3 Financial frameworks for the programme
on security and protection of freedoms |
|(a) Draft Council Decision Prevention, Preparedness and Consequence Management of Terrorism and other Security related risks for the Period 2007-2013 General Programme on Security and Safeguarding Liberties|
(b) Draft Council Decision establishing the specific programme Prevention of and Fight against Crime for the Period 2007-2013, General Programme Security and Safeguarding Liberties
(c) Draft Council Decision establishing the specific Programme on criminal justice as part of the general programme on Fundamental Rights and Justice
|Legal base||(a) Article 308 EC; consultation; unanimity|
(b) Articles 30, 31 and 34(2)(c) EU; consultation; unanimity
(c) Articles 31 and 34(2)(c) EU; consultation; unanimity
|Deposited in Parliament||11 April 2006
|Basis of consideration||EM of 5 May 2006
|Previous Committee Report||None; but see HC 34-iv (2005-06), para 12 (20 July 2005), HC 34-xiv (2005-06), para 21 (11 January 2006), and HC 34-iv (2005-06), para 13 (20 July 2005), HC 34-xv (2005-06), para 17 (18 January 2006)
|To be discussed in Council||Justice and Home Affairs Council 1 June 2006
|Committee's assessment||Legally and politically important
|Committee's decision||Not cleared; further information requested
3.1 The Commission's proposals for a framework programme on "Security
and Safeguarding Liberties" were set out in a communication
which we considered on 20 July 2005 and 11 January 2006. The communication
contained draft proposals for a Council Decision on "Prevention,
preparedness and consequence management of terrorism" and
a draft Council Decision for a programme on "Prevention of
and Fight against Crime". We also considered on 20 July 2005
a Commission communication setting out proposals for a framework
programme on "Fundamental Rights and Justice".
3.2 In our consideration of these proposals, we drew
attention to the reliance on Article 308 EC as the legal base
for the programme on prevention, preparedness and consequence
management of terrorism where we found the reasoning to be "far
from convincing", since we could find no sufficient connection
with the operation of the common market. In our further consideration
of this point on 11 January 2006, we took into account the comments
of the then Minister that Article 308 EC had already been used
as the legal base to make provision for civil protection in the
event of emergencies caused by natural, technological, radiological
or environmental accidents, and that Article 3(1)(u) EC listed
"civil protection" as one of the activities of the Community.
The Minister argued from this that the "consequence management"
part of the programme could be justified under Article 308 EC,
but acknowledged that those parts of the programme relating to
the prevention of terrorism raised "potential issues".
We considered that, whereas an arguable case could be made for
reliance on Article 308 EC in relation to consequence management,
no such case existed in relation to measures for the prevention
3.3 In relation to the draft programme on combating
and preventing crime, we welcomed the emphasis placed by the then
Minister that measures under the programme must be limited to
police and judicial co-operation in relation to projects having
a transnational dimension.
The draft Council Decisions
3.4 The draft Council Decisions announced in the
previous Commission communications are being negotiated in the
Council as a package with a view to their adoption by the Justice
and Home Affairs Council. Earlier versions of two of the draft
Council Decisions (on managing the consequences of terrorism and
on crime prevention respectively) have been considered by us,
but we have not hitherto seen the draft programme on criminal
(A) THE DRAFT COUNCIL DECISION ON THE "PREVENTION,
PREPAREDNESS AND CONSEQUENCE MANAGEMENT OF TERRORISM AND OTHER
SECURITY RELATED RISKS OR THE PERIOD 2007-2013"
3.5 The draft Council Decision is expressed to be
based on Articles 308 EC and 203 EAEC
and provides for a programme to contribute to Member States' efforts
to "prevent, prepare for, and to protect people and critical
infrastructure against security risks, in particular risks linked
with terrorist attacks". The Decision does not, however,
apply to matters covered by other financial instruments, in particular
by the Rapid Response Instrument
in the event of major emergencies.
3.6 The general objectives of the programme are defined
in Article 3 as being to contribute to support for Member States'
efforts to "prevent, prepare for, and to protect people and
critical infrastructure against incidents affecting common security
in particular as a consequence of terrorist attacks". The
programme is expressed as being intended to contribute to ensuring
protection "in the areas such as the environment, public
health, transport, research and technological development and
economic and social cohesion, in the field of security risks within
the area of freedom security and justice".
3.7 Article 4 sets out specific objectives. These
are to "stimulate, promote and develop measures on prevention,
preparedness and consequence management based on a comprehensive
threat and risk assessment aimed at preventing or reducing all
security risks, in particular linked with terrorism". The
provision further provides that, in relation to prevention and
preparedness, the programme aims at "stimulating, promoting
and supporting risk and threat assessments on critical infrastructure
in order to identify possible targets", "promoting and
supporting common operational measures to improve security in
cross-border supply chains", "promoting and supporting
the development of common security standards" and "promoting
and supporting Community wide coordination and co-operation on
protection of critical infrastructure".
3.8 In relation to consequence management, Article
4 further provides that the programme aims at promoting the exchange
of know-how and experience in order to establish best practice
for coordinating response measures and for co-operation "between
various actors of civil protection and security actions",
and at promoting joint exercises and practical scenarios to enhance
coordination and co-operation.
3.9 Article 5 defines the kind of activity which
would be eligible for financial support. Such activities include
projects initiated and managed by the Commission, projects involving
partners in at least two Member States, or at least one Member
State and an acceding or candidate country and national projects
which prepare or complement transnational projects or contribute
to "developing innovative methods and/or technologies with
a potential for transferability to actions at Community level".
3.10 Article 6 concerns access to the programme (with
restrictions on access by "profit-oriented" bodies)
and Article 7 provides for the making of grants and public procurement
contracts. The proposal provides for the Commission to be assisted
by an advisory or management committee and contains the usual
provisions on monitoring and reporting.
(B) THE DRAFT COUNCIL DECISION ESTABLISHING THE "PREVENTION
OF AND FIGHT AGAINST CRIME" PROGRAMME FOR THE PERIOD 2007-2013
3.11 The draft Council Decision is based on Articles
30, 31 and 34(2)(c) EU. It provides for a programme based on the
themes of crime prevention and criminology, law enforcement and
witness and victim protection. Within these themes the programme
is required to contribute to the promotion and development of
"horizontal methods and tools necessary for strategically
preventing and fighting crime", co-operation and coordination
between law enforcement agencies and related bodies and best practices
for the protection of crime victims and witnesses.
3.12 The provisions on the kinds of activity eligible
for support, on access to the programme and the making of grants
or the award of contracts follow the pattern of the draft Council
Decision described above. The draft Council Decision also provides
for the Commission to be assisted by an advisory committee but
also by a management committee, with decisions taken by the Council
acting by qualified majority.
(C) THE DRAFT COUNCIL DECISION "ESTABLISHING
FOR THE PERIOD 2007-2013 THE SPECIFIC PROGRAMME ON CRIMINAL JUSTICE"
3.13 The draft Council Decision is based on Articles
31 and 34(2)(c) EU and provides for a programme having the general
objectives of promoting judicial co-operation, promoting the compatibility
of rules applicable in the Member States as may be necessary to
improve judicial co-operation, improving the exchange of information
and best practice and improving mutual trust "with the view
to ensuring protection of rights of victims and of defendants".
Article 3 sets out some specific objectives, but these are largely
a restatement of the general objectives, although a specific reference
is made to criminal procedure and the exchange of information
through the use of computerised systems. The Article also contains
a reference to promoting "the necessary approximation of
substantive criminal law concerning serious crime or crime with
cross border dimensions", which appears to be inconsistent
with the conditions in the Hague Programme which refer to serious
crime with a cross-border dimension.
3.14 The provisions on eligibility and access to
the programme follow the pattern of the other two draft Council
Decisions. Article 5, which is headed "Target Groups",
states that the programme is destined for "legal practitioners,
representatives of victims assistance services, the national authorities
and the citizens of the Union in general".
As with the other draft Council Decisions, the draft provides
for the Commission to be assisted by both an advisory and a management
The Government's view
3.15 In her Explanatory Memorandum of 5 May the then
Minister of State at the Home Office (Hazel Blears) explains that
the overall objectives of the programmes can be achieved through
a combination of action at EU and national level, and that specific
projects will be evaluated on a case-by-case basis. The Minister
adds "the UK will work to ensure that all the activities
covered by the programmes add value to the work of Member States
and do not cover work that should be carried out on a purely national
3.16 The Minister comments on the provisions common
to each of the three draft Council Decisions relating to eligibility
and access to the programmes as well as to implementing measures.
In relation to eligibility, the Minister informs us that the relevant
provisions originally required transnational projects to involve
partners from three Member States or two Member States together
with an applicant or candidate country, but now permit two Member
States or one Member State together with an acceding or candidate
country to apply. The Minister states that the Government recognises
the benefits of truly multinational projects involving as many
Member States and candidate countries as possible, but that it
is satisfied that the principle of subsidiarity still applies
in spite of the reduction of the number of partners required.
The Minister notes that the rules on access to the programme have
been amended so as to prevent commercial companies from profiting
from participation in projects.
3.17 In relation to the implementation of the programme,
the Minister informs us that the management procedure will apply
to adoption of the annual work programme and that the advisory
procedure will apply to the approval of individual projects. The
Minister adds that the Government welcomes this change which will
provide for greater involvement of the Member States.
3.18 The Minister comments on each of the draft Council
Decisions, as follows. With regard to the draft Council Decision
on prevention, preparedness and consequence management of terrorism,
the Minister notes that discussions have focused on the scope
of the programme in relation to funding consequence management
activity and funding the protection of critical infrastructure.
The Minister states that the Government welcomes the amendments
made to the definitions, scope and objectives of the draft Council
Decision, which now more closely reflect the "all hazards"
approach to protection of critical infrastructure agreed by the
Council, and focus more on the exchange of best practice and expertise.
3.19 The Minister states that the Government has
raised in the Council its concerns over using Article 308 EC as
the legal base for purposes other than consequence management,
but informs us that "there has only been limited support
for this position". The Minister makes this further comment:
"We accept that there is an argument that civil
protection could cover aspects of critical infrastructure protection
as well as consequence management. However, we and others have
made clear in the negotiations, competence for law and order and
internal security rests with the Member States, not the Community.
We will therefore seek to amend the draft so that this fundamental
position is recognised and safeguarded."
3.20 In relation to the draft Council Decision establishing
the programme on crime prevention, the Minister notes that Article
3 has been amended to be more specific in its aims and objectives
and to reflect the agreed priorities of the EU JHA agenda, that
it refers to the priorities set out by Europol's Organised Crime
Threat Assessment and the European Crime Prevention Network which
will be funded under the programme. The Minister states that the
Government is content with the amended provision.
3.21 In relation to the draft Council Decision establishing
the criminal justice programme, the Minister notes that the changes
to Article 3 introduce more specific objectives, such as stepping
up co-operation with Eurojust and restricting the approximation
of legislation (Article 3(a)) to "substantive criminal law
concerning serious crime or crime with a cross border dimension".
The Minister adds that the Government did not consider it necessary
for the provision to refer to "further enhancing the establishment
of minimum rules concerning aspects of procedural criminal law",
but that overall it considers the revised text more closely follows
the priorities agreed by the Council.
3.22 We agree with the Minister that some helpful
amendments have been made to the draft Council Decisions, notably
in relation to the greater involvement of the Member States in
the implementation of the programmes.
3.23 However, the reliance on Article 308 EC in
relation to the programme on prevention of terrorism and the management
of its consequences is, in our view, not justified. When we last
considered this issue, we were prepared to concede that the Minister
had shown an arguable case for the use of Article 308 EC in relation
to "consequence management" but we considered that there
was no such case in relation to the prevention of terrorism.
3.24 We strongly support the statement by the
Minister that competence for law and order and internal security
rests with the Member States and does not lie with the Community,
and we agree with the Minister that the current draft does
not recognise or safeguard this fundamental position. In this
connection, we draw attention to the references in the draft programme
to risk and threat assessments, to promoting and supporting "common
operational measures" to improve security and to the development
of "common security standards". We consider that the
draft Council Decision is unacceptably ambiguous and vague in
its present form and may have the effect of conferring a competence
on the Community which we do not believe it should have. We therefore
ask the Minister to report on the amendments which the Government
is seeking to preserve a position which it has described as fundamental.
3.25 The two draft Council Decisions based on
the EU Treaty do not raise the same issue of principle, but we
draw attention to the provision in the measure relating to criminal
justice which refers to "promoting the necessary approximation
of substantive criminal law concerning serious crime or crime
with cross border dimensions". We agree with those Member
States (but not, apparently, the United Kingdom) which consider
that the reference should be cumulative, so that EU involvement
under the programme is not justified unless the crime is both
serious and has a cross-border dimension. This would then reflect
the agreement by the Council to the Hague Programme (in particular
paragraph 3.3.2 of 16054/04), and we ask the Minister if the Government
intends to seek a corresponding amendment.
3.26 We shall hold the document under scrutiny
pending the Minister's reply.
5 Article 203 of the Euratom Treaty contains a provision
which provides: "If action by the Community should prove
necessary to attain one of the objectives of the Community and
this Treaty has not provided the necessary powers, the Council
shall, acting unanimously on a proposal from the Commission and
after consulting the European Parliament, take the appropriate
As provided for by Council Regulation (EC) No 381/2001, OJ No
L 57 of 27.2.2001. p.5. Back
The substantive provision hardly seems consistent with its title. Back