2 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 proposal for a 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 | Oral evidence from the Minister on 3 November 2004 and Minister's letter of 29 November 2004
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| Previous Committee Report | HC 42-xxii (2003-04), para 11 (9 June 2004), HC 42-xxx (2003-04), para 6 (9 September 2004) and HC 42-xxxii (2003-04), para 11 (13 October 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 | For debate in European Standing Committee B
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Background
2.1 The European Agency for Safety and Health at Work (the Agency)
was set up by Regulation (EC) No. 2062/94.[3]
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, 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.
2.2 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.
2.3 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, develop
exchanges of information and best practices, promote innovative
approaches and evaluate experiences.
2.4 Article 308 of the EC 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.
2.5 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.
2.6 The document sets out the Commission's proposal
for a Regulation to amend the Regulation of 1994 which set up
the Agency. The amendments:
- 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).
2.7 Most of the amendments affect the management
of the Agency. Notably, a new Governing Board is to replace the
Administrative Board and concentrate on the strategic management
of the Agency. The Board's membership is to continue, however,
to comprise three representatives of each Member State and of
the Commission. The Agency's Bureau is given a legal personality
and is to have only eight members. The Board is to 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.
2.8 The Minister of State for Work at the Department
for Work and Pensions (Jane Kennedy) told us in May that the Government
generally welcomed the proposals, which had no major policy implications.
She also told us, however, that the Government believed that Article
137(2) of the EC Treaty offered a more satisfactory legal base
than Article 308, and that it 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 … 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..."
2.9 When we considered the document in June, we concluded
that the proposed amendments were reasonable. But we shared the
Minister's concern about the citation of Article 308 EC as the
legal base for the measure. 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.[4]
2.10 In our view, a Declaration of the kind to which
the Minister referred would not cure the defect in the proposed
legal basis. 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.
2.11 In response to our Report, the Minister told
us in her letter of 5 August 2004 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…"
2.12 When we again considered the proposal in September,
we noted that one of the European Union's objectives, according
to Article 2 of the EU Treaty, 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 was common ground between
the Government and ourselves that, because Article 137 of the
EC Treaty was available, the legal criteria for the use of Article
308 as the legal base for the proposed Regulation were not satisfied.
Accordingly, we concluded that, until we were provided with a
satisfactory explanation why Article 137 was 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.
2.13 In response to our further Report, the Minister
told 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 added 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 continued:
"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."
2.14 At the meeting of the Council on 4 October,
the Government over-rode the scrutiny reserve resolution and the
Regulation was adopted.
2.15 When we considered the matter again on 13 October,
we recognised the difficulties for the Government when it is isolated
in the consideration of one measure and there are other proposals,
of major importance, for consideration at the same meeting.
2.16 We noted that the content of this Regulation
was uncontroversial and not of major importance. That was not,
however, a sufficient justification for adopting it on a legal
base which was, as we understood it, unlawful because the EC Treaty
has provided an appropriate alternative in Article 137. We had
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 amending Regulation when, as the Minister
had recognised throughout, it had an inappropriate legal base.
Accordingly, we invited the Minister to give us oral evidence
on these questions. Meanwhile, we kept the document under scrutiny.
The Minister's oral evidence
2.17 The Minister appeared before us on 3 November
to give her oral evidence. The Minutes of Evidence are annexed
to this Report.[5]
2.18 In answering a question about why the Government
had agreed to the adoption of the Regulation by the Council on
4 October, the Minister told us that no other Member State shared
the United Kingdom's doubts about the use of Article 308 of the
EC Treaty as the legal base for the Regulation. The Government
had faced a choice between blocking the proposal and joining the
consensus. As a matter of political judgement, the Government
decided not to block it, taking into account the need to make
progress on other proposals on the agenda which were of greater
political and economic importance (Q1).
2.19 In response to our question whether the Minister
agreed with the view of other Member States about the appropriateness
of using Article 308, we were told that the view of the lawyers
of the Health and Safety Executive was that Article 137 was the
correct legal base and that the Department for Work and Pensions
was "completely at one" with us on that issue (Q4).
2.20 We referred the Minister to the Foreign Secretary's
letter of 2 March 2004, in which he told us that the Government
would support the use of Article 308 only in cases which met the
requirements for its use; his assurance was not qualified by any
reference to political considerations. In October, however, the
Minister had agreed to the Regulation despite the Government's
unambiguous view that Article 308 was not the lawful legal base
for it. We asked the Minister, therefore, if she would refer the
matter to the European Court of Justice under Article 230 of the
EC Treaty (Q6). The Minister told us that she had been aware of
the contents of the Foreign Secretary's letter. She did not wish
to give a snap answer to the question about making a reference
to the European Court of Justice, but if pressed for an immediate
reply, she would say that the Government would not go to the Court.
She would write to us about the issue (Q26).
2.21 The Minister told us that she agreed that it
is essential for the Commission in proposing legislation and for
the Council in adopting it to act lawfully (Q10).
2.22 In response to the question whether it was
lawful for the Council to adopt the Regulation (Q13), the Minister
told us that:
"The advice I have received from legal
advisers to the Health and Safety Executive, even as late as yesterday,
was that 308 was not appropriate in this case and that Article
137 would have provided a more sure legal basis for this particular
regulation. I cannot put it any more strongly than that."
In reply to further questioning about the lawfulness
of the Council's action (Q14 and Q15), the Minister said that
it was the view of the Government, and of the legal advice it
had received, that:
"Article 308 was not necessary to be
used in this case."
2.23 We also asked the Minister why Article 137 of
the EC Treaty would not have been an adequate legal base for the
Regulation (QQ18-20). She told us that the other Member States
and the Commission had taken the view that, because the Agency
performs an advisory role, rather than a regulatory one, Article
137 would not be sufficient; but the Government had not thought
that the Agency's role was purely advisory and had regarded Article
137 as appropriate.
The Minister's letter of 29 November
2.24 In her letter to us of 29 November, the Minister
says:
"When I gave oral evidence to your Committee
on 3 November about my reasons for applying a scrutiny override
to [this] proposal, I promised to write to you about the lawfulness
of the Article 308 EC legal base used for the amendment of the
Agency's founding regulation and whether the Government would
seek to raise the matter with the European Court of Justice.
"The UK view was that Article 137 EC
was the most appropriate legal base for the proposed amendment.
However, we always recognised that there were counter arguments
in favour of the use of Article 308 EC — for example, the
tripartite nature of the Agency. We were unable to convince the
Commission or any other Member State that our legal view was to
be preferred.
"There was a positive argument in favour
of using Article 308 EC in terms of the purposes of the Article.
It is undeniable that the Agency does very important work in raising
the standard of health and safety across Europe consistent with
the objectives specified in Article 136 EC to which Article 137
EC refers. In my letter of 29 September I described how the Agency's
work furthers the objectives of the Common Market:
'… an efficiently functioning Agency does very
important work via the dissemination of information and good practice
in driving up the standard of health and safety in some of the
poorer and new entrant Member States that lack the resource and
infrastructure of the older community members. This contributes
to achieving the level playing field in the Common Market and
benefiting its citizens, including UK nationals who work on the
continent.'
"Following the oral evidence session
with the Committee, I asked officials to carefully re-examine
the Article 308 issue. This process involved consultation with
Cabinet Office Legal Advisers. We always recognised that there
were counter arguments in favour of the use of Article 308 EC
— for example the tripartite nature of the Agency —
and during these discussions it emerged that the unsuitability
of Article 308 was not as clear cut as our original legal advice
had led us to believe. Taken with the linkage of the Agency's
work to the Common Market objectives, it is not definitive that
use of the Article 308 EC legal base was unlawful. Accordingly,
I would be hesitant to initiate a challenge at the European Court
of Justice."
Conclusion
2.25 We are grateful to the Minister for her oral
evidence and her letter of 29 November. It seems to us, however,
that her letter offers only one new argument why Article 137 of
the EC Treaty would not be the appropriate legal base for the
amending Regulation: "the tripartite nature of the Agency".
The Minister does not explain why this might call into question
the use of the Article. The Board of the Agency is comprised of
one representative of the Government of each Member State, one
representative of employers' organisations in each Member State,
one representative of employees' organisations in each Member
State and three representatives of the Commission. This is the
only sense, so far as we can see, in which the Agency has a "tripartite
nature".
2.26 Assuming that it is this to which the Minister's
letter refers, we can see nothing in Article 137(2) to prevent
the use of that provision as the legal base for the Regulation.
Article 137(2)(a) provides that, for the purpose of the Community
supporting and complementing the activities of the Member States
in the fields specified in Article 137(1), the Council:
"may adopt measures designed to encourage
cooperation between Member States through initiatives aimed at
improving knowledge, developing information and best practices,
promoting innovative approaches and evaluating experiences, excluding
any harmonisation of the laws and regulations of the Member States."
It appears to us that the Agency is an initiative
designed to encourage such cooperation between Member States.
Since Article 137(3) EC makes express provision for the involvement
of management and labour in the implementation of Directives adopted
under Article 137(2), it seems to us unlikely that the tripartite
nature of the Agency is a factor which prevents the use of Article
137 as the legal base in this case.
2.27 Apart from "the tripartite nature of
the Agency", we have been offered only one other explanation
for the view of the Commission and other Member States that Article
137 would not be appropriate: that the Agency has an advisory,
not a regulatory role. But we can see nothing in Article 137 which
would rule out the use of that Article as the legal base solely
because the Agency is not a regulatory body.
2.28 We note that it is now the Government's
view that "the unsuitability of Article 308 was not as clear
cut as our original legal advice had lead us to believe".
But we also note that this revised view was not adopted until
after the Minister had overridden the parliamentary scrutiny reserve.
2.29 It has been our opinion, throughout our scrutiny
of the proposal, that the amendments proposed in the document
are reasonable. That is not the issue. Our concern is that the
Council should act lawfully. We see it as our duty to alert the
House if — as in this case — we consider that there
are grounds to believe that the Council has not acted lawfully.
Accordingly, we recommend the document for debate in European
Standing Committee B.
3 OJ No. L 216, 20.8.94, p.1. Back
4
(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
5
QQ1-27. Back
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