The EU Accession to the Istanbul Convention: The Argument From the ‘common Accord’ Practice

Understanding the position of the Istanbul Convention as a source of public international law is necessary to understand the legal context and reflections on the ‘common accord’ practice. The Istanbul Convention, as a document of the Council of Europe, is an international agreement under Article 2(1)(a) of the Vienna Convention on the Law of Treaties.

Vienna Convention on the Law of Treaties 1969 (adopted 23 May 1969 entered into force 27 January 1980) 1155 UNTS 331

On the axiological dimension, the Istanbul Convention presents tools to achieve goals such as countering domestic violence. The Istanbul Convention values regarding equality between men and women are the same as European Union values, with which the Council, the Commission and the European Parliament agree. Moreover, accessing the Istanbul Convention would lead to the realisation of the Union’s goals. The axiological dimension, which is the most controversial and troublesome factor contributing to political context, results in the existence of the ‘common accord’ practice, which will be proven in the last part of this article.

On the systemic dimension, the formal party would be liable for improper performance to the Council of Europe, and therefore, the European Union. However, the Commission could initiate an infringement procedure (Article 258 TFEU) against a specific member state for failing to meet the standards of the Istanbul Convention. The risks that can be seen at the systemic level are that if there were no unanimity, procedures against the EU or within the EU against a member state would be more frequent and probable. Nevertheless, this should not be an argument against the ‘common accord’ as a whole.

The interpretative and problem-solving approach to the Istanbul Convention is a matter hard to find an answer to at this point, although the Convention would not have been the first human rights international agreement concluded by the EU (The European Union concluded the United Nation Convention on the Rights of Persons with Disabilities on the 23 December 2010). It would, however, be the first human rights agreement concluded under the Council of Europe regime. The failure of the accession of the ECHR because of the implications on the autonomy of EU law indicated by the CJEU

Opinion 2/13 [2014], paras 194–200

The factors such as potential interpretation, the axiological dimension, and the systematic dimension contribute the political and legal context which is extremely relevant in conducting the case study and assessing the ‘common accord’ practice as a whole.

The European Union, according to Article 47 of the Treaty on European Union

Consolidated version of the Treaty on European Union [2012] OJ C326/13, art. 47

If the accession comes to fruition, according to the CJEU, the agreement becomes an integral part of ‘community law’

Case C-181/73 R. & V. Haegeman v Belgian State [1974] ECR 1974 - 00449, para 5

The European Union has the resources and competencies to become a party to this Convention. Firstly, from a formal point of view, the Istanbul Convention is open for signature and ratification by the EU in Article 75(1) of the Convention. Despite the fact that some authors

S De Vido, ‘The ratification of the Council or Europe Istanbul Convention by the EU: A step forward in the protection of women from violence in the European Legal System’ (2017) 9(2) European Journal of Legal Studies 69

According to the principle of conferral,

Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326/47, art. 5

According to Article 3(2) TFEU, the EU has exclusive competence insofar as the international agreement ‘may affect common rules or alter their scope’.

Even before the article 3(2) TFEU came into force there was the so-called ERTA judgement (C-22/70 ECR [1971] I-00263 ’17. In particular, each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules.” BUT ‘since the entry into force of the Lisbon Treaty, the exclusive external competence of the European Union is viewed in a more restrictive manner (C-114/12, Broadcasting Organisations, para 72)

At this point, it should be analysed, from a substantial law perspective, which provisions of the Istanbul Convention fall within the EU’s and member states’ competencies. The Council, having signed the decisions on the of signing the Istanbul Convention

Council Decision [EU] 2017/866 of 11 May 2017 on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to asylum and non-refoulement [2017] OJ L 131/13

The legal context presented above clearly indicates that the EU is able to become a party of the Istanbul Convention, and the law here does not create any obstacles, yet creates significant background for the case study, which is going to be analysed and presented in the last part of this paper.

If the EU enters into international agreements, such agreements bind the member states by virtue of their duties under EU law, and not within the operation of public international law.

Craig, de Búrca (n 35), 356–357

The limited volume of this article allows for identification of only a few consequences of the potential coming into force of the Convention. For example, Articles 59–61 require parties to the Convention, inter alia, to take measures to ensure that migrant victims whose residence status is conditional on marriage (a relationship) are granted an autonomous residence permit of limited validity in the event of the dissolution of the marriage due to particularly difficult circumstances.

Explanatory Memorandum on Council of Europe Convention on preventing and combating violence against women and domestic violence 2011, paras 301–302

Assuming that the Istanbul Convention becomes the source of EU law, it will contribute, inter alia, to the EU’s commitments in the framework of the Convention on the Rights of Persons with Disabilities (hereinafter: CRPD).

(A possible) EU Accession to the Council of Europe Convention on preventing and combating violence against women and domestic violence 2015/JUST/010 <https://ec.europa.eu/smart-regulation/roadmaps/docs/2015_just_010_istanbul_convention_en.pdf > accessed 26 November 2022

Issues with implementation on the member state level could also occur. Statistics, in this matter, are far from satisfactory — in only 2021, the Commission opened 847 infringement cases, 571 of which were launched for late transposition of EU directives, and 276 of which were launched because of wrongful application of EU law or non-conformity of national rules with EU law.

Application of EU law: Upholding rights, fundamental freedoms and the rule of law <https://ec.europa.eu/commission/presscorner/detail/en/ip_22_4145> accessed 26 November 2022

This practice of ‘common accord’ has been the practice within the Council, where concluding an international agreement, every country must agree, even when the matter falls within exclusive EU competence. It is the perspective of the political will of member states in the institutional decision-making process, creating de facto

Treaty provides that a qualified majority is sufficient, in practice the unanimity has been required.

Currently, there is nothing provided in the Treaties about the ‘common accord’ practice. According to Article 218(8) TFEU, the Council acts by the qualified majority concluding international agreements. Nevertheless, as the European Parliament and previous authors had stated, the practice of ‘common accord’ has been living on.

G Kübek, Analysis: ‘Opinion 1/19, the practice of ‘common accord’, and incomplete mixity: paving a way for concluding the Istanbul Convention?’ <https://eulawlive.com/analysis-opinion-1-19-the-practice-of-common-accord-and-incomplete-mixity-paving-a-way-for-concluding-the-istanbul-convention-by-gesa-kubek/> accessed 26 November 2022

When the EU was accessing the CRPD, it originally wanted to wait for ratification from all the member states before depositing the instrument of accession to the United Nations Secretary General.

M Chamon, ‘Negotiation, ratification and implementation of the CRPD and its status in the EU legal order’ (2020) Research Handbook on EU Disability Law 52

In the case of the Istanbul Convention, the European Parliament had decided to ask about the legality of the practice of ‘common accord’ by submitting a request for an Opinion under Article 218(11) TFEU.

Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326/47

The European Parliament, having submitted the request, assumed that the Council wanted to make the adoption of such a decision dependent on securing the prior ‘common accord’ of all the member states.

ibid, para 51

Even when it comes to a ‘mixed agreement’, during negotiating and concluding an agreement, each party must act within the limits of their competencies

Case C-28/12 Commission v Council [2015], para 47

In the Opinion 1/19, the CJEU has ruled that requirement of consensus between the member states ‘results in the addition to that procedure of a step which is not provided for in the Treaties’, therefore it cannot be required.

Opinion C-1/19 Istanbul Convention [2021], para 245

As Thomas Verellen stated, it would also violate the autonomy of EU law.

Verellen T, ‘Opinion 1/19: no common accord among the Member States required for the Council to conclude a mixed agreement’ (2021) <https://europeanlawblog.eu/2021/12/16/opinion-1-19-no-common-accord-among-the-member-states-required-for-the-council-to-conclude-a-mixed-agreement/> accessed 26 November 2022

The practice of ‘common accord’ is important from the public international law paradigm of sovereignty. All countries, especially in sensitive issues, can retain power. The relation between legal and political context created by phenomena derived from the paradigm of sovereignty resulted in the existence of the ‘common accord’ practice, which leads to the fact that the Istanbul Convention has still not been concluded by the EU. The Istanbul Convention is associated with controversy, especially in Eastern Europe. According to the Bulgarian Constitutional Court, the Convention promotes a concept of gender which is contrary to Bulgarian law in terms of clear distinction between biological males and females.

Bulgaria stated that it would infringe the principle of sincere cooperation if the Republic of Bulgaria has to implement measures contrary to its Constitution - but CJEU did not agree with that.

The member states which are in favour of the ratification of the Istanbul Convention could potentially not be in favour of departing from the practice of ‘common accord’ because one day their own veto might be overridden in other cases. Recently, member states are more willing to exercise veto powers than in the past.

T Verellen, ‘Opinion 1/19: no common accord among the Member States required for the Council to conclude a mixed agreement’ <https://europeanlawblog.eu/2021/12/16/opinion-1-19-no-common-accord-among-the-member-states-required-for-the-council-to-conclude-a-mixed-agreement/> accessed 26 November 2022

Considering the above-mentioned arguments, the CJEU refused that the conclusion of the Istanbul Convention in the absence of a ‘common accord’ would lead to a breach of the rule of sincere cooperation,

ibid, para 265

As I indicated above, achieving unanimity is very difficult, and leads to the lowest common denominator in every compromise. The practice of ‘common accord’ threatens the achievement of ambitious goals, especially in times of crisis, where decisive and robust steps are required. From the very assumption of the Union, values shared by member states should be the same. From the doctrinal approach’s view, there should be no differences in the perception of core values.

Craig, de Búrca (n 35) 382

To conclude, the practice of ‘common accord’ protects member states’ sovereignty, the EU’s liability before the Council of Europe for improper performance and member states’ liability before the Commission under infringement procedure.

Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326/47, art 258

In this part, the citizens of the EU member states’ proneness to electing populists in power and the constitutional crisis in the post-Lisbon EU will be analysed. Populism in power needs to be distinct from populism in general because when populists win elections, they, logically, become ‘corrupt elites’, the very ones they had been talking so much about before the elections. Populists in power continue to polarise and moralise. They eagerly frame situations as a crisis, because such a crisis then serves to legitimate their governance.

J Müller, What Is Populism? (University of Pennsylvania Press 2016), 42–43

Populists are increasingly coming to power, and men predominantly lead this phenomenon.

C Mudde, C Rovira Kaltwasser, ‘Vox populi or vox masculini? Populism and gender in Northern Europe and South America’ (2015) 49(1–2) Patterns of Prejudice, 16

After the failure in 2004 of the Constitutional Treaty in referendums in France and the Netherlands, the process of de-constitutionalisation started.

N Scicluna, ‘When Failure isn’t Failure: European Union Constitutionalism after the Lisbon Treaty’ (2012) 50(3) Journal of Common Market Studies, 441

The significant difference between the Constitutional Treaty and Lisbon is an issue of EU legal supremacy. Even though the principle of supremacy of the EU law over national law has been existing since Costa v. ENEL judgement,

Case C-6/64 Costa v. ENEL [1964] ECR I-00585

Political factors mainly conditioned the practice of ‘common accord’. Nevertheless, legal conditions have been giving tacit approval to this practice. On the one hand, the CJEU prohibited requiring ‘common accord’, but on the other hand, allowed it to be expected. It was predictable that member states and the Commission would not want to expose themselves to what is purely political. From a legal point of view, if the qualified majority is achieved, the Istanbul Convention shall be concluded by the EU. We needed to wait 6 years from the Council’s decisions of signature, and only when under Swedish presidency, it requested the consent of the European Parliament to adopt the decisions on the conclusion of the Istanbul Convention.

The Council’s practice of ‘common accord’, which was the effect of political and legal conditions such as populists in power, EU crisis in the post-Lisbon regime, and lack of supremacy in the Treaties, permits that behaviour in CJEU’s 1/19 Opinion. The next key factors are the paradigm on which the European Union is based. Therefore, Article 2 and CJEU’s judgements regard values and paradigms of public international law, such as sovereignty. The clash of these two paradigms leads to problems in reaching an agreement, particularly in politically sensitive situations such as migration. Having used this example, I present that on the one hand, we have Article 2 TEU, so member states have to respect human rights; on the other hand, some of them have broken basic rights

ACAPS Thematic Report, Belarus/Poland Migration crisis on the Poland-Belarus border 2022

The fact that political aspects influence taking the decision on (non)accession of the Istanbul Convention, which makes the EU meet its obligations under the Treaties to citizens and international agreements, was worrisome. The political and legal factors that made up the practice of ‘common accord’ answer not only the question of why it is so difficult to conclude an agreement unanimously, but also why those who could at least initiate the procedure did not do so. The CJEU has ruled straight out that the practice of ‘common accord’ cannot be required by any means, but neither member states nor the Commission started the procedure. However, both previously mentioned institutions could have done it under Article 11 of the Council’s Rules of Procedure.

Council Decision of 1 December 2009 adopting the Council’s Rules of Procedure [2009] L 325/35

Importantly, unanimity is not necessary to initiate the voting procedure. Therefore, according to Article 11(1) of the Council’s Rules of Procedure, any state or the Commission is allowed to initiate the voting procedure. The voting procedure had to be carried out if 14 out of 27 members had agreed. One must therefore wonder what the reason for the lack of action on the part of the Commission and the member states was. There may be many answers. On the one hand, Ursula von der Leyen’s Political Guidelines for the Next European Commission 2019–2024

Political Guidelines for the next European Commission 2019–2024 A Union that strives for more My agenda for Europe By candidate for President of the European Commission Ursula von der Leyen [2019] <https://ec.europa.eu/info/sites/default/files/political-guidelines-next-commission_en_0.pdf > accessed 26 November 2022

The European institutions, responsible for the decision-making process, for 6 years, have been in agreement all this time that the Istanbul Convention has to be ratified by the EU. Yet, for six years, neither the Commission nor the Council had initiated any real procedure that would have led to the accession of the Convention. The European Parliament had expressed the necessity to ratify the Convention by the EU, calling on the Council to conclude the Convention urgently.

European Parliament resolution of 28 November 2019 on the EU’s accession to the Istanbul Convention and other measures to combat gender-based violance [2019] OJ C 232/48

Therefore, after 6 years, the Council, under the Swedish presidency, started the procedure. According to the Organisation for Economic Co-operation and Development, the Nordic Countries are leaders on gender equality.

Is the Last Mile the Longest? Economic Gains from Gender Equality in Nordic Countries The Nordic countries – Denmark, Finland, Iceland, Norway and Sweden – have moved further along the path to gender equality than most OECD countries.

Unfortunately, there is no public information to know which countries voted against and which in favour. That would significantly facilitate this case study. For six years, 21 out of 27 member states ratified the Convention (March 2023). Therefore, the qualified majority should have been reached without complications. Nevertheless, the matter has been more complex. For example, in the case of Poland, which is a party to the Istanbul Convention, the chance that it would vote in favour of EU accession of the Convention in the Council seems impossible. The Convention was ratified by Poland when the more liberal and pro-democratic party was in power. The current government (and also the parliamentary majority) is regarded as populists in power that are constantly restricting the scope of women’s rights.

The Polish ministry of health resolution setting up the so-called register of pregnancies; cf. Rozporządzenie Ministra Zdrowia z dnia 3 czerwca 2022 r. zmieniające rozporządzenie w sprawie szczegółowego zakresu danych zdarzenia medycznego przetwarzanego w systemie informacji oraz sposobu i terminów przekazywania tych danych do Systemu Informacji Medycznej (Dz.U. 2022 poz. 1296)

The Istanbul Convention, in a simplified way, is about gender equality. Right-wing, conservative populist parties are reluctant to implement feminist policies.

A Gwiazda, ‘Right-wing populism and feminist politics: The case of Law and Justice in Poland’ [2021] 42(5) International Political Science Review, 580

I have presented why unanimity is extremely difficult to achieve under the current political context, but the social need to conclude the Istanbul Convention is urgent. Violence against women is estimated to affect 1 in 3 women in the EU.

International Women’s Day 2022: Commission proposes EU-wide rules to combat violence against women and domestic violence <https://ec.europa.eu/commission/presscorner/detail/en/ip_22_1533> accessed 26 November 2022

The EU constitutional crisis has resulted in an increasing amount of Eurosceptics (like in one very distinct situation, Brexit);

Hanspeter Kriesi, ‘Backlash politics against European integration’ (2020) 22(4) The British Journal of Politics and International Relations, 693

The Council and Commission should remember that populism fails to respond to global challenges which have to inevitably come.

A Śledzińska-Simon (n 94)