B Explanatory memorandum
by Sir Edward Leigh, rapporteur
1 Scope of this report
1. By adopting
Resolution 2319 (2020), the Parliamentary Assembly decided to introduce a complementary joint
procedure between the Committee of Ministers and the Parliamentary
Assembly in response to a serious violation by a member State of
its statutory obligations. The Assembly was thus completing the
reflection process it had begun three years earlier, when it decided
to initiate "a procedure aimed at harmonising, jointly with the
Committee of Ministers, the rules governing participation and representation
of member States in both statutory organs, while fully respecting
the autonomy of these bodies” (
Resolution 2186 (2017) "Call for a Council of Europe summit to reaffirm European
unity and to defend and promote democratic security in Europe"),
and then when it considered "the urgent need to develop synergies
and provide for joint action by the two statutory organs in order
to strengthen the Organisation's ability to react more effectively
in situations where a member State violates its statutory obligations
or does not respect the fundamental principles and values upheld
by the Council of Europe" (
Resolution
2277 (2019) "Role and mission of the Parliamentary Assembly: main
challenges for the future").
2. Paragraph 10 of
Resolution
2319 (2020) states that "Any changes required to implement the present resolution
will be introduced into its Rules of Procedure through a subsequent
resolution to be adopted on the basis of a report by the Committee
on Rules of Procedure, Immunities and Institutional Affairs. The complementary
joint procedure will enter into force upon adoption of the latter
resolution and a decision by the Committees of Ministers along the
same lines.".
2 Implementation
of Resolution 2319 (2020) on the complementary joint procedure between the Committee
of Ministers and the Parliamentary Assembly in response to a serious
violation by a member State of its statutory obligations
3. Resolution 2319 (2020) on the complementary joint procedure between the Committee
of Ministers and the Parliamentary Assembly in response to a serious
violation by a member State of its statutory obligations sets out
the basic principles governing this new procedure (paragraph 4),
clearly defines the process, step by step (paragraphs 5 to 9) –
from the decision to engage, the preparation, adoption and implementation
of a roadmap, up to the decision of the Committee of Ministers to
act under Article 8 of the Statute of the Council of Europe if the
serious violation of Article 3 of the Statute by the State concerned
continues to exist – as well as the timetable and deadlines for
the actions foreseen for each stage.
4. Following the example of the rules and procedures for the
elections of the Secretary General of the Council of Europe – which
were the subject of a joint interpretative statement adopted by
the Assembly and the Committee of Ministers in the same terms in
March 2010 – or the competence framework for the procedure for election
of the Deputy Secretary General, also adopted in the same terms
by the Assembly and the Committee of Ministers in 2012, the complementary
joint procedure between the Committee of Ministers and the Parliamentary
Assembly in response to a serious violation by a member State of
its statutory obligations has the status of a complementary text.
It does not need to be incorporated as such into the body of the
Rules of Procedure. This is also the case for a number of other
procedures which are the autonomous responsibility of the Assembly,
such as the procedure for monitoring the obligations and commitments
entered into by Council of Europe member States or the procedure
for the election of judges to the European Court of Human Rights.
5. On 5 February 2020, the Ministers' Deputies agreed on "a complementary
procedure for the application of Article 8 of the Statute of the
Council of Europe, as a consequence of a serious violation by a
member State of fundamental principles and values of the Organisation
under Article 3 of the Statute".
Note It
should be noted that this final decision differs significantly from
the draft decision of the Ministers' Deputies which the French Presidency
of the Committee of Ministers transmitted to the Assembly on 25
November 2019, to which the Assembly, via its Presidential Committee,
had agreed in principle, and which was deemed to "serve as a basis for
an agreement with the Assembly”.
6. It is difficult not to point out that the "complementary joint
procedure” decided on by the Assembly in
Resolution 2319 (2020) and the “complementary procedure” agreed on by the Committee
of Ministers in its decision of 5 February 2020 diverge both in
their title (the Ministers' Deputies did not use the term "joint"),
in their basic principles and in their operative provisions, as
well as in the timetable, which sets time limits for the various
stages, which do not coincide. This is a disappointment, particularly
since the Committee of Ministers has chosen not to base its decision
on the Assembly Resolution, which it had previously negotiated with
over many months. What is to be thought of the Committee of Ministers'
decision to incorporate into the "basic principles" of its procedure
Amendment 15 tabled by members of the Russian delegation, which
had been rejected by the Committee on Political Affairs and Democracy
by an overwhelming majority and withdrawn by its signatories in
plenary session? One can therefore only wonder about the usefulness
of the very many joint meetings and the process of mutual consultation
that has taken place over many months, in the framework of the Joint
Committee and the meetings between the Bureau of the Committee of
Ministers and the Presidential Committee, and regret that the Committee
of Ministers could not refrain from seeking to belittle the Assembly's prerogatives.
In concrete terms, if such a procedure were to be initiated soon,
on what basis would it be implemented in view of the differences
in approach? Ultimately, one may question the viability and feasibility of
a procedure which the Committee of Ministers did not wish to make
fully joint.
7. Although
Resolution
2319 (2020) is quite clear on this point, it should be reiterated
in the context of this report that this new procedure complements
existing rules, mechanisms and procedures, that it cannot call them
into question and cannot affect their effective implementation.
This concerns in particular the procedure for monitoring the Assembly's
obligations and commitments as well as the procedure for challenging
the credentials of national delegations on substantive grounds.
The Assembly and its competent committees are the sole judge of
the advisability of conducting these procedures concurrently or
in parallel with, before or after, a joint procedure with the Committee
of Ministers in response to a serious violation by a member State
of its statutory obligations. The initiation of such a joint procedure
in respect of a member State subject to a procedure for monitoring
its obligations and commitments, or a post-monitoring dialogue,
would in no way block the continuation of the Monitoring Committee's
work.
8. Notwithstanding this hiatus with the Committee of Ministers,
the decision in principle taken by the Assembly in
Resolution 2319 (2020) to introduce a complementary joint procedure between
the Committee of Ministers and the Parliamentary Assembly in response
to a serious violation by a member State of its statutory obligations
cannot be called into question. Its implementation requires the
amendment of the Assembly's Rules of Procedure on certain points.
2.1 Conditions
for initiating a proposal for a complementary joint procedure
9. The complementary joint procedure
may only be initiated on the exclusive basis of a motion for a recommendation,
signed by at least one fifth of the component members of the Assembly,
belonging to at least three political groups and fifteen national
delegations (paragraph 5.1 of
Resolution
2319).
10. The conditions for tabling a motion for a resolution or recommendation
are laid down in Rule 25 of the Rules of Procedure: only the signatures
of at least 20 members of the Assembly belonging to five national delegations
are required. There is only one derogation procedure in the Rules
of Procedure, with strengthened conditions, namely that for dismissing
the President and Vice-Presidents of the Assembly (Rule 54).
11. It will therefore be necessary to:
- complete the footnote to Rule 24.2.c on motions tabled
by members which are published as official documents of the Assembly;
- insert a new Rule after Rule 25.2 on the tabling of motions
for recommendations and resolutions, in order to stipulate the conditions
for tabling a motion for the initiation of a complementary joint
procedure;
- include a new footnote in Rules 25.2 and 25.3, on the
tabling of motions for recommendations and resolutions, to mention
the derogatory nature of this new procedure;
- include a footnote to Rule 26 on references to committees,
in order to establish that a reference to the Committee on Political
Affairs and Democracy does not require a decision by the Bureau;
- also include a footnote to Rule 27.1 on the agenda (paragraph
5.2 of the Resolution), in order to establish that the report of
the Committee on Political Affairs and Democracy shall be placed
on the agenda of the Assembly session;
- finally, in a footnote to Rules 51.1 and 52.1 on urgent
procedure in the Assembly and the Standing Committee (paragraph
5.3 of the Resolution), to specify that it will not be possible
to propose a debate under urgent procedure for the initiation of
the complementary joint procedure.
2.2 Conditions
for the initiation of the complementary joint procedure by the Assembly
12. The Committee on Political
Affairs and Democracy is instructed to present to the Assembly a
report including a draft recommendation "on whether or not to initiate
the complementary joint procedure", the adoption of which will require
"a double majority", namely a two-thirds majority of the votes cast
and "a number of votes in favour equivalent to at least one third
of the total number of members of the Assembly authorised to vote"
(paragraph 5.4 of the Resolution).
13. This "double majority" is intended to ensure that a decision
of such political importance, which is also binding on the Committee
of Ministers and the Secretary General of the Organisation, enjoys
unquestionable support, guaranteeing the credibility, authority
and political legitimacy of the Assembly's decision to initiate
the new procedure with respect to a member State.
14. Rule 41 of the Rules of Procedure concerning the majorities
required for the adoption of Assembly decisions should therefore
be amended by inserting the following new Rule after Rule 41a:
"[The
following majorities are required:] for the adoption of a draft
recommendation on the initiation of a complementary joint procedure
between the Committee of Ministers and the Parliamentary Assembly
in response to a serious violation by a member State of its statutory
obligations, a majority of two thirds of the votes cast and a number
of votes in favour equivalent to at least one third of the total
number of members of the Assembly authorised to vote".
15. In this connection, it is to be noted that the Assembly will
have to adopt the draft resolution presented by the Committee on
Rules of Procedure in the context of this report by a two-thirds
majority of the votes cast, in accordance with Article 29 of the
Statute of the Council of Europe, which places the Assembly under
obligation to approve by a two-thirds majority any amendment to
the provisions of the Rules of Procedure determining what majority
is required for the voting of a decision.
3 Conclusions
16. In order to implement
Resolution 2319 (2020) on the complementary joint procedure between the Committee
of Ministers and the Parliamentary Assembly in response to a serious
violation by a member State of its statutory obligations, the rapporteur
recommends examining the following proposals for possible changes to
the Rules of Procedure:
- as
regards the conditions for initiating such a procedure, to complete
the footnote to Rule 24.2.c, to add a new sub-paragraph to Rule
25, to complete the footnote to Rule 25.2, to add footnotes to Rule
25.3, Rule 26, Rule 27.1 and Rules 51.1 and 52.1;
- as regards the conditions for voting on an Assembly decision
initiating such a procedure, to add a new sub-paragraph to Rule
41.
17. Article 29 of the Statute of the Council of Europe requires
the Assembly to approve by a two-thirds majority any amendment to
the provisions of the Rules of Procedure determining what majority
is required for the voting of a decision. In so far as the draft
resolution presented proposes to amend Rule 41 of the Rules of Procedure
concerning the majorities required for the adoption of Assembly
decisions, its adoption will require a two-thirds majority of the
votes cast.
18. Finally, with regard to the implementation of the regulatory
changes to be made, the draft resolution proposes that the amendments
to the Rules of Procedure should enter into force upon their adoption.
