Letter forwarded to the Committee by the
Rt Hon Jane Kennedy MP, Minister for Work
When I gave oral evidence to your Committee
on 3 November about my reasons for applying a scrutiny override
to the above 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 its 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
opt to 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 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.
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