Ministers' Deputies / Rapporteur Groups
GR-J
Rapporteur Group on Legal Co-operation

GR-J(2007)2 26 February 20071
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The decision making process in the context of Partial Agreements

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The system of partial agreements was introduced in 1951.

Resolution (51)62 adopted by the Committee of Ministers at its 9th session on
2 August 1951, established the legal framework for partial agreements along the following lines:

    - an initial (unanimously adopted) decision, authorising states which wish to do so to abstain from voting on a proposed course of action;
    - a second decision during which the partial agreement is considered to have been adopted only by the member states which vote in favour of it;
    - any additional expenditure generated to be borne exclusively by the members states which have voted in favour of the partial agreement.

It is on the basis of this Resolution that most of the partial agreements have been set up. First came the Partial Agreement on the Council of Europe Development Bank (1956), followed by the Partial Agreement in the Social and Public Health Field (1959), and the Convention on the Elaboration of a European Pharmacopoeia (1964).

Statutory Resolution (93)28 on Partial and Enlarged Agreements reformed the system by easing the conditions for establishing partial agreements. For example, the decision which authorises the establishment of agreements is now taken by the majority provided for in Article 20.d of the Statute and no longer unanimously. The Statutory Resolution also explicitly introduces the possibility of co-operating with non-member states of the Council of Europe, within the framework of an “enlarged partial agreement” or “enlarged agreement”.

It is important to note that the Statutory Resolution does not alter the substance of the procedure concerning partial agreements.

In fact, under paragraph II of this Resolution, “The Committee of Ministers may, by the majority stipulated in Article 20.d of the Statute of the Council of Europe, authorise some member States to carry out an activity or a series of activities within the framework of the Organisation, the activity or series of activities being adopted only by the representatives who vote in favour of it and being limited accordingly”;

This article provides the legal basis for taking two separate decisions concerning partial agreements:

    - an initial decision taken by the Committee of Ministers in plenary, authorising the member states concerned to establish a partial agreement;
    - a second decision, taken solely by the member states concerned, adopting the partial agreement.

In paragraph IV, the Statutory Resolution sets out the arrangements for the functioning of partial agreements, stipulating that the decision by which the agreement is established (in other words, the decision taken by the member states interested in the agreement) shall provide for its organs and lay down specific arrangements for the pursuit of its activities.

From the standpoint of the decision-making process, the outcome of this system is that when the Committee of Ministers is asked to take a decision concerning the functioning of a partial agreement (setting up of a committee, adoption of a new activity, invitation to non-member states to accede to the agreement etc.), only the representatives on the Committee of Ministers from member states which are party to the partial agreement concerned take part in the decision. In other words, the decision is taken by the Committee of Ministers in its composition limited to the representatives of the member states of the partial agreement.

This situation is explicitly provided for in the Statutory Resolution itself, in the paragraph concerning the accession of non-member states, which in its paragraph II stipulates that the Committee of Ministers may “in its composition restricted to representatives of member states of a Partial Agreement, invite any non-member State to join the Partial Agreement or certain of its activities”.

In this connection, it should be noted that this wording (or its various forms “composition/membership restricted/limited to representatives of member states …“) was used in decisions adopted in partial agreements before Statutory Resolution (93)28 had even been adopted. This wording is also used in the statutes of several partial agreements, for example in Article 12 of the Convention on the Elaboration of a European Pharmacopoeia (ETS No. 050, 1964), and in Article 2 of the Statute of the Partial Agreement on the Youth Card scheme (Resolutions (91)20 and (2003)1), Article 2 of the Statute of the European Centre for Modern Languages (Resolutions (94)10 and (98)11) and Article 4.4 of the Statute of the GRECO.

Finally, this wording is by no means incompatible with the Statute of the Council of Europe. Indeed, it derives from a Statutory Resolution. The aim of such a Resolution is to clarify one or more provisions of the Statute without altering it. In the instant case, the Statutory Resolution stipulates the exact composition of the Committee of Ministers in the context of partial agreements, a question which is not explicitly addressed in the Statute.

This manner of interpreting and applying an existing treaty is also compatible with the provisions of the Vienna Convention on the Law of Treaties, of 23 May 1969. Under Article 31 of the Vienna Convention, with regard to the interpretation of a treaty (in the instant case, the Statute of the Council of Europe) account shall be taken of “any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions” and of “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”.

In conclusion, the fact that the Committee of Ministers is authorised to take decisions in compositions other than plenary membership is based on a clear and sound legal basis, i.e. Statutory Resolution (93)28, and on a practice that has been followed uninterruptedly since the adoption of Resolution (51)62 on partial agreements.

Note 1 This document has been classified restricted at the date of issue. Unless the Committee of Ministers decides otherwise, it will be declassified according to the rules set up in Resolution Res(2001)6 on access to Council of Europe documents.


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