The Assembly,
Considering that its resolution AS (2) 124 of 28th August 1950 (no : 12 of the printed Compilation) called for the submission of a plan for the Reform of the Statute, including the suppression of the right of veto within the Committee of Ministers ;
Considering that the Committee of Ministers, at its Session of 3rd and 4th November 1960, decided to appoint a Committee of Experts to study possible changes in the Statute and in the general working of the Council of Europe ;
1. Urgently requests the Committee of Ministers that the proposed Committee of Experts be replaced by a "Joint Committee" composed of Representatives of the Ministers, or Senior Officials, and of seven Representatives of the Assembly, nominated by the Bureau.
2. Submits to the Committee of Ministers with a view to transmitting to the Joint Committee mentioned above, or alternatively to the Committee of Senior Officials :
(a) the Resolution in Appendix I, and
(b) the draft protocol in Appendix II
for further consideration and detailed examination ;
Instructs a Committee of seven Members nominated by the Bureau to examine the texts contained in Appendices I and II, to decide their final form, and to present them before the Joint Committee mentioned above ; and authorises the same Committee to forward immediately to the Governments concerned for their information, the final texts decided upon ; and to take all necessary steps to secure their acceptance.
3. Renews the previous requests for amendment contained in Recommendations AS (2) 74 paras. 7, 5 (ii), 8 (ii) of 18th August 1950 and AS (2) 123 of 28th August 1950 (nos : 51, 10, 13 and 4 of the printed Compilation), or implied by them.
4. Recommends the following amendments to the Committee of Ministers :
(a) Proposed Amendment to Article 1 :
(i) In para. (b) of Article 1 after the words "of common action in" add the word "political".
(ii) Delete Article 1 (d).
(b) Proposed Amendment to Article 20 :
Replace paras, (a) and (d) of Article 20 by the following :
(a) With the exception of the Resolutions enumerated in paras, (b) to (d) below, all Resolutions of the Committee shall be taken by a two-thirds majority of votes cast and by a majority of Representatives entitled to sit on the Committee of Ministers ; this shall apply in particular to :
(i) Recommendations under Article 15 (b) ;
(ii) Questions under Article 19 ;
(iii) Resolutions relating to the amendment of Articles of the Statute other than those mentioned in para, (d) (iii) below ;
(iv) Resolutions concerning the adoption of the Budget, Rules of Procedure and Financial and Administrative Regulations ;
(v) Decision in case of doubt as to which paragraph of this Article applies.
(d) Resolutions of the Committee relating to the following questions shall require the unanimous vote of the Representatives casting a vote and of a majority of the Representatives entitled to sit on the Committee :
(i) Questions under Article 21 (a) (i) and (b) ;
(ii) Questions under Article 33 ;
(iii) Recommendations concerning amendments to Articles 1 (d), 7, 15, 20 and 22.
(c) Proposed amendments to Article 21 :
(i) In paragraph (b) of Article 21 leave out : "conclusions and" and add, at the end of the paragraph,
"in no case, however, may secrecy be applied to the voting at the end of such discussions".
(ii) Add the following sentence to paragraph (b) :
"Each Member of the Committee of Ministers shall be entitled to make known his attitude in the Committee in regard to Recommendations of the Assembly."
(d) Proposed Amendment to Article 25 (See Recommendation 12 of the printed Compilation) :
Replace the first sentence of the paragraph (a) by the following :
"The Consultative Assembly shall consist of Representatives of each Member elected by its Parliament or appointed in such manner as that Parliament shall decide."
5. Reaffirms its Recommendation contained in AS (2) 74, para. 4, of 18th August 1950 (no : 9 of the printed Compilation and calls upon National Parliaments to use all their influence to have the above mentioned Recommendation implemented.
The Assembly,
(A) Having been asked by the Committee of Ministers in September 1949 to consider any necessary changes in the political structure of Europe to achieve a greater unity between the Members of the Council of Europe and to make an effective European co-operation in the various spheres specified in Article 1 of the Statute ;
(B) Having unanimously resolved in September 1949 that the aim and goal of the Council of Europe is the creation of a European authority with limited functions but real powers ;
(C) Having resolved in August 1950 that the Committee on General Affairs should :
(i) submit to the next meeting of the Assembly a plan for the reform of the Statute of the Council of Europe relating particularly to the suppression of the right of veto of the Committee of Ministers ;
(ii) define the kind of European authority which might be endowed with limited functions but real powers ;
(D) Conscious that any definition of such a European authority must be one which provides something more than co-operation at Government level as it exists in Europe at present and something less than a full supra-national authority ;
Resolves :
That the definition of such a European authority be as follows ;
(i)Functions.
The functions should include those conferred, by Articles 1- 4 of the Brussels Treaty and by Articles 1- 9 of the O.E.E.C. Convention on the Councils established by those treaties and the organisations created under the two treaties should be an integral part of the organisation of the Council of Europe and responsible to it.
(ii)European Authority.
That the European authority should be a Parliament of two houses comprising the Committee of Ministers and the Assembly ; that the Committee of Ministers should represent the Governments of the Member States and that its decisions should remain unanimous ; that the Governments should retain the final say but that a parliamentary authority should be created. Legislation in the form of a Bill would be introduced in the Assembly, and when it had passed the Assembly it would go for approval to the Committee of Ministers.
(iii) Legislative Powers.
The Council of Europe should not be given in advance any executive power to legislate. It should acquire such powers to legislate in respect of its different aims and functions from time to time. Such powers would be conferred on it by individual Bills for each specific matter, when such Bills had passed the Assembly and the Committee of Ministers. The powers which the Council acquires and the way in which those powers are exercised by it will be set forth in legislation approved in both Houses.
(iv) Executive Powers.
The Council of Europe should have an executive small in numbers, responsible to both Houses to take the place of the present large Standing Committee. Such an executive would meet regularly. It would organise the Agenda of the Assembly and prepare its legislation. It would also control all the administrative organisations of the Council of Europe and create departments such as defence, customs, finance as it may require.
The Assembly of the Council of Europe recommends, and has caused its recommendations to be embodied in this Protocol, that the Statute of the Council of Europe be amended so that the aims and functions of the Council of Europe be enlarged to include all the functions and powers of the Councils created by the Brussels Treaty and the Convention for European Economic Co-operation ; so that the organisations established under those treaties be transferred to the Council of Europe ; so that executive authority and legislative power be vested in the Council of Europe ; and so that the Council of Europe be converted into a European political authority with a Parliament of two Houses and for other purposes connected therewith.
Article 1 of the Statute shall be omitted and the following article inserted hi its place :
1. The aim of the Council of Europe shall be to achieve a greater political and economic unity between its members for the purpose of safe-guarding and realising the ideals and principles which are their common heritage and facilitating their political, economic and social progress. For this purpose the Council shall formulate and carry into effect a common policy for the defence of the member states and take steps to bring about the economic integration of the economies of the member states by securing a common currency and financial system, by abolishing all barriers to trade between the member states and by securing throughout the whole of the territory of the member states an area in which the movement of goods, services and peoples shall be quite free.
2. Without in any way limiting the generality of the provisions of the previous sub-paragraph the Council of Europe
(i) shall dedicate the economic resources of the member states and their powers of reconstruction to the common good and to the development of a common civilization based on the best attainable standards of living for all citizens ;
(ii) shall integrate the industrial and agricultural production of the member states taken as a whole so as to provide sufficient food, raw materials and manufactures for the internal and external trade of the member states ;
It shall be within the competence of the Council of Europe to pass any Act to give effect to any matter within the aim and scope of Chapter I of the Statute as amended. Any Act may vest the sole and exclusive legislative and executive power or authority in the Council, and may enact that any member shall thereafter have no concurrent legislative or executive power or authority in that matter unless such power and authority be specifically provided for in the Act. Any Act shall state whether the measures or provisions therein contained are to confer exclusive legislative or executive power or authority on the Council of Europe, or are to run concurrent with such laws of a member as may be held to cover the matter legislated upon.
Any Act of the Council of Europe shall repeal the whole part or parts of any Statute, Act or other provision of whatever nature forming part of the law of any member if such law were opposed to or were in conflict with any Act of the Council of Europe.
Any Act of the Council of Europe shall upon the date specified in the Act, become in its entirety part of the law of each and every member and shall have legal and binding effect upon the members and upon all their subjects or other persons over whom they have jurisdiction or away.
The Assembly shall meet in ordinary session at least twice a year, the dates of which shall be determined by the Assembly and shall avoid as far as possible overlapping with parliamentary sessions of members and with sessions of the General Assembly of the United Nations.
The Legislative Assembly shall dissolve the Standing Committee of the Assembly, and shall elect an Executive Council. The Executive Authority shall be vested in the Executive Council which shall be responsible to the Legislative Assembly and Committee of Ministers.
The Executive Council shall consist of Councillors and each Councillor shall be assigned to and shall become the head of a Department, namely :
a. Finance ;
b. Customs and Excise ;
c. Defence ;
d. Internal and External Trade ;
e. Industry ;
f. Agriculture and Food ;
g. Labour and Social Services ;
h. Transport ;
i. Culture ;
j. Legal Questions.
The Legislative Assembly may increase or decrease the number of Departments and Councillors accordingly, but the Executive Council shall not exceed 15. The expenses of the Executive Council, the Councillors and their departments shall be a common expense within the meaning of Article 38 of the Statute. The first Executive Council shall be nominated by the president of the Assembly and shall be confirmed by the Assembly and the Committee of Ministers.
Each Councillor shall be a member of the Legislative Assembly and shall be responsible for the creation and supervision of his Department and shall be responsible to give effect to any Act of the Council of Europe.
Any Councillor shall have the right to present any measure in the form of a Bill to the Legislative Assembly, the provisions of which shall have relation to the scope and sphere of his Department, and he shall do all such other things which lie within his power which are incidental or conducive to the attainment of the aims of Chapter I of the Statute as amended.
1. Each Councillor of the Executive Council shall take tine oath in the manner and in the form as that of the Secretary-General as specified in Article 36 (e) of the Statute.
2. No Councillor shall hold any salaried office from any Government or of any national legislature of engage in any occupation incompatible with his duties.
3. Each Councillor shall have the power to appoint the officials of his Department, but if the appointments relate to the creation of a new Department he shall consult the Secretary-General as to the number of officials and staff which is to form the establishment of .the new Department, and such establishment shall be approved by the Legislative Assembly and Committee of Ministers.
4. Any Councillor shall be entitled to attend any meeting of the Committee of Ministers, unless the Committee direct otherwise, and shall attend if requested to do so by the Committee.
Article 7 of the Statute shall be expunged. A member who desires to withdraw its membership from the Council of Europe shall submit to the Committee of Ministers a proposal to amend the Statute to give effect to such withdrawal in the form of a Protocol. The Protocol shall come into force when it has been signed and ratified on behalf of a majority of the representatives entitled to sit on the Committee. Such withdrawal will take effect at the end of the financial year in which the Protocol has been approved.
The Committee of Ministers shall cause an official report to be printed and published of all debates and resolutions of the Committee and Assembly save that the Committee shall determine what information shall be published regarding the conclusions and discussions of a private meeting of the Committee.
1. That, within the framework of the Council of Europe, specialised authorities should be instituted which would be competent, respectively, in the political, economic, social, legal and cultural fields ;
2. Although the existence of the Council of Europe essentially depends upon the presence within its organisation of all the democratic Nations of Europe, each of them shall nevertheless be free to accede to the specialised authorities, or to one or several of them ;
3. These specialised authorities which it is thus intended to create and to maintain, within the framework of the Council of Europe, shall remain open to any Member State which may subsequently wish to accede to them. Their organs of administration and control should be integrated with those of the Council of Europe ;
4. Those States which desire from the outset to form closer organic links shall be free to establish them between themselves. The form these links should assume will be settled by them after discussions in which all Member States of the Council of Europe shall take part. The organs of administration and control shall be instituted according to the methods set forth at the end of paragraph 3. The same opportunities as above for the subsequent accession of other Member States shall be maintained.
1. By special Conventions concluded between the Member States or between some of them, powers not provided for by the Statute of the Council may be conferred both on special Committees of the Committee of Ministers and on Committees of the Consultative Assembly, composed of Representatives of the States which are signatories of these special Conventions, without thereby binding either the States which are not signatories of these Conventions or their Representatives in the Consultative Assembly.
2. The special Committees of the Committee of Ministers and the Committees of the Consultative Assembly indicated above shall regularly submit reports on their activities together with die necessary documentation, the aforesaid Committees to the Committee of Ministers, the Committees to the Consultative Assembly.
3. The Secretariat-General of the Council of Europe may be called upon, by the special Conventions mentioned above, to render assistance to new organs established between the Member States, or between some of them. Any additional expenses of the Secretariat-General which might result from these new duties shall be borne by the Council of Europe, on condition that at least two-thirds of the Member States are parties to the said Conventions. When less than two-thirds of the Member States of the Council are parties to the said Conventions, the possible additional expenses of the Secretariat shall be borne by the signatory States under conditions fixed by the Convention.
Leave out Article 23 and insert the following new Article :
The Consultative Assembly may discuss and make Recommendations upon any matter within the aim and scope of the Council of Europe as defined in Chapter I ; it shall discuss and may make Recommendations upon any matter referred to it by the Committee of Ministers with a request for its opinion.
In line 1 of Article 4, after "may", insert : "with the approval of the Consultative Assembly, such approval to be by a simple majority".
In line 2 of Article 5, after "may", insert : "with the approval of the Consultative Assembly, such approval to be by a simple majority".
The Statute is amended by the pro visions of this Protocol and if any part of the Statute is in conflict with any part of this Protocol, the Protocol shall prevail and the part of the Statute to the extent of the conflict is hereby repealed.
Where the Statute of the Council of Europe is amended by the clauses of this Protocol in order that the provisions in this Protocol shall have full effect over the provisions of the Statute all consequential alterations that are necessary to give effect to the clauses of this Protocol shall be deemed to have been incorporated in this Protocol, and the provisions of the Statute shall to the extent of such consequential alterations so be deemed to be repealed.
presented by MM. LA MALFA, MOLLET, CAPPI, JACINI, CASATI, PABRI, BENVENUTI, AZARA, BOGGIANO PICO, TREVES, DI GIOVANNI, BERGMANN, SANTERO, ZERBI, GIACCHERO, MONTINI.
It has been said often enough that this present Session of the Assembly in Strasbourg constituted the culminating point in the crisis as regards relations between the Assembly and the Committee of Ministers which endangers the smooth working of the Council of Europe and even its future existence.
We must, however, be careful to remind ourselves Chat it would be useless and even wrong (this has already been brought out in the Assembly) to lay all the blame on the Committee of Ministers ; it would be equally wrong to believe that this crisis into which the Council of Europe has been plunged is' the manifestation of a total incapacity of European countries to set in motion a process of unification. The problem is perhaps more far-reaching and more complex than it would appear at first sight.
Admitting that the Committee of Ministers abstained from any action to facilitate the free exercise of the consultative powers of the Assembly, we must ask ourselves whether the latter, absorbed as it was by its efforts to obtain a power of decision, did not fail to take full advantage of the possibilities inherent in its consultative powers.
In truth the Assembly was created and had agreed to function on the basis of the Statute of the Council of Europe as a Consultative Assembly, It is now clear to all - both federalists and functionalists - that the consultative nature of the Assembly cannot remain unchanged in a Europe which is seriously aiming at uniting. From this point of view the discussions which took place in the Assembly regarding the creation of a supra-national political power are of the utmost importance, since the creation of such a power constitutes, as I see it, the ultimate purpose of the Assembly. But it is also of the greatest importance to consolidate pari passu the original statutory character of the Assembly, in other words its consultative function. And that has not been done.
The struggle between federalists and functionalists, the decline of the conception of total federation in favour of that of partial federation or of specialised authorities, which have received such dose attention from the Assembly, are evidence of this deep interest, but they also emphasise the Assembly's internal divisions and its weakness in the face of the Committee of Ministers. The struggle which it had to wage in this matter was rendered more difficult by the fact that it presupposed from the start, as an accomplished fact, the introduction of substantial changes in the Statute of the Council of Europe and the immediate transition from the conception which inspired the Statute as it stands, to a new and more radical conception.
The second problem which is that of the definition and the consolidation of the consultative function of the Assembly, has been almost entirely ignored, or only touched upon, as if it were impossible by the exercise of this function to achieve any realty important concrete results, or conditions capable of later development. It must be frankly admitted that this relative lack of interest is attributable to the fact that the Assembly has adopted a somewhat negative attitude towards the work carried out by European Governments in the O.E.E.C, within the Atlantic Treaty Organisations, and within other less important organs for the attainment of a common policy tending towards a European unity.
Unable to take any share in this work, as it has been, and somewhat sceptical with regard to it, the Assembly has had to concentrate on matters of principle, without taking any part in the accomplishment of the real progress which has undoubtedly been made with regard to the unifying of Europe. In this respect the comments made in Mr. Mackay's suggestions with regard to changes in the Statute are very significant.
Now, a debate on the aim and the scope of the consultative function of the Assembly would have been and might still be of great importance for the Assembly. For it would give rise to the discussion of a concrete and well-defined problem within the framework of the present Statute, of which the governments have to meet the obligations. In other words, without the Assembly being asked to neglect the problem of supra-national power, it should now put this question to the Committee of Ministers : What is the scope of the consultative function of the Assembly, and how should it exercise this function in regard to all the agreements and conventions of European interest which are concluded between the nations of the Council of Europe ?
Quite apart from its demands with regard to the matter of supra-national power - a question which falls outside the framework of the existing Statute - the Assembly can indeed submit another claim to the Committee of Ministers, and to the Governments of Member States of the Council, based on the fact that the consultative function of the Assembly Has not been defined, that is to say that it has not been given a place in the procedure for the elaboration of the conventions and undertakings of European interest signed by Governments of the Council of Europe.
But there is a great difference between the fact of asking the Committee of Ministers to change the content and spirit of the present Statute and that of asking the Committee of Ministers or the Governments to make possible the effective exercise of the consultative function attributed to the Assembly by the Statute. Although the Committee of Ministers was able to elude the first of these requests, it cannot do so with regard to the second. Now, in order that there should be no doubt about the matter, we declare that we mean by the term "consultative function", in the first place and in accordance with current constitutional acceptance of the words, full political and technical discussion of plans and initiatives having a European bearing, and submitted by the nations of the Council of Europe to whatever body (whether O.E.E.G. or the organs of the Atlantic Treaty etc.) and not the elaboration of independent and generic Recommendations by the Assembly, as provided for in Article, 23 of the present Statute.
By rendering possible the exercise of the consultative function, the Assembly will be introduced both constitutionally and structurally into the procedure for the elaboration of the agreements or conventions with a European bearing, and will not be merely consulted with regard to matters which the Committee of Ministers is good enough to submit to it, or concerning which the Assembly offers its opinion, as is provided for by the present drafting of the Statute (Articles 22 and 23). The constitutional struggle that the Assembly could wage against the Committee of Ministers on a favourable terrain must have as its first object the re-modeling of the present Statute in this respect, - a re-modeling without which the Consultative Assembly - unlike the consultative organs operating within the various countries - runs a risk of being only an academy with no precise constitutional or well-defined function.
The character and scope of the statement which the Assembly should request from the Committee of Ministers may be inferred from certain elementary observations on the way in which a number of European agreements have in fact been brought about.
The European Assembly was never constitutionally notified of the Schuman Plan and proposals, and neither the statement made by M. Schuman to the Assembly, nor the ensuing discussion, give us any reason to consider that the Assembly has been informed of the question even in a consultative capacity. It was not sufficient for the Committee of Ministers to allow the Assembly to discuss the problem as an "act of grace" ; there should have been formal notification, that is the Schuman Plan should have been formally submitted to the President of the Assembly, so that the latter could be constitutionally notified. It may be objected that by the terms of the Statute the Committee of Ministers was not compelled to do any such thing. In that case a serious question arises concerning the present Statute.
If the Assembly is not formally called upon to exercise consultative functions in this sphere, what then is its competence, and what does the Statute mean when it speaks of consultative functions?
The same can be said of the European Payments Union : as tins Agreement was signed by the Governments without any notification to this Assembly at any stage of its preparation, what, then, does this Consultative Assembly amount to ?
In fact, if the Assembly wishes to give a serious and concrete meaning to its consultative functions, it should not allow undertakings of a European nature to be signed by the Governments of the Council of Europe without having expressed its formal opinion through the ritual formula :
"Opinion of the Strasbourg Assembly requested..."
This formula should appear on all Agreements or Conventions with European implications submitted for approval to the Parliaments or Governments of the Council of Europe, and its presence should be a condition of the approval of those Governments and Parliaments.
If the Committee of Ministers and the Governments of the Council of Europe were not to accept this constitutionally unanswerable interpretation of the Statute, then indeed the Assembly would have reached a crisis. But that would not be because they had wanted to go outside the existing constitutional framework, but because they had asked the Committee of Ministers and the Governments to give a constitutionally coherent application of the Statute in force, and particularly of Articles 22 and 23 in relation to Article 10.
This is not the place to emphasise the importance of going to the heart of the problems which are being discussed to-day by other European organisations, and of crystallising the function of the Assembly into responsible activity, comprising the right to conduct investigations and the right to made decisions. If the Assembly were to have before it all the projects and all the initiatives relating to joint action by the Member States of the Council of Europe, it would already have before it a serious and concrete task to carry out. In addition to asking for a coherent application of the Statute - by which the consultation of the Assembly on any matter of European interest would be mandatory, though not having executive force - it should ask the Committee of Ministers simply for the power, on the one hand, to exercise this advisory faculty in every field, and on the other hand, for the right to take initiatives which would allow it to submit projects and agreements.
By the exercise of this advisory faculty and by the discussion of clearly defined projects, the Assembly might well build up valuable experience in relation to the problems of the unification of Europe : problems which might subsequently find their solution in the exercise of a more clearly-defined power than that at present allowed to the Assembly by its consultative function alone.
Substantially, leaving aside for the moment all other decisions, the sole request of the Assembly to the Committee of Ministers .this Session, ought to be for a constitutionally coherent definition of Articles 22 and 23 of the Statute, and an exten-tion to the whole European field of the field of competence referred to in Article 1 of the Statute. From this clear definition of the consultative function there should follow the obligation for every country adhering to the Council of Europe to refer to the Committee of Ministers all initiatives and all projects of a European character which they are taking or which they are submitting to any of the international organisations. The Committee of Ministers must, after due discussion, transmit these plans to the Assembly with a request for its opinion.
If it were limited to this request, the decision of the Assembly, thus preceding all further action, could not fail to have a solemn character, could not fail to make very dear the mutual responsibilities of the Assembly and the Committee of Ministers, and could not fail to gain the sympathy of public opinion.
On the other hand a procedure by virtue of which the Assembly would be informed of all those projects of a European character submitted by any organisation whatsoever, would in itself resolve the problems involved in the relationship between the Council of Europe and O.E.E.C. or the organs of the Atlantic Fact, because only the countries of the Council of Europe would be constitutionally bound to be consulted in this way, without this prejudicing in any way the continuation of negotiations and investigation within those organisations which are outside of the Council of Europe.
We are of the opinion that in the present circumstances this method of stating the problem is the only one capable of rescuing the Council of Europe from a delicate situation.
The Assembly,
Considering that by the terms of Articles 22 and 23 of the Statute it is called on to give its views upon any matter within the aim of the Council of Europe ;
Considering that, in accordance with generally accepted constitutional principles, all executive and legislative organs must ascertain the views of consultative organs set up to examine questions within the competence of the said organs ;
Considering that the provisions of the Statute must be modified in such a way as to allow the effective application of the above constitutional principles to the working of the Council of Europe ;
Considering finally that, in present circumstances, the concrete and effective exercise of the consultative function is, without prejudice to any other amendment of the Statute, a prior condition of the regular working of the Council of Europe as an institution ;
RECOMMENDS
(i) that it shall be the Statutory duty of each Member State of the Council of Europe to inform the Committee of Ministers of any project or proposal with European implications which it may adopt, even outside the Council of Europe, whether alone or with other States.
(ii) that the Committee of Ministers, after examining such projects, shall transmit them to the Assembly.
(iii) that the President of the Assembly shall be able if the matter is urgent to summon the Assembly for the discussion of any such projects submitted for opinion.