen by the EU
member States as encroaching on their sovereignty. In my view, this
reason is more damning than the question of whether or not the European Treaties
provide a legal basis for implementing it. This position means a contrario that the day a similar mechanism
is seen as necessary and not as intrusive, it will be adopted. The
Parliamentary Assembly must be prepared for it.
6. Faced with this situation, I see three possible reactions
for the Assembly and its Monitoring Committee.
7. The first would be that of a “complaint” on the grounds that
the Council of Europe and the Assembly would have precedence in
the implementation of the monitoring procedures, the expertise that
accompanies it, the primacy in this area recognised by the 2007
Memorandum of Understanding signed with the European Union, and
that ultimately the European Union is involving itself in something
that is not of its concern. This position, whatever the legitimacy
of its arguments, seems to me unrealistic, outdated and in any case
not likely to affect the dynamics of the European Union.
8. The second reaction would be a form of “splendid isolation”,
the European Union going about its procedures, while the Assembly
would take care of its own, arguing for example that they differ
in their objectives and in their means. I do not think this position
is sustainable in the long run in terms of the Assembly's monitoring
procedure. The European Commission is already implementing its rule
of law framework for country-by-country monitoring, using the recommendations
and opinions of Council of Europe monitoring entities, as the Monitoring
Committee of the Assembly does. Geographically, the number of countries
for which there is no risk that any EU monitoring mechanism applies
concurrently with that of the Monitoring Committee is quite limited.
Legally, the Monitoring Committee may initiate a monitoring procedure
for all member States of the Council of Europe, that is to say possibly
in respect of all the member States of the European Union. Bulgaria
is still engaged in a post-monitoring dialogue. In addition, among
non-EU member States, Albania, North Macedonia, Montenegro, Serbia,
Turkey and Bosnia and Herzegovina are either candidates for accession
to the European Union or potential candidates and therefore subject
to strict control of compliance with the political criterion defined
by the Copenhagen Declaration. Therefore, the risks, as listed in Ms De Sutter's
report (duplication of standards, contradiction between them or
divergent interpretations of the same standards, “forum shopping”,
etc.), ultimately exist for three quarters of the member States
of the Council of Europe.
9. The third attitude, which seems to be the right one, is to
promote the Assembly's monitoring procedure by accentuating the
latter's co-operation with the European Union.
10. Two conditions seem to me essential for such co-operation
to be successful. First of all, in order to ensure an effective
way of guaranteeing the primacy of the Council of Europe in setting
the standards for the three pillars, namely democracy, the rule
of law and human rights, it seems to me that the accession of the European
Union to the European Convention on Human Rights is necessary. This
accession would subject the legal corpus of the European Union to
the respect of the provisions of the Convention as interpreted by
the European Court of Human Rights and should normally lead to limiting,
if not eliminating, the few divergences of case law existing between
the latter and the Court of Justice of the European Union. The European Commission
has stated that accession remains a priority and I can only hope
that it will come to fruition.
11. The second measure which seems to me to be important is the
proposition set out in Ms De Sutter's report. The Assembly could
organise a parliamentary annual debate on the rule of law with the
participation of representatives of the European institutions. The
concern of both the Commission and the European Parliament is to
involve national parliaments in rule of law debates and their monitoring
mechanism. What better forum to do it than the Parliamentary Assembly,
composed of members of national parliaments?
12. I fully support this proposal as it also emphasises the complete
lack of visibility of the Assembly in general, and the procedure
of the Monitoring Committee in particular, in the monitoring mechanisms
of the European institutions. When the European Parliament is considering
a mechanism, the Assembly is regrettably nowhere to be found. When
the European Commission refers to the opinions of the Venice Commission
on the judicial reforms of Poland in its rule of law framework,
it is not at any time aware that some of these opinions were requested
by the Monitoring Committee. When the European Union Agency for
Fundamental Rights lists, in its EFRIS tool, all entities with monitoring
procedures relating to the rule of law, those of the Council of Europe
are all included in the list, excepting the Assembly. Finally, when the Committee on Foreign
Affairs and the Committee on Civil Liberties of the European Parliament
hold a joint hearing on the rule of law and the accession
process, which concerns countries either under the monitoring procedure
or engaged in a post-monitoring dialogue, while the President of
the Venice Commission takes part, which I welcome, no member of
the Assembly is present, which I deplore. I therefore call for an
end to this invisibility, at a time when the Monitoring Committee
has reformed its procedure to give more impact to reports on countries
not subject to a monitoring procedure or engaged in a post-monitoring
dialogue and when it looks at the functioning
of democratic institutions in member States. If the Monitoring Committee
and, more broadly, the Assembly, wish their work to become a reference
source for the European Union's monitoring mechanisms, along with
those of the Venice Commission, GRECO or CEPEJ, it is up to them
to multiply the opportunities to present them to the European institutions
by setting up an informal but regular dialogue with them. Rapporteurs
and chairpersons of committees could be the spearhead of it, especially
with regard to their counterparts in the European Parliament, whose
seat is not too far from that of the Assembly.
Finally, when the Committee on Foreign
Affairs and the Committee on Civil Liberties of the European Parliament
hold a joint hearing on the rule of law and the accession
process, which concerns countries either under the monitoring procedure
or engaged in a post-monitoring dialogue, while the President of
the Venice Commission takes part, which I welcome, no member of
the Assembly is present, which I deplore. I therefore call for an
end to this invisibility, at a time when the Monitoring Committee
has reformed its procedure to give more impact to reports on countries
not subject to a monitoring procedure or engaged in a post-monitoring
dialogue and when it looks at the functioning
of democratic institutions in member States. If the Monitoring Committee
and, more broadly, the Assembly, wish their work to become a reference
source for the European Union's monitoring mechanisms, along with
those of the Venice Commission, GRECO or CEPEJ, it is up to them
to multiply the opportunities to present them to the European institutions
by setting up an informal but regular dialogue with them. Rapporteurs
and chairpersons of committees could be the spearhead of it, especially
with regard to their counterparts in the European Parliament, whose
seat is not too far from that of the Assembly.