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Ministers' Deputies Notes on the Agenda
2.3 Co-operation between the Council of Europe and
the European Union
b) Current work
Reference documents
The Deputies are invited, having heard a report by Ambassador Sten Lundbo, Chairman of their Rapporteur Group GR-EU on the meeting held on 23 May 2000, to adopt the appended draft decisions. ———————————————— The synopsis of the meeting of the GR-EU on 22 May 2000 has been circulated under reference GR-EU(2000)7.
DRAFT DECISIONS 711st meeting - 31 May 2000 Item 2.3 Co-operation between the Council of Europe and the European Union b) Current work of the Convention created to elaborate a draft European Union Charter of Fundamental Rights
(CM/Del/Dec(2000)705/2.3, GR-EU(2000)5 Revised and 7)
Decisions The Deputies 1. took note of the report by the Chairman of their Rapporteur Group GR-EU concerning the meeting on 22 May 2000, in the light of the synopsis of the meeting (GR-EU(2000)7); 2. adopted the following reply to Recommendation 1439 (2000) on the Charter of Fundamental Rights of the European Union: "The Committee of Ministers shares the concerns expressed by the Assembly in Recommendation 1439 (2000) as well as the principles set out in Resolution 1210 (2000). It recalls that, in the considerations it brought to the attention of the 1996 Intergovernmental Conference of the European Union (IGC), it emphasised that "Human Rights protection lies at the heart of the Council of Europe’s action", that "the Europe Convention on Human Rights must remain an essential reference point, in terms of both rights guaranteed and its judicial mechanism, for the protection of human rights in Europe" and that "it is in this context that the possibility of the Community’s acceding to the Convention and its protocols might be placed". In this regard, the Committee of Ministers made a reference to the favourable position taken at the time by the Parliamentary Assembly and the President of the European Court of Human Rights concerning such accession. The full text of an intervention made on 7 March 2000 before the Ministers’ Deputies’ Rapporteur Group on relations between the Council of Europe and the European Union (GR-EU) by the present President of the European Court of Human Rights, Dr Luzius Wildhaber, is appended to this reply. Today, the European Union’s initiative to draw up a Charter of Fundamental Rights offers the opportunity to improve human rights protection in the European Union framework. This has led to further, ongoing examination of the possibility of the Union’s accession to the European Convention on Human Rights. The Council of Europe has been invited to take part in the "Convention" set up to draw up a draft charter, and it does so through the active participation of two observers: Mr. H.-C. Krüger, Deputy Secretary General of the Council of Europe and Mr. M. Fischbach, Judge at the European Court of Human Rights. In the Committee of Ministers’ opinion, it is important to ensure that the European Union may benefit from the Council of Europe’s acquis in the field of the protection of human rights. This could usefully include the promotion of social rights. The Committee of Ministers recalls and subscribes to the following remark made by the President of the European Court of Human Rights in the address mentioned above: "the Court's main concern in the context of this discussion is to avoid a situation in which there are alternative, competing and potentially conflicting systems of human rights protection both within the Union and in the greater Europe. The duplication of protection systems runs the risk of weakening the overall protection offered and undermining legal certainty in this field." It is recalled, in this context, that the Committee of Ministers, in the Communiqué which it adopted and issued at the end of its 106th Session (Strasbourg, 10-11 May 2000), expressed itself as follows: "With regard to the proposed European Union Charter of Fundamental Rights, the Ministers underlined the need to ensure that, whatever decisions the Institutions of the Union may take concerning the Charter, it does not lead to new dividing lines in Europe. It should be fully consistent with, and not weaken, the system for the protection of human rights provided, under the European Convention, to all citizens of the Council of Europe's member States, including those of the European Union." Appendix Intervention made before the Ministers’ Deputies’ Rapporteur Group on relations between the Council of Europe and the European Union (GR-EU) by Mr Wildhaber, President of the European Court of Human Rights on 7 March 2000 1. At this stage there are so many imponderables regarding the proposed European Union Charter of Fundamental Rights, and notably as to its legal character and its content, that it is sometimes difficult to see clearly the way forward. You will perhaps allow me therefore to set out a few basic considerations that might help illuminate the debate on its elaboration, but which do not claim to be exhaustive. Judge Fischbach has followed and participated in the discussions within what is rather confusingly named the Convention and will be in a position to report on its proceedings and to answer any questions you may have on that and on the joint position expressed by him and Mr Krüger on behalf of the Council of Europe. What I have to say will be more in terms of the general concerns underlying that joint position, at least from the Court's point of view. 2. Perhaps I might start by saying that the Court's main concern in the context of this discussion is to avoid a situation in which there are alternative, competing and potentially conflicting systems of human rights protection both within the Union and in the greater Europe. The duplication of protection systems runs the risk of weakening the overall protection offered and undermining legal certainty in this field. Furthermore the adoption of one system of protection for the Union countries and another for non-Union countries whether they be candidates or not calls into question the consolidation of democracy and the rule of law in Central and Eastern Europe on the basis of common minimum standards guaranteed by a system of collective enforcement. The Strasbourg system exists, has proved itself over several decades, and is evolving and will continue to evolve. There should be no double standards, no Europe of two, three or four speeds. That is the principle and it is not so difficult to state; it may be harder to agree on the technicalities. 3. The essence of collective enforcement is external control. If I have understood correctly, however, the origin of the Charter process is a perceived need for internal control of the Community's respect of fundamental rights rather than an additional or in some way enhanced external control of the Union member States' protection of human rights. In this sense the idea of a Charter is certainly compatible with the European Convention on Human Rights, which operates an external control in relation to States, as far as fundamental rights are concerned, a control which is complementary and subsidiary to the internal role of the national courts. The Convention and its control mechanism function as a fail-safe. In other words, where fundamental rights are adequately protected at national level, the Strasbourg Court should not be called upon to intervene. It thus falls in the first place to national authorities to guarantee the rights and freedoms set out in the Convention, but those authorities remain free to choose the means of doing so. This subsidiary character of the Convention system is central to its effective functioning. 4. Another aspect of subsidiarity is that the Convention does not preclude the adoption of higher standards of human rights protection under internal norms. Article 53 of the European Convention on Human Rights specifically allows for higher standards of protection in national systems and this clearly could also apply to the Community system. 5. There remains the question whether the Community should also be exposed to external scrutiny. Such external control could be achieved by its accession to the Convention. The same principle could apply as in relation to national systems: internal control by the Court of Justice of the Communities and external control by the Strasbourg Court, always remembering that such external control is exercised subsidiarily and exclusively in the field of fundamental rights. However, it appears undesirable and unnecessary to have two international courts involved in the same proceedings: undesirable for reasons of economy of procedure and unnecessary in this instance because, from the Strasbourg point of view, the ECJ has for years applied the Convention in the light of the Strasbourg case-law, with considerable and laudable effectiveness. 6. The accession of the Communities to the Convention would require amendment of the Treaties (opinion ECJ 2/94), on the one hand, and the Convention and the Statute of the Council of Europe, on the other. Beyond that the key to accession is to develop a mechanism which allows the two Courts to continue to function side by side, respecting each other's jurisdictional autonomy, while at the same time ensuring that the interpretation of standards does not diverge. In this connection, one idea that has been put forward in the Council of Europe's joint observations is to develop a process which would allow the ECJ to seek advisory opinions from Strasbourg in cases where Convention law was not clear. Such opinions could be dealt with under a fast-track procedure. It would also be necessary to consider what measures would be appropriate to prevent in principle such cases being subsequently brought to Strasbourg to contest a decision of the ECJ taken in the light of an opinion given by the European Court of Human Rights. 7. I do not propose to rehearse the arguments in favour of accession, but I should like to address one of the objections regularly canvassed, namely the reluctance of Community member States to see community law issues dealt with by Judges from non-union States. This is I consider to overlook the fact that the Court would of course not be called upon to rule on community law as such, but, in so far as such issues came before it, only its conformity or the conformity of its application to the minimum standards set out in the European Convention on Human Rights, an instrument ratified by all the Union members, expressly cited in the Treaties and in the case-law of the Court of Justice of the Communities. The approach underlying this objection is hardly compatible with the dual notions of subsidiarity and collective guarantee. However, it would no doubt be possible to adopt Rules of Court concerning the composition of a special Chamber, and we should not exclude that possibility at this stage. 8. The debate on the Charter represents a formidable opportunity to reopen the whole question of the Community's accession to the Convention and one which I believe the Council of Europe should seize upon without hesitation or complexes. That should be the basis for our common position in this matter. It would, however, be naive to assume that the argument can be won easily. The logic of accession has long been persuasive, without, for all that, being able to overcome the various obstacles placed in its way. It would therefore be prudent to adopt a fall-back position, and that is that any internal Community Charter should, as a minimum, itself proclaim the rights and freedoms set out in the Convention as interpreted by the European Court of Human Rights in Strasbourg. In other words formal effect should be given, whether in a Charter or the Treaties, to the current approach of the Court of Justice in its human rights case-law, in which the Convention as interpreted by the Strasbourg Court is applied. This would not secure direct external scrutiny of the Community, but it would provide a form of indirect and even pre-emptive external control in that the Convention as interpreted in Strasbourg would be binding as part of community law enforced through the Community's own legal order by its own institutions. 9. Let me finish by dealing with one view put forward in this debate with which I feel that I must take issue. It is argued in some quarters that the Convention is in some way out of date and that the rights and freedoms which it protects need modernising. I would not contest that the protection afforded by the Convention could be extended to cover new rights provided that there is consensus and that the rights in question are justiciable. That is for the Communities to decide. What I cannot accept is the suggestion that the rights and freedoms already enshrined in the Convention are outdated. It is precisely the genius of the Convention that it is indeed a dynamic and a living instrument, which has shown its capacity to evolve in the light of social and technological developments that its drafters, however far-sighted, could never have imagined. The Convention has shown that it is capable of growing with society; its formulations have proved their worth over five decades. This message too is one that all those who believe in the common European architecture established by the Council of Europe should voice. |