2. We consider that the
following raises questions of legal and political importance,
but make no recommendation for its further consideration at this
stage:-
HOME OFFICE
(17832)
5259/97
COM(96)615
| Draft regulation establishing a European Monitoring Centre for Racism and Xenophobia.
|
| Legal base:
| Article 235; unanimity.
|
Introduction
2.1 The Consultative
Commission on Racism and Xenophobia set up by the Corfu European
Council presented a report to the Florence European Council in
June 1996 recommending the establishment of a European Monitoring
Centre. This Commission proposal takes forward that recommendation.
According to the Secretary of State for the Home Department (Mr
Howard) in his Explanatory Memorandum (dated 10 February), the
recommendation suggested that the Centre should have a wide remit
to gather and analyse information on all manifestations of racism
and xenophobia, including those linked to racially motivated crime.
The draft Regulation
2.2 The prime objective
of the Centre, according to the draft Regulation, Article 2, would
be to provide the Community and its Member States with objective,
reliable and comparable data on racism, xenophobia and anti-semitism
"in order to help them when they take measures or formulate
courses of action within their respective spheres of competence".
2.3 The Centre would
study the extent of these phenomena, analyse causes, consequences
and effects, in relation to seven fields of interests in particular,
and would examine examples of good practice in dealing with them.
The fields identified are:
(a) free movement
of persons within the Community;
(c) the media
and other means of communication;
(d) education,
vocational training and youth;
(f) free movement
of goods; and
2.4 The activities which
the Centre would undertake, apart from collecting and analysing
data from a range of sources, would include developing co-operation
between bodies handling and supplying information, including arrangements
for concerted use of databases. Article 5 deals with the protection
and confidentiality of personal data and states that the Centre
"shall refrain from any activity which concerns specific
and named cases". It would also set up an information network,
carry out and stimulate scientific research, organise and facilitate
discussions of existing advisory bodies, formulate conclusions
and recommendations for the Community and the Member States and
publish an annual report.
2.5 In its Explanatory
Memorandum, the Commission says on its choice of legal base that
"None of the provisions in the present proposal for a Regulation
gives grounds for thinking that the Centre might have a mandate
to help the Community take measures which are not within these
fields of [the Community's] jurisdiction". It lists the
relevant Articles against the fields in which the Centre will
be active as follows:
(a) free movement
of persons, for example the right to move to, and to stay and
work in, the territory of a Member State (Articles 6, 7a, 8a,
48, 52 and 59 of the EC Treaty);
(b) employment
and social exclusion (Article 118);
(c) education
and vocational training (Articles 126 and 127);
(d) free movement
of goods (Articles 30 to 36), more especially the import and distribution
of products with racist connotations; and
(e) culture (Article
128).
2.6 Article 7 of the
draft provides for the Centre to work in conjunction with other
international organisations and for the Community to enter into
an agreement, on behalf of the Centre, with the Council of Europe.
In its Explanatory Memorandum the Commission says:
"It is precisely
because of this special feature - that the work has to be carried
out for the benefit of the Member States and in co-operation with
the Council of Europe in particular - that it is necessary to
use Article 235. It is worth pointing out that this Article has
already been used as a legal basis for a wide range of organisations,
such as the European Monitoring Centre for Drugs and Drug Addiction
and the European Agency for Health and Safety at Work.
"The choice
of Article 235 as the legal basis reflects the Centre's objectives.
The point is not to take specific measures to combat racism and
xenophobia, nor to assign the Centre any political responsibility
in the field; nor is it to modify the system for protecting human
rights in the Community or to make any major change to the institutional
system in the Community or any of its Member States.
"The monitoring
work to be assigned to the Centre does not fall within the sphere
of co-operation between the Member States in terms of justice
and home affairs. In other words, arrangements for setting up
the Centre could not have been made under Title VI of the TEU[7]".
The Government's view
2.7 In his Explanatory
Memorandum the Home Secretary says:
"The Government
has played a full part in discussions at the European level, and
in wider international fora, on the issues of racism and xenophobia.
It has supported a number of resolutions of the Community and
its Member States in this area. It believes that there are benefits
to be derived from the exchange of information and experience
in this area. The Prime Minister joined with the other heads
of state and government at Florence to agree in principle to the
establishment of the European Monitoring Centre.
"The Government's
view is that, to be effective, a European Monitoring Centre needs
to be able to look across a wide range of activity. The Commission's
proposal is that the legal base of the Monitoring Centre should
be Article 235. They have therefore listed as areas in which
the Centre would take an interest areas covered by the EC Treaty.
The Government considers that the use of Article 235 is inappropriate
because matters of racism and xenophobia lie outside the Community
competence. The Government also believes that a Monitoring Centre
whose remit is limited by the boundaries of the EC Treaty is unlikely
to be properly effective. In particular it considers that a Monitoring
Centre set up on an EC Treaty legal base would not be able to
collect information on racially motivated crime, including especially
racially motivated violence. This, however, is one of the areas
which is a source of great concern in Member States. The Government
is not, therefore, convinced that the Commission's proposal will
produce a fully useful Centre. The Government's preference at
this stage would be for an international agreement outside the
EC Treaty.
"As far as the
free movement of persons within the Community is concerned, the
United Kingdom takes the view that the Treaty rights of free movement
do not apply to third-country nationals[8].
The UK could therefore agree to free movement being identified
as a particular field of interest for the Monitoring Centre if
what is intended is an examination of the effect of racism and
xenophobia on EU citizens from the ethnic minorities but not if
it were intended to cover a study of the effects of racism and
xenophobia on the situation of third-country nationals resident
in a Member State of the Community".
2.8 In a speech to the
Third International Conference of the Academic Response to Anti-Semitism
in Europe on 27 January 1997, the Minister of State at the Home
Office (Mr Kirkhope) said that the Government was continuing to
discuss with the other Member States the question of finding a
legal base for the Centre which would allow it to provide wide-ranging
and useful information.
2.9 When we were considering
the draft Decision to designate 1997 as European Year against
Racism, which the Commission proposed should be based on Article
235, Mr Kirkhope told us in a letter of 12 July 1996 that the
Council Legal Service had advised that Article 235 could not be
used for actions where the principal objective was the fight against
racism and xenophobia. The Minister said that, instead of the
Decision, the Presidency had proposed a mixed Resolution and that
this was acceptable to the United Kingdom. As a Resolution has
no legal status and the compromise was acceptable to all, we cleared
the document without entering further into the question of the
legal base proposed for the draft Decision[9].
Conclusion
2.10 The Government's
objection to this proposal was not fully explained in public before
the Minister's speech and was open to the interpretation that
it was solely connected with its wider concern about the insertion
into the Treaty of an Article on discrimination, which has been
under discussion in the IGC, and to which the Commission is apparently
committed[10].
The Minister spelt out, and the Home Secretary has now clarified
in his EM, that the Government not only objects on legal grounds
to the use of Article 235, but also argues that the Commission
has unnecessarily limited the role of the European Monitoring
Centre "in an effort to squeeze it into the EC Treaty framework[11]".
2.11 The Commission
has not addressed this point in its Explanatory Memorandum, nor
do we have an authoritative account of the views of the other
Member States. We ask the Government to provide us with this further
information, including an indication of what other course is now
open to those favouring the early establishment of the Centre
if the UK continues to oppose this draft Regulation. Is
it now likely that no action will be taken until the question
of the insertion of an anti-discrimination provision into the
Treaty has been resolved, or will an attempt be made to set up
the Centre without an agreed legal base? In the meantime, we
are not clearing the document.
7 Treaty on European Union. Back
8 On this point, see our Twenty-ninth Report of 1993-94; see HC 48-xxix (1993-94) External Frontiers, Visas for Nationals of Third Countries, Uniform Visa Format and related documents (2 November 1994). Back
9 (16934) 4581/96; see HC 51-xi (1995-96), paragraph 8 (28 February 1996) and HC 51-xxvi (1995-96), paragraph 13 (17 July 1996). Back
10 Commissioner Flynn gave this assurance to the European Parliament on 29 January 1997. The draft text proposed for the new Article, 6a, reads "Within the scope of application of this Treaty and without prejudice to any special provisions contained therein, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to prohibit discrimination based on sex, racial, ethnic or social origin, religious belief, disability, age, or sexual orientation" (CONF 2500/96 of 5 December 96). Back
11 Speech to the Third International Conference of the Academic Response to Anti-Semitism in Europe. Back
|
