Select Committee on European Scrutiny Thirty-Second Report


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

Legal baseArticle 308 EC; consultation; unanimity
DepartmentWork and Pensions
Basis of considerationMinister's letter of 29 September 2004
Previous Committee ReportHC 42-xxx (2003-04), para 6 (9 September 2004)
Discussed in Council4 October 2004
Committee's assessmentLegally important
Committee's decisionNot cleared pending evidence session with Minister

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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