The European Union’s decision to conclude the Istanbul Convention on preventing and combating violence against women would be compatible with the treaties even if it were adopted in the absence of a common agreement of all Member States, Advocate General Gerard Hogan of the Court of Justice of the EU ruled in a Opinion delivered on Thursday 11 March (Opinion request 1/19).
The Court is asked to respond to a July 2019 request for an opinion from the European Parliament, which in late 2019, voted in favour of EU ratification of this April 2011 Council of Europe Convention (see EUROPE 12379/19). As of November 2020, six Member States had not ratified the Convention, with countries such as Poland and Hungary expressing hostility towards the text.
In 2017, the EU Council adopted two decisions, one (2017/865) on the signature on behalf of the EU of the Istanbul Convention for matters relating to judicial cooperation in civil matters, the other (2017/866) for matters relating to asylum and non-refoulement (see EUROPE 11786/19).
The Advocate General first examines the appropriate legal bases for the conclusion of the Convention. In his view, if the EU Council’s intentions regarding the extent of shared competences to be exercised in the context of the conclusion of the Convention remain unchanged, any EU Council decision authorising its conclusion on behalf of the EU should be based on Articles 78 (European asylum system), 82 and 84 (judicial cooperation in criminal matters), and 336 (status of European officials) of the Treaty on the Functioning of the EU.
Mr Hogan is also of the opinion that the conclusion of the agreement by means of two separate acts is not such as to invalidate these acts. Splitting a decision into two acts could, on the other hand, vitiate the conclusion of an international agreement, if the two decisions were adopted under different voting rules in the EU Council, he says. This is not the case here.
Finally, as regards the validity of an EU Council decision to conclude the Istanbul Convention in the absence of a common agreement by all Member States to be bound by it, the Advocate General concludes that the EU Council is not obliged to await the common agreement of the Member States. Rather, it is up to the latter to assess which solution is the most appropriate, based on factors such as the risk of unjustified non-execution of the mixed agreement in question by a Member State or the possibility of obtaining the necessary majority within the Member State to exercise all the shared competences alone.
Mr Hogan therefore proposes that the Court reply that the decision to conclude the Istanbul Convention would be compatible with the Treaties even if it were adopted in the absence of a common agreement of all Member States or after such a common agreement had been established. Only the EU Council can decide which of these two solutions is preferable, he stresses.
See the conclusions: https://bit.ly/30vvkfK (Original version in French by Mathieu Bion)