Memorandum by the Council of Europe Secretariat
The Council of Europe has no institutional role
in the initiation of EU legislation (even though in practice Council
of Europe activities and instruments may serve as source of inspiration
for EU initiatives). The following observations therefore only
cover the consultation with the Council of Europe during the process
of the creation of EU legislation (point 5 of the issues identified
in the Call for Evidence).
Both the Council of Europe and the European
Union are seeking 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. Numerous Council of Europe conventions
are part of the European Union's acquis, on the basis of
which closer cooperation within the Union has been developed.[19]
In recent years, cooperation has been intensified
following the extension of EU competencies to areas hitherto reserved
to intergovernmental cooperation within the Council of Europe
(eg justice and home affairs). Following the 1987 Arrangement
between the Council of Europe and the European Community and the
2001 Joint Declaration on Cooperation and Partnership, the Council
of Europe and the European Union concluded in May 2007 a Memorandum
of Understanding ("MoU"). Acknowledging that the Council
will remain the benchmark for human rights, the rule of law and
democracy in Europe, the MoU contains guidelines and practical
arrangements for increased cooperation in many areas, including
standard-setting. The text of this MoU is contained in the appendix
to this paper (not printed with this Report).
The MoU foresees consultations at an early stage
in the process of elaborating standards in the areas of human
rights and fundamental freedoms, rule of law and legal cooperation
(see paragraphs 18 and 25). The aim of such consultations is to
ensure coherence between EU and Community law and the relevant
Council of Europe standards (paragraphs 19 and 24). In particular,
EU legislation should be consistent with the European Convention
on Human Rights ("ECHR"), as interpreted by the European
Court of Human Rights, which constitutes the Europe-wide minimum
standard.
Consultations may take place with the competent
services of the Commission before a legislative proposal has been
made, or once it has been submitted to the EU Council, with the
competent working group. Council of Europe representatives are,
however, not entitled to attend EU Council working groups or to
participate as observers in the meetings of the Committee of Permanent
Representatives (Coreper). This lack of reciprocity (the EU Commission
and Council being regularly invited to expert meetings which draft
new Council of Europe legal instruments and the EU Commission
participating in meetings of the Committee of Ministers) has been
deplored by Prime Minister Jean-Claude Juncker in his report on
relations between the EU and the Council of Europe.[20]
There is, indeed, no reason why the EU should be deprived of the
Council of Europe's legal and human rights expertise when it is
preparing new legal instruments.
In practice, even before the conclusion of the
MoU, the Council of Europe had been consulted occasionally by
the Commission alongside non-governmental organisations. Past
consultations have included the green paper on conflicts of jurisdiction
and the principle of ne bis in idem in criminal proceedings,
the green paper on the presumption of innocence, proposals for
EU Council framework decisions on certain procedural rights in
criminal proceedings throughout the European Union[21]
and, following the entry into force of the MoU, the draft framework
decision amending certain sections of several other framework
decisions relating to trials in absentia[22]
and future legislative work in the area of asylum.
When the Council of Europe is consulted, we
are often told that our comments carry considerable weight, and
that they are regarded as very useful for making EU legislation
coherent and consistent with the ECHR ("Strasbourg-proof").
From time to time, the European Parliament has
invited Council of Europe representatives to hearings organised
in the context of the examination of draft legislation.
However, it should be noted that consultations
have not systematically covered all new legal instruments concerning
matters where the responsibilites of the two organisations coincide
or complement one another. It is hoped that this practice will
develop, as foreseen in the MoU, in order to take account of the
central position of the Council of Europe in the European human
rights protection system. The Committee of Ministers, at their
forthcoming Ministerial Session on 6-7 May 2008, will evaluate
the implementation of the MoU.
31 March 2008
http://www.ec.europa.eu/justice_home/doc_centre/intro/docs/jha_acquis_1107_en.pdf
19 See Acquis of the European Union, Title IV of
the TEC, Part II of the TEC, Title VI of the TEU, update October
2007, at: Back
20
"Council of Europe-European Union: `A sole ambition for
the European continent'", report to the attention of the
heads of state or government of the member states of the Council
of Europe (April 2006). Back
21
Observations by the Council of Europe on a new version of the
proposal for a Council Framework Decision on certain procedural
rights in criminal proceedings throughout the European Union,
EU Council document 13759/06 DROIPEN 62 (2006); see also House
of Commons, European Scrutiny Committee, Twenty-second Report
of Session 2006-07, 18 et seq. Back
22
EU Council document 6706/08 COPEN 34 (2008). Back
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