11 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 29 September 2004
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| Previous Committee Report | HC 42-xxx (2003-04), para 6 (9 September 2004)
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| Discussed in Council | 4 October 2004
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| Committee's assessment | Legally important
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| Committee's decision | Not cleared pending evidence session with Minister
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Background
11.1 The European Agency for Safety and Health at Work (the Agency)
was set up by Regulation (EC) No. 2062/94.[25]
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.
11.2 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.
11.3 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) EC 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.
11.4 Article 308 EC 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.
11.5 Article 308 was cited as the legal basis for
the Regulation which created the Agency in 1994. At that time,
the EC Treaty did not contain what is now in Article 137.
11.6 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.
11.7 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).
11.8 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.
11.9 The Minister of State for Work at the Department
for Work and Pensions (Jane Kennedy) told us that the Government
generally welcomes the proposals, which have no major policy implications.
11.10 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, and would try to persuade the Commission
and other Member States that the former should be used. She added
that, if these attempts proved 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...."
11.11 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.[26]
11.12 A Declaration of the kind to which the Minister
referred 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.
11.13 In response to our Report, the Minister told
us in her letter of 5 August 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 said,
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 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…."
11.14 When we again considered the proposal in September,
we noted that 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. We also noted
that 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 are not satisfied. Accordingly, we concluded that,
until we were provided with a satisfactory explanation why Article
137 is not a suitable legal base, there were no grounds to depart
from the view we had taken in June. We asked 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. Meanwhile, we kept the document
under scrutiny.
The Minister's letter
11.15 In response to our further Report, the Minister
tells us in her letter of 29 September that:
"Throughout [the] negotiations we have pressed
the case that the Article 308 legal base should be replaced by
Article 137. However, no Member State has stood with us on this
issue. The Employment, Social Policy, Health and Consumer Affairs
Council on 4 October will consider draft directives on working
time, conditions for temporary agency workers, and equality of
access to goods. I believe that we should concentrate our efforts
and resources on these negotiations, all of which concern policies
of significant importance to the United Kingdom."
The Minister adds that the Government would "puzzle"
and "irritate" other Member States if it maintained
an isolated stand against the Regulation. This would be contrary
to the United Kingdom's wider aim. She continues:
"Given these considerations, the Government
has decided that on balance it is better to join the consensus
to agree the regulation on the terms that the other Member States
have accepted, and lift the Parliamentary Scrutiny Reserve. Given
the Committee's reservations about the use of Article 308 in general,
and its continued use for this Agency in particular, I fully understand
that this will be disappointing news. Nevertheless, I hope that
you will understand how the need to focus on substantial policy
issues at Council has led to this decision."
11.16 Finally, the Minister assures us that the Government
will continue to make a strong challenge to the use of Article
308 where it appears inappropriate as the legal base for future
proposals.
The Council of 4 October
11.17 At the meeting of the Council on 4 October,
the Government over-rode the scrutiny reserve resolution and the
proposed Regulation was adopted.
Conclusion
11.18 We are grateful to the Minister for the
explanations she has given us about the negotiations on the legal
base for this proposal. We also recognise the difficulties for
the Government where it is isolated in the consideration of one
measure and there are other proposals, of major importance, for
consideration at the same meeting.
11.19 The content of this Regulation is uncontroversial
and not of major importance. That is not, however, a sufficient
justification for enacting it on a legal base which is, as we
understand it, unlawful because the EC Treaty has provided an
appropriate alternative in Article 137. We have not seen a reasoned
case for the unwillingness of other Member States and the Commission
to depart from the use of Article 308. Moreover, in our view the
Government could not properly give its agreement to the proposed
legislation when, as the Minister had recognised throughout, it
has an inappropriate legal base. Accordingly, we invite the Minister
to give us oral evidence on these questions. Meanwhile, we shall
not clear the document.
25 OJ No. L 216, 20.8.94, p.1. Back
26
(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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