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2005 06 28 * the decision

Sommario

Caso :  933/2004/JMA 

Aperto(a) il 17-mag-2004 - Decisione del 28-giu-2005

Istituzione(i) interessata(e) :  Commissione delle Comunità europee

Ambito(i) giuridico(i) :  Relazioni esterne

Tipi di presunta cattiva amministrazione – (i) violazione di, o (ii) violazione degli obblighi connessi a : Legalità (scorretta applicazione di norme sostanziali e/o procedurali) [Articolo 4 CEBCA]

Strasbourg, 28 June 2005 

Dear Mr T.,

On 26 March 2004, you lodged a complaint with the European Ombudsman against the European Commission. Your complaint concerned the application of the "human rights clause" included in Article 1 of the Co-operation Agreement between the European Community and the Socialist Republic of Vietnam.

On 19 April 2004, you sent me additional information. On 17 May 2004, I informed the President of the European Commission of your complaint and asked him to submit an opinion. On 12 August 2004, I received the Commission's opinion, which I forwarded to you for observations. On 20 October 2004, you submitted your observations on the Commission's opinion.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your case.


THE COMPLAINT 

The facts of the case according to the complainant are, in summary, as follows:

The complainant explained that, as set out in the Commission's 1995 Communication on the inclusion of respect for democratic principles and human rights in agreements between the Community and third countries, the 1996 Cooperation agreement between the European Community and the Socialist Republic of Vietnam [henceforth, the cooperation agreement], incorporated a new Article 1, known as the "human-rights clause". On the basis of this provision, cooperation between the parties was to be based on the respect for human rights and democratic principles, which should become an essential aspect of the agreement.

The complainant stated that, in recent years, a number of serious violations of human rights have been reported in Vietnam. He noted that, as documented by the media and a number of organizations, it is undisputed that the Vietnamese authorities are not respecting human rights. The complainant referred to the Council's 2002 Report on Human Rights, to a number of resolutions passed by the European Parliament, and to public statements made by the Commission. He also quoted different international reports which corroborate the same conclusion, such as the 2003 Human Rights Watch World Report, the 2003 report on Human Rights prepared by the US Department of State, Amnesty International's 2003 report on the situation in Vietnam, and the report “Freedom in the World”, published by Freedom House.

The complainant argued that, on the basis of the human rights clause included in Article 1 of the co-operation agreement, if serious violations of human rights occurred in the country, the Commission should have proposed to the Council that the agreement be suspended. In the complainant's view, the fact that the cooperation agreement does not contain any provision on the suspension of its clauses is immaterial, since the Commission could have proceeded on the basis of existing international law rules, in particular the relevant provisions on the suspension of international treaties (Article 60) contained in the Vienna Convention on the Law of the Treaties. Although the Commission has stated that suspension of an agreement should only be triggered when all alternative means have failed, the complainant considered that, despite the institution's endeavours, no improvement in the situation of human rights in Vietnam has in fact taken place.

The complainant argued that the human rights clause enshrined in Article 1 of the cooperation agreement cannot be construed merely as a generic principle, but rather constitutes a legal obligation binding also upon the Commission. The complainant mentioned a number of written questions addressed to the Commission by different MEPs in which they asked the institution to take the initiative and make a proposal to the Council for the suspension of the cooperation agreement. Regardless of the evidence showing that the Vietnamese authorities are not respecting human rights and that the situation is not improving, the Commission has refused to act so far. The complainant believed that, in view of the factual evidence, the Commission's failure to take appropriate action constitutes an instance of maladministration which the Ombudsman should investigate.

In the light of the available information, the Ombudsman opened an inquiry against the Commission. The allegation on which the Ombudsman asked the Commission to submit an opinion was the following:

The complainant alleges that, in the face of serious violations of human rights by the Republic of Vietnam, the Commission is failing to use its powers to suspend the co-operation agreement between that country and the European Community.

The complainant therefore claims that the Commission should take the necessary steps to suspend the agreement.


THE INQUIRY

The Commission's opinion

In its opinion, the Commission explained that, since the entry into force of the cooperation agreement on 1 June 1996, its policy towards Vietnam has sought to encourage and support progress on human rights and democratisation, and to raise concerns where abuses occur, or where deterioration of the situation has become evident. To this end, the Commission has worked closely with the EU Member States in monitoring human rights developments in the country.
Article 1 of the cooperation agreement constitutes the enabling framework for the Commission to address human rights issues directly with the Government of Vietnam, and to do so through a variety of channels such as the Joint Commission and, since 2003, through the new EC-Vietnam Sub-Group on “Co-operation in the areas of institution building and administrative reform, governance and human rights”.
Complementary to the dialogue on human rights under the cooperation agreement, a human rights dialogue mechanism between the EU Mission in Hanoi and the Government of Vietnam was initiated in 2001. The "EU-Vietnam Dialogue on Human Rights" constitutes a platform to engage Vietnam on sensitive issues. It allows the channelling of EU concerns directly to the Vietnamese authorities in an open and constructive atmosphere. This mechanism was further reinforced in 2003, taking account of the experience gained from other countries. Meetings are held twice a year.
The Commission indicated that both itself and the EU Member States have consistently raised their concerns about the situation of human rights in Vietnam, in particular as regards the restrictions on religious freedom and freedom of expression. The EU has also called for the release of prisoners and detainees held for the peaceful expression of their personal opinion in contravention of international legal instruments to which Vietnam is a party. The EU has also voiced its concern on the vagueness and discretionary application of some Vietnamese laws, and called for their revision. The Vietnamese authorities have been asked to increase transparency in relation to human rights related issues. In this respect, the EU has called for unrestricted access to the country by independent UN monitoring missions, notably the UN Special Rapporteur on Religious Freedom or the UN High Commissioner for Refugees (UNHCR), and by independent NGOs. It has requested the government to allow EU diplomats to visit prisoners of concern, and to monitor the trials of dissidents.
In the Commission's view, a combination of dialogue and cooperation should contribute to an improvement of the human rights situation in Vietnam. This should develop greater tolerance towards dissent and acceptance of different views. The Commission referred to a number of recent statements in that regard, which were annexed to its opinion.
The Commission underlined that its overall human rights policy is to enhance the respect for human rights and the rule of law. In its view, the suspension of the co-operation agreements is an instrument of last resort, which would deprive the EU of the possibility of using EU-funded co-operation programmes to support the reform process in Vietnam, including in the fields of governance, rule of law and human rights. In this respect, the Commission and the EU Member States have declared that they will welcome any possibility to support the Vietnamese government in measures to strengthen governance and public administrative reforms, to improve human rights, to prepare for the signing and implementation of additional international conventions on human rights and in other areas where assistance could be helpful.
The Commission concluded by expressing its sympathy for the complainant's concerns. However, taking account of the overall situation in Vietnam since the signature of the cooperation agreement in 1995 and of the Vietnamese Government’s continued commitment to further progress, the Commission did not consider that it would be appropriate to reach the conclusion that there has been a material breach of the agreement and that the EU co-operation should be halted. The institution underlined that should this situation occur, a decision on the appropriate action to take should be taken in full consultation with both the EU Member States and the European Parliament. The Commission concluded by stating that this type of decision falls within the political responsibility of the Commission and is therefore not subject to administrative review.

The complainant's observations

In his observations on the Commission's opinion, the complainant repeated the allegations made in his complaint. He pointed out that the human rights clause enshrined in Article 1 of the co-operation agreement is not simply, as the Commission seemed to convey, a framework for a dialogue on human rights with the Vietnamese authorities. On the contrary, in his view, the clause should be the basis upon which any such dialogue should move forward. The complainant disputed the Commission's rosy picture of the situation, and pointed out that despite the institution's announced dialogue, ten years after the signature of the cooperation agreement, the situation continues to deteriorate, as illustrated by the massacre of a large number of Vietnamese people during Easter in 2004, or the government's refusal to allow any independent organisation wishing to verify the situation to enter the country.
The complainant noted his disagreement with the Commission's view that the situation was not ripe for exceptional measures such as the suspension of the co-operation agreement while other more flexible options were still available. In his view, the situation of human rights in Vietnam has not improved despite the dialogue with the responsible national authorities put in place by the Commission, and therefore the institution's failure to act could only contribute to prolonging the existing situation. The complainant also rejected the Commission's assumption that the human rights clause was merely a political statement the application of which had to be left to the discretion of the Commission. He argued that, on the contrary, this clause constitutes a legal provision, and must therefore be subject to a legal control by monitoring bodies such as the Ombudsman.


THE DECISION

1 The Commission's alleged failure to suspend the cooperation agreement

1.1 Article 1 of the 1996 Cooperation agreement between the European Community and the Socialist Republic of Vietnam [henceforth, the cooperation agreement], provides for cooperation between the parties to be based on the respect for human rights and democratic principles, which should become an essential aspect of the agreement. This provision is known as the "human-rights clause". The complainant alleges that , in the face of serious violations of human rights by the authorities of Vietnam, the Commission failed to use its powers in order to suspend the co-operation agreement. He considers that the institution could have done so in accordance with existing international law. In support of his allegation, the complainant notes that a number of surveys prepared by the EU, international organisations and private groups have reported serious human rights violations in the country.

1.2 The Commission argues against the suspension of the cooperation agreement taking account of the overall situation in Vietnam, and of the Vietnamese Government’s commitment to further progress on human rights issues. The institution takes the view that the improvement of the situation can be achieved through a combination of dialogue and cooperation.
The Commission does not consider that there has been a material breach of the cooperation agreement, which should lead to its suspension. In its view, this response should only be used as a last resort, since it would deprive the EU of the possibility of using EU-funded co-operation programmes to support the reform process in Vietnam.
In the Commission's view, if a situation occurred in which there was a material breach of the cooperation agreement, a decision on the appropriate response should be made in full consultation with EU Member States and the European Parliament. The Commission argues that this type of decision falls within the political responsibility of the Commission and therefore, is not subject to administrative review.

1.3 The Ombudsman considers it useful to first examine the nature and the scope of the so-called human rights clause enshrined in Article 1 of the cooperation agreement between the European Community and the Socialist Republic of Vietnam(1). This provision reads as follows:
"Respect for human rights and democratic principles is the basis for the cooperation between the Parties and for the provision of this Agreement, and it constitutes an essential element of the Agreement".
It is worth noting, from the outset, that this type of clause appears to have been inspired by the 1995 Commission Communication on the inclusion of respect for democratic principles and human rights in agreements between the Community and third countries(2). The Council endorsed the practice in its conclusions of 29 May 1995, which has been subsequently upheld by the Community courts(3). Whereupon, the European Union has made human rights an essential component in trade and cooperation agreements with third countries, and a specific clause, along the lines of the above Article 1, has been inserted in the text of new agreements. On the basis of that clause, respect for fundamental human rights and democratic principles constitutes an essential element of the agreement, underpinning the internal and external policies of the parties. As a result of this pre-eminent position, a breach of that clause may lead to the agreement's suspension.

1.4 As regards the question of whether the Commission’s activity in relation to the human rights clause could give rise to an instance of maladministration, the Ombudsman notes that the Community courts have held that an agreement concluded by the Council with a non-member country pursuant to the provisions of the EC Treaty is an act of a Community institution and, therefore, the provisions of such an agreement form an integral part of Community law(4). The Ombudsman therefore considers that the human rights clause, as part of a cooperation agreement concluded with a non-member country, is binding on the Commission and that acts or omissions of the Commission in relation thereto could, therefore, constitute instances of maladministration.
The Ombudsman points out in this context that an investigation into possible maladministration does not limit the Commission’s political responsibility to the European Parliament for the application of the human rights clause.

1.5 The Ombudsman will now examine the human rights clause with a view to considering the obligations of the Commission as regards the circumstances in which that provision should be invoked in order to suspend the cooperation agreement.
The Ombudsman notes that the text of the cooperation agreement is silent on this point. No reference to the implementation of the human rights clause of Article 1, or indeed to the mechanisms for the suspension of the cooperation agreement, figures among its provisions or recitals.
The EC Treaty does not appear to furnish any further guidance on this matter. The relevant EC provisions involving the conclusions and/or the suspension of international agreements signed between the Community and a third State, namely Article 300 §§ 1-2 EC, provide that the Commission must first submit recommendations to the Council for the opening of negotiations, if the Treaty provides a sufficient legal basis for the proposed action. The Council must then authorise the Commission to carry out such negotiations, which must be pursued on the basis of its instructions. The conclusion of the agreement belongs to the Council, acting by a qualified majority, on a proposal from the Commission. The same procedure applies for the suspension of the agreement. The European Parliament should in all cases be fully informed of the decision taken(5). It therefore appears that the above provisions merely define the actors and the institutional procedure to be followed, without setting out in detail any further criteria for the Commission's action.
The Ombudsman has carefully considered the complainant's suggestion that, in the absence of any indication in the text of the cooperation agreement, the Commission should have resorted to international law and made use of Article 60 of the Vienna Convention on the Law of the Treaties(6). The Ombudsman is mindful of the fact, however, that this provision does not impose any obligations on the aggrieved party, but merely entitles that party to terminate or suspend the agreement in the event of a material breach, which is defined as a violation of a provision essential to the accomplishment of the object or purpose of the treaty(7).

1.6 The absence of any binding rules to define the Commission's scope of powers under Article 1 of the cooperation agreement leads the Ombudsman to conclude that the Community legislator seemingly intended to confer a large degree of discretion on the Commission for the interpretation and application of the human rights clause.
As the Ombudsman has already stated, however, the institution or body exercising a discretionary power must remain within the limits of its legal authority. Very broad discretionary powers may exist, but they are always subject to legal limits. The Ombudsman notes in this context that the Commission itself has set out some principles for the operation of the human rights clause in its 1995 communication. The Ombudsman considers that it is appropriate to examine whether the Commission has applied these general principles reasonably in the framework of the cooperation agreement with the Socialist Republic of Vietnam.
Thus, the 1995 communication supports the inclusion of specific clauses in the text of cooperation agreements which, in the event of an instance of violation of human rights, require the parties to hold mutual consultations aimed at examining the situation. Only in cases of "special urgency", should the Union decide immediately to suspend the agreement, or part of it. The communication, however, does not define the nature of such extreme situations. It underlines, however, that the Commission's reply to any breach has to be proportional to the situation in question(8), and accordingly lists, in Annex 2 of the Communication, a number of measures setting out different types of responses.

1.7 The Ombudsman has carefully examined the Commission's response in this case in the light of the above criteria.
From the available information, it appears that the Commission has acknowledged in unequivocal terms that human rights violations have taken place in Vietnam, in particular as regards the restrictions on religious freedom and freedom of expression which have led to many detentions for the peaceful expression of personal opinions, the lack of transparency on human rights issues, and the vagueness and discretionary application of some Vietnamese laws. The Ombudsman notes that, having assessed the situation, the Commission has concluded that the suspension of the agreement would deprive the EU of the possibility of using EU-funded co-operation programmes to support the reform process in the country, and has therefore chosen to pursue the dialogue with the Vietnamese authorities by means of different bodies set out under the cooperation agreement (the new EC-Vietnam Sub-Group on "Co-operation in the areas of institution building and administrative reform, governance and human rights") or through direct contacts involving the EU Delegation in Hanoi ("EU-Vietnam Dialogue on Human Rights").

1.8 Having regard to the above considerations, the Ombudsman finds that the Commission's reasoning for its decision not to trigger the suspension of the cooperation agreement, but instead to make use of measures that it considers to be more proportionate, in accordance with the criteria set out in its 1995 Communication, appears to be reasonable.
The Ombudsman also notes that the Commission has clearly and publicly stated its position, as illustrated by its replies to the several written questions on this matter submitted by different Members of the European Parliament.
The Ombudsman therefore concludes that his inquiry has not revealed an instance of maladministration on the part of the Commissio n. As noted in point 1.4 above, this finding does not limit the Commission's political responsibility to the European Parliament for the application of the human rights clause.

2 The complainant's claim

2.1 The complainant claims that the Commission should take the necessary steps to suspend the agreement.

2.2 In view of the above findings, the Ombudsman does not consider that the complainant's claim can be sustained.

3 Conclusion

On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

P. Nikiforos DIAMANDOUROS


(1) OJ L 136, 07.6.1996, p. 29.

(2) COM (95) 216 of 23 May 1995.

(3) See case C-268/94 Portuguese Republic v Council [1996] ECR I-06177.

(4) Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, par.7; case C-162/96 A. Racke GmbH & Co Hauptzollamt Mainz (reference for a preliminary ruling) [1998] ECR I-3655, par.41.

(5) Article 300 (2) EC: "[T]he signing [...] and the conclusion of the agreements shall be decided on by the Council, acting on a qualified majority on a proposal from the Commission [...].

[T]he same procedure shall apply for a decision to suspend the application of an agreement.

The European Parliament shall be immediately and fully informed on any [such] decision."

(6) United Nations, Treaty Series, vol. 1155, p.331 ( 1155 U.N.T.S. 331, 8 I.L.M. 679).

(7) "Termination or suspension of the operation of a treaty as a consequence of its breach:

(8) "In the Commission's opinion the application of this mechanism comes within the ambit of respect for the principle of proportionality between the breach cited and the degree of reaction. Use of the concept "special urgency" opens an option without creating an obligation and it is in this context that it is for the parties to gauge what measures they should take" ; supra COM (95) 216, p. 7.