Select Committee on European Scrutiny Twenty-Ninth Report


3 Financial frameworks for the programme on security and protection of freedoms

(27421)

7766/06

(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 Parliament11 April 2006
DepartmentHome Office
Basis of considerationEM of 5 May 2006
Previous Committee ReportNone; 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 CouncilJustice and Home Affairs Council 1 June 2006
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested

Background

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 of terrorism.

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 justice.

(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[5] 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[6] 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".[7] As with the other draft Council Decisions, the draft provides for the Commission to be assisted by both an advisory and a management committee.

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 level".

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.

Conclusion

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 measures."  Back

6   As provided for by Council Regulation (EC) No 381/2001, OJ No L 57 of 27.2.2001. p.5. Back

7   The substantive provision hardly seems consistent with its title. Back


 
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