On Wednesday 6 October the Court of Justice of the European Union responded to the request for an Opinion (Opinion 1/19) submitted to it by the European Parliament in July 2019 on the EU’s ratification of the Istanbul Convention (see EUROPE 12692/21).
The EU signed this Council of Europe Convention on preventing and combating violence against women and domestic violence, and thus signalled its intention to become a party to the text, in June 2017.
However, it has still not ratified it since then, due to a lack of consensus among Member States (see EUROPE 12228/4).
In its request for an Opinion, the European Parliament sought to understand whether the Treaties allow or require the Council to wait for the “common accord” of the EU27 to be bound by the Convention before going further.
To this question, the Court replies that the Treaties prohibit adding a further step to the ongoing procedure, for example by making ratification of the convention contingent on the prior establishment of a “common accord”.
“If that practice were to have such a scope, it would result in a hybrid decision-making process”, as the possibility for the EU to conclude a mixed agreement would then depend entirely on the willingness of each of the States to be bound by that agreement, the Court details.
Such a “hybrid process”, it points out, is however incompatible with the TFEU, which conceives, on the contrary, the conclusion of an international agreement as an act adopted by qualified majority by the Council.
On the other hand, “nothing precludes the Council from extending its discussions in order to achieve closer cooperation between the Member States and the EU institutions”, the Court notes. This would mean waiting for the famous “common accord”.
But again, it considers on this point that, in principle, such a manoeuvre is exercised by a qualified majority “so that such a majority within the Council may, at any time [...] require the closure of the debate and the adoption of the decision concluding the international agreement”.
Splitting of acts
In its request for an Opinion, the European Parliament also asked the Court whether it was necessary or possible to split both the act authorising the signature of the convention and the act concluding that convention into two separate decisions.
This issue is linked to the somewhat particular positioning of Ireland and Denmark, which are not bound by some of the rules laid down in the TFEU and found in the Istanbul Convention, notably those related to asylum and pushback.
On this issue, therefore, the Court states that it would indeed be justified to split the act into two separate decisions only if this were to take into account the fact that Ireland or Denmark do not participate in the package of measures adopted in respect of the conclusion of the Convention.
To consult the Court’s judgment: https://bit.ly/3Biud3Q (Original version in French by Agathe Cherki)