COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE Participation of the European Union in the Council of Europe Group of States against Corruption (GRECO) /* COM/2012/0604 final */
COMMUNICATION FROM THE COMMISSION TO
THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL
COMMITTEE Participation of the European Union in the
Council of Europe Group of States against Corruption (GRECO) 1. Introduction This Communication sets out how the Commission intends to
step up cooperation between the EU and the Council of Europe Group of States
against Corruption (GRECO), following the Commission’s ‘anti-corruption package’
of 6 June 2011[1]. It envisages a two-stage approach consisting first of a ‘full
participant’ status[2]
based on Article 220 of the Treaty on the Functioning of the EU (TFEU) that
may, in a second stage, lead to full EU membership of GRECO. That approach will allow cooperation to be increased,
within a relatively sort time-frame, on the basis of full participant status
and pending an analysis of how full membership, including evaluation of EU
institutions by GRECO, would be organised in practice. 2. Form of participation considered and specific
objectives of EU participation in GRECO The main principles of
cooperation, shared priorities and focused areas for cooperation between the
Council of Europe and the European Union are set out in a Memorandum of
Understanding concluded in 2007[3]. According to the Memorandum, legal cooperation
between the two parties covering the rule of law, including the fight against
corruption, should be further developed to ensure coherence between EU law and
Council of Europe conventions. Under ‘Inter-institutional cooperation’,
the Memorandum also states that the Council of Europe and the EU will further
cooperate using the opportunities provided by existing partial agreements[4]. Within this legal context, the Commission intends, in a first
phase, to discuss with GRECO full participant status for the EU. After those
discussions have been concluded with GRECO, an EU analysis will be prepared of
the impact of possibly making EU institutions subject to GRECO’s evaluation procedures.
This will be the basis for deciding whether, in a second phase, to seek full EU
membership of GRECO. To this end, a working group will be set up at EU level to
deliver such an analysis. With full participant status, the EU would participate in
GRECO with a degree of involvement in the evaluation system to be tailored for
this first phase, but it would not be subject to the mutual evaluation and
would thus not have voting rights, nor would it be able to have a
representative on GRECO’s Bureau, which consists only of full members. EU full participant
status in GRECO should aim to achieve the following specific objectives: ·
Involvement in the country visits forming part
of the evaluations of EU Member States and/or candidate countries and potential
candidates, should the latter agree; ·
Possibility to formulate suggestions on draft
evaluation reports and participate in the debates of the GRECO plenary on the
evaluation/compliance reports for EU Member States and/or candidate countries
and potential candidates, should the latter agree; ·
Possibility to formulate proposals to GRECO’s
Bureau[5],
which has an important role in preparing evaluations and drafting the reports; ·
Comparative analysis[6] to be carried out by GRECO on
the basis of the existing evaluation and compliance reports on the Member
States to be considered in the preparation of the EU Anti-Corruption Report; ·
Access to information gathered and updated by
GRECO in the framework of the evaluation process; ·
Flagging of outstanding GRECO recommendations of
relevance for the EU, for which the EU Anti-Corruption Report may provide
additional impetus for adequate follow-up. During the first phase, to ensure synergies
between GRECO’s evaluation system and the EU Anti-Corruption Report established
by the Commission’s ‘anti-corruption package’ of 6
June 2011[7],
the Commission will consider involving a GRECO representative in the
expert group on corruption established to help prepare the EU Anti-Corruption
Report. In a second phase, not later than four years
after the EU has begun participating in GRECO, the form of the EU’s participation
will be reassessed. Depending on the findings of the EU analysis mentioned
above, full membership may be considered. GRECO’s plenary, when analysing the outcome of the
preliminary discussions between the Commission and the GRECO Secretariat, has
expressed the view that the evaluation of the EU institutions by GRECO should
be one of the key items in the discussions and that it has to be considered as
more than just a remote possibility. Nonetheless, a further assessment of the requisites,
feasibility and potential impact of such an evaluation is needed. Indeed, GRECO
has developed an evaluation system geared to countries and not organisations; this
means that, for instance, the applicability to the EU of the Council of
Europe’s Twenty Guiding Principles for the Fight against Corruption, which are
conceived as commitments by countries, would have to be assessed. EU institutions have their specific features, which do not
coincide with those of classic state institutions. There are limitations to EU
competences as opposed to those of a country. Questions arise also as to how
the evaluation teams would be established for evaluating EU institutions. The
GRECO evaluation system would therefore need to be adapted to the specifics of
the EU legal and institutional framework. Given that such a system has not been
tested before, both sides would need to carefully analyse the practicalities
and legal aspects of such evaluations. That assessment would require time and thought,
and the fact of the EU being already involved in GRECO activities would support
the EU analysis on this matter. This two-stage approach would be in line with the stance of
GRECO’s plenary, since it would establish a clear deadline for the reassessment
of the form of EU participation and a decision by the EU would be taken in this
regard based on the concrete findings of a working group set up at EU level. 3. Legal and procedural steps The first step
foreseen for the EU participation in GRECO (‘full participant status’) does not amount to an accession to an international
organisation or to an international treaty requiring the conclusion of an
agreement under Article 218 TFUE[8].
It is rather about establishing an appropriate form of cooperation with
GRECO for which Article 220 of the Treaty on the Functioning of the European
Union (TFEU) is applicable. Article 220 TFEU states
that: ‘1. The Union shall establish all appropriate forms of cooperation
with (…) the Council of Europe (…). 2. The High Representative of the Union for
Foreign Affairs and Security Policy and the Commission shall implement this
Article’. EU status in the Council of Europe is also a full participant
status, as established by the Commission from the beginning (ex-Art. 302 TEC)[9]. Since
GRECO’s activities do not deal with common foreign and security policy, it is
for the Commission to establish an appropriate form of cooperation with the
GRECO under Article 220 TFUE. EU participation in GRECO will not affect the competences
of the Union, nor the rights and obligations of the Member States under GRECO. Participation of the EU in GRECO will follow the procedure
consisting of an invitation from the Council of Europe's Committee of Ministers
to the Union to participate in GRECO and not that of accession to the Council
of Europe's Conventions on corruption. In GRECO’s
Statute, a specific provision (distinct from that on membership) is dedicated
to the participation of the European Community and reads as follows: ‘The
European Community may be invited by the Committee of Ministers to participate
in the work of the GRECO. The modalities of its participation shall be
determined in the resolution inviting it to participate’. This invitation
is to be officially sent to the EU after the modalities
of participation of the EU in GRECO have been agreed between the Committee of
Ministers of the Council of Europe and the EU on the basis of a proposal made
by GRECO and endorsed by the Statutory Committee[10]. In other words, the text of the Resolution to be adopted by
the Committee of Ministers inviting the EU to participate in the GRECO will be
in fact the text discussed and agreed by both the Committee of Ministers and
the Commission, acting on behalf of the Union. The Commission will accept this
invitation through a unilateral decision and will inform the Council, the
European Parliament and the European Economic and Social Committee of the result
of the discussions. 4. Financial issues If the special objectives described above were to be met, a
financial contribution of the Union to the GRECO budget of 300.000 EUR/year is to
be envisaged, subject to further negotiation with GRECO. The fees paid by the
GRECO members are set by a decision adopted by the GRECO Statutory Committee
updated on a regular basis. This contribution should reflect the costs that the
EU participation in the GRECO will generate for the Group, as well as the degree
of actual EU involvement in GRECO's activities (i.e. no voting rights in the first phase). A further 150 000
EUR/year will be used for joint activities with GRECO such as data gathering
and preparation of studies for background to the EU Anti-Corruption Reports. Taking into account the legal framework under which the
establishment of a full participant status for the EU will occur (i.e. Article
220 TFEU), the Commission will consider the payment of its financial
contribution through the signing of joint programmes with the Council of
Europe. The necessary sum will be covered by the Internal Security Fund[11]. 5. Conclusion The Commission will
start discussions on a full participant status of the EU in GRECO on the basis
of this Communication. The Commission will inform the
Council, the European Parliament and the European Economic and Social Committee
of the outcome of these discussions. Annex Scope of discussions on the full participant status The Commission will discuss on behalf of
the Union the modalities of participation of the European Union in GRECO. The
outcome of the discussions will be reflected in a Resolution of the Council of
Europe’s Committee of Ministers inviting the Union to participate in GRECO (‘the
Resolution’). The Resolution (including its appendices) should contain clear statements
on the EU’s rights and obligations in GRECO and the practical arrangements for
the participation of the EU as a distinct legal entity, vested with autonomous
powers alongside all its Member States. The EU’s participation in GRECO should be
governed by the following basic principles that should be reflected,
where necessary, in the Resolution: ·
Participation should take into account the
specificity and limits of the Union’s competence. It should also allow the EU
to establish higher standards within its borders. Participation should therefore
not affect the competences of the Union, or the powers of its institutions,
bodies, offices or agencies. Special regard should be given to the division of
competences between the EU and its Member States, and also to the preservation
of Union law and its unique legal system (principle of neutrality regarding
Union powers). ·
Participation should not affect the rights and
obligations of the Member States under GRECO (principle of neutrality regarding
Member States’ obligations). ·
Participation should not affect the principle of
conferral of powers stipulated in Article 13(2) of the Treaty on the European
Union and the principle of institutional balance deriving from the case-law of
the Court of Justice of the European Union. ·
GRECO and its specific bodies, the Statutory
Committee and the Council of Europe’s Committee of Ministers should not be
called upon to interpret, even implicitly or incidentally, Union law and in
particular its rules regarding the powers of the institutions, bodies, offices
or agencies and regarding the content and scope of Member States’ obligations
under Union law (principle of autonomous interpretation of Union law). ·
The EU representative should seek to obtain the
right to participate in other Council of Europe bodies to the extent that their
activities are linked to the purpose of GRECO, in proportion to its level of
participation. The discussions should ensure that EU
participation in GRECO guarantees a special working relationship to secure a
coordinated approach at European level towards corruption. For the EU, access
to the early stages of evaluation rounds, preparation of country reports and
updated information gathered in the context of the evaluation process,
participation in the GRECO plenary, the comparative analysis of Member States’
evaluations and the flagging of outstanding recommendations are of considerable
importance. The discussions should ensure that EU
participation in GRECO creates synergies with the EU Anti-Corruption Report.
Any unnecessary additional burden on Member State administrations and
duplication of activities should be avoided. The discussions should ensure that EU
participation in GRECO does not impinge upon the Commission’s powers with
regard to the EU Anti-Corruption Report. The discussions should ensure that the
specific objectives mentioned in Section 2 of this Communication are met to the
greatest possible extent. The discussions on a full participant
status for the EU in GRECO should also entail a commitment by the Union to
carry out an analysis of the requisites, feasibility and potential impact of
possibly making the EU institutions subject to GRECO evaluation procedures. Depending
on the findings, that analysis could lead to full EU membership of GRECO. The analysis
should take into account the specifics of the EU legal and institutional
framework, and the competences of the Union as set out in the Treaties. A new form
of EU participation in GRECO would require a negotiation process. With full participant status, the EU should
be allowed to participate in GRECO plenary meetings. The discussions should ensure that the EU
can appoint a delegation of up to two representatives to GRECO and, if
appropriate, one substitute per representative. The discussions should ensure that the EU representatives
enjoy the privileges and immunities applicable under Article 2 of the Protocol
to the General Agreement on Privileges and Immunities of the Council of Europe,
on an equal footing with all other GRECO members. The discussions should aim to ensure that
the EU is allowed to appoint up to five experts who would be able to undertake
the tasks provided by GRECO’s Statute and Rules of Procedure regarding the
evaluation process, within the limits of the form of the EU’s participation. The discussions should aim to ensure that
the EU’s experts are allowed to be involved in the process of evaluating EU
Member States and possibly candidate countries or potential candidates, if the
latter agree, at least as observers, and that they are able to formulate
comments, remarks and proposals relating to the preparations of evaluations and
to the evaluation procedures. The discussions should also ensure that the EU has
access from the early stages to draft evaluation and compliance reports, and addenda
to compliance reports regarding EU Member States and, if these countries agree,
candidate countries or potential candidates. The EU’s participation in GRECO should not
affect the direct representation of individual Member States, nor their right
to participate in an individual capacity in any votes during GRECO plenary
sessions. The discussions should ensure that, at the
latest four years after the EU has begun participating in GRECO, the form of
the EU’s participation is reassessed. The discussions should consider the
possibilities for the EU to participate in meetings of the Statutory Committee
and those of the Council of Europe’s Committee of Ministers when the latter is
dealing with GRECO matters. The Directorate General Home Affairs will
designate among its officials the person who shall discuss the modalities of
the appropriate form of cooperation. The outcome of the discussions will have
to be endorsed by the College of Commissioners and confirmed by a Commission decision. [1] Communication from the Commission on Fighting
Corruption in the EU (COM(2011) 308 final) and Report
from the Commission on the modalities of European Union participation in the
Council of Europe Group of States against Corruption (GRECO) (COM(2011) 307
final). [2] ‘Full participant status’
is the expression commonly used to refer to situations in which, albeit not a
full member of an organisation, the EU enjoys very similar rights to those
enjoyed by members except for voting rights (see also the EU’s status in the World
Health Organisation, Unesco, the International Civil Aviation Organisation, the
Council of Europe or the OECD). [3] CM(2007)74, adopted on 10
May 2007 by the Committee of Ministers of the Council of Europe. [4] Paragraph 48. [5] The Bureau is composed of
GRECO’s President and Vice-President, and five other representatives of the
GRECO members entitled to vote. The Bureau prepares the draft annual programme
of activities and the draft annual activity report, makes proposals on the
draft budget, organises country visits, proposes the composition of evaluation
teams, prepares the agenda for the GRECO plenary, and proposes the provisions
to be selected for evaluation. [6] The analysis would be based
on the existing evaluation and compliance reports — i.e. it would not give rise
to additional procedures, nor an additional step in the evaluation of the EU
Member States; it would only assess in a comparative manner what has already
been produced by GRECO. [7] COM(2011) 307 final Report from
the Commission to the Council on the modalities of European Union participation
in the Council of Europe Group of States against Corruption (GRECO). [8] The Report on modalities of EU participation in GRECO
of 6 June 2011 stated that the Council will be requested to authorize the
opening of negotiations on behalf of the EU with a view of a membership. However,
the approach for which the Commission has eventually opted after an assessment
of all modalities available does not consider in a first phase full membership
of the EU in GRECO. [9] The same applies for instance with respect to UNESCO and
the OECD in line with what Article 220 TFUE foresees. [10] See Rule 2 of the GRECO’s
Rules of procedure. [11] Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL establishing, as part of the Internal Security Fund, the
instrument for financial support for police cooperation, preventing and
combating crime, and crisis management, COM(2011) 753 final.