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Introduction to

The European Union


and
The Council of Europe
Legal and Policy Frameworks

Stefaan G.Verhulst, Markle Foundation


August 2003

Outline
EU versus CoE
Institutions, Policy Tools and Processes of
the European Union
Institutions, Policy Tools and Processes of
the Council of Europe
EU and CoE

Distinguish the EU from the CoE

Brussels

Strasbourg

European Union
15 member states
(14 pending)

Council of Europe
45 member states

EU

CoE

Member States cede some of their sovereign rights to the


EC.
Thus, the EC is able to issue sovereign acts that have the
same force as laws in individual states.

Decisions require unanimity, which means that every


country has a power of veto.
The Council of Europe is therefore designed only with
international cooperation in mind.

The European flag represents both the Council of Europe and the European Union to
strengthen the idea of solidarity between the different organizations for a united and
democratic Europe
.

The European Union

Creation of the European Union

1950

1951

1957

European
Coal and
Steel
Community
(ECSC)

Treaty of
Paris

Treaty of
Rome

Treaty of
Maastricht

Treaty of
Amsterdam

(Concluded
formation of the
ECSC)

(the EC Treaty)

Created the
European
Union

Further developed
the EU

(Signed by:
Belgium, France,
Germany, Italy,
Luxembourg, the
Netherlands)

Determined the
legal framework
of the European
Community.
Created the
European
Atomic Energy
Community
(Euratom) and
the European
Community
(EEC)

1992

1997

Gave Parliament
co-decision powers
in
the ECs legislative
process

EU Membership
Current
Members
Austria, Belgium,
Denmark, Finland,
France, Germany,
Greece, Italy,
Ireland,
Luxembourg, the
Netherlands,

Future Members

Portugal, Spain,
Sweden, the United

Bulgaria, Cyprus,

Kingdom

the Czech Republic,


Estonia, Hungary,
Latvia, Lithuania,
Malta, Poland,
Romania, Slovakia,
Slovenia, Turkey,

= 1st Accession countries

The European Union


The European
Communities
EC
Customs union and
single market
Agricultural policy
Structural policy
New or amended
provisions on:
EU citizenship
Education and culture
Trans-European
networks
Consumer protection
Health
Research and
environment
Social policy
Asylum policy
External borders
Immigration policy
Euratom
ECSC

Common Foreign
and Security
Policy
Foreign Policy
Cooperation, common
positions and measures
Peacekeeping
Human rights
Democracy
Aid to non-member
countries
Security policy
Drawing on the WEU:
questions concerning
the security of the EU
Disarmament
Financial aspects of
defence
Long-term: Europes
security framework

3 Pillars

Cooperation in
Justice and Home
Affairs
Cooperation between
judicial authorities in
civil and criminal law
Police cooperation
Combating racism and
xenophobia
Fighting drugs and the
arms trade
Fighting organised
crime
Fighting terrorism
Criminal acts against
children, trafficking in
human beings

The Institutions of the EU


European Council
15 Heads of State and
the President of the
Commission
Council of the EU

European Court of
Justice

15 Ministers

15 Judges

Committee of the
Regions

European Parliament

222 Members

626 Members

Economic and Social


Committee
222 Members

Court of Auditors
15 Members

European
Commission
20 Members

European Central
Bank

European
Investment Bank

The Institutions of the EU


European Council
15 Heads of State and
the President of the
Commission

Function is to establish policy guidelines for European


integration.

Meet twice a year, accompanied by the Foreign Ministers and a


Member of the Commission.

Makes basic policy decisions and issues instructions and


guidelines to the Council or the Representatives of the Member
States meeting in the Council.

Has directed work on economic and monetary union, the


European Monetary System, direct elections to Parliament.

The Institutions of the EU


Council of the EU
15 Ministers

Tasks Include:

Drawing up legislation

Coordination of economic policy

Budgetary control

Appointments

External relations

One representative of each Member State at ministerial level, with composition varying
according to the subject discussed.
General Affairs
Council

Economic and
Financial Affairs

Transport Council

Agriculture Council

The Institutions of the EU


European Parliament
626 Representatives

Tasks Include:

Decision-making functions

Advisory functions

Supervisory functions

Representatives directly elected by the peoples of the Member States.


7 political parties represented in assembly.
17 committees carry out the preparatory work for the plenary sessions.

The Institutions of the EU


European
Commission
20 Members

The driving force behind Community policy.

Has primary powers to initiate legislation in certain areas.

Is the guardian of the Community treaties, monitors implementation of


legislation, institutes infringement proceedings in the event of any
violation of Community law, and refers matters to the Court of Justice.

Represents no interests other than those of the Community.

Acts as a normal administrative authority.

Consists of 2 members from Germany, France, the UK, Italy and Spain, and one from each
of the other Member States.
Members are appointed by Member States for a term of 5 years.
Headed by a President (Romano Prodi)

EU Commission Directorate-Generals
Policies
Agriculture
Competition
Economic and Financial Affairs
Education and Culture
Employment and Social Affairs
Energy and Transport
Enterprise
Environment
Fisheries
Health and Consumer Protection
Information Society
Internal Market
Joint Research Centre
Justice and Home Affairs
Regional Policy
Research
Taxation and Customs Union

External Relations
Development
Enlargement
External Relations
Trade

The Institutions of the EU


European Court of
Justice
15 Judges

Responsibilities encompass three main areas:

Monitoring the application of Community law, both by the Community


institutions when implementing the Treaties, and by the Member States and
individuals in relation to their obligations under Community law.

Interpretation of Community law.

Further shaping of Community law.

Types of proceeding:

Actions for failure to fulfill obligations under the Treaties.

Actions for annulment and actions on grounds of failure to act.

Cases referred from national courts for preliminary rulings.

Each Member State sends one judge.


Members are appointed by Member States for a term of 5 years.

Secondary Institutions of the EU

Committee of the
Regions
222 Members
Court of Auditors

The Council is required to consult the Committee on a


number of areas including: education; culture; public health;
trans-European networks; transport; telecommunications
and energy infrastructure.
Examines accounts of Community institutions.

15 Members

European Central
Bank
Economic and Social
Committee

The heart of the economic and monetary union. Its task is to


maintain the stability of the euro.
An advisory board that represents the interests of
employers, trade unions, and consumers.

222 Members
European
Investment Bank

Promotes the development of less-developed regions, to modernise


or convert undertakings or create new jobs and to assist projects of
common interest to several Member States.

Policy Tools of the European Union


Policy Tool

Policy Process

Binding authority?

Regulation

Consultation Procedure
Cooperation Procedure
Co-decision Procedure
Approval Procedure

Yes
Direct applicability, the legal acts do not have to be transposed into
national law but confer rights or impose duties on the community
citizen in the same way as national law.

Directive

Consultation Procedure
Cooperation Procedure
Co-decision Procedure
Approval Procedure

Yes
Objective of law is binding on the Member states but implementation is
left to national authorities.

Decision

Simplified procedure

Yes
Distinguished from Regulations by being of individual application: the
persons to whom it is addressed must be named in it and are the only
ones bound by it.
Distinguished from Directives in that it is binding in its entirety
(whereas the Directive simply sets out objectives to be attained).

Recommendation

Simplified procedure

No
Expresses a view but does not place any legal obligation on the
addressees. Political and moral significance.

Opinion

Simplified procedure

No
An assessment; prepares the way for subsequent legally binding acts,
or are a prerequisite for the institution of proceedings before the Court
of Justice. Political and moral significance.

Compare Legislative Processes:


Consultation v. Co-decision Procedure

1950

1997

European Coal
and Steel
Community
(ECSC)

Treaty of
Amsterdam

Consultation Procedure:
The earliest legislative process within
the Community.
Member States in the Council played the
decisive role in expressing the will of the EC.
The Commission submits proposals and the
Council makes the decisions.
Used now only in limited instances

Co-decision Procedure:
Treaty of Amsterdam created equality
of arms between the Council
and Parliament.
Denies the Council the right to adopt
its common position if efforts to
reach agreement with Parliament fail.
Used for most of the important legislation.

The Legislative Process:


Consultation Procedure

Commission

Proposal

European Parliament

Opinion
Committee of the Regions

Economic and Social Committee

Adoption of decision by the Council after consultation with Coreper

The Legislative Process:


Co-Decision Procedure

Commission
Proposal

Parliament (1st reading)


Opinion

COR

ESC

Council
No amendments by Parliament or approval of all amendments by Council
Instrument adopted

or
approval/no action

COMMON POSITION

Rejection by absolute majority

Council

Parliament (2nd reading)

End of legislative process

Adoption of common position


by qualified majority

Amendment by absolute majority

Parliaments amendments accepted

Parliaments amendments not accepted


Commission

Adoption by qualified majority


agreement
(3rd reading)

Council

Adoption only by unanimity

Amendments rejected
Conciliation Committee convened by Council and Parliament

No agreement

Instrument rejected

Power of the EU
The Subsidiary Principle
The EC must act where the objectives
to be pursued can be better attained at
Community level, enhancing its powers
The EC must not act where objectives
can be satisfactorily attained by the
Member States acting individually,
constraining its powers.

According to the Subsidiary Principle, all Community institutions,


but especially the Commission, must always demonstrate that there
is a real need for Community rules and common action.
If the need for
Community rules is
demonstrated...

Principle of Proportionality:
The need for the specific legal instrument must be thoroughly assessed to see whether there is a less
constraining means of achieving the same result. Framework legislation, minimum standards and mutual
recognition of the Member States' existing standards should always be preferred to excessively detailed
Community rules.
The subsidiary principle was codified in a Protocol annexed to the Treaty of Amsterdam.

The Future of the Convention

To better prepare the Union for enlargement, the EU leaders have called for modifications to
amend the Treaties of Amsterdam and Nice.
The declared aims of EU Treaty changes are:
bringing the EU closer to its citizens,
strengthening the EU's democratic character,
facilitating the EU's capacity to make decisions, especially after its enlargement,
enhancing the EU's ability to act as a coherent and unified force in the international system,
effectively deal with the challenges globalisation and interdependence create.

Constitutional Treaty to be signed


by the Member States of the
enlarged Union as soon as
possible after 1 May 2004, the
envisaged date of enlargement.

Draft
Constitutional
Treaty
Intergovernmental
Conference (IGC)
An IGC is the only instrument that
can modify an EU Founding
Treaty.

The EU has held five such


conferences
The sixth IGC, starts in
October 2003
Conducted by the Heads of
State or Government, assisted
by the members of the General
Affairs and External Relations
Council, representatives of the
Commission, 10 future
Member States, & the
European Parliament.

Convention
After 16 months of discussions, the Conventions adopted a
draft proposal for an EU Constitutional Treaty which will serve
as a starting point for the IGC.

Forum made up of elected representatives and


officials from the 15 Member States, 13 candidate
countries and EU institutions, representatives of nongovernmental and academic organisations, industry
federations and trade unions.
The first to precede a Founding Treaty modification.

Valry Giscard d'Estaing presents the Conventions report to the Italian presidency.

The Convention proposed critical modifications:


Replace the six-month rotating presidency with a permanent president of the European Council.
Streamline the European Commission so that only 15 members would have voting rights.
Implement a new voting system for the Council, whereby qualified majority will consist of a
majority of countries representing 60 percent of Europe's population, will give the three biggest
countries the right to block any decision supported by the other 22 Member States.
Expand the role of the European Parliament, with a doubling of the scope of legislation taken by
co-decision, which becomes the normal legislative process of the Union.
Substantially simplifying the corresponding procedures.
Obligate institutions to adopt rules on transparency.

Council of Europe

Creation of the Council of Europe

1949

1950

1957

1959

Treaty of
London

Signature in Rome
of the Council's
Convention for
the Protection of
Human Rights
and Fundamental
Freedoms
- the first
international legal
instrument
safeguarding
human rights.

Established the
Standing
Conference of
Local and
Regional
Authorities of
Europe (now the
Congress of
Local and
Regional
Authorities
of Europe)
to bring together
local and
regional authority
representatives.

Established
the
European
Court of
Human
Rights,
under the
European
Convention on
Human Rights,
to ensure
observance of
the obligations
undertaken by
contracting
states.

Established the
Council of Europe.
Signed by ten
states:
Belgium, Denmark,
France, Ireland,
Italy, Luxembourg,
the Netherlands,
Norway, Sweden
and the United
Kingdom.

Signature of the
European Cultural
Convention,
forming the
framework for the
Council's work in
education, culture,
youth and sport.

1998
Single permanent
European Court of
Human Rights to be
established in
Strasbourg under
Protocol No. 11 to the
Council's European
Convention on Human
Rights, replacing the
existing system.

Council of Europe Membership


Cyprus,
Liechtenstein,

Albania, Andorra,

Malta, Portugal,
Spain, Switzerland

Armenia and
Finland, San Marino,

1988-89

1961-78

Azerbaijan, Bosnia
and Herzegovina,
Bulgaria, the Czech
Republic, Estonia,
Georgia, Hungary,

Belgium, Denmark,

Latvia, Lithuania,

France, Ireland,

Moldova, Poland,

Italy, Luxembourg,

Romania, Russian

Netherlands,

Federation and

Norway, Sweden,

Croatia, Serbia and

United Kingdom

Montenegro,

1949-Original 10
Austria, Cyprus,
Germany, Greece,
Iceland, Turkey,

1949-56

States that are current members of the EU

Slovakia,Slovenia,
Ukraine

1990-2003

Council of Europe
The Principles

The Council of Europe is an intergovernmental organisation which aims:


to protect human rights, pluralist democracy and the rule of law;
to promote awareness and encourage the development of Europe's cultural identity and diversity;
to seek solutions to problems facing European society (discrimination against minorities,
xenophobia, intolerance, environmental protection, human cloning, Aids, drugs, organised crime,
etc.);
to help consolidate democratic stability in Europe by backing political, legislative and constitutional
reform.

The Institutions of the Council of Europe


Committee of
Ministers
45 Ministers
European Court of
Human Rights
Parliamentary
Assembly
313 Members
Convention for the
Protection of Human
Rights and
Fundamental
Freedoms

Congress of Local
and Regional
Authorities of
Europe

43 Judges

The Institutions of the Council of Europe

Committee of
Ministers
45 Ministers

Decision-making body comprised of ministers of the 45 member states.

Decides on the action to be taken on recommendations of the


Parliamentary Assembly and the Congress of Local and Regional
Authorities of Europe, and on the proposals from various intergovernmental
committees and conferences of specialized ministers.

The Institutions of the Council of Europe

Parliamentary
Assembly
313 Members

One of 2 main statutory organs.

313 members elected or appointed by national parliaments.

Each country has between 2 and 18 members, depending on size of


population.

The Assembly has 5 political groups: Socialist Group (SOC), Group of the
European Peoples Party (EPP/CD), European Democratic Group (EDG),
liberal, Democratic and Reformers Group (LDR), and Group of the Unified
European Left (UEL).

Some members of the Assembly choose not to belong to any political group.

Compare the Parliamentary Assembly, which is comprised of representatives elected or appointed by national
parliaments of all the Council of Europes Member States, with the EUs European Parliament, comprised of the
directly elected representatives of the 15 member countries of the EU.

The Institutions of the Council of Europe


European Court of
Human Rights
43 Judges

Based in Strasbourg, this is the only truly judicial organ established by


the European Convention on Human Rights.

It is composed of 43 judges* and ensures, in the last instance, that


contracting states observe their obligations under the Convention.

Since November 1998, the Court has operated on a full-time basis.

Compare with:
Court of Justice of the European Communities:
Meets in Luxembourg and ensures compliance with the law in the interpretation and
application of the European Treaties of the European Union.
International Court of Justice :
Judicial body of the United Nations which meets in The Hague.

Policy Tools of the Council of Europe


Binding Authority?
European treaties or Conventions

Charters

Codes

Framework convention

Outline convention

Binding agreements on states that ratify them;


requiring ratification or acceptance.

Agreements

May be signed with or without reservation as


to ratification, acceptance or approval.

Judgments of the Court

Binding for the parties involved.

Recommendations

Non-binding missives to governments; set out


policy guidelines on such issues as legal
matters, health, education, culture and sport.

Declarations and Resolutions

Non-binding missive on current political


issues.

Policy Process of the Council of Europe

European Conventions and Agreements are prepared and negotiated within the
institutional framework of the Council of Europe.

Negotiation culminates in a decision of the Committee of Ministers Monitoring


systems have been set up for the main treaties.

It is then agreed to open the treaty for signature by member States of the
Council.

European Conventions and Agreements, however, are not statutory acts of the
Organisation; they owe their legal existence simply to the expression of the
will of those States that may become Parties thereto, as manifested inter alia by the
signature and ratification of the treaty.

Collaboration between the EU and the Council of Europe


The Treaty on the European Communities recommends that the European Community
establish all appropriate forms of co-operation with the Council of Europe and more
specifically that co-operation with the Council of Europe should be fostered in the fields of
education and culture.
To further these aims, there are:
Quadripartite meetings at which the leaders of the two institutions meet
Joint Council of Europe/European Commission technical assistance programmes.

The Joint Declaration on Co-operation and Partnership between the Council of Europe and
the European Commission (2001), aimed at giving fresh impetus to efforts to strengthen cooperation between the Council of Europe and the European Community.

One example of cooperation between the two is:


The European Commission adaptation of a draft decision to sign Convention 180 of the Council
of Europe on behalf of the EU. Convention 180 establishes an international mechanism for the
prior notification of national rules on online services, based on the EU system of legislative
transparency in this area.