MINISTERS’ DEPUTIES

CM Documents

CM(2019)67-final

30 April 2019

129th Session of the Committee of Ministers (Helsinki, 16-17 May 2019) Summary Report on co-operation between the Council of Europe and the European Union

 

1. Introduction

Last year, at its 128^th Session (Elsinore,18 May 2018), the Committee of Ministers took note with satisfaction of the developments in the co-operation between the Council of Europe (CoE) and the European Union (EU) and expressed its determination to further strengthen such co‑operation, in accordance with the Memorandum of Understanding (MoU) between the CoE and the EU, in order to better protect and promote human rights, democracy and the rule of law in Europe.^[1]

This co-operation aims at better addressing common challenges facing Europe, at ensuring coherence and complementarity between the pan-European CoE and the EU’s integration process and, ultimately, at building a common legal space for human rights protection. 2017 marked the 10^th anniversary of the 2007 MoU between the Organisation and the EU, which confirms the central role of the CoE as the “benchmark for human rights, the rule of law and democracy in Europe” and the “Europe-wide reference source for human rights”. 2018 was marked by an intensive co-operation increasingly focusing on rule of law-related issues and the need to safeguard democratic security and to reinforce the resilience of the human rights protection system in Europe. The CoE and the EU, which share the same values, also confirmed their common commitment to an effective multilateralism

“EU Priorities for co-operation with the CoE in 2018-2019”,^[2] which stress the EU’s commitment to the CoE convention system, provide a solid basis for a further enhancement of co-operation and to a large extent reflect the priorities of the Organisation.

The CoE Liaison Office in Brussels and the EU Delegation in Strasbourg continued to play a key role in reinforcing the dynamics of co-operation and its visibility.

Co-operation between the Council of Europe and the European Union takes place through political dialogue, co-operation projects, and legal co-operation.

2. Intensive political dialogue at all levels

Dialogue at high level included, inter alia, meetings between the Secretary General and the Committee of Ministers on the one hand and President Juncker, HR/VP Mogherini, Commissioner Hahn, the Political and Security Committee (PSC) and members of the European Parliament, in particular the Committee on Foreign Affairs (AFET), on the other. These regular high-level consultations addressed in particular democratic security in Europe, the functioning of the European human rights protection system and, more specifically, the challenges facing the Organisation, the current situation in a number of CoE member States, migration issues and the fight against terrorism and radicalisation. On 18 May 2018, addressing the 128^th Session of the Committee of Ministers, the EU Representative, Ambassador Mara Marinaki, stressed

that “the EU is proud of its strategic partnership with the CoE because Europe is at its best when its nations and institutions collaborate for freedom, peace, security, justice and gender equality […]”. She also stressed that the EU is committed to continuing its close support to the CoE as the moral compass in the wider European neighbourhood and to promote democratic values and dialogue.”^[3]

Political dialogue with EU representatives also continued, inter alia, in the context of the work of the CoE Parliamentary Assembly (PACE), and the Congress of Local and Regional Authorities (the Congress) Fostering PACE/EU high-level political dialogue has been one of the themes dealt with by the Ad hoc Committee on the role and mission of the Assembly, led by former Assembly President Michele Nicoletti and bringing together representatives of parliaments from all 47 member States, including the Russian Federation.^[4] A follow-up report is being prepared,^[5] including on the need to enhance political dialogue between PACE and the EU.

In March 2018, the Congress signed a Revised Co-operation Agreement with the European Committee of the Regions, replacing the 2009 Agreement, to better reflect their solid partnership. The two institutions also identified priority areas for co-operation, such as integration of migrants, fight against radicalisation, strengthening good local governance and combatting corruption, as well as improving human rights.

Dialogue also takes place in the context of the European Centre for Global Interdependence and Solidarity of the Council of Europe ("North-South Centre"), where the EU is an active member of the Executive Committee. In addition, consultations have multiplied at a more technical level to allow deeper discussions (see below). The annual Meeting of the CoE-EU Senior Officials, designed for planning and coordinating co‑operation between secretariats at the technical level, remains a useful tool to keep co-operation under review and make proposals for further action.

3. Consolidating the co-operation frameworks

Joint Programmes between the CoE and the EU, aimed at promoting respect for the rule of law, democracy and human rights, remained the major source of funding of the CoE technical assistance and co-operation projects in 2018. The global financial volume of contracts under implementation in 2018 amounted to €154.8 million, with the EU and the CoE contributing €131.4 million (84.9%) and €23.4 million (15.1%) respectively.

Following the 2014 Statement of Intent on co-operation between the European Commission and the CoE, the implementation of strategic co-operation frameworks has continued (during the reporting period), covering the EU Enlargement Region, countries of Eastern Partnership, Southern Mediterranean and Central Asia.

The Horizontal Facility for the Western Balkans and Turkey is a flagship instrument of co-operation between the EU and the CoE that has been supporting beneficiary-tailored reform processes
(€25 million from May 2016 to May 2019) and since February 2018 has contributed to the objectives of the EU Western Balkans Strategy initiatives. Using a flexible and needs-oriented approach, the Horizontal Facility supports beneficiaries to address recommendations emanating from CoE monitoring and opinion/advisory bodies on ensuring justice, fighting economic crime and combating discrimination, while also supporting beneficiaries’ progress regarding the implementation of Chapters 23 and 24 of the EU acquis as relevant.

Through the Expertise Co-ordination Mechanism (ECM), which is also available to Turkey, the Horizontal Facility provides ad-hoc legal expertise and policy advice. In 2018, assistance was provided in particular to Albania, Bosnia and Herzegovina, Montenegro, North Macedonia, Serbia and Kosovo* in the areas of constitutional reform, justice reform, electoral processes, political parties financing, anti-discrimination and freedom of media. Three other EU/CoE Joint Programmes are also implemented in the region.^[6]

In the countries of the Eastern Partnership (EaP), co-operation continued through the “Partnership for Good Governance” (PGG). PGG Phase I 2015-2017, extended to 2018 (with a total budget envelope of €36 million^[7]), was finalised. The independent results-oriented monitoring (ROM) report commissioned by the EU,^[8] issued at the end of 2018, concluded that the assistance delivered under phase I of PGG was highly relevant, effective and sustainable. Negotiations on PGG Phase II 2019-2021 were finalised with a budget envelope of €17.5 million.^[9] It will mainly focus on judicial reform and the fight against corruption with a view to supporting the achievement of EU 20 Deliverables for 2020.

The EU is also an important partner in the framework of the CoE Policy towards neighbouring regions. The EU/CoE Joint Programme “Ensuring Sustainable Democratic Governance and Human rights in the Southern Mediterranean” (South Programme III, 2018-2020, €3.34 million) was successfully launched in 2018. The Programme is open to Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, Palestine** and Tunisia, allowing further consolidation of the process of creating a common legal space between Europe and the Southern Mediterranean and offering networking and capacity-building opportunities in the region. As a transversal priority, the Programme aims at contributing to combating violence against women using relevant CoE standards, tools and mechanisms. In Tunisia, two new EU/CoE Joint programmes, “Improving the functioning, performance and access to justice in Tunisia (AP-JUST, 2019-2021, €5.56 million^[10])” and “Project to support independent bodies in Tunisia (PAII-T, 2019-2021, €5 million^[11])” were signed at the end of 2018.

In Central Asia, co-operation focused mainly on the rule of law with a Joint Programme in Kazakhstan on the reform of justice (2014-2018, €2 million) and two Joint Programmes in the fields of electoral reform and the fight against corruption in the Kyrgyz Republic (€700 000 and €550 000 respectively). The Joint Programme in Kazakhstan and the Joint Programme to fight corruption in Kyrgyzstan were completed in 2018. The Joint Programme in the field of elections in Kyrgyzstan was extended until April 2019 and a follow-up is envisaged. Currently, the CoE is finalising negotiations with the EU on a regional Joint Programme in Central Asia (2019-2022, €8.4 million) that will cover such areas as the promotion of a common legal space and protection of human rights, fight against corruption and good governance. The Central Asian states will also be among the key beneficiaries of another EU/CoE Joint Programme that is currently under discussion.^[12]

With EU financial support for co-operation projects in the Southern Mediterranean and Kyrgyzstan, the Venice Commission was able to provide assistance in the fields of constitutional justice and electoral legislation and practice involving the authorities of Algeria, Jordan, Libya, Kyrgyzstan, Morocco and Tunisia.

With respect to cybercrime, the CoE and EU pursue the common goal of strengthening the rule of law in cyberspace on the basis of the Budapest Convention on Cybercrime. This goal is supported through a large number of capacity-building activities which are being implemented under a range of EU and CoE joint projects. Co-funded by the EU through different financial instruments, these joint projects are aimed at strengthening the capacities of states worldwide to apply legislation on cybercrime and electronic evidence and engage in effective international co-operation while complying with human rights and the rule of law, including data protection standards. In terms of geographical coverage, some of these projects are regional and are aimed at Eastern Europe, South Eastern Europe and Turkey and the Southern Neighbourhood, while others are global and are aimed at countries in Africa, Asia/Pacific, the Caribbean and Latin America which are committed to implementing this treaty or prepared to develop legislation on the basis of the Budapest Convention.

Two new Joint Programmes, “HELP in the EU” and “HELP Radicalisation Prevention” (with a total budget envelope of €1.7 million) contribute to increased protection of fundamental rights in the EU member States in areas such as data protection, privacy, the fight against racism and to improving the criminal justice response in the EU to prevent radicalisation leading to terrorism and violent extremism.

Building on the existing co-operation with the EU through the Structural Reform Support Service aimed at assisting the EU member States to strengthen their capacity to prepare and implement growth-sustaining administrative and structural reforms in the area of the rule of law, human rights and democracy, a more structured co-operation framework is being developed between the two organisations.

In 2018, the North-South Centre continued with the implementation of the activities of the Joint Programme iLEGEND (Intercultural Learning Exchange through Global Education, Networking and Dialogue) that seeks to strengthen Global Development Education advocacy and capacity-building for formal and non-formal educators in the Balkans, Baltic, South-East Europe and Mediterranean and Visegrad regions. The project fosters peaceful and inclusive societies promoting human rights, intercultural dialogue and democratic citizenship.

The European Heritage Days are the most widely celebrated participatory cultural event shared by the citizens of Europe. Launched in 1985 in France, the Programme has been organised as a joint initiative of the CoE and the EU since 1999. All 50 European states parties to the European Cultural Convention actively participate in the project. Today, the European Heritage Days can be considered an essential instrument for fostering a tangible experience of European culture and history in addition to raising public awareness about the many values of our common heritage and the continuous need for its protection.

The partnership between the EU and the CoE also reflects in a significant number of other Joint Programmes in areas of expertise of the CoE, for example on the fight against violence against women in the Russian Federation (for details, see the information document “Joint Programmes between the CoE and the EU in 2018”).

4. Legal co-operation: promotion of CoE standards and harmonisation

The third pillar of the strategic partnership, namely legal co-operation, has been largely dominated by increased co-operation in the context of rule of law-related matters in Europe, as well as by the issue of the EU participation/accession in CoE Conventions and bodies. In this context, contacts between EU institutions and CoE bodies, in particular monitoring and advisory bodies, have intensified. The latter, as well as the outcomes of their monitoring proceedings, have also been regularly referred to by EU institutions, confirming the benchmarking role of the CoE and its unique expertise.

As concerns developments in EU member States, co-operation has increased in the context of rule of law initiatives and assessments from the EU institutions, notably the Commission’s “Framework to strengthen the Rule of Law” and the annual rule of law dialogue in the Council (General Affairs).^[13] This year, such a dialogue was devoted to the topic: “Trust in public institutions and the rule of law" and the CoE was invited to take an active part in the preparatory discussions of the dialogue. The CoE has continued to provide a valuable input in view of its well-established experience in this field, in particular through the case law of the European Court of Human Rights, the expertise provided by the Venice Commission,^[14] GRECO, the European Commission for the Efficiency of Justice (CEPEJ), MONEYVAL, the Consultative Councils of European Judges (CCJE) and of European Prosecutors (CCPE), as well as directly through co-operation projects.

In addition, CEPEJ continued to provide data on the functioning of judicial systems in the 28 EU member States for the European Commission’s annual “Justice Scoreboard”. This exemplary co-operation is based on a multi‑year contract between the European Commission and the CoE (renewed in 2017 for a four-year period). Such an arrangement avoids duplication, confirms CEPEJ’s status as a common reference point for justice evaluation^[15] and increases its visibility, as well as that of the CoE. Contacts have also intensified between GRECO and EU institutions, in particular the European Parliament, the General Secretariat of the Council and the European Commission, with regard to substantial issues and in view of the EU’s participation in GRECO.^[16] Furthermore, the EU and the CoE are in the process of concluding a contract for

using the unique CoE expertise to assess the practical implementation and effective application of the 4^th Anti-money Laundering Directive by the EU member States.

With respect to EU participation in CoE instruments,participation of the EU in CoE relevant treaties remains a common goal. As provided by the 2007 Memorandum of Understanding, legal co-operation should be developed with a view to ensuring coherence between EU law and CoE standards. The participation of the EU in CoE instruments would significantly enhance such coherence, as well as synergies between the EU and CoE monitoring and advisory bodies. It raises, however, a number of difficult legal issues, as illustrated first and foremost by the negotiation process of EU accession to the European Convention on Human Rights (ECHR).

CoE member States reaffirmed the importance of the EU’s accession to the ECHR through a Declaration adopted in April 2018.^[17] The EU’s continued commitment to its accession to the Convention, which is an obligation under the Lisbon Treaty, has been confirmed by the European Commission, European Parliament and member States in the EU Council. In June 2018, President Juncker assured that he had taken the initiative to reinvigorate work on EU accession to the Convention. Accession would reinforce the common values of the Union, improve the effectiveness of EU law and enhance the coherence of fundamental rights protection in Europe. There is, however, no time-framework for new negotiations for the time being.

With respect to EU accession to other CoE Conventions, a major step was achieved in 2018 with EU accession to the CoE Convention on the Prevention of Terrorism and its Additional Protocol on 26 June 2018. The EU has also designated the EU Agency for Law Enforcement Co-operation (Europol) as its contact point for the exchange of information on foreign terrorist fighters.

Work is also on-going to conclude EU accession to the CoE Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention), signed by the EU in 2017. The EU and the CoE support the dissemination of information on the convention and its objectives and the ratification process of remaining EU and CoE member States. The Commission and CoE relevant organs continue to pursue regular consultation in the field of gender equality in the context of their respective multiannual strategies, notably in the areas of violence against women, sexism and gender stereotypes, women’s role in media and politics, and gender mainstreaming.

On 12 March 2019, the European Parliament gave its consent to the draft Council decision authorising the EU member States to ratify, in the interests of the EU, the Protocol amending the CoE Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. The EU has further encouraged accession by third countries to this Convention which is the only binding multilateral instrument in the area of data protection. CoE and EU respective frameworks contribute to the convergence towards a set of high data protection standards. The EU also reiterated its support to the CoE Convention on Cybercrime (and Additional Protocols). In February 2019, the Commission published its recommendation for a negotiating mandate with respect to the second Protocol to the Budapest Convention on e-evidence, currently prepared by the CoE. It expected that this mandate would be adopted by June 2019. The draft mandate, however, raises concerns as it appears that the CoE work on the second Protocol could be substantially affected.

As regards the CoE Sport Conventions, on 12 March 2019, the European Parliament recommended authorising the EU member States to ratify the CoE Convention on an Integrated Safety, Security and Service Approach at Football Matches and Other Sports Events. It is still hoped that EU institutions will address the current deadlock preventing the EU member States from ratifying the Convention on the Manipulation of Sports Competitions.

Contacts have also intensified between the EU and the CoE Enlarged Partial Agreement on Cultural Routes with a view to developing synergies and modalities of a more structured partnership, as well as between the EU and the CoE in the context of the 2018 European Year of Cultural Heritage, including the launch of a new Joint Project on promoting the Framework Convention on the Value of Cultural Heritage for Society (Faro Convention).

Further reflexions and exchanges on the implications of the EU’s participation in such CoE conventions and bodies are taking place. These implications are of a political, legal and financial nature.

In the field of migration, the Special Representative of the Secretary General on migration and refugees has further developed co-operation with relevant EU partners. Political dialogue is regular with the European Commission on matters of importance for both organisations. Work is on-going, notably also with a view of building up synergies between the CoE Action Plan on Protecting Refugee and Migrant Children and the European Commission’s Communication on protecting children in migration. Co-operation in this field is also being pursued with the participation of relevant EU institutions and agencies in the CoE’s intergovernmental work. Difficulties that have occurred in the context of the preparation of a CoE codifying instrument on European rules on the administrative detention of migrants have illustrated the sensitivity of these issues at European level and the need to further pursue a permanent dialogue in this respect. Further co-operation with respect to the integration of migrants and refugees is being considered, notably in the context of the Intercultural Cities programme, as well as between the North-South Centre and the European Institute for Gender Equality on the question of integration of migrant, refugee and asylum-seeking women and girls.

Co-operation on policies, standards and practices related to Artificial Intelligence and Internet Governance is another major issue on the agenda of both organisations. The CoE participates as an observer in both the EU High-Level Working Group on Artificial Intelligence and the High-Level Working Group on Internet Governance, and regular working level contacts and exchanges of views take place on a variety of topics, including those related to intermediary liability, content moderation and algorithmic transparency. Representatives of the European Commission participate in meetings of relevant Expert Committees and provide comments and feedback on draft standard-setting instruments being developed by the CoE related to automated data processing and different forms of artificial intelligence, as well as related to the challenges of promoting quality journalism in the digital age. Both organisations also co-ordinate their input vis-à-vis relevant regional and international internet governance forums.

Meetings organised twice a year between the CoE and the EU^[18] facilitate the harmonious development of standard-setting and policies on legal issues and strategic topics in the fields of police and judicial co-operation in criminal matters. The fight against terrorism and radicalisation also remains a priority issue in this context.

As a further illustration of synergies, the relevant organs of the European Commission and the CoE stepped up their co-operation in the field of anti-discrimination, notably in the context of the drafting of EU guidelines on combatting hate speech and promoting non-discrimination, and strengthening policies promoting equality in non-EU member States. Co-operation has also developed on education, inter alia in the context of the EU’s Western Balkans strategy and on sport, whereas the partnership between the EU and the CoE in the youth field celebrated its 20th anniversary last year, having been launched in 1998.

Co-operation between the CoE and the EU Agency for Fundamental Rights (FRA) further developed successfully in various areas on the basis of their respective mandates, strengths and skills. On the occasion of exchanges of views with the Committee of Ministers in 2018, the FRA Director confirmed the excellent co-operation and complementarity between the Agency and the CoE. In addition, the CoE made a significant contribution to the FRA Fundamental Rights Forum held in Vienna in September 2018. Co-operation at operational level, notably in terms of exchanges of information, consultation on respective activities and identification of potential for more synergies is also increasingly developing with the European Institute for Gender Equality (EIGE), notably in the areas of gender equality and violence against women.

Co-operation between the CoE and the EU also further developed at the global level in the framework of the UN Sustainable Development Goals (SDGs) and in the context of the preparation of the 2018 UNGA Resolution on a moratorium on the use of the death penalty, thus also strengthening multilateralism beyond Europe. On 10 October 2018, HR/VP Mogherini and the CoE Secretary General also reiterated their strong opposition to capital punishment in all circumstances in a Joint Declaration to mark the European and World Day against the Death Penalty.

5. Conclusion

The increasing challenges facing Europe in the fields of human rights, democracy and the rule of law, including those linked to the necessity to preserve and reinforce the post-World War II human rights protection system, continue to be co‑operation priorities. These challenges have, inter alia, further highlighted the unique expertise of the CoE, as well as the complementarity of both European organisations on the continent. In practice, this complementarity has been further strengthened through political dialogue, joint activities and legal co-operation, on the basis of the MoU, which continues to successfully guide the co‑operation.

A strong partnership between the CoE and the EU, based on coherence and complementarity, is needed more now than ever to uphold the resilience of the European human rights protection system and, beyond this, an effective multilateralism in Europe. 2019 will be a test year in this respect.