6 European Agency for Safety and Health
at Work
| (25613)
9050/04
COM(04) 50
| Commission Communication on the evaluation of the European Agency on Safety and Health at Work accompanied by a draft Council Regulation amending Regulation (EC) No. 2062/94 establishing a European Agency for Safety and Health at Work
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| Legal base | Article 308 EC; consultation; unanimity
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| Department | Work and Pensions
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| Basis of consideration | Minister's letter of 5 August 2004
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| Previous Committee Report | HC 42-xxii (2003-04), para 11 (9 June 2004)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally important
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| Committee's decision | Not cleared; further information requested
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Background
6.1 The European Agency for Safety and Health at Work (the Agency)
was set up by Regulation (EC) No. 2062/94[7]
and began work in 1996. The Agency provides technical and economic
information about health and safety at work. The information
is provided to Member States, the Commission, bodies representing
employers and employees and businesses. The Agency organises
the annual European Health and Safety Week and a special scheme
to support small and medium-sized enterprises (SMEs). It is based
in Bilbao.
6.2 The Agency has an Administrative Board comprised
of three representatives from each Member State (one representing
the Government, one employers' organisations and one employees'
organisations) and three representatives of the Commission. With
the accession of the new Member States on 1 May, the Board will
have 78 members.
6.3 Article 137 (1) of the EC Treaty provides for
the Community to support and complement Member States' activities
in, among other things, improvement of the working environment
to protect workers' health and safety. Article 137(2) empowers
the Council to adopt measures to encourage cooperation between
Member States through initiatives to improve knowledge, developing
exchanges of information and best practices, promoting innovative
approaches and evaluating experiences.
6.4 Article 308 of the Treaty empowers the Council
to adopt measures for which there is no other legal base and which
are necessary to attain, in the course of the operation of the
common market, one of the objectives of the Community.
6.5 Article 308 was cited as the legal basis for
the Regulation which created the Agency in 1994. At that time,
the Treaty did not contain what is now in Article 137.
6.6 The document includes a Communication from the
Commission and the draft of a Regulation to amend the Regulation
of 1994 which set up the Agency.
6.7 The proposed amendments would:
- clarify the Agency's objectives
and tasks;
- reform the constitution of the Agency's Board
and Bureau;
- add a specific requirement for competent national
authorities to take account of the views of social partners; and
- reinforce cooperation with other Community bodies
and, in particular, the European Foundation for the Improvement
of Living and Working Conditions (the Dublin Foundation).
6.8 Most of the proposed amendments affect the management
of the Agency. Notably, a new Governing Board would replace the
Administrative Board and concentrate on the strategic management
of the Agency. The Board's membership would, however, continue
to comprise three representatives of each Member State and of
the Commission. The Agency's Bureau would be given a legal personality
and have only eight members. The Board would be able to delegate
to the Bureau the exercise of all its functions except those expressly
reserved to the Board, such as approval of the work programme
and budget.
6.9 The Minister of State for Work at the Department
for Work and Pensions (Jane Kennedy) told us that the Government
generally welcomes the proposed amendments, which have no major
policy implications.
6.10 Commenting on the legal base for the draft Regulation,
the Minister said that the Government believes that Article 137(2)
of the Treaty offers a more satisfactory legal base than Article
308. It would try to persuade the Commission and other Member
States that the former should be used. She added:
"[If these attempts prove unsuccessful,] we
would therefore seek to have a Declaration inserted in the footnote
to the amending regulation indicating that we would not regard
continuing use of Article 308 as setting a precedent for its use
either generally, or in relation to future proposals in respect
of the Agency."
6.11 When we considered the document in June, we
concluded that the proposed amendments were reasonable. But we
shared the Minister's concern about the proposal to cite Article
308 EC as the legal base for the draft Regulation. In our view,
this raised a matter of legal principle and we were all the more
concerned about it because this was not an isolated case. Despite
the Government's and our clear view to the contrary, Article 308
EC was used as the legal base for reforms to the management of
the European Centre for the Development of Vocational Training.[8]
6.12 A Declaration of the kind to which the Minister
refers would not cure the defect in the legal basis of the proposal.
Moreover, we could not see the case for accepting such a compromise
on an issue of legal principle. We decided, therefore, to hold
the document under scrutiny pending the outcome of the Government's
discussion with the Commission and other Member States about the
legal base.
The Minister's letter
6.13 In her letter of 5 August, the Minister tells
us that she would be particularly cautious about the use of Article
308 EC if it were being proposed as the legal base for a major
new piece of legislation. But, she says, in this case:
"it is simply being used as a basis for a fairly
low key amendment to the regulation giving continuing life to
the Bilbao Agency.
"At the Social Questions Working Group on 14
July, there was unfortunately no widespread body of support among
other Member States for an alternative Article 137 legal base,
meaning the UK is isolated in pressing for this approach. Neither
the Commission or [sic] Council supported its use either and the
Presidency is pressing for progress.
"In these circumstances, I do not feel that
the UK can realistically continue to oppose [the] use of the Article
308 legal base. We would therefore seek to have a Declaration
inserted in the footnote to the amending regulation indicating
that we would not regard continuing use of Article 308 as setting
a precedent for its use either generally, or in relation to future
proposals in respect of the Agency…."
Conclusion
6.14 One of the European Union's objectives,
according to Article 2 EU, is to maintain and develop the Union
as an area of freedom, security and justice. Fundamental to the
establishment of such an area is respect for the rule of law.
It is essential, therefore, that in proposing and approving legislation
the Commission and Council should act and be seen to act lawfully.
It is common ground between the Government and ourselves that,
because Article 137 EC is available, the legal criteria for the
use of Article 308 EC as the legal base for the proposed Regulation
would not be satisfied. Accordingly, until we are provided with
a satisfactory explanation why Article 137 EC is not a suitable
legal base, we see no grounds to depart from the conclusion we
reached in June. We ask the Minister, therefore, to press this
issue of principle in the Council's further discussion of the
draft Regulation or to seek a satisfactory legal justification
for the use of Article 308 EC. Meanwhile, we shall keep the
document under scrutiny.
7 OJ No. L 216, 20.8.94, p.1. Back
8
(25350) 6030/04; see HC 42-xii (2003-04), para 2 (10 March 2004);
HC 42-xvii (2003-04), para 2 (21 April 2004); and HC 42-xx (2003-04),
para 13 (18 May 2004). Back
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