CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ STRANGE CASE OF THE EUROPEAN UNION’S POSITION IN THE COUNCIL OF EUROPE … accession to the ECHR. 15 Still, there are other positive examples of the EU’s participation in CoE conventions and other structures, as will be briefly demonstrated in Part V. below. As a follow-up to the Resolution 85 (5), the SG of the CoE indeed pursued further contacts with the European Communities, which resulted in arrangement concluded on 16 June 1987 16 by an exchange of letters between the SG and the President of the Commission. The proposal from the CoE included certain concrete ways of the Commission’s participation in its work, along the following lines: (a) Invitation for the European Community, represented by the Commission, to participate in work of mutual interest in intergovernmental committees established by the CM; (b) When drafting new CoE conventions or agreements, inserting a clause allowing the European Community to become a Contracting Party will be considered; (c) Invitation for the European Community, represented by the Commission, to participate in work of mutual interest of conferences of specialised ministers. In addition, the arrangement contained provisions on further exchange of information, namely forwarding the general annual report of the Commission to the CM and its statutory reports and the annual report of the SG to the Commission. More importantly, the Commission could be invited to be represented and to participate in CMmeetings (Deputies’ level) 17 dealing with questions of mutual interest. Finally, the arrangement provided for regular consultations between the SG and the Commission, as well as high-level meetings between officials and working meetings between experts of both organisations. The 1987 arrangement was then supplemented by a further exchange of letters from 5 November 1996. 18 It was initiated by the Commission and referred to the completion of the single market, entry into force of the Treaty of Maastricht 19 establishing the (political) Union, as well as the successive enlargements of the CoE, and claimed that the both organisations’ “ activities, which are usually complementary, now require increasing co-ordination in the light of the respective goals of the Union Treaty and the Council of Europe’s Statute ”. Most importantly, the Commission proposed that “ the meetings and activities of the Committee of Ministers, Ministers’ Deputies, rapporteur groups of the deputies and any other working party convened by [the CoE] will henceforward be open to the Commission at the invitation of the competent Council 15 The accession process was effectively put on hold by the Opinion 2/13 of the Court of Justice of the EU (ECLI:EU:C:2014:2454), which set out numerous reasons why the EU’s accession would be incompatible with the EU founding treaties ( inter alia it could interfere with the principle of autonomy of EU law and would undermine the principle of mutual trust among the EU Member States). 16 Arrangement between the Council of Europe and the European Community, concluded on 16 June 1987 by exchange of letters between the SG Mr Marcelino Oreja and the President of the Commission Mr Jacques Delors. 17 Under Article 14 of the Rules of Procedure of the Committee of Ministers, Deputies (at the level of Ambassadors / Permanent Representatives to the CoE) are appointed, and thus the Minsters’ Deputies is the standard working format: “ Each representative on the Committee of Ministers appoints a Deputy to act on his behalf when the Committee is not in session. The Deputies meet for the purpose of transacting business and recording decisions on behalf of the Committee of Ministers. ” 18 Exchange of letters between the Secretary General of the Council of Europe and the President of the Commission of the European Communities on 5 November 1996 supplementing the „Arrangement“ between the Council of Europe and the European Community concluded on 16 June 1987. The letters were sent by the SG Mr Daniel Tarschys and the President of the Commission Mr Jacques Santer. 19 Treaty on European Union (Maastricht, 7 February 1992).

39