This article examines the interaction between the Council of Europe and the European Union (EU). Both seek to achieve greater unity between the States of Europe through respect for the shared values of pluralist democracy, the rule of law and human rights. The Council of Europe was the first European political organisation, founded in 1949, with a view to achieving closer unity among its members.1 It is probably best known for its work on the protection of human rights, based on the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (European Convention on Human Rights or ECHR)2 and its protocols. They set out inalienable rights and freedoms and established international enforcement machinery built around the European Court of Human Rights (ECtHR). Numerous Council of Europe treaties are part of the EU’s acquis, on the basis of which closer cooperation within the EU has been developed.3 The Council of Europe has been, and continues to be, instrumental in preparing applicant countries for EU accession, in particular through its assistance in the fields of institution building, human rights and justice.
Despite many years of cooperation, the institutional role of the EU in the Council of Europe is still not clearly defined. Without being formally a member of the Council of Europe, the EU’s impact on the Council’s activities has been considerable. Given the breadth of its activities in the area of human rights, democracy and the rule of law, the Council of Europe has become a strategic partner of the EU, which was officially acknowledged through the conclusion, in 2007, of a Memorandum of Understanding (MoU).4 The EU provides important and very welcome political and financial support to the activities of the Council of Europe. At the same time, the overlapping geographical scope and convergence in mandates of both institutions have created a dual system of rights, actors and legal instruments, which has given rise to interesting legal questions.
The emphasis in this article will be on the participation of the EU in the drafting, conclusion and implementation of Council of Europe treaties. While the instruments and activities of the Council of Europe are exclusively governed by public international law, the Court of Justice of the European Union (CJEU) qualified the Union’s separate legal order as early as 1986 as ‘constitutional’ in nature.5 The coexistence of Council of Europe and EU standards and mechanisms operating within an ever more overlapping membership offers opportunities and presents challenges at the same time.6 Challenges result in particular from overlapping human rights standards, the ECHR on the one hand and the EU Charter of Fundamental Rights7 on the other. The EU provides a dynamic framework for the participation of 27 Member States in the Council of Europe. At the same time, non-Member States of the EU (NEUMS) have raised genuine concerns about the impact of EU law and policies on the Council of Europe’s role and standards and the fact that numerically Union Member States represent a majority in the Council of Europe.
This article argues that the Council of Europe and the EU have a shared responsibility for upholding the effectiveness of their respective frameworks. Following a comprehensive analysis of the existing legal framework, concrete proposals are made with a view to further strengthening the existing cooperation through a more rational, rules-based approach.
2. The institutional status of the EU in the Council of Europe
Institutionally, the EU is neither a member of nor an observer to the Council of Europe. Under the Statute, only a ‘European State’ can become a member of the Council of Europe.8 The category of ‘observer’, originally not foreseen in the Statute, was only introduced by Statutory Resolution (93) 26 on Observer Status (14 May 1993). Article VII of this Resolution foresees the possibility of granting observer status to an international intergovernmental organisation, but this provision was never applied in practice.9 The EU’s position in the Council of Europe has been described as a ‘strange case’,10 as a ‘relationship [that] defies the usual categories’.11 The existing legal framework indeed consists of a patchwork of texts, which, though having evolved over the years, do not fully take account of the current state of integration and the wide-ranging transfer of competences reached under the EU treaties.
The initial steps to foster cooperation between the two European institutions were taken under the 1957 Treaty of Rome, which provided that the ‘Community shall establish all appropriate forms of cooperation with the Council of Europe’.12 At the Warsaw summit (May 2005), the heads of state and government of Council of Europe Member States asked Mr Jean-Claude Juncker, then Prime Minister of Luxembourg, to examine the relationship between the Council and the EU. Mr Juncker presented his report ‘Council of Europe – European Union: A sole ambition for the European continent’ in April 2006.13 As foreseen in the Warsaw action plan, the Council of Europe and the EU started in parallel to negotiate a MoU, which was eventually signed on 11 May 2007. Though not a legally binding agreement, the MoU constitutes a framework for ‘enhanced co-operation and political dialogue’,14 while specifying priority areas of common interest and comparative advantages. Cooperation embraces all sectors of the Council of Europe and a wide spectrum of activities, making the EU an ‘across the board’ partner. The MoU describes the Council of Europe as ‘the benchmark for human rights, the rule of law and democracy in Europe’.15
Under the Lisbon Treaty, relations with the Council of Europe are the competence of the High Representative of the Union for Foreign Affairs and Security Policy, who is the head of the European External Action Service and responsible for field delegations. The High Representative is invited to participate in the Committee of Ministers’ sessions at ministerial level and a representative of the EU participates in the meetings of the Ministers’ Deputies and their subsidiary groups.16 Since January 2011, this representation has been ensured by the Delegation of the European Union to the Council of Europe, acting under the authority of the High Representative. The head and other representatives of this delegation participate in meetings of the Ministers’ Deputies and their Rapporteur Groups. However, none of the relevant texts (exchanges of letters, MoU or Committee of Ministers decisions) defines the rights of the EU representatives other than to indicate that they do not have voting rights. In practice, the EU delegation plays an active role in the Committee of Ministers, in particular when it comes to making statements on items under current political questions.
At a technical level, the EU enjoys the status of a ‘participant’ in advisory and technical committees set up by the Committee of Ministers under Article 17 of the Statute, the so-called intergovernmental committees governed by CM/Res(2011)24.17 This status is formally distinct from, but in substance identical to, that of an observer. EU representatives take part in meetings with no right to vote or defrayal of expenses.18 Drafting proposals made by participants may be put to the vote only if sponsored by a committee member.19 These provisions are, however, in contrast to a by now rather consistent practice which allows experts representing the EU, usually from the services of the European Commission, to negotiate on behalf of EU Member States and to present drafting proposals. Under Article 218(3) TFEU it is usually the European Commission that represents EU Member States in treaty negotiations.
The Council of Europe’s legal framework for expert committees which draft new treaties or revise existing ones is rather flexible. Article 17 of Appendix 1 to Resolution CM/Res(2011)24 contains the rules of procedure for Council of Europe intergovernmental committees. It provides that ‘any committee directly answerable to the Committee of Ministers may propose to the Committee of Ministers to amend these Rules or, in exceptional circumstances, to waive them in part’. Consequently, from the legal point of view, the applicable texts would not prevent the Committee of Ministers from granting the EU the right to make drafting proposals or to vote and to determine the arrangements for the exercise of that right to vote. In practice, however, this has never happened. The issue was considered in 2013 in the context of the preparation of an amending protocol to Data Protection Convention 108. Notwithstanding the existence of broad EU competences in this field, the Committee of Ministers did not grant voting rights to the EU in the ad hoc committee tasked with the elaboration of the protocol (CAHDATA).20 This did not, however, prevent the Commission representative from speaking and negotiating on behalf of the EU Member States in practice. At the same time, it can be rather frustrating for NEUMS representatives to see EU Member States’ representatives in negotiating meetings who do not actively take the floor and contribute with their expertise to the negotiations.
3. Joint programmes
Over and above their normative work, the Council of Europe and the EU run a wide range of cooperation programmes – which can be country specific, regional or multilateral – to help raise standards of human rights and democracy across Europe and in neighbouring countries.21 According to the 2007 MoU, ‘in line with the Joint Declaration on co-operation and partnership between the Council of Europe and the European Commission signed on 3 April 2001, on-going cooperation will be reinforced in the framework of the joint programmes’.22 In practice, regular ‘scoreboard’ meetings are organised to discuss and evaluate joint programmes.
Cooperation programmes support legal reform and capacity building through many different activities – typically including training courses, workshops and seminars, expert reports and advice to governments, conferences and publications – carried out in cooperation with the governments of the countries concerned. The geographical scope of such programmes extends nowadays beyond Europe, covering also North Africa, the Middle East and Central Asia.
A new framework agreement was signed in 2014, foreseeing a budget of up to €200 million over six years, to put these joint programmes on a more strategic and long-term basis. While the financial amounts involved are considerable and contribute substantially to visibility and impact of Council of Europe action, it must be taken into account that – with few exceptions – cooperation activities are not included in the Council of Europe’s ordinary budget, to which the EU does not contribute.
4. EU participation in Council of Europe treaties and partial agreements
Council of Europe treaties are strictly speaking not statutory acts of the organisation but multilateral treaties within the meaning of the 1969 Vienna Convention on the Law of Treaties (VCLT). They owe their existence to the consent of Member States that individually decide to sign and ratify them. Since 1949, more than 200 international treaties have been adopted by the Council of Europe. The EU’s engagement with the Council of Europe’s conventional acquis manifests itself in two ways. The EU can either itself become a party to the treaties (in addition to or substituting itself for its Member States) or it can influence the conclusion and application of these treaties through its Member States or through the adoption of parallel EU legislation.
As regards the first point, it should be noted that starting with the European Convention for the Protection of Animals kept for Farming Purposes (ETS 87, 1976), most Council of Europe treaties nowadays provide in their final clauses for participation of the EU as a party alongside Council of Europe Member States. While the EU initially could only accede after entry into force of the treaty in question and following an invitation by the Committee of Ministers,23 since the early 1990s roughly two-thirds of the Conventions were immediately opened to signature and ratification by the EU. The EU has, however, not fully used existing possibilities to become a party to Council of Europe treaties and partial agreements. It is currently a party to only 13 Council of Europe treaties, the last of which it ratified in October 2018.24 The EU has also signed four other Conventions, but they were not followed by ratification, the last signature dating from June 2017. The EU can become a party to 24 further treaties. In addition, the EU may be invited to accede to 13 other Conventions after their entry into force. As regards partial agreements, apart from the treaty-based European Pharmacopoeia, the EU has only joined the European Audiovisual Observatory as a full member. It has the status of a ‘participant’ in the Co-operation Group to Combat Drug Abuse and Illicit Trafficking in Drugs (Pompidou), the Co-operation Group for the Prevention of, Protection Against, and Organisation of Relief in Major Natural and Technological Disasters EUR-OPA, the European Commission for Democracy Through Law (‘Venice Commission’) and an ‘observer’ in the Group of States Against Corruption (‘GRECO’).25 In particular the latter two cover thematic areas of strategic importance to the EU, which frequently uses their opinions and recommendations.
Furthermore, participation of a steadily increasing number of Council of Europe Member States in a more closely integrated EU has had important repercussions on the normative work of the organisation. It is not just the sheer quantity, but more importantly the very nature of EU law which raises complex legal issues for treaty-making in the Council of Europe. EU legal instruments have been adopted that replace Council of Europe Conventions, at least as far as relations between EU Member States are concerned.26 Before examining in detail the impact of the EU and its law on the various steps of the Council of Europe treaty-making process (negotiation, conclusion, implementation), it is necessary to briefly recapitulate the nature of EU external competences and their legal basis.
4.1. The nature of EU competences and their impact on treaty-making
Exclusive EU competences are set out in Article 3 TFEU.27 ‘A priori’ exclusive competences such as the common commercial policy or the conservation of biological resources in the common fisheries policy are usually not relevant within the context of the Council of Europe. However, in a judgment concerning the European Convention on the Legal Protection of Services based on, or consisting of, Conditional Access (CETS 178, 2001),28 the CJEU identified the common commercial policy as the appropriate legal basis, the signature being intended to promote the supply of such services. According to the CJEU, the detailed provisions on seizure and confiscation measures merely helped to achieve this primary objective. It rejected the position held by the Council and several Member States that the Convention could not be concluded by the EU alone because of the presence of such ancillary elements. However, although the CJEU annulled the initial Council of the EU decision regarding the signature of this Convention by the EU,29 the EU’s signature was considered to remain valid at the level of international law. Several EU Member States which had initially ratified this Convention denounced it subsequent to the CJEU judgment.30 Following the adoption of new Council decisions, the EU eventually became a party to the Convention on 10 September 2015. There are, however, still three EU Member States that are parties to it. Under Article 9(2) of this Convention, the EU is entitled to vote in multilateral consultations with a number of votes of the EU Member States that are parties to this Convention. Such consultations have in practice never been convened. However, were this to happen, the EU would end up with zero votes in the event that all EU Member States denounce this Convention.
Exclusive EU competences (‘conditional exclusivity’) may also arise following the adoption of EU legislation (‘ERTA-based exclusivity’). Article 3(2) TFEU provides:
The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.
This second type of competence does not refer to a specific area but is limited to a type of legal instrument (international agreement). It concerns situations where the EU acts outside the areas defined as ‘exclusive’ in the previous paragraph. Therefore, the fact that the international agreement is concluded in an area of shared competence does not prevent the application of Article 3(2) TFEU. In order to determine whether exclusive EU competences under this provision exist, the CJEU carries out a comprehensive analysis of the treaty in question, taking into account:
the areas covered by the EU rules and by the provisions of the agreement envisaged, their foreseeable future development and the nature and content of those rules and those provisions, in order to determine whether the agreement is capable of undermining the uniform and consistent application of the EU rules and proper functioning of the system which they establish.
It is not necessary that EU rules exist that correspond to all substantial provisions of a treaty, but merely that treaty obligations ‘fall within an area which is already largely covered by [EU] rules’ (emphasis added).32 Given the extensive, and often expanding, EU legislation, the material scope of this second type of exclusive EU competence is broad, encompassing core areas of Council of Europe activities such as judicial cooperation in civil and criminal matters or data protection. This is brought about by a series of overlapping legal instruments, usually Conventions on the side of the Council of Europe and directives on the side of the EU.
4.2. Drafting of treaties
The EU’s impact on the drafting of treaties within the Council of Europe raises questions of both a procedural and substantive nature. Procedurally, the Council of Europe’s legal framework so far recognises only States as members and negotiators of treaties. As explained above, the fact that EU Member States have conferred substantial competences on the EU and may no longer be entitled to exercise them internationally has so far been largely ignored within the Council of Europe.33 Although the European Commission is regularly entitled under the EU treaties to negotiate on behalf of the Member States, its representatives currently have no standing under the applicable Council of Europe regulations which would correspond to this role.
When it comes to the adoption of draft treaties, only EU Member States are entitled to vote in the Committee of Ministers, including on a draft treaty the conclusion of which is within the exclusive competence of the EU. In such cases, the EU Member States participate in the adoption on behalf and in the interest of the EU. The CJEU has in fact recognised that, in a situation where the EU itself is prevented from acting on matters falling within the EU’s external competence, that competence may be exercised through the intermediary of EU Member States.34
It is interesting to note that the existing framework was considered insufficient during the negotiations on EU accession to the ECHR. The draft accession agreement provides in Article 7(2) that the EU shall be entitled to participate in the meetings of the Committee of Ministers, with the right to vote, when the latter adopts ECHR protocols. The draft explanatory report explains the rationale for this provision, highlighting at the same time its exceptional character:
To date, the Convention does not contain specific provisions regarding the adoption of protocols. Following the EU’s accession to the Convention, it is consistent with the principles underlying the Accession Agreement and with the principles of the Vienna Convention on the Law of Treaties (in particular Article 3935) to ensure that the EU can participate on an equal footing with the other High Contracting Parties in the adoption of Committee of Ministers decisions relating to the adoption of protocols. In order to allow such participation of the EU, the Accession Agreement will add a new paragraph to Article 54 of the Convention (where it is stated that the Convention shall not prejudice the statutory powers of the Committee of Ministers), providing an explicit legal basis in the Convention for the Committee of Ministers’ power to adopt protocols to the Convention. A reference to this new paragraph of Article 54 appears in Article 7, paragraph 2, of the Accession Agreement entitling the EU to participate in the Committee of Ministers, with the right to vote, when the latter takes decisions under specific provisions of the Convention. This provision will constitute a lex specialis in respect of the Statute of the Council of Europe, and in particular in respect of Article 15.a thereof. This is an exceptional provision derived from the particular circumstances of the accession of the EU to this Convention and the exceptional character of its participation. Therefore, these arrangements do not constitute a precedent for other Council of Europe conventions.
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 27 Member States, affects the multilateral character of negotiations. Such joint action must not lead to a marginalisation of NEUMS, which feel that their views do not carry much weight in the negotiations, or indeed to a transformation of the role of the Council of Europe from a standard-setter to a standard-receiver.37 Where EU Member States negotiate collectively, usually represented by the European Commission, individual EU Member States’ capacity to contribute to the discussions during drafting meetings is significantly reduced to merely supporting or explaining the EU position put forward by the EU’s representative.38
For a majority of Council of Europe Member States which are members of the EU the focus of negotiations tends to shift from Strasbourg to Brussels, to the competent EU Council working group which prepares common EU positions ahead of the negotiating meetings in the Council of Europe. This is a potentially frustrating situation for experts from countries that are not members of the EU, who, due to their numerical minority in the Council of Europe, may feel that their views do not carry much weight in the negotiations. Instead of being truly multilateral, negotiations are becoming progressively bilateral, between the EU and its Member States on the one hand and the rest of the Council of Europe Member States on the other (e.g. recent negotiations regarding Conventions in the animal welfare field, and notably animal transport,39 the revision of Data Protection Convention 10840 or the foreign fighters’ Riga protocol to the Council of Europe Convention on the Prevention on Terrorism (CETS 196, 2005)).41
Council of Europe treaties are essential building blocks of a common European legal space; they aim at fostering ‘closer unity between all like-minded countries of Europe’.42 Participation of all Member States on an equal footing is an important element for establishing genuine ownership, which in turn facilitates actual compliance. The dynamics and arguably even the results of negotiations in Strasbourg are different if EU Member States do not contribute individually and substantially to the discussions.
Possibly a distinction could be made between treaty-making and treaty-shaping. Experts from EU Member States could be allowed to participate fully and individually in the early stages of drafting, provided that the approval of the treaty by the Committee of Ministers were preceded by the adoption of the necessary legal acts under Article 218 TFEU. Such a procedure was used during the drafting of the agreement allowing the extension of the Schengen agreements to European Economic Area (EEA) countries.43
4.3. Conclusion of treaties
Under the Statute of the Council of Europe, treaties are adopted and opened for signature by the Committee of Ministers.44 It is then up to each Member State to decide individually whether to become party to a particular treaty or not. The impact of EU law on Member States’ expression to be bound by Council of Europe treaties depends on whether the treaty in question is a ‘mixed agreement’ or whether the subject-matter falls entirely within exclusive EU competence.
If the agreement is mixed, the EU signs and ratifies to the extent of its competence, and the EU Member States do the same regarding matters within their competence. In the words of the CJEU, ‘when such an agreement is negotiated and concluded, each of those parties must act within the framework of the competences which it has while respecting the competences of any other contracting party.’45 EU Member States are bound by duties of loyal and sincere cooperation, the requirement of unity in the international representation of the Union, and the fundamental principle of conferral of powers.46
In that context, it must be taken into account that, due to the increase of EU competences under the Maastricht, Amsterdam and Lisbon treaties, almost all Council of Europe 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 issues related to the subject-matter covered by the treaty in question. In the case of ‘mixed agreements’, in particular where shared competences are ‘inextricably linked’,47 it has been argued that the duty of loyal cooperation would entail that neither the EU nor its Member States can go ahead individually and become a party.48 However, to require consensus by all its Member States (‘common accord’) for the conclusion of a particular treaty means in practice that a single Council of Europe Member State (that is also a member of the EU) can prevent more than half of the Member States from joining a treaty duly adopted under the Statute. Such an outcome not only risks affecting treaty-making procedures within the Council of Europe, but may also contradict principles of both international and EU law. Regarding EU law, it must be emphasised that the duty of loyal cooperation is of horizontal and general application.49 It applies both to EU institutions and Member States when acting within the scope of EU law.50 Should EU Member States that have loyally participated, under commonly agreed negotiating directives, in the negotiation and adoption of a treaty be entitled to individually withhold their consent?
The issue is not only of theoretical interest but has become relevant for the Council of Europe Convention on the Manipulation of Sports Events (CETS 215, 2014) and the Istanbul Convention (CETS 210, 2011). The so-called Macolin Convention provides an internationally agreed legal framework to combat the manipulation of sports competitions. Such manipulations not only constitute a major threat tarnishing the reputation of sport and sport values, but have also become a dangerous playground for transnational organised crime.51 Despite enjoying widespread support by the competent ministries and the sports movement, to date only seven Member States have ratified the Convention; 31 countries have signed it, including a non-Member State, Australia.
The ratification process has been seriously hampered by Malta’s veto of the EU’s ratification. Malta, whose economy is heavily dependent on betting revenues, claims that the definition of ‘illegal sports betting’ goes beyond the scope of the Convention and does not contribute to the fight against match-fixing. While it could not prevent the Convention’s adoption and opening for signature in the Council of Europe, where such decisions are taken by two-thirds majority,52 Malta effectively blocked decision-making in the Council of the EU, relying on the ‘common accord’ doctrine. The CJEU has never explicitly endorsed this doctrine, which requires unanimous consent of all Member States to be bound by the Convention with respect to their national competences before the Council can proceed with the adoption, by a qualified majority, of decisions concerning the conclusion by the Union itself. State practice in this area is not consistent.53 The applicable procedures under Article 218 TFEU foresee decision-making by qualified majority and not by unanimous agreement of all EU Member States.54 The ‘common accord’ doctrine thus introduces an additional element in the Union’s treaty-making procedure which is not foreseen by the EU treaties. This was the position taken already in 2016 by the Commissioner in charge.55 On 21 November 2019, the EU Council meeting of sports ministers agreed to:
examine ways, together with the Commission, to solve the deadlock with regard to the Council of Europe Convention on the Manipulation of Sports Competitions, which entered into force on 1 September 2019, in view of enabling the EU and all its Member States to complete their respective ratification processes and accede to the Convention as soon as possible.
The ‘common accord’ doctrine has, moreover, been challenged before the CJEU by the European Parliament in an opinion procedure regarding another Council of Europe treaty, the Istanbul Convention.57 The argument sometimes put forward that only joint participation of the EU and all its Member States can avert the risk of international responsibility of the EU (or other EU Member States having concluded the treaty)58 does not appear to be compelling. First of all, it should be emphasised that Council of Europe treaties have rarely given rise to claims of international responsibility. The Istanbul Convention contains primarily obligations which parties implement domestically and compliance with which is monitored through the mechanisms established by the Convention itself.
More importantly, however, the risk of international responsibility could be averted through the use of an interpretative declaration. Such declarations are capable of creating obligations under international law.59 Like most recent Council of Europe treaties, the Istanbul Convention provides for signature and ratification by the EU alongside its Member States60 although EU competences do not comprehensively cover all provisions of the Convention. The EU can implement the Convention only to a certain extent (supposedly to that of its competences). This fact could be made known to the other parties through a declaration as the Istanbul Convention does not allow for reservations in this regard,61 nor does it allow a partial consent within the meaning of Article 17 VCLT. Such a declaration regarding the implementation of the Istanbul Convention as a whole would not alter the obligations of either the EU or its Member States that are parties to the Istanbul Convention. The statement would merely clarify that the EU is not competent for all areas covered by the Istanbul Convention.62 The declaration in question would not have to indicate exhaustively the list of EU competences, which are in any case evolutive in nature. Where necessary, questions related to the exact distribution of competences between the EU and its Member States could be addressed in the context of the monitoring mechanism in which both the EU and its Member States would anyway have to cooperate on the basis of the duty of loyal cooperation.
4.4. Participation of the EU in follow-up and monitoring mechanisms
Many Council of Europe treaties provide for some form of follow-up.63 While committees set up under Article 17 of the Statute act under the direct authority of the Committee of Ministers, conventional committees or multilateral consultations64 are autonomous bodies representing directly the parties to the treaty in question. While follow-up mechanisms may also carry out certain monitoring functions in a broad sense, such as information gathering, collecting data or preparing comparative studies on treaty implementation and addressing recommendations to the parties, they must be distinguished from independent monitoring mechanisms. The latter actively monitor respect for treaty obligations country by country, often not only on the basis of reports of the parties, but also through country visits and on-the-spot investigations, and also thematically. Under the respective treaties, the mechanisms have an explicit mandate to identify issues of non-compliance and address their findings or policy recommendations to the parties.
The EU’s full participation in follow-up and monitoring mechanisms may result in the monitoring mechanisms having to address complex issues of attribution and international responsibility. EU law also facilitates and, in some cases, requires cooperation between Member States and their authorities, for instance through the recognition of judgments, evidence, alerts of third-country nationals and the issuing of visas. Alleged cases of non-compliance with Council of Europe treaties may therefore involve simultaneously actions or omissions by the EU institutions or bodies and/or national authorities of one or more Member States.
As regards EU Member States’ action, it will often be difficult to clearly distinguish, in practical terms, between measures that implement EU law and purely domestic ones. EU law often leaves a certain measure of discretion as to its implementation or provides for exceptions which can be invoked by Member States on the basis of their national law. In particular, human rights monitoring mechanisms focus on actual interferences with individual rights irrespective of whether such interferences are determined by EU or national law. Evaluation of compliance typically involves complex, often closely interwoven actions and or omissions. It would be a difficult, maybe even somehow artificial exercise to distinguish according to the internal distribution of competences between the EU and its Member States. Moreover, any such assessment by an external monitoring mechanism is likely to interfere with internal EU matters and the CJEU’s exclusive jurisdiction over the distribution of competences between the EU and its Member States.65
4.4.1. Voting rights
Closely linked to the issue of attribution and responsibilities is the question of EU voting rights. Only a few Council of Europe treaties contain specific provisions addressing this question. They consistently follow the ‘principle of no additionality’. Depending on the distribution of competences, it is either the EU or its Member States that are entitled to vote on a particular question. The EU votes with a weight equivalent to that of its Member States party to the treaty in question and bound by the EU instruments from which the external competence arises. The Convention on the Conservation of European Wildlife and Natural Habitats, known as the Bern Convention (ETS 104, 1979), currently the only Council of Europe treaty with a functioning follow-up mechanism to which the EU is a party, follows this rule.66
Voting rights are negotiated and special voting arrangements (e.g. cumulative or weighted voting) are possible. Granting the EU a separate voting right in addition to that of its Member States may, for example, be appropriate if the EU (through its acts or its agencies) is subject to supervision of compliance separately, for example by virtue of its own legal personality, and not just ‘replacing’ the EU Member States in the exercise of competences. International law and practice do not, however, support any legal claim or automatism in this regard. In situations where the EU on its own is party to a treaty involving a follow-up mechanism, it generally has one vote like other contracting parties. Indeed, as one author has observed, ‘the more like a regular state it [the EU] becomes, the more it will be treated as one, with all the international legal implications this may entail.’67 It seems that so far there are no international agreements and organisations in which only the EU participates and where it has a number of votes corresponding to the number of its Member States.68 As regards treaties relating to areas of EU exclusive competence to which it is not itself party, the Union may rely on the votes of its Member States which are parties to the treaty in question, acting jointly in the EU interest.
The issue of EU voting rights was the subject of protracted negotiations in the context of the revision of Data Protection Convention 108. Non-Member States of the EU argued that the EU should have one vote like other contracting parties. Giving the EU the same number of votes as it has Member States would be unbalanced and prejudicial to the rights of Member States that are not members of the EU. It must be taken into account that EU Member States are legally bound, under the EU treaties, to coordinate their votes on matters within the scope of EU competence.69 An important new feature of the revised Convention 108 will be a reinforced follow-up mechanism through a committee of the parties (‘Convention Committee’).70 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. The revised Convention 108 therefore foresees special voting rules which are contained in an appendix to the amending protocol (CETS 223, 2018).71 The basic rule remains that each party has a right to vote and shall have one vote. However:
regional integration organisations, in matters within their competence, may exercise their right to vote in the Convention Committee, with a number of votes equal to the number of their member States that are Parties to the Convention. Such an organisation shall not exercise its right to vote if any of its member States exercises its right.
Decisions regarding compliance with the Convention will require a four-fifths majority, including a majority of the votes of States parties not members of a regional integration organisation that is a party to the Convention. Where the Convention Committee takes such decisions and adopts recommendations pursuant to Article 23, littera h, of the Convention, the party concerned by the review shall not vote. Whenever such a decision concerns a matter falling within the competence of a regional integration organisation, neither the organisation nor its Member States shall vote.73 The explanatory report, which was exceptionally formally adopted by the Committee of Ministers, thus giving it special weight,74 requires that the EU, upon accession, ‘shall make a statement clarifying the distribution of competences between the EU and its member States and … [s]ubsequently … will inform the Secretary General of any substantial modification in the distribution of competences’.75
4.4.2. Applicability of Article 218(9) TFEU
Another important issue arising in the context of Council of Europe follow-up or monitoring mechanisms is the application of Article 218(9) TFEU, which requires a Council of the EU decision to establish the EU’s position in ‘a body set up by an agreement’. The CJEU dealt with the scope of Article 218(9) TFEU in several cases. Cases C-399/12 Germany v Council,76 C-600/14 Germany v Council 77 and C-620/16 Commission v Germany 78 seem particularly relevant for the Council of Europe context. The first case concerned the validity of the Council Decision establishing the position to be adopted with regard to certain resolutions to be agreed upon by the ‘International Organisation of Vine and Wine’ (OIV) having been contested. The OIV is a technical organisation which adopts non-binding recommendations on technical standards for producing and marketing vine and wine products. It should be noted that 21 out of the 46 OIV Member States are EU Member States. The EU itself is not a member, but it had chosen to refer to some OIV recommendations in its so-called ‘Single CMO Regulation’.79 The CJEU found that Article 218(9) TFEU was applicable irrespective of the fact that the EU is not a party to the OIV agreement. It explicitly rejected the argument made by Advocate General Cruz Villalón that the provision only applied where the measures in question are binding as a matter of international law.80 Having regard to the fact that OIV recommendations are capable of decisively influencing the content of the EU legislation in the area of the common organisation of the wine markets, the CJEU concluded that they must be regarded as having legal effect for the purposes of Article 218(9) TFEU. The CJEU confirmed these findings in subsequent judgments. It rejected in particular the argument that it would be necessary that the Union had first adopted common rules that are liable to be affected by the decisions of the treaty body.81 The CJEU also underlined that derogating from the legal form laid down by the EU treaties constitutes an infringement of essential procedural requirements.82
The CJEU has established a rather broad test, which is to a certain extent ‘self-referential’ in the sense that the EU legal order can create the conditions as to whether (or not) an act has legal effect within the meaning of Article 218(9) TFEU. As regards OIV recommendations, the CJEU accorded particular weight to ‘their incorporation into EU law by virtue of Articles 120f(a), 120g and 158a(1) and (2) of Regulation No 1234/2007 and the first subparagraph of Article 9(1) of Regulation No 606/2009’.83 In the ITLOS case, where it held that Article 218(9) TFEU was not applicable to the submission by the European Commission of a written statement on behalf of the EU to the International Tribunal for the Law of the Sea, the CJEU emphasised the legal character of the statement whose purpose was ‘not to formulate a policy’, the EU having been ‘invited to express, as a party, a position “before” an international court not “in” it’.84 In the absence of further case law and the so far very limited participation of the EU in Council of Europe follow-up mechanisms, it is hard to predict what relevance a Council of Europe soft-law standard must have in the EU’s legal order to trigger the application of Article 218(9) TFEU. It might be argued that in the event of the EU’s full participation in a Council of Europe follow-up or monitoring mechanism, certain findings and recommendations will have immediate ‘legal effects’ for the EU, not because of their subsequent incorporation into EU law, but because the EU would be bound by international law to comply with them.85 It must also be taken into account that even where a position does not have legal effects, but its adoption amounts to a policymaking decision, the European Commission must respect the Council of the EU’s prerogatives under Article 16(1) Treaty on European Union (TEU) and seek its approval.
From a policy point of view, it must be taken into account that requiring a Council of the EU decision could be a relatively cumbersome procedure (even taking into account that Council of the EU decisions may be adopted through written procedure). Depending on the degree of detail the Council of the EU decision will go into, such a requirement may also have the consequence that substantial discussions among EU Member States on Council of Europe soft-law standards may take place primarily in the Council of the EU and no longer in the competent Council of Europe bodies, thus affecting the position of NEUMS and very nature of intergovernmental work in the Council of Europe.86 In that context, it is interesting to note that the draft agreement on EU accession to the ECHR provides for the continued participation of all Member States’ experts in the drafting of recommendations and resolutions related to the ECHR system, including after accession.87
4.5. Financial contribution
Several Council of Europe treaties contain rather elaborate follow-up or monitoring mechanisms. In most cases, the costs of these mechanisms are part of the organisation’s ordinary budget, which means that they are borne by Member States only. Non-Member States of the Council of Europe or the EU are not contributing to the running costs of follow-up mechanisms even if they are a party to the treaty in question. At the Helsinki ministerial session in 2019, the Secretary General argued that ‘new member states which participate as of right in the follow-up mechanism of a convention should be asked to contribute to the financing of that convention. This should be a condition of ratification.’88 The same argument could be made mutatis mutandis for the EU.
As regards existing treaties, a financial contribution is compulsory if a clause to that effect is included in the text of the treaty in question. So far, such clauses have only been included in three Conventions: CETS 211,89 CETS 21590 and CETS 216.91 Among the three, only the Convention on the Manipulation of Sports Competitions (CETS 215, 2014) envisages the EU’s accession. In all other cases, voluntary contributions are possible, as the example of the Bern Convention (ETS 104, 1979) shows, where the EU contributes to joint programmes facilitating the implementation of the Convention, for example the ‘Emerald network of Areas of Special Conservation Interest’.
As regards future treaties with an independent or peer-review monitoring mechanism, the inclusion of specific clauses on financial contributions by parties that are not members of the Council of Europe could indeed be considered. Financial obligations may, however, act as a deterrent for the promotion of Council of Europe treaties among non-members. Due to its special status, the EU may require special treatment which will have to be agreed on a case-by-case basis for each treaty, taking into account the real costs related to the EU’s participation in a particular follow-up or monitoring mechanism in addition to its Member States. In any case, this issue has to be considered not just from the Council of Europe 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.
Finally, it should be emphasised that the most effective way to promote Council of Europe treaties is to make accession to them worthwhile for members and non-members alike because of the concrete benefits that they derive from their participation. If these instruments are seen to provide real added value, facilitate cooperation between the parties, provide focal points for networks of experts, exchange of good practices and are accompanied by meaningful cooperation activities, all parties will be more than willing to participate in the necessary financing. The Council of Europe Convention on Cybercrime (CETS 185, 2001), with its worldwide capacity-building programmes, provides a good example in this respect.92
5. Overlapping human rights standards and EU accession to the ECHR
Under the TEU, the Charter of Fundamental Rights is binding and the EU is committed to accede to the ECHR.93 Already the mere proclamation of the Charter had been seen ‘as part of an ongoing process that has the potential to transform substantially the Union and its legal order’.94 And yet the Charter itself provides that it ‘does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties’ (Article 51(2)). The explanations to the Charter95 emphasise this point even further. Indeed, the Lisbon Treaty did not implement significant changes to the Union’s legislative powers in human rights matters stricto sensu. At the same time, the Lisbon Treaty extended legislative powers in many other fields and the Charter introduced a duty to ‘promote the application’ of the rights contained therein (Article 51(1)).
Making the Charter 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 protection in Europe is a source of confusion, not only for citizens, but also for judicial authorities in the Member States. The latter will henceforth be confronted with up to four different legal sources of fundamental rights to be applied simultaneously, partly with different standards, structures, terminology and qualifications, being:
their own domestic law, in most cases the national Constitution’s fundamental rights catalogue;
the ECHR and its protocols;
the UN Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights;
the EU Charter of Fundamental Rights.
What makes the situation particularly complex is the fact that the different legal sources will have to be combined as the legal systems concerned do not merely co-exist but overlap each other. In this context, domestic courts play a central role, not only as ‘Community courts of ordinary jurisdiction’, but also as ‘Convention courts of ordinary jurisdiction’, as it is for them to ensure in the first place that the rights of individuals are respected. Referring to the famous expression by Georges Scelle (‘dédoublement fonctionnel’), the former President of the ECtHR described the modern-day challenge of European domestic courts as a ‘détriplement fonctionnel’.96 It is therefore not surprising that there was talk of a ‘lawyers’ paradise’ when the EU Charter was being drafted.97 It is indeed difficult for practitioners to keep abreast of the developing case law in Luxembourg and Strasbourg. Acting often in urgency, judges have to identify in each individual case the applicable standards and accommodate the various legal sources, which will exist wholly independently from each other. To quote a practitioner, ‘it is a demanding methodological task for a Supreme Court Justice to untangle the intricate and dynamic web of legal material that continuously are being spun within European law, layer by layer.’98 In the worst case, domestic authorities may be held responsible under the Convention for action that is imposed by EU law.99
The EU Charter contains certain safeguards to ensure that its rights are interpreted consistently with the ECHR. Article 52(3) seeks to ensure the necessary consistency between the Charter and the ECHR by establishing the rule that, insofar as the rights in the Charter correspond to rights guaranteed under the ECHR, the meaning and scope of those rights, including authorised limitations, should be the same as those laid down by the ECHR. Article 53 provides that nothing in the Charter may be interpreted as restricting or adversely affecting the human rights and fundamental freedoms recognised in international agreements, such as, in particular, the ECHR, and national Constitutions.
The various ‘more favourable law’ principles (in favour of the ECHR and domestic fundamental rights in Article 53, and of more extensive protection under EU law in Article 52(3) of the Charter), taken together, should in principle lead to the application of the provision offering the highest level of protection. In Melloni, the CJEU qualified this proposition in the name of ‘the primacy, unity and effectiveness of EU law’, arguing that even a theoretically higher standard must not be applied where a commonly agreed EU standard exists.100 Moreover, the clauses in question imply that human rights are quantifiable and may easily be assessed in terms of ‘maximum’ versus ‘minimum’ protection.101 Such reasoning may be justified in instances where individual rights are weighed against governmental interests. For example, limiting the maximum period during which a person may be detained without being brought before a judge to two days provides more protection than a period of four days. But even in such cases, the quantification of levels of protection based on generally worded provisions is often difficult if not impossible. As Ronald Dworkin observed pertinently, ‘it is very difficult to think of liberty as a commodity.’102 Human rights entail choices as to the appropriate balance between the interests of individuals against those of other individuals or the community.103 In particular in cases of competing human rights interests that must be reconciled, such as freedom of expression versus privacy,104 the right to respect the decision to become (or not to become) a parent,105 or the right to property versus the right to strike, the appropriate balancing requires valuations and assessments unique to the society at issue. In the context of multipolar relations, extending the protection of one right or attaching more weight to it will have the consequence of restricting the right of another person. Under the EU Charter, the standard which appears most favourable at first sight may be applied only insofar as this does not lead to an inadmissible restriction of the other basic right. The wording of Article 53 of the Charter suggests that the ECHR should be given precedence in this respect, and that its (minimum) standards should at all events be guaranteed.106
The mere existence of two different texts to be interpreted by distinct courts operating in different contexts is not conducive to legal certainty. There is a real risk of creating divisions between EU Member States and NEUMS, the latter being bound by the ECHR but not by the Charter.107 Against this background, it becomes obvious why already the Laeken Declaration (2001) and the subsequent EU Convention (2001–2003) and Intergovernmental Conferences (2003 and 2007) established a junktim between the incorporation of the EU Charter into the treaties and accession of the EU to the ECHR. 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’.108 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’.109
Following the entry into force of the Lisbon Treaty in December 2010, hopes for a rather speedy accession process were high. However, on 18 December 2014 the CJEU delivered Opinion 2/13110 concluding that the draft agreement on accession of the EU to the ECHR111 was not compatible with EU law. The CJEU raised a series of objections, which are not only of an exceptional magnitude, but also, at least partially, of questionable legal relevance.112 What is particularly surprising in Opinion 2/13 is the absence of any argument referring to the constitutional significance of Article 6(2) TEU. As Piet Eeckhout put it so pertinently, the concept of the autonomy of EU law as developed in Opinion 2/13:
risks undermining the very authority of law in the European legal space. It is one thing to conceive of European legal orders or systems – national law, EU law, and Convention law – as having their own identity and autonomy. It is another to conceive of them as self-contained and unbridgeable. The territorial and personal space in which they operate is unitary.
These legal systems may all claim authority over a single case, be it an asylum seeker in a refugee camp in Greece, a criminal suspect to be surrendered to a country in which s/he may suffer from inhuman prison conditions or an ordinary citizen whose personal data are intercepted illegally. ‘If the answer to their claims depends on which set of norms is applied, and which court hears their case, the rule of law will become relative and contingent, and the very idea of inalienable human rights will suffer.’114
If one takes all the CJEU’s objections at face value and tries to overcome them one by one by formal amendments to the draft accession agreement, 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 would also be unacceptable to NEUMS. It must not be forgotten that whatever concrete proposals the European Commission present, they will be the subject of negotiations in Strasbourg. As a former director of the Council of the EU’s legal service, Jean-Jacques Jacqué, remarked so pertinently in an early comment to Opinion 2/13, it ‘needs two to tango’.115 It was therefore reassuring that the letter by former Commission President Jean-Claude Juncker and Vice-President Frans Timmermans requesting the resumption of negotiations emphasises that the EU will limit its request for amendments to the draft accession agreement to what is strictly necessary to address the objections raised by the CJEU.116
6. Concluding remarks: towards a more structured relationship?
While the Council of Europe’s legal framework has generally proven to be sufficiently flexible to identify ways and means to allow effective EU participation even without the EU being a full member of the organisation, a series of legal issues have regularly come up. There appear to be two main options for the future: either to continue to accommodate the requirements of EU law in a pragmatic way within the existing legal framework or to change this framework with a view to better reflecting the reality of EU competences post Lisbon.
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.117 The Parliamentary Assembly recommended their adoption also for the Council of Europe in Recommendation 2114 (2017).118 The Committee of Ministers did not address these recommendations substantially when it adopted a joint reply to this and another recommendation related to the idea of a Council of Europe summit.119 At that time, the Committee of Ministers was preoccupied by the institutional crisis sparked off by the default in payment by the Russian Federation of its budgetary contributions. Parliamentary Assembly Recommendation 2178 (2020) based on the report by Mr Roland Rino Büchel regarding the Macolin Convention could provide an opportunity to revisit these issues.120
If new rules are to be adopted, they should ideally cover the whole treaty-making process, from the first drafting committee to adoption of the treaty by the Committee of Ministers. A jointly agreed framework could provide for a series of general principles of horizontal application (such as voting rights, speaking rights, reporting and financial arrangements). In any case, it will be important to preserve the Council of Europe’s long-standing practice of transparency, inclusiveness and participation, on an equal footing, of all Member States in treaty-making procedures as well as the invaluable contribution of national experts. Legal issues raised by the EU’s participation in monitoring and follow-up mechanisms should be considered on a case-by-case basis, taking into account the specificities of each follow-up or monitoring mechanism. In parallel, the EU may be asked to clarify the scope of application of Article 218(9) TFEU in respect of legal acts adopted by such mechanisms. If the above-mentioned idea of a jointly agreed general framework were to be pursued, it might also be used to address this issue, possibly including timelines for Council of the EU decisions and default rules if no decisions are taken. As regards the EU’s financial contribution to treaty-based follow-up or monitoring mechanisms, voluntary contributions and contributions via joint programmes are always possible. The inclusion of specific clauses on financial contributions by parties that are not Council of Europe members in future treaties should be considered on a case-by-case basis. Any such rules will have to take the EU’s own budgetary and financial arrangements and rules into account.
As Rick Lawson put it so aptly, ‘the EU and the Council of Europe are natural partners. They got engaged at a very early stage of their lives, but never got married’.121 The strategic partnership between the EU and the Council of Europe would be undermined if the latter were no longer able to effectively play its role. If it is true that the Council of Europe’s ‘comparative advantage is in its expertise … its legal and moral authority and its unique combination of roles’,122 it is in the common interest of all Member States, the EU and the Council of Europe to maintain and strengthen this expertise through even more effective cooperation and accession by the EU to the ECHR.