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Parliamentary

Assembly

Assemblée

parlementaire

Doc. 10894

11 April 2006

Follow-up to the Third Summit: the Council of Europe and the

Fundamental Rights Agency of the European Union

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Erik Jurgens, Netherlands, Socialist Group

Summary

The Committee, recalling Assembly Resolution 1427 (2005), reaffirms that “creation of a fundamental rights

agency within the European Union could make a helpful contribution, provided that a useful role and field of

action is defined for it and that the agency therefore genuinely “fills a gap” and presents irrefutable added

value and complementarity in terms of promoting respect for human rights.”

In fact, by far the most serious gap surrounds the institutions of the European Union itself: the only public

authorities operating in Council of Europe member States that are outside the jurisdiction of the European

Court of Human Rights.

First and foremost, the Agency should concentrate on filling this lacuna. Were it also to duplicate activities

already undertaken by the Council of Europe, this could have serious adverse effects for the overall system.

There could also be disadvantageous consequences from the perspective of European integration.

Furthermore, creation of a new, separate human rights body whose activities duplicated those of the Council

of Europe would be entirely inconsistent with the decisions taken at the Warsaw Summit and contrary to the

conclusions of the report of Prime Minister Juncker.

The Committee therefore recommends that all European Union member States’ national parliaments that

have not already done so give serious and detailed consideration to the proposed Agency. Drawing on its

own existing positions and on the objections raised thus far within national parliaments, the Assembly also

makes a series of recommendations to the institutions and member states of the European Union. Finally,

the Assembly recommends to the Committee of Ministers that it give further serious and detailed

consideration to the issue with a view to reaching a common position.

________________________

F – 67075 Strasbourg Cedex, tel: +33 3 88 41 20 00, fax: +33 3 88 41 27 02, http://assembly.coe.int, e-mail: [email protected]

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Draft recommendation

The Parliamentary Assembly, recalling its Resolution 1427 (2005), reaffirms that “creation of a

fundamental rights agency within the European Union (EU) could make a helpful contribution, provided that a

useful role and field of action is defined for it and that the agency therefore genuinely “fills a gap” and

presents irrefutable added value and complementarity in terms of promoting respect for human rights.”

To determine whether there is such a gap, it is necessary first to consider the existing human rights

protection system which is built upon and around the Council of Europe. Over its 56-year history, the Council

of Europe – which now counts amongst its membership all but one of the countries of Europe – has

developed a complete range of instruments and mechanisms for promoting and protecting human rights.

Since all European Union member States are also members of the Council of Europe, their actions

in implementing European Union law are subject to the standards and supervisory mechanisms of the

Council of Europe. In fact, by far the most serious lacuna surrounds the institutions of the European Union

itself: the only public authorities operating in Council of Europe member States that are outside the

jurisdiction of the European Court of Human Rights, although the European Court of Justice, in its decisions,

does in fact follow the case-law of the European Court of Human Rights.

The Assembly’s concern in this matter is motivated by a desire to ensure that the inhabitants of

Europe as a whole benefit from the most effective and efficient overall human rights protection system. First

and foremost, the Agency should concentrate on filling the principal lacuna. Were it, in addition, to duplicate

activities already undertaken by the Council of Europe (or by national human rights commissions), this could

have serious adverse effects for the overall system. Duplication would risk inconsistency and create the

possibility of “forum shopping,” with the countries that were subject to the different mechanisms giving

preference to whichever took the more favourable position.

There could also be disadvantageous consequences from the perspective of European integration.

The fact of having two parallel institutions engaged in similar activities within the same geographical region,

one having a more limited membership than the other, would create new dividing lines in Europe by

reference to states’ institutional situation in bodies devoted to human rights, one of the very principles

intended to unite Europe. The apparent incoherency of creating a new European Union body to duplicate

work already satisfactorily undertaken elsewhere would cause confusion amongst a European public already

uncertain about the process of European integration. Duplication would also waste public money at a time of

general budgetary stringency, thus further alienating citizens from European institutions, including the

mechanisms of human rights protection.

At the Warsaw Summit in May 2005, the Heads of State and Government of the Council of Europe

member States – including those of all European Union member States – reaffirmed the central role of the

Council of Europe in protecting and promoting human rights and resolved to enhance its role as an effective

mechanism of pan-European cooperation in this field, including by ensuring that the European Union and its

member states make better use of available Council of Europe instruments and institutions. The Warsaw

Summit also requested Prime Minister Jean-Claude Juncker of Luxembourg to prepare a report on relations

between the Council of Europe and the European Union. The Assembly considers that creation of a new,

separate human rights body whose activities duplicated those of the Council of Europe would be entirely

inconsistent with the decisions taken at the Warsaw Summit and contrary to the conclusions of the Juncker

report.

At the beginning of the consultation procedure, the European Commission produced a consultation

document containing

inter alia

the following points:

7.1.

the Agency will be required to monitor fundamental rights by area [thematically] and not prepare

reports by country;

7.2.

confining the Agency’s activities to the scope of EC/EU law would help avoid duplication of the

activities of other bodies;

7.3.

a mandate for the Agency to act in relation to Article 7 of the Treaty on European Union, to

determine serious and persistent breaches by member States of the founding principles of the European

Union, would be difficult to reconcile with an effective agency and could lead to overlap with the work of the

Council of Europe, creating a very real risk of duplication and contradiction;

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7.4.

confining the Agency’s activities to European Union territory would clearly underline the political will

to emphasise the importance of fundamental rights to and within the Union, effectively placing responsibility

on the institutions; this message would be diluted if the agency’s remit included third countries.

The Assembly deeply regrets the fact that subsequent developments appear to have lost sight of

these points and firmly believes that they remain the most appropriate basis for an effective Agency,

analogous to a national human rights institution, with the potential to bring genuine added value to the overall

European human rights protection system.

The European Union Constitutional Treaty is often mentioned in justification for establishing the

Agency, even by reference to the fact that its ratification process has been blocked. The Assembly notes that

this Treaty, agreed upon as a package of measures, would also have given far greater powers to national

parliaments with respect to the EU legislative process, in particular in relation to application of the principle of

subsidiarity. Unfortunately, however, the role of national parliaments in the discussions surrounding the

Agency has not been properly acknowledged, despite several – including in the Czech Republic, France,

Germany, the Netherlands, the United Kingdom and, jointly, in Estonia, Latvia, Lithuania and Poland –

having expressed serious reservations.

10.

The Assembly recommends that all European Union member States’ national parliaments that have

not already done so give serious and detailed consideration to the proposed Agency, with a view to adopting

a position based on the present recommendation. Assembly delegations from the relevant parliaments

should take the lead in initiating the necessary procedures.

11.

Given the double mandate of its members as democratic representatives at both national and

European levels, the Assembly draws on its own existing positions and on the objections raised thus far

within national parliaments to make the following recommendations to the institutions and member States of

the European Union:

11.1. the Agency should be explicitly limited, in its mandate, to human rights issues that arise within the

European Union’s internal legal order;

11.2. the Agency should be explicitly required, in its mandate, to refer in its work to the principal human

rights instruments of the Council of Europe, namely the European Convention on Human Rights, the

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the

European Social Charter and the Framework Convention for the Protection of National Minorities;

11.3. the Agency should have no mandate to undertake activities concerning non-EU member States.

Should such a mandate nevertheless be considered absolutely necessary, it should be strictly confined to

candidate countries and limited to issues arising from the accession process;

11.4. the Agency should be explicitly excluded, in its mandate, from engaging in activities that involve

assessing the general human rights situation in specific countries, in particular those that are members of the

Council of Europe;

11.5. establishment of the Agency should not be accompanied by creation of a new Forum for human

rights;

11.6. the Agency should be explicitly required, in its mandate, to ensure that it avoids duplication of the

activities of the Council of Europe;

11.7. the Council of Europe should be represented on the management structures of the Agency at a level

and with voting rights at least equal to those that it currently enjoys on the management structures of the EU

Monitoring Centre on Racism and Xenophobia;

11.8. the legal basis of the Agency must be beyond reproach. In the interests of transparency, the critical

opinion of the legal services of the Council of the European Union, as referred to by the French National

Assembly and the Czech Senate, should be published;

11.9. further serious and detailed consideration should be given to application of the principle of

subsidiarity. This should involve detailed comparison of the various activities proposed for the Agency with

the relevant acts of member States at both national level and in other international fora, including in

particular the Council of Europe;

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11.10. further serious and detailed consideration should also be given to application of the principle of

proportionality, taking into account the exact extent to which the relevant treaty contains objectives of

relevance to the activities proposed for the Agency;

11.11. given the importance to the legal environment in which the Agency would operate of the EU Charter

for Fundamental Rights having binding effect and the European Union acceding to the ECHR – both

foreseen in the European Union Constitutional Treaty – consideration should be given to postponing creation

of the Agency until the fate of these provisions has been resolved;

11.12. the political will impelling the proposals for the Agency should be employed to give new impetus

towards European Union accession to the European Convention on Human Rights, which would be the most

important step in ensuring that the European Union acts with full respect for human rights;

11.13. final decisions relating to the Agency should be deferred until national parliaments in all European

Union member States have had the opportunity of adopting final positions on matters relating to it. The

present report and recommendation complement but cannot completely substitute for the full range and

detail of positions that might be taken in national parliaments:

12.

Bearing in mind the more general work currently being undertaken concerning relations between the

Council of Europe and the European Union, the Assembly strongly believes that the issue of the Agency

should not be addressed outside this context. The Assembly therefore makes the following

recommendations to the Committee of Ministers and to the institutions and member States of the European

Union:

12.1. work on a co-operation agreement between the Agency and the Council of Europe should be

deferred until the precise mandate of the Agency has been determined;

12.2. final decisions on the creation and mandate of the Agency should be deferred until the overarching

new framework for enhanced co-operation between the Council of Europe and the European Union (at

present being discussed as a “memorandum of understanding”) has been defined and agreed upon.

13.

Finally, the Assembly recommends to the Committee of Ministers that, since this issue is of profound

significance to the overall European human rights protection system and thus to the Council of Europe in

particular, it give further serious and detailed consideration to the issue, with a view to reaching a common

position based on the present recommendation.

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Explanatory memorandum

by Mr Jurgens, Rapporteur

The Assembly’s perspective

In Resolution 1427 (2005), the Parliamentary Assembly concluded that “creation of a fundamental

rights agency within the EU could make a helpful contribution, provided that a useful role and field of action

is defined for it and that the agency therefore genuinely “fills a gap” and presents irrefutable added value and

complementarity in terms of promoting respect for human rights.” For the Rapporteur, this remains the

starting point of his analysis.

From the outset, therefore, he would like to emphasise that he is concerned only to ensure that

nothing is done to undermine Europe’s existing human rights protection system, within which the Council of

Europe plays the central role. If there are activities that the Council of Europe does not and cannot

undertake, the Assembly should be glad to see such genuine lacunae being filled. On the other hand,

duplication of existing Council of Europe activities would only be harmful. It would risk creating double

standards and inconsistency between separate monitoring procedures and allow for forum-shopping, with

the subjects of monitoring tending to privilege the institution they considered (for whatever reason)

preferable. It would create new dividing lines in Europe, between EU members and non-members, defined

by reference to the very principles of democracy, human rights and the rule of law that should be uniting us.

It would give an impression of incoherency in the process of European integration, at a time of existing public

uncertainty. Through inefficient use of public money, it would alienate Europe’s citizens from the institutions

of European integration, including the mechanisms of human rights protection.

II.

The Council of Europe – Europe’s human rights defender

In order to assess whether any such genuine lacunae do in fact exist, it is necessary first to reflect

on Europe’s existing human rights protection system, within which the Council of Europe plays the central

role.

At the heart of the Council of Europe’s statutory mandate lies promotion and protection of human

rights, democracy and the rule of law in Europe. It has discharged this mandate since 1949 and now has 46

member States: all the countries of Europe, with the sole exception of Belarus. All member States of the

European Union, along with all potential member states, therefore, are already members of the Council of

Europe and part of its human rights protection system. The actions of EU member States when implementing

EU law are thus subject to those states’ obligations to the Council of Europe and are therefore covered by

the Council of Europe’s supervisory mechanisms.

The Council of Europe brings together permanent representatives of the governments of all member

States in its Committee of Ministers. National parliaments are represented in the Parliamentary Assembly

(PACE), and local and regional authorities in the Congress of Local and Regional Authorities of Europe.

There is also a Conference of International NGOs, through which almost 400 European civil society

associations (including pan-European umbrella organisations representing numerous national bodies)

participate in the work of the Council of Europe.

Issues involving or relating to human rights dominate the agendas of all of these institutions, which

each have specialist sub-units dealing with various aspects of human rights protection and promotion. The

Committee of Ministers, which, amongst other things, undertakes thematic human rights monitoring, is

assisted by the Steering Committee on Human Rights (known by its French acronym, CDDH) and its various

sub-committees. The Assembly undertakes country-specific monitoring to ensure that new member States

honour their obligations and commitments to the Council of Europe and produces numerous reports on both

thematic and country-specific human rights issues. Both the Committee of Ministers and the Assembly issue

regular resolutions and recommendations aimed at enhancing respect for human rights.

During its history, the Council of Europe has developed a full range of specialised treaty-based

human rights protection mechanisms, including both normative legal instruments and independent

supervisory bodies. Amongst the most significant are the ECHR and the European Court of Human Rights;

the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment

(CPT) and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or

Punishment; the European Social Charter and the European Committee of Social Rights; and the

Framework Convention for the Protection of National Minorities and its Advisory Committee.

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In addition to these treaty-based mechanisms, the independent Council of Europe Commissioner for

Human Rights was created in 1999 to promote education in, awareness of and respect for human rights, as

embodied in the human rights instruments of the Council of Europe; and the European Commission against

Racism and Intolerance (ECRI) was created in 1993 to combat racism, xenophobia, anti-semitism and

intolerance, from the perspective of the protection of human rights. On questions relating to the interpretation

and application of international law (including international human rights and humanitarian law) and

constitutional law, the Council of Europe, its member States and third parties are able to call on the high

expertise of the European Commission for Democracy through Law (the “Venice Commission”).

The Council of Europe’s work on human rights is complemented and reinforced by its equally wide-

ranging and detailed activities to promote respect for democracy and the rule of law in Europe, since these

three fundamental principles are interdependent. By contrast, the Council of Europe remains undistracted by

competing institutional missions in fields such as trade, economic and monetary policy or defence that could

generate tension or compromise over policies relating to the promotion and protection of human rights.

10.

At the Warsaw Summit, held in May 2005, the heads of state and government of Council of Europe

member States underlined that the core objectives of the organisation were to preserve and promote human

rights, democracy and the rule of law. They resolved to enhance the role of the Council of Europe as an

effective mechanism of pan-European cooperation in all relevant fields, including by ensuring that the

European Union and its member states make better use of available Council of Europe instruments and

institutions. Underlying these decisions was a renewed determination to build a Europe without dividing lines

based on the common values of democracy, human rights and the rule of law, as embodied in the

organisation’s Statute. Certainly, there was no indication of any need or intent to create a separate human

rights body with more limited membership to supplement, duplicate or relocate activities of the Council of

Europe; indeed, this would have been entirely inconsistent with the decisions that were taken. The Warsaw

Summit also requested Prime Minister Jean-Claude Juncker of Luxembourg to prepare a report on relations

between the Council of Europe and the European Union.

III.

History of the proposal to create an EU fundamental rights agency

11.

Although a similar idea had first been floated at the 1999 European Council in Cologne, the decision

to create an EU fundamental rights agency was taken in December 2003, when the European Council,

“stressing the importance of human rights data collection and analysis with a view to defining Union policy in

this field, agreed to build upon the existing European Monitoring Centre on Racism and Xenophobia and to

extend its mandate to become a Human Rights Agency to that effect.”

12.

On 25 October 2004, the Commission issued a consultation document,

which contained the

following notable points:

The Agency will be required to monitor fundamental rights by area and not to prepare reports by

country.

Confining the Agency’s remit strictly to the scope of EC/EU law would avoid duplicating the work of

other bodies active at international and national level.

If the Agency were given a remit covering Article 7 of the Treaty on European Union (TEU),

this

would be difficult to reconcile with the aim of an effective agency and could lead to overlaps with

work carried out by the Council of Europe and national human rights bodies, with a very real risk of

duplication and contradiction.

Confining the Agency’s scope to the territory of the Union would clearly underline the will to

emphasise the importance of fundamental rights in the EU and would be an effective means of

placing responsibility on its institutions. This message might be diluted if the Agency’s remit were to

be extended to third countries.

ii.

iii.

iv.

13.

The Rapporteur would draw attention to how closely these points reflect the Assembly’s own

conception of a useful Agency. Had subsequent developments adhered to this model, there would have

The European Monitoring Centre on Racism and Xenophobia (EUMC) was created in 1997, as part of the European

Year on Racism.

COM(2004) 693 final.

Determination of a serious and persistent breach by a member State of the founding principles of liberty, democracy,

respect for human rights and fundamental freedoms and the rule of law.

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been little to which the Assembly could, or would, have objected. Certainly, they stand in stark contrast to the

Commission’s later proposals (see paragraph 18 below).

14.

In Resolution 1427 (2005), adopted in March 2005 whilst the consultation procedure was still under

way, the Assembly made the following constructive proposals:

Before establishing the Agency, the EU should reflect carefully on the purpose and context of its

internal human rights policy, ensuring that full account was being taken of the activities of the Council

of Europe in the light of the decisions of the (then imminent) Warsaw Summit.

The Agency’s mandate must be clearly defined so as to ensure that its work represented genuine

added value, avoiding any duplication of Council of Europe activities.

The scope of the Agency’s work should be confined to EC/EU law, ensuring that such law complies

with fundamental rights and that member states respect fundamental rights when implementing it.

The Agency should work on a thematic, not a country-by-country basis, focusing on themes of

especial relevance to EC/EU policies.

The Agency’s reference texts should include the principal human rights instruments of the Council of

Europe by which EU member States are already bound, alongside the non-binding EU Charter of

Fundamental Rights.

The Agency’s reports should be addressed to the relevant EU institutions only, since member States

are already subject to the activities of both national human rights institutions and the Council of

Europe, including in relation to action taken at national level in pursuit of EC/EU law.

The purpose of the Agency, which must be independent, should be to collect, record and analyse

information on human rights to be used by the EU institutions for mainstreaming and promoting

human rights in decision making, including the drafting of legislation.

The Agency’s founding regulation must contain provisions establishing a rule of non-duplication and

a duty of cooperation and coordination with the Council of Europe.

There must be mandatory provision for full Council of Europe participation in the Agency’s

management structures.

There should be a detailed agreement between the Agency and the Council of Europe establishing

concrete mechanisms for close cooperation.

ii.

iii.

iv.

vi.

vii.

viii.

ix.

15.

In its Reply to this Recommendation, the Committee of Ministers “agrees with the Assembly that the

agency’s mandate should focus on human rights issues within the framework of the European Union,

address its advice to the EU institutions and ensure that unnecessary duplication with the Council of Europe

is avoided. It hopes that these points will be fully reflected in the future Community regulation.”

16.

Subsequently, the European Parliament adopted a resolution on “promotion and protection of

fundamental rights: the role of national and European institutions, including the Fundamental Rights Agency”

in April 2005.

This made

inter alia

the following proposals:

ii.

The Agency’s three main functions should include monitoring the observance of fundamental rights.

The Agency should provide all the information required to develop the EU’s monitoring role with

respect to fundamental rights.

The Agency should have the power to follow the development of implementation of the EU Charter of

Fundamental Rights within the EU and accession countries.

The Agency should also be able to cover third countries when involved in human rights issues

affecting the EU, for instance suspected violations of the “democracy clause” in agreements with the

EU.

iii.

iv.

PACE Doc 10729.

P6_TA(2005)0208.

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Protection of ethnic and national minorities should be one of the Agency’s specific tasks.

17.

The language used to express these proposals implies that the Agency be mandated to conduct

monitoring of respect for human rights standards in specific countries, including Council of Europe member

States, whether members of the EU or not. Assuming this language accurately reflects the intentions of the

European Parliament, such an Agency would predictably – even deliberately – duplicate activities of the

Council of Europe.

18.

On 30 June 2005, the Commission issued its proposals for a Council Regulation establishing a

European Union Agency for Fundamental Rights and a Council Decision empowering the Agency to pursue

its activities in areas referred to in Title VI of the Treaty on European Union.

Unfortunately, not only were

many of the Assembly’s most important concerns not satisfied by these proposals, new issues of concern

arose, in particular:

The Agency would not be explicitly required to refer in its work to the main Council of Europe human

rights instruments (Article 3(2)), despite all EU member States being bound by them

and the

European Court of Justice having ruled that the ECHR forms part of the general principles of

Community law. The mandate should also explicitly mention these Council of Europe instruments.

The Agency’s mandate would include third countries with which the EU has, is negotiating or is

planning to negotiate agreements containing human rights clauses, in particular countries covered by

the Neighbourhood Policy (Article 3(4)). This would duplicate activities of the Council of Europe in

non-EU member States Such duplication would risk double standards and create a second tier of

countries by reference to their institutional situation in bodies devoted to human rights promotion and

protection, thus drawing new dividing lines in Europe. The only conceivable role for the Agency in

third countries that could bring added value would relate to the activities of candidate countries in

fulfilling the accession criteria, as suggested by Sub-committee E of the UK House of Lords EU

Committee.

(See also Article 27.)

The Agency would be mandated to assess the human rights situation in specific states and address

conclusions and opinions to them (Article 4(1)(d)). Again, this would duplicate Council of Europe

activities, risking inconsistency and wasting resources. It would be preferable for the Agency to give

advice only to the EU institutions, within the EU legal framework.

The Agency would include a Fundamental Rights Forum through which outside actors would make

suggestions for the Agency’s annual work programme and make proposals on the basis of the

annual report (see Article 14). Given that the annual report would be very wide-ranging (see Article

4(1)(f))), this could duplicate the activities of the Council of Europe, notably the Commissioner for

Human Rights, in engaging with civil society associations active in the field of human rights in

relation to our pan-European standards and supervisory mechanisms.

There should be an unambiguous and explicit requirement that the Agency avoid duplication of the

activities of the Council of Europe and ensure that its own activities bring genuine added value to the

overall European human rights protection system (see Article 9, in particular; also Articles 4(1)(i) and

(j), 5(1)(e) and 6(2)).

The Council of Europe would be less effectively represented on the Agency’s management

structures than it is at present on those of the EUMC. In particular, it would have no place on the

Executive Board and its voting rights on the Management Board would be limited, even with respect

to the substance of the Agency’s work (see Articles 11 and 12).

ii.

iii.

iv.

vi.

19.

The Rapporteur is of the firm position that these issues cannot be taken in isolation as bargaining

points. The Assembly should only be prepared to accept an Agency whose mandate is satisfactory on all of

these issues. In particular, improved representation for the Council of Europe on the Agency’s management

structures, by itself, will not be enough to ensure the avoidance of duplication of Council of Europe activities

if serious deficiencies remain elsewhere in the mandate.

Document COM(2005) 280 final.

The only exceptions concern the Framework Convention for the Protection of National Minorities, which, amongst EU

member States, has not yet been ratified by Belgium, France, Greece or Luxembourg.

See “Human rights protection in Europe: the Fundamental Rights Agency,” 4/4/06.

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20.

Although the EU’s final decision will be taken using the consultation procedure (in which the final

decision lies exclusively with the EU Council), this will involve the “trialogue” mechanism, whereby the

European Parliament’s input is given especial consideration. The European Parliament has a total of five

rapporteurs responding to the Commission’s proposals: Mrs Kinga Gál (Hungary, EPP/ED) and Mrs Magda

Kósáné Kovács (Hungary, SOC), who are reporting on the proposal for a regulation and on the proposal for

a decision, respectively, on behalf of the Committee on Civil Liberties, Justice and Home Affairs (LIBE); Mr

Cem Özdemir (Germany, Greens/ EFA) who is preparing an opinion on behalf of the Committee on Foreign

Affairs (AFET); Mr Ignasi Guardans Cambó (Spain, SOC), who is preparing an opinion for the Committee on

Constitutional Affairs (AFCO); and Ms Emine Bozkurt (Netherlands, SOC), who is preparing an opinion on

behalf of the Committee on Women’s Rights and Gender Equality (FEMM).

21.

All five rapporteurs have now produced first drafts, proposing a total of 131 amendments to the

Commission’s proposals (124 of them to the proposal for a regulation).

Three additional documents

containing some 200 amendments have also been tabled.

If a compromise can be reached on all these

proposals, the LIBE committee hopes to have a first reading on 4 April. Without going into detail on what

remain, for the time being, only draft amendments, the Rapporteur would express his alarm at the extremely

ambitious nature of some of these, which suggest either ignorance of or wilful blindness to the concerns –

even the very existence – of the Council of Europe.

22.

According to the Rapporteur’s information, the trialogue would then resume on 25 April, with a high-

level tripartite meeting involving Commission Vice-President Franco Frattini and Hans Winkler of the Austrian

Foreign Ministry on behalf of the EU Presidency. Assuming this goes well, the LIBE committee hopes to

adopt its report on 4 May. The Austrian Presidency, for whom creation of the Agency (which would be based

in Vienna) is a priority, hopes that the EU Council will take its final decision before the end of June. The

Council’s Working Group on Fundamental Rights and Citizenship is already working on the issue and is

considering further amendments of its own.

23.

Alongside these procedures, the Assembly, along with other Council of Europe institutions, notably

the Secretary General, has remained very active in seeking to ensure that the eventual Agency does not

undermine the overall European system of human rights protection. In addition to adoption of Resolution

1427, the President of the Assembly has sent comments and drafting suggestions on the Commission’s

proposal to the President and other members of the European Parliament, including three of the rapporteurs.

The Chairperson of the Assembly’s Committee on Legal Affairs and Human Rights attended an exchange of

views with the LIBE committee in Brussels on 22 February, and Mrs Gál and Mr Özdemir attended an

exchange of views with the Assembly’s Committee on Legal Affairs and Human Rights in Paris on 13 March.

The minutes of this latter discussion were subsequently declassified and sent for information to the EP

President, rapporteurs and relevant committees. The Secretary General of the Council of Europe has also

sent drafting suggestions, consistent with those produced by the President of the Assembly, to Vice-

President Frattini. There have also been numerous bilateral meetings, including at the very highest levels.

24.

On 10 April 2006, Prime Minister Juncker published his report on relations between the Council of

Europe and the European Union. In this report, he made the following recommendations concerning the

Agency, with which the Rapporteur fully agrees:

The Council of Europe must remain the benchmark for human rights in Europe. The EU must,

therefore, draw more systematically on its expertise; this applies equally to EU member States,

candidate countries and non-member States that are members of the Council of Europe, in respect

of the EU’s bilateral relations, neighbourhood policy, association agreements and the stabilisation

and association process.

The Council of Europe must remain responsible for monitoring its member States and ensuring that

they respect human rights. It should make regular evaluations in each of its member States, on a

country-by-country basis. The reference value of its thematic reports must be strengthened.

The Agency must be strictly complementary to the Council of Europe. It is essential, therefore, that

its mandate be limited to human rights issues that arise in connection with the implementation of

Community law, i.e. strictly within the EU’s internal legal system.

ii.

iii.

See documents LIBE_PR(2006)369836, LIBE_PR(2006)369852, AFET_PA(2006)364872, AFCO_PA(2006)369971

and FEMM_PA(2006)367833.

See documents LIBE_AM(2006)370083, AFET_AM(2006)369899 and FEMM_AM(2006)370179.

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iv.

The Agency’s mandate should explicitly mention the ECHR and other key Council of Europe

instruments as reference texts.

The Council of Europe should be represented on the Agency’s management bodies.

25.

The role of national parliaments in these proceedings has unfortunately been very limited. Whilst

various countries contributed to the Commission’s consultation procedure – several of them raising concerns

similar to those of the Assembly – these contributions do not seem to have weighed heavily on the EU

institutions. The failure of the Constitutional Treaty is often cited by supporters of the Agency as a reason

why it is all the more necessary to proceed with the establishment of a strong and extensive Agency. Had

the Constitutional Treaty come into force, however, national parliaments would have the right to a far greater

say in the EU’s legislative processes. Were this the case, the Rapporteur is convinced that the concerns

expressed both during the Commission’s consultation procedure and by national parliamentarians

subsequently would have led to proposals for a far more realistic and acceptable Agency. (See further below

at paragraph 48.)

IV.

The Assembly’s outstanding concerns

26.

In addition to the issues mentioned at paragraph 14 above, the Rapporteur considers that further,

detailed consideration should be given to the issues of the Agency’s legal basis, subsidiarity and

proportionality (intended to ensure complementarity and efficiency), the fate of the EU Constitutional Treaty

(including the issues of EU accession to the ECHR and the legal status of the EU Charter of Fundamental

Rights), the role of national parliaments and the eventual agreement between the Agency and the Council of

Europe, along with the more general issue of relations between the Council of Europe and the European

Union as a whole.

27.

The Commission proposes that the appropriate legal basis for the Agency is to be found in Article

308 TEC, which allows for decisions intended to further the objectives of the Community. Amongst the

objectives set out in Article 2 TEC, however, the only one of potential relevance to a human rights body is

“equality between men and women.”

This would seem to imply that the EU has no competence to establish

an Agency along the lines proposed by the European Commission.

28.

During the consultation procedure, the French Assemblée nationale noted the doubts expressed by

the legal services of the EU Council as to use of Article 308 as the legal basis for the Agency. Similarly, the

Czech Senate has reserved its final position on the validity of Article 308, awaiting publication of the report of

the EU Council’s legal services. Sub-committee E of the UK House of Lords EU Committee has noted that

“[q]uestions remain as to the adequacy of Article 308” and, without reaching any conclusions on the matter,

recommended that the UK government report to parliament on the issue once the Agency’s final mandate

has been determined.

29.

As reflected by the Statute of the Council of Europe, the principles of human rights and the rule of

law (along with that of democracy) are interdependent and indivisible. The Rapporteur considers that it would

absolutely inappropriate for a human rights protection body to be established by a decision that was wholly

or partially

ultra vires.

He considers that this matter should be given further careful consideration; in the

interests of transparency, this should be accompanied by publication of the legal opinion referred to by the

French and Czech parliaments.

30.

The EU defines the principle of subsidiarity as being “intended to determine whether the Union can

intervene or should let the Member States take action. In accordance with this principle, the Union can

intervene in areas which do not fall within its exclusive competence only insofar as the objectives of the

intended action cannot be sufficiently achieved by Member States but can rather, by reasons of the scale or

effects of the proposed action, be better achieved at Union level.”

31.

What is clearly missing from the EU definition of subsidiarity – and is of particular relevance to the

issue of the Agency – is the relationship between EU action and the activities of other international

organisations, notably those with an essentially inter-governmental structure such as the Council of Europe.

The Dutch Senate’s Joint Committee Application Subsidiarity has addressed this issue in its opinion

concerning parliamentary procedure for European draft legislative acts. According to this view, in

This might be said to beg the question, what is the legal basis for the EUMC? The answer, however, is beyond the

scope of this report.

See http://europa.eu.int/scadplus/constitution/subsidiarity_en.htm.

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determining whether an act at community level has clear advantages, it should be compared also to the acts

of EU Member States acting in other international fora.

32.

Protocol (No. 30) on the application of the principles of subsidiarity and proportionality, annexed in

1997 to the Treaty establishing the European Community (TEC), states that “[i]n exercising the powers

conferred on it, each institution shall ensure that the principle of subsidiarity is complied with… For any

proposed Community legislation, the reasons on which it is based shall be stated with a view to justifying its

compliance with the principles of subsidiarity and proportionality; the reasons for concluding that a

Community objective can be better achieved by the Community must be substantiated by qualitative or,

wherever possible, quantitative indicators… For Community action to be justified, both aspects of the

subsidiarity principle shall be met…”

33.

In the Explanatory Memorandum to its proposal, the European Commission states that “the

subsidiarity principle applies” and gives reasons. These reasons, however, relate only to a very general

definition of the Agency’s activities: for instance, there is no mention of the possibility of country-specific

monitoring or of the Agency’s role in non-EU member States that are members of the Council of Europe.

Furthermore, they do not address the question of whether member States, acting in other international fora,

can satisfactorily achieve some, or all, of the objectives proposed for the Agency.

34.

Rule 34 of the European Parliament’s Rules of Procedure requires it to pay particular attention to

whether a legislative act is in conformity with the principle of subsidiarity.

None of the draft reports or

opinions by the five rapporteurs, however, makes any mention of subsidiarity.

35.

The German Bundesrat has concluded that the proposed Agency should be rejected on account of

its scope, by reference to the principle of subsidiarity.

The French Senat – considering that the existence of

a deficiency in the protection and promotion of human rights that cannot be rectified by one of the numerous

existing structures has not been established – has concluded that the utility of such an Agency had yet to be

demonstrated and that its creation did not correspond to a priority of the EU.

The French Assemblée

nationale came to the same conclusions, regretting that no prior evaluation of the necessity of creating such

an Agency had been undertaken.

36.

In the Rapporteur’s opinion, there has not yet been sufficient consideration given to whether or not

the European Commission’s proposals satisfy the test of subsidiarity. From the published documents, it

appears that no meaningful consideration was given to the issue prior to publication of the Commission’s

proposals.

The Commission did not prompt contributors to the consultation procedure to address it, nor

was it meaningfully considered in either the independent preparatory study for the impact assessment report

or the impact assessment report itself, prepared by the European Commission.

37.

Against this background and given the serious concerns that have been raised elsewhere, it seems

extraordinarily fortuitous that the preferred option identified by the independent consultants was

subsequently and coincidentally found to satisfy the test of subsidiarity. Furthermore, should any of the more

radical amendments being proposed by the European Parliament be adopted and subsequently find favour

with the EU Council, the need for a more thorough investigation of this issue will become all the more acute.

38.

The principle of proportionality, which requires that action taken by the Union, in terms of its form

and content, does not exceed what is required to achieve the objectives set out in the relevant treaty, is also

binding on EU institutions. As noted in paragraph 27 above, the objectives of the relevant treaty appear to

have little relevance to the activities proposed for the Agency.

39.

If most of the activities being proposed for the Agency do not correspond to activities set out in the

relevant treaty, then it would seem to be impossible to conclude that the proposals satisfy the test of

proportionality. Nevertheless, the accompanying Explanatory Memorandum concludes that the test is indeed

satisfied, for two reasons. First, by building on the EUMC, the proposals will exploit existing expertise and

Rule 34 refers also to the principle of proportionality (see paragraph 38ff below).

Resolution 518/05.

Contribution de la Délégation pour l’Union européenne du Sénat français.

See Communication de M. Christian Philip, Délégation pour l’Union européenne.

In the public hearing organised by the European Commission in Brussels on 25/1/05, Mr Francisco Fonseca Morillo,

Director of Justice, Fundamental Rights and Citizenship stated that “due to subsidiarity, the Agency cannot replace

national/transnational networks;” and in the European Commission’s “Public consultation analysis report,” it is stated that

“[t]he EU’s subsidiarity requirement and the need for local input should guarantee the Agency’s legitimacy and

efficiency.”

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experience “and thus achieve the objectives in the most proportionate way.” To the Rapporteur, this

conclusion refers more to the practical ease with which the Agency could be established and does not seem

to be relevant to assessing application of the principle of proportionality. Second, the policy option identified

by the independent consultants would give “good value for money.” Again, this does not seem to be relevant

to whether the

scope

of the Agency is proportionate to the objectives of the relevant treaty, referring instead

to financial concerns.

40.

None of the five EP rapporteurs has addressed the principle of proportionality, despite the EP’s

Rules of Procedure requiring particular attention to be paid to it.

41.

Indeed, given the extremely limited reference to human rights objectives in the Treaty establishing

the European Community, the increasingly ambitious scope of the various proposals and amendments for

the Agency’s mandate would appear to be going further and further beyond what is required to achieve these

objectives. The Rapporteur considers that further consideration should be given to whether the European

Commission’s proposals genuinely satisfy the test of proportionality, as properly defined.

42.

In July 2003, the Convention on the Future of Europe completed work on the draft Treaty

establishing a Constitution for Europe, which was signed by the EU member and candidate countries in

October 2004. In May and June 2005, however, the people of France and the Netherlands voted against

ratification. All of the most significant decisions concerning creation of the Agency were taken during the

optimistic period between completion of the draft Treaty and the negative French and Dutch referenda.

43.

On the one hand, Mrs Gál, principal rapporteur for the EP LIBE committee, considers that “[i]n view

of the actually suspended constitution-making process of the EU, … it is the right moment for Europe to flag

the protection and promotion of fundamental rights.” Whilst the Rapporteur would not disagree that the EU

should make every effort to ensure that it respects human rights, Mrs Gál’s observation does not necessarily

lead to the conclusion that this is the right moment to establish the proposed Agency.

44.

On the other hand, blockage of the EU Constitutional Treaty means that the anticipated legal

environment within which the Agency would have begun operating does not yet exist. Had the Treaty come

into force, the EU’s Charter of Fundamental Rights, intended to be one of the Agency’s reference texts,

would have become legally binding on the EU institutions and on member States when implementing EU

law. Without legal force, the EU Charter must remain uncertain as a source of obligations and standards

against which EU institutions and member States’ actions can be assessed.

45.

The Treaty would also have permitted the EU to accomplish its long-stated goal of acceding to the

ECHR, thus ensuring that all sources of political, legal and administrative authority over European citizens

were bound by the same basic human rights standards and supervisory mechanisms. Without the Court

having subsidiary jurisdiction over the human rights compliance of EU acts, the Agency will lack an ultimate

reference point for ensuring that its own activities in the context of the EU are consistent with the wider

European human rights protection system.

46.

The UK parliament’s Joint Committee on Human Rights, in its contribution to the consultation

procedure – made before the negative French and Dutch referenda – in principle welcomed the proposal to

establish an agency. Nevertheless, it pointed out that “we are in a period in which it is not clear whether the

significance of fundamental rights within the EU legal order will be radically changed by the coming into force

of the new constitutional treaty.” Against this background, the Joint Committee concluded that “there is a

case for the establishment of an agency, and consideration of its precise functions and powers, to be

postponed until these matters have been clarified or decided.”

47.

The Rapporteur finds the argument of the UK Joint Committee to be highly persuasive and

recommends that further consideration be given to whether creation of the Agency should be postponed until

the fate of the EU Constitutional Treaty (and its provisions on the EU Charter of Fundamental Rights and EU

accession to the ECHR in particular) is finally determined.

48.

As mentioned above, blockage of the EU Constitutional Treaty means that national parliaments have

not yet acquired the formal role in scrutinising draft legislation that was proposed by the Convention on the

Future of Europe and subsequently agreed to by the member States of the EU. It has already been noted

that several national parliaments have already expressed reservations of varying gravity, even at the stage

of the consultation procedure (when the proposals were less objectionable). These include the Dutch

Senate, the German Bundesrat, the French Senat and Assembée nationale, the Czech Senate, the

Estonian, Latvian and Lithuanian parliaments and the Polish Sejm, and the UK Joint Committee on Human

Rights. Sub-committee E of the UK House of Lords EU Committee has only very recently completed a report

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on the Agency, and the German Bundestag is still in the process of giving proper consideration to the matter,

having instituted a blocking procedure in the meantime.

49.

The Rapporteur believes that, given the potential impact of the proposed Agency on wider European

interests – most especially that of citizens, both within and without the EU, in maintaining the most effective

human rights protection system – the issue is of sufficient importance for all EU member States’ national

parliaments to give specific consideration to it. Furthermore, the Rapporteur strongly urges the EU

institutions not to proceed to any final decision on the establishment or mandate of the Agency until they

have allowed all national parliaments the opportunity of expressing their opinion on the matter and have

taken these opinions into account. Since the Agency is being justified by reference to the EU Constitutional

Treaty, despite that treaty not yet having come into force, it seems only proper in this instance that other

relevant intentions of the Treaty, which was agreed as a package of measures, should also be given effect.

50.

The Rapporteur considers that it would be entirely inappropriate to conclude any cooperation

agreement between a future Agency and the Council of Europe before the mandate of the Agency has been

fully and finally determined. Without such clarification, it is impossible to assess the content of or procedures

for possible cooperation. He strongly urges all parties to refrain from concluding any such agreement until

the mandate has been finalised.

51.

At the Warsaw Summit, the heads of state and government, far from criticising the Council of Europe

and calling for it to be replaced or supplemented by new, separate bodies, reaffirmed its central role in

promoting and protecting human rights. Against this background, they resolved to create a new framework

for enhanced cooperation between the Council of Europe and the EU in areas of common concern,

including, in particular, human rights.

52.

This framework is currently under discussion in the Committee of Ministers, on the basis of a draft

Memorandum of Understanding prepared by the EU. In early April, Prime Minster Juncker of Luxembourg

will present his report on relations between the Council of Europe and the EU that was commissioned at the

Warsaw Summit. The Assembly will also be contributing to this debate through a recommendation to be

adopted during its April part-session.

53.

These discussions are intended to create a new overall framework for cooperation between the

Council of Europe and the EU, within which specific cooperation concerning the Agency will subsequently

take place. The Rapporteur therefore proposes that consideration be given to postponing final decisions,

both on the establishment or mandate of the Agency and on cooperation between the Agency and the

Council of Europe, until there is agreement on the new overall framework. To clarify its context, the specific

agreement concerning the Agency could then be annexed to the overall agreement.

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Reporting committee:

Committee on Legal Affairs and Human Rights

Reference to committee:

Docs 10555 and 10556, References 3095 and 3096 of 6 June 2005

Draft recommendation

unanimously adopted by the Committee on 11 April 2006

Members of the Committee:

Mr Dick

Marty

(Chairperson), Mr Erik

Jurgens,

Mr Eduard Lintner, Mr Adrien

Severin

(Vice-Chairpersons), Mrs Birgitta

Alhqvist,

Mr Athanasios

Alevras,

Mr Rafis Aliti, Mr Alexander

Arabadjiev,

Mr Miguel Arias (alternate: Mr Miguel

Barceló Pérez),

Mr Birgir Ármannsson, Mr José Luis

Arnaut, Mr Abdülkadir Ateş, Mr Jaume

Bartumeu Cassany,

Mrs Meritxell Batet, Mrs Soledad Becerril, Mrs

Marie-Louise

Bemelmans-Videc,

Mr Giorgi Bokeria, Mrs Olena Bondarenko, Mr Erol Aslan Cebeci, Mrs Pia

Christmas-Møller,

Mr Boriss

Cilevičs,

Mr Domenico Contestabile, Mr András Csáky, Mrs Herta Däubler-

Gmelin, Mr Marcello Dell'Utri, Mrs Lydie Err, Mr Jan

Ertsborn,

Mr Václav

Exner,

Mr Valeriy

Fedorov,

György Frunda (alternate: Mr Tamás

Sándor),

Mr Jean-Charles

Gardetto,

Mr Jószef Gedei, Mr Stef Goris

(alternate: Mrs Christine

Defraigne),

Mr Valery

Grebennikov,

Mrs Gultakin

Hajiyeva,

Mrs Karin Hakl, Mr

Nick Harvey (alternate: Mr Christopher

Chope),

Mr Michel

Hunault,

Mr Rafael Huseynov, Mrs Fatme Ilyaz,

Mr Kastriot

Islami,

Mr Sergei

Ivanov,

Mr Tomáš Jirsa, Mr Antti Kaikkonen, Mr Uyriy Karmazin, Mr Karol

Karski (alternate: Mrs Ewa

Tomazswska,

Mr Hans Kaufmann, Mr Nikolay Kovalev, Mr Jean-Pierre Kucheida

(alternate: Mr Yves

Pozzo di Borgo),

Mrs Darja Lavtižar-Bebler, Mr Andrzej Lepper, Mrs Sabine

Leutheusser-Schnarrenberger, Mr Tony

Lloyd,

Mr Humfrey

Malins,

Mr Andrea Manzella, Mr Alberto Martins,

Mr Tito Masi, Mr Andrew

McIntosh,

Mr Murat Mercan, Mr Philippe Monfils, Mr Philippe

Nachbar,

Tomislav

Nikolić,

Ms Ann

Ormonde,

Mr Rino Piscitello, Mrs Maria Postoico, Mr Christos Pourgourides, Mr

Jeffrey Pullicino Orlando, Mr Martin Raguž, Mr François Rochebloine (alternate: Mr Rudy

Salles),

Mr Armen

Rustamyan,

Mr Michael Spindelegger, Mrs Rodica Mihaela

Stănoiu,

Mr Christoph

Strasser,

Mr Petro

Symonenko, Mr Vojtech

Tkáč,

Mr Øyvind Vaksdal, Mr Egidijus Vareikis, Mr Miltiadis Varvitsiotis, Mrs Renate

Wohlwend,

Mr Krysztof Zaremba, Mr Vladimir Zhirinovsky, Mr Zoran

�½ižić,

Mr Miomir �½užul

N.B.: The names of the members who took part in the meeting are printed in

bold

Secretariat of the Committee:

Mr Drzemczewski, Mr Schirmer, Mrs Clamer, Ms Heurtin