C Explanatory memorandum by Mr Andrej
Šircelj, rapporteur for opinion
1. The work on the European mechanism
conducted by the Committee on Rules of Procedure and the Monitoring
Committee, in which I took part,
Note 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.
Note 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,
Note 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.
Note 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.
Note
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.
Note Finally, when the Committee on Foreign
Affairs and the Committee on Civil Liberties of the European Parliament
hold a joint hearing
Note 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
Note 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.
