CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ STRANGE CASE OF THE EUROPEAN UNION’S POSITION IN THE COUNCIL OF EUROPE … As regards the areas of common interest, the MoU builds on the previous documents and enumerates the following priority areas: 26 – human rights and fundamental freedoms; – rule of law, legal co-operation and addressing the new challenges; – democracy and good governance; – democratic stability; – intercultural dialogue and cultural diversity; – education, youth and promotion of human contacts; – social cohesion. It is worth mentioning that in the area of human rights, the need for coherence of the EU law with the CoE conventions is stressed (by a strong formulation “ will be ensured ”). At the same time, this should not prevent the EU fromprovidingmore extensive protection; necessary consultations should be taken at an early stage in the process of elaborating standards. 27 This is of course easier said than done and in practice, it requires a constant struggle and delicate adjustments on both sides. One of the problems might arise should the CoE instruments, or their interpretation by the European Court of Human Rights (hereinafter as the “ECtHR”), provide for a more extensive protection than EU law. 28 As regards the modalities for co-operation, the MoU is rather brief and vague on that, essentially recalling the need for regular and close consultations at both political and technical levels, and including some examples of such co-operation by way of reinforced dialogue, regular exchange of information, co-ordination of operational activities etc. 29 It also provides for a possibility of more frequent consultations aimed at the reinforcement of political dialogue between the Presidency/Troika of the EU, on one hand, and the Chairmanship and Vice-Chairmanship of the CM and the SG, on the other hand, on an informal basis either in the CM (Deputies) or at the level of the EU Political and Security Committee (PSC). 30 To my knowledge, this has remained largely a wishful thinking. To conclude this part, the MoU is silent on any practical modalities of the EU’s participation in the CM and other CoE bodies, so the previous 1987 and 1996 arrangements should remain in place. In the following section, we shall look precisely at these modalities of participation in the context of the rules for observer status in the CoE, to see where does the EU fit. III. Current practice: observer status or more? The CoE Statute originally did not contain any definition of an “observer” status and the related rights. It merely provided for a status of an “associate member”, which entitled to be represented in the Consultative (Parliamentary) Assembly only, and not in the CM. 31 However, the Statute was then supplemented by the Statutory Resolution (93) 26 on 26 MoU, para. 14. 27 MoU, para. 19, 24 and 25. 28 There might be a risk of such a development, inter alia , in the context of the current revision of the European Asylum System and the relevant case-law of the ECtHR setting standards in areas of administrative detention of migrants, including detention of accompanied / unaccompanied minors. 29 MoU, paras. 41-44. 30 MoU, para. 45. 31 Article 5 of the Statute.

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