CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ STRANGE CASE OF THE EUROPEAN UNION’S POSITION IN THE COUNCIL OF EUROPE … Statutory resolution (93) 26, they could also be invited on an ad hoc basis to attend CM (Deputies) meetings or parts of such meetings, when items of interest both to member States and observer States were discussed and/or when one or several observer States expressed an interest in an item in particular. However, this required a specific decision to be taken and the observer status initially did not include the right to participate in the CM (Deputies) meetings on a permanent basis. This changed, for the benefit of the observer States, with a CM (Deputies) decision adopted in 2006. 35 The Deputies agreed that the observer States “ will be authorised from September 2006 to send a representative to observe regular meetings of the Ministers’ Deputies ”, but at the same time noted that “ the member states will still be able to have in camera discussions if they deem it appropriate ”. 36 According to this framework, the representatives of observer States attend the CM (Deputies) meetings on a regular basis. As regards the rights to participate, i.e. the right to speak in the meetings, neither the CM Rules of Procedure, nor the above mentioned resolutions and decisions on observer status, explicitly address the question of observers’ right to speak. This right is nevertheless recognised in the practice, according to which observers may ask to take the floor at a meeting and it is then the Chair’s responsibility to direct proceedings and to decide whether to give the floor to the respective observer. Usually the request is granted and the observer State is allowed to express its opinion on the matters which concern it. However, it is also a long standing practice that observer States are given the floor only after all other member States, which requested to speak, have been able to express themselves. In case the Chair would not observe this unwritten rule, he/she would risk a point of order being called by a dissatisfied member State prevented to speak before the observer States. Where does this leave the EU? It is clear that none of the above specific CM resolutions and decisions on observer status covers the EU, for the simple reason that it deals only with observer States. However, the Statutory Resolution (93) 26 in its Article VII foresees a possibility to grant an observer status to an international intergovernmental organisation. Nevertheless, for some reasons such decision of the CM with respect to the EU was never taken, so the status of the EU is governed instead by the arrangements described in Part II. above, namely the 1987 arrangement, supplemented by the 1996 arrangement. To implement this framework, there was an additional exchange of letters in 1996, 37 setting out the practical modalities for the EU’s participation in the CM (Deputies) and all subsidiary groups. The proposal by the Commission was agreed by the decision of CM (Deputies), 38 which approved the draft letter setting out the modalities. The key paragraph from the letter stated the following: 35 CM/Del/Dec(2006)971/1.6 [ Invitation to observer states to participate in the regular meetings of the Ministers’ Deputies ], adopted on 12 July 2006 at its 971 st meeting. 36 In camera session is used e.g. for staff matters, when appointments to the higher management positions in the Secretariat are announced by the SG. Another example would be the interviews in the CM (Deputies) with the candidates for the SG or candidates for the Commissioner for Human Rights (both positions are then appointed by the PACE on the basis of an election). 37 The initial letter suggesting the practical modalities was sent by the Director in DG I A of the Commission, Mr Luigi Boselli, on 18 November 1996. The positive reply was sent by the Chairman of the CM (Deputies), Permanent Representative of Finland, Mr Tom Grönberg, later in December 1996. 38 CM/Del/Dec(96)579/2.1, adopted during the 579 th meeting (Budget), held on 3-6, 12 and 16 December 1996.

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