B Explanatory
memorandum, by Mr Greenway
1 Introduction
1. On 27 April 2009 the Parliamentary Assembly decided
to hold, during the current part-session, an urgent debate on the
election process of the Secretary General of the Council of Europe
and referred the matter to the Committee on Rules of Procedure,
Immunities and Institutional Affairs for report.
2. This draft report will summarise the evolution and current
state of the election process for the Secretary General of the Council
of Europe, who should take office on 1 September 2009. Furthermore,
the institutional and regulatory framework for the election of the
Secretary General will be set out briefly. Finally, the rapporteur will
submit observations on the respect during this election process
of the rules and past practice governing the election of the Secretary
General and submit proposals for Assembly action.
2 Evolution
and current state of the election process
3. At the Joint Committee meeting of 2 October 2008,
the President of the Assembly informed the meeting of the Assembly’s
intention to proceed with the election of the Secretary General
of the Council of Europe at its June 2009 part-session (22-26 June
2009).
4. At the 1037th meeting of the Ministers’ Deputies (8 October
2008), the Deputies “fixed 6 March 2009 as the closing date for
submission of candidates for the post of Secretary General, it being
understood that the candidates should comply with the criteria set
by the Ministers at their 117th Session”.
5. By that date, four candidatures had been submitted by the
governments concerned, namely: Mr Luc Van den Brande (Belgium),
Mr Włodzimierz Cimoszewicz (Poland), Mr Mátyás Eŏrsi (Hungary) and
Mr Thorbjørn Jagland (Norway).
6. At their 1055th meeting (22-23 April 2009), following a succession
of votes, the Ministers’ Deputies decided to propose to the Ministers,
at their 119th Session (12 May 2009) in Madrid, the text of a draft
resolution transmitting to the Assembly a list of two names: Mr
Cimoszewicz and Mr Jagland (see Appendix II).
7. Prior to the transmission by the Committee of Ministers of
a recommendation to the Assembly for the appointment of the Secretary
General, consultation of the Assembly is foreseen at the Joint Committee scheduled
for 29 April 2009 in accordance with the relevant regulations.
8. The final decision on the submission of the list of candidates
to the Assembly will be taken by the Committee of Ministers at its
ministerial session on 12 May 2009 in Madrid.
3 Institutional and
regulatory framework
3.1 The Statute of
the Council of Europe and the regulations relating to the appointment
of the Secretary General
9. Article 36.b of
the Statute of the Council of Europe provides that: “The Secretary
General … shall be appointed by the Consultative (Parliamentary)
Assembly on the recommendation of the Committee of Ministers.”
10. Regulations relating to the appointment of the Secretary General,
Deputy Secretary General and Secretary General of the Assembly (see
Appendix I) were adopted in 1956 (and subsequently amended in 1961
and 1962) by the Committee of Ministers with the agreement of the
Assembly. It is useful to recall that these regulations were adopted
following a proposal from the Assembly, accepted by the Committee
of Ministers, to set up a joint working party after problems had
arisen concerning the list of candidates for an election of the
Deputy Secretary General of the Council of Europe in 1955. The first
draft of the regulations presented to the joint working party had
been prepared by the then Secretary General (“Clerk”) of the Parliamentary
Assembly.
Note
11. These regulations govern, inter
alia, the criteria for the choice of candidates (clause
2), for the consultation of the Assembly by the Committee of Ministers
(clause 4) and for the nomination of candidates (clause 5). In clause
3, it is foreseen that “the Committee of Ministers shall examine
the list of candidates” and that the latter may be summoned for
interview.
12. Clause 4, for its part, specifies that: “Before transmitting
to the Consultative (Parliamentary) Assembly a recommendation for
the appointment of any one of the three senior officials of the
Secretariat General, the Committee of Ministers shall consult the
Assembly through the medium of the Joint Committee.”
13. As to the nomination of candidates, clause 5 specifies that:
“Unless it has been otherwise agreed after discussion in the Joint
Committee, the Committee of Ministers shall draw up a list containing
at least two names, which shall be submitted to the Assembly.” This
clause also entitles the Committee of Ministers to list the names
in order of preference.
3.2 The decision of
the Committee of Ministers of May 2007 and subsequent developments
14. At its 117th Session (10-11 May 2007) the Committee
of Ministers (ministerial level) took the following decision: “The
Committee agrees, concerning the procedure for the election of the
Secretary General, that it will henceforth present to the Parliamentary
Assembly candidates who enjoy a high level of recognition, are well-known
among their peers and the people of Europe, and have previously
served as heads of state or government, or held senior ministerial
office or similar status relevant to the post, and asks the governments of
member states to present candidates who match this profile.”
15. At their 1047th meeting (4 February 2009), the Ministers’
Deputies adopted a draft decision for the shortlisting of candidates
for the post of Secretary General (CM(2009)26rev).
16. These decisions are a follow-up to Recommendation 12
Note of
the report by Mr Juncker, Prime Minister of Luxembourg, presented
to the Assembly on 11 April 2006, entitled “Council of Europe –
European Union: a sole ambition for the European continent”.
4 Observations on
the respect, during the current election process, of the rules and
past practice governing the election of the Secretary General
17. The rapporteur should like to present observations
on the following issues related to the current election process:
- the Committee of Ministers’
decision of May 2007 relating to the qualifications of the candidates
(see paragraph 14 above):
- the possibility of shortlisting the names of candidates
for the post of Secretary General;
- the adoption on 23 April 2009 by the Ministers’ Deputies
of proposals (draft resolution) concerning the appointment of the
Secretary General before the consultation of the Assembly on the
subject through the medium of the Joint Committee.
4.1 The Committee of
Ministers’ decision of May 2007
18. The criteria determining the choice of candidates
for the post of Secretary General are laid down in clause 2 of the
regulations of 1956. The question arises if this is a closed list
of criteria which – as the regulations were hitherto adopted and
amended by co-decision of the Committee of Ministers and the Assembly
– can only be changed by agreement between both organs. If this
was not the case, could the Committee of Ministers amend the criteria
for the qualifications of candidates without proper consultation
of the Assembly?
19. The election procedures since 1956 show that the Assembly
has always been involved in the modalities for the elections of
the three senior officers of the Council of Europe. The decision
of May 2007 which is, as demonstrated during the current election
process, of considerable importance, is the first case where the Assembly
has given neither its assent nor been consulted. It is recalled
that in the analytical part of his report, Mr Juncker (see paragraph
16 above) had stated “it would be useful for the Council of Europe
– particularly the Committee of Ministers and the Assembly – to
review the criteria applied in selecting candidates for the post of
Secretary General.” No such initiative was taken by the Committee
of Ministers and they simply adopted a decision of May 2007 without
prior formal consultation of the Assembly. At its meeting on 27
April 2009, the Committee on Rules of Procedure, Immunities and
Institutional Affairs considered that this was a major issue and
should therefore be mentioned in the draft resolution (see paragraph
4).
4.2 The possibility
of shortlisting the names of candidates
20. Clause 5 of the regulations is silent on the possibility
of shortlisting candidates and this would therefore not be against
these provisions. However, the practice of the past election processes
shows that:
- efforts by the
Committee of Ministers to shortlist the names of candidates for
the three senior officials of the Council of Europe have been very
limited; with regard to the post of Secretary General, there was only
one past initiative in 1957 which, however, was not followed up
after the meeting of the Joint Committee; this means that in all
elections for the Secretary General before the current one, all candidatures
received were forwarded to the Assembly;
- the Assembly has regularly tried to avoid such shortlistings
and sometimes reacted adversely if there were any initiatives to
this end.
21. In 1955 the Assembly protested very strongly that, from the
initial list of four candidates for the post of Secretary General,
only one had been transmitted to the Assembly as the governments
concerned had withdrawn the candidatures. The Bureau had urged the
Committee of Ministers to submit all four candidatures to the Assembly,
while finding it natural that the Committee of Ministers should,
if it wished, express a preference. On that occasion the Bureau
and the President of the Assembly drew the attention of the Committee
of Ministers to the fact that it “is essential for the Assembly
to have full freedom of choice in making the appointments for which
it is statutorily responsible”. This conflict led to the elaboration
of the above-mentioned regulations (paragraph 10). Moreover, a motion
for the adjournment of the election was defeated by the Assembly
by only a narrow majority.
22. In 1962 the Assembly managed, through action in the Joint
Committee, to avoid the transmission to the Assembly of a single
candidature for the post of Deputy Secretary General which had been
envisaged at some point in time in the Committee of Ministers.
23. This supports the view that it is essential for the Assembly
to have the widest possible choice between candidates for the post
of Secretary General as was the case for all elections between 1964
and 2004.
Note
4.3 The adoption on
23 April 2009 by the Ministers’ Deputies of a draft resolution on
the appointment of the Secretary General before consultation of
the Assembly on the subject through the medium of the Joint Committee
24. Procedurally, the adoption of the draft resolution
by the Committee of Ministers presents a problem in that the draft
could be said to have no formal status. It is merely a draft for
decision by the Committee of Ministers on 12 May 2009, after the
meeting of the Joint Committee on 29 April 2009. This being said,
the draft resolution is a clear indication of what could well happen
with regard to the final decision on 12 May 2009. Ministerial sessions
generally adopt the drafts prepared by the Deputies without amendments.
25. It is therefore important for the Assembly to make its views
clear, hence the urgent debate. From the Assembly’s viewpoint, the
Joint Committee consultation is the vital element in the election
process. This is clear in clause 5 of the regulations. It gives
the Assembly the right to receive a list of at least two candidates
unless otherwise agreed in the Joint Committee. To a certain extent,
the Joint Committee, which nowadays meets only at the level of the
Ministers’ Deputies, would be short-circuited from the Assembly’s
viewpoint if the Deputies defended a pre-established position.
26. In principle, it is entirely open for the Ministers’ Deputies
to modify the proposed draft resolution on the election of the Secretary
General. This could also be done by the Committee of Ministers at
its ministerial session on 12 May 2009. But is this likely? Dialogue
between the Ministers’ Deputies and the Assembly is critical in
matters of such great importance for the Council of Europe as a
whole.
27. During a meeting on 27 April 2009, the Chair of the Ministers’
Deputies and the Chair of the Committee on Rules of Procedure, Immunities
and Institutional Affairs also discussed the background of the draft resolution
adopted by the Deputies on 23 April 2009. The Chair of the Ministers’
Deputies stated that the decision to follow the recommendations
of the Juncker report (paragraph 16 above) for the current election
of the Secretary General was taken by the Committee of Ministers
in May 2007. Furthermore, in a letter of July 2008 to the foreign
ministers of member states, the then Chair of the Committee of Ministers,
Mr Carl Bildt, stated how important the recommendations of Mr Juncker
were for the current election. He wrote: “I therefore ask you to
encourage candidates in our member states that have the required
profile and competence. Following this, the Committee of Ministers
will transmit to the Parliamentary Assembly of the Council of Europe a
list of candidates who match that profile”.
28. The Chair of the Ministers’ Deputies confirmed that a legal
opinion had been prepared for the Committee of Ministers by the
Directorate of Legal Advice and International Law. The decision
taken by the Deputies on 23 April 2009 to adopt the draft resolution
followed this advice.
29. The Ministers’ Deputies hold the view that it was important,
by the adoption of proposals (draft resolution) on 23 April 2009,
to make the Assembly understand, prior to consultation in the Joint
Committee on 29 April 2009, that only two candidates met the criteria
in the recommendations of the Juncker report.
30. The Chair of the Ministers’ Deputies also stressed that the
draft resolution of 23 April (2009) did not seek to place the two
candidates in an order of preference but only listed them in alphabetical
order. The Assembly would therefore have a genuine choice between
the two candidates on the shortlist.
5 Conclusions
31. The Assembly must determine for itself whether such
a shortlist represents the widest possible choice. Furthermore,
while the legal and procedural provisions may have been respected
so far in the election process for the Secretary General, important
questions remain. There is, in particular, an absence of genuine
dialogue between the Ministers’ Deputies and the Assembly on major
issues. Moreover, and this is the most important point, the Assembly
would – if in the end only two candidatures were submitted to it
– be deprived of the widest possible choice for the election of
the Secretary General.
32. In the current political climate in Europe, the Assembly should
insist that all procedures are beyond reproach. However well-intentioned
the Ministers’ Deputies may have been in drawing up the draft resolution to
limit the choice to only two candidates, the perception may be that
in some way the election process has not been as even-handed and
transparent as is desirable.
33. The Assembly should therefore propose that:
- the Ministers’ Deputies review
their proposals (draft resolution) of 23 April 2009 in the light
of the discussions in the Joint Committee on 29 April 2009;
- the Committee of Ministers at its ministerial session
on 12 May 2009 adopts a resolution on the election of the Secretary
General with a view to forwarding to the Assembly a list which will
allow Assembly members to make the widest possible choice between
candidates.
34. It is most important that both the Assembly and the Committee
of Ministers are in agreement on the arrangements for the election
of the Secretary General of the Council of Europe. In the view of
the rapporteur, a constructive interaction between the Committee
of Ministers and the Assembly is essential both for the efficient
fulfilment of the Council of Europe mission and for ensuring that
genuine dialogue between both the Committee of Ministers and the
Assembly is a priority at all times.
