CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ STRANGE CASE OF THE EUROPEAN UNION’S POSITION IN THE COUNCIL OF EUROPE … I. Introduction The title of this article makes a subtle reference to a classic English novel. 2 However, it was not my intention to suggest that the European Union (hereinafter as the “EU”) has any sort of a split personality that would make it act with all due diligence and according to the rules in certain situations and to engage in psychopathic rampage in others, as was the case with the unfortunate doppelgänger Dr Jekyll / Mr Hyde. I merely wanted to stress the duality of EU’s actions, to point out that the EU has at least two faces: one looking inwards and dealing with its Member States, and the other looking outwards and dealing with external actors, including the Council of Europe (hereinafter as the “CoE”). Consequently, the position of the EU in the CoE must be rather specific for a number of reasons, not least due to the fact that all 28 EU Member States are at the same time members of the CoE. Thus the focus of this article is on the EU’s relationship with the CoE. It is natural that these two regional organisations based on the same values would be in some sort of a partnership and cooperation. Indeed, the EU is a strategic partner for the CoE, offering generous financial support for the CoE programmes. 3 This relationship was reflected in the Memorandum of Understanding between the EU and the CoE from 2007 and further by the legal obligation introduced by the Treaty of Lisbon 4 for the EU to accede to the European Convention on Human Rights (hereinafter as the “ECHR”), 5 which still remains to be fulfilled. However, the EU is not a member of the CoE; according to its Statute, 6 the membership is opened only to states, given the intergovernmental character of the organisation. At the same time, the EU seems to be more than just an observer, at least according to a long-standing practice, which developed on the basis and sometimes alongside the applicable legal framework. Therefore, we shall look at the origins of this partnership, and analyse the position of the EU within the CoE structures, both in terms of its legal basis and current practice. We shall also assess the extent of the EU’s participation both in the main statutory body of the CoE, i.e. the Committee of Ministers (hereinafter as the “CM”) and its subsidiary groups, and in other structures of the CoE, including certain partial agreements (such as GRECO). Finally, we shall draw some conclusions in terms of possible clarifications or amendments to the EU’s status. II. The history of a beautiful friendship The origins of the institutionalised relationship between the CoE and the (current) EU go way back into early 1950s, soon after the establishment of the European Coal and Steel Community. 7 This general framework for information exchange was then replicated Joint Programmes with the EU represent the largest source of funding sustaining CoE technical assistance and co-operation projects in support of democratic stability. The global financial volume of contracts being implemented in 2018 reached € 154.8 million, of which the EU’s contribution amounted to € 131.4 million (84,9%), and that of the CoE to € 23.4 million (15,1%). 4 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (Lisbon, 13 December 2007), OJ C 306, 17.12.2007, p. 1. 5 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950, ETS No. 5). 6 Article 4 of the Statute of the Council of Europe (London, 5 May 1949, ETS No. 1, hereinafter as the „Statute“). 7 Protocol concerning relations between European Coal and Steel Community and the Council of Europe (Paris, 18 April 1951). 2 STEVENSON, R. L.: Strange Case of Dr Jekyll and Mr Hyde , 1 st ed. by Longmans, Green, and Co., London, 1886. 3

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