CYIL vol. 9 (2018)

EMIL RUFFER CYIL 9 ȍ2018Ȏ into account and the relevant comments can still be incorporated into the text. In case of the Protocol, the PACE expressed their views in Opinion No. 296 (2017), of which the Committee of Ministers took due note. The Consultative Committee is a body set up by Art. 18(1) of the Convention and is composed of representatives of the Parties and observers from those member States of the Council of Europe which are not Parties to the Convention. 11 The tasks of the Consultative Committee include, under Art. 19.b of the Convention, making proposals for the amendments of the Convention. Using this prerogative, the Consultative Committee became seized in the matter and prepared draft modernisation proposals, which were adopted at its 29th Plenary meeting (27–30 November 2012) and submitted for further discussions in the working bodies of the Committee of Ministers. The Committee of Ministers subsequently entrusted the ad hoc Committee on data protection (CAHDATA) with the task of finalising the modernisation proposals. The discussions were completed during the 3rd meeting of the CAHDATA (1–3 December 2014). Subsequently, however, due to the finalisation of the updated EU data protection framework, another CAHDATA was established by the Committee of Ministers with a view to examine outstanding issues. This second round of negotiations was concluded at the CAHDATA meeting on 15-16 June 2016, during which the proposals were finalised and transmitted to the Committee of Ministers for consideration and adoption. In the framework of the Committee of Ministers, the task to negotiate the final draft of the Protocol was entrusted to the Rapporteur Group on Legal Co-operation (GR-J), 12 one of the seven standing Rapporteur Groups assisting the Committee of Ministers by discussing and preparing various files for formal approval and adoption. Unlike in the Consultative Committee and CAHDATA, which could be considered as expert bodies, GR-J discussions and negotiations reflect also the political aspects and implications of the proposals presented with a view to reaching a compromise solution in a multilateral framework. 13 In case of the draft Protocol, the situation was further complicated by the fact that due to the division of competences between the EU and its Member States, it was the representatives of the European Commission negotiating on behalf of the EU Member States. This required prior EU coordination meetings before each of the GR-J informal and formal meetings, and this negotiating pattern, despite goodwill from all the stakeholders, was not always considered as the most effective one from the perspective of the non-EU member States of the Council of 11 Art. 18(2) of the Convention. According to its Art. 18(3), even non-member States of the Council of Europe may be represented: “ The Consultative Committee may, by unanimous decision, invite any non-member State of the Council of Europe which is not a Party to the Convention to be represented by an observer at a given meeting. ” 12 GR-J is composed of (mainly) legal advisers / counsellors from the Permanent Representations to the Council of Europe in Strasbourg and chaired by one of the Permanent Representatives (with the rank of an Ambassador), appointed by the Committee of Ministers for the mandate of 2 years. GR-J was recently chaired by Ambassador Miroslav Papa, Permanent Representative of Croatia (2014-2016) and Ambassador Eva Tomič, Permanent Representative of Slovenia (2016–2018), who was thus in charge of most of the successful negotiations of the Protocol. Upon expiry of her mandate (31 August 2018), the GR-J will be chaired by the Permanent Representative of the Czech Republic. 13 Although the experts in a committee are appointed by their Governments, they are also accountable to the Committee of Ministers, and have certain margin of manoeuvre. This does not apply to Rapporteur Groups, whose members must follow given governmental policy lines; nevertheless, given their political mandate, they may significantly contribute to overcoming the deadlock reached on questions of a rather political nature. See POLAKIEWICZ, J.: Treaty-making in the Council of Europe , Council of Europe Publishing, 1999, pp. 22 and 24.

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