20 European Monitoring Centre for Drugs
and Drug Addiction
| (26834)
12143/05
COM(05) 399
| Draft regulation on the European Monitoring Centre for Drugs and Drug Addiction
|
| Legal base | Article 152 EC; co-decision; QMV
|
| Department | Health |
| Basis of consideration | Minister's letters of 31 March and 23 May 2006
|
| Previous Committee Report | HC 34-ix (2005-06), para 7 (9 November 2005)
|
| To be discussed in Council | No date set
|
| Committee's assessment | Legally important
|
| Committee's decision | Cleared; but further information requested
|
Legal background
20.1 Article 152(1) of the EC Treaty provides that a high level
of human health is to be ensured in the definition and implementation
of all Community policies and activities. Community action should
complement national policies and should be directed towards improving
public health. In particular:
"The Community shall complement the Member States' action
in reducing drugs-related health damage including information
and prevention."
Article 152(4) provides for the Council to contribute to the achievement
of the objectives of the Article by adopting:
- measures on standards for organs and substances of human origin,
blood and blood derivatives;
- veterinary and phytosanitary measures with the
objective of protecting human health; and
- incentive measures designed to protect and improve
human health.
20.2 Article 308 of the EC Treaty provides that if,
in the course of the operation of the common market, it is necessary
to attain one of the objectives of the Community and the Treaty
has not provided the necessary powers, the Council (acting unanimously)
may take the appropriate measures.
Previous scrutiny
20.3 The European Monitoring Centre for Drugs and
Drug Addiction (EMCDDA) was set up in 1993.[62]
It is an EC agency which collects, analyses and disseminates information
on drugs and drug addiction.
20.4 The Regulation which set up the EMCDDA has been
amended three times. The Commission believes that further changes
are now necessary to, for example, widen the scope of the Centre's
work to reflect recent trends in drug misuse, change the composition
of the Management Board and the responsibilities of the Director
and create an Executive Committee. Rather than making further
amendments to the original Regulation, the Commission proposes
a new Regulation incorporating the existing amendments and the
new proposals.
20.5 In 2004, the previous Committee considered the
first draft of the new Regulation. The legal base for the proposal
was Article 308 of the EC Treaty (the 1993 Regulation was based
on what is now Article 308). Our predecessors concluded that the
document was not of sufficient legal or political interest to
warrant a substantive report to the House and cleared it from
scrutiny.[63]
20.6 During the Council Working Group discussions
of that draft, some Member States argued that Article 152 of the
EC Treaty was a more appropriate legal base than Article 308.
So the Commission withdrew the draft and produced the current
document. The legal base is the only difference of substance between
the two texts. The current text cites Article 152.
20.7 When we considered the revised draft in November
2005, the then Parliamentary Under-Secretary of State at the Department
of Health (Lord Warner) told us that the Government broadly supported
the revised draft.[64]
But it considered Article 308 to be the appropriate legal base
because Article 152 does not provide the necessary power. The
establishment of a body, such as the EMCDDA, does not constitute
an incentive measure. Accordingly, a statement registering the
UK's preference for the use of Article 308 had been included in
the minutes of the Council meeting at which the first draft of
the Regulation was withdrawn. The Government planned to enter
a similar statement in the minutes of the Council meeting at which
the current draft of the Regulation is proposed for adoption.
20.8 We shared the Government's view that Article
152 would not provide a suitable legal base for the draft Regulation
and that Article 308 would be appropriate. We questioned, therefore,
whether it would be sufficient for the Government merely to register
its view in a minute statement, and whether the Government should
not vote against the adoption of the draft Regulation on a legal
basis which it considers to be inappropriate. We asked for the
Minister's comments on the question.
The Minister's letter of 31 March 2006
20.9 In reply, the Parliamentary Under-Secretary
of State for Public Health at the Department of Health (Caroline
Flint) referred us to cases in the European Court of Justice (ECJ)
in which the Government had challenged the legal base for legislation;
judgment in one such case — concerning the establishment
of the European Network and Information Security Agency (ENISA)
— was expected shortly. It remained the Government's view
that Article 152 would not provide an appropriate legal base for
the proposed Regulation on the EMCDDA but it recognised that there
is "a reasonable argument for the opposing view".
20.10 In our letter of 26 April we asked the Minister
to explain the "reasonable argument ". We also suggested
that, if the legal base was not appropriate, the merits of the
proposal were immaterial. Finally, we said that, so far as we
were aware, there was no operational urgency to adopt the Regulation.
Accordingly, we asked if the Government would resist its adoption
until the ENISA judgement had been given and there had been time
to consider it.
The Minister's letter of 23 May 2006
20.11 In her response, the Minister tells us that
the Austrian Presidency hoped that it would be possible for the
Council and the European Parliament to reach agreements on the
draft Regulation in time for the latter's plenary debate on it
at the end of May. She adds:
"Such agreement will mean that all the Member
States agree with the content of the Regulation. And, since no
other Member State is maintaining an argument that the Treaty
base is wrong, the measure will be adopted by qualified majority.
We have a scrutiny reserve in place but, in this scenario, it
will serve no practical purpose."
20.12 In response to our request for an explanation
of the view that Article 152 would be appropriate, the Minister
says:
"The argument derives from the broad approach
being adopted by the European Court of Justice … The UK has
challenged in the ECJ two measures where it was contended that
Article 95[65] was not
an appropriate Treaty base and that Article 308 was. In the Smoke
Flavourings case, ECJ C-66/04, the UK disputed the choice of Article
95 for the establishment of a centralised procedure for the authorisation
of smoke flavourings in food. The UK argued that a centralised
authorisation procedure was not a harmonisation measure. However,
the Court held that to provide for a staged harmonisation by means
of a centralised procedure was within the discretion granted by
the Treaty provided (i) the basic act determines the essential
elements of the harmonisation measure and (ii) the mechanism for
implementing those elements leads to harmonisation within the
meaning of Article 95. The Court essentially looked at whether
the end result of the measure would lead to harmonisation.
"The recent ENISA judgement in case C-217/04
concerned the use of Article 95 for establishment of the European
Network and Information Security Agency, which like the EMCDDA
is a Community agency with an advisory role. The Court rejected
the UK's argument that setting up such a body is not a measure
that could be achieved by using the domestic legislation within
each Member State so as to harmonise provisions of national law,
and that therefore it could not be a harmonising measure. The
Court found that the expression 'measures for the approximation'
in Article 95 conferred discretion on the Community legislature
depending on the general context and specific circumstances of
the matter to be harmonised, particularly in fields with complex
technical features. It found that the tasks conferred on ENISA
were closely linked to the Framework Directive and the specific
directives in the area of network and information security and
concluded that the Regulation was adopted under the appropriate
legal base.
"The Court did not address whether an incentive
measure legal base such as Article 152 could be used for the establishment
of an agency. However, given the broad approach the Court has
taken to what constitutes a harmonisation measure, if the matter
were brought before it the Court seems likely to take an equally
broad view of what constitutes an incentive measure. In the case
of a measure based on Article 152, it might look at whether the
tasks conferred on the body seek to achieve the objectives in
Article 152.1 but do not affect the competence of the Member States
to organise or deliver health services and medical care.
"The objective of the EMCDDA is to provide
'the Community and its Member States with objective, reliable,
and comparable information at European level' which is 'intended
to help provide the Community and Member States with an overall
view of the drug and drug addiction situation when, in their respective
areas of competence, they take measures or decide on action' (Article
1 [of the draft Regulation]). This assists Member States 'to take
measures or decide on action' but does not actually require them
to take action or interfere with their responsibilities for the
organisation and delivery of services related to drug misuse.
"The ENISA judgement was delivered on 2
May. The Government is considering the implications of the judgement.
In the meantime, I will continue to rely on our existing line.
If the matter comes before the Council of Ministers, the Government
intends to vote in favour but to enter a minute statement to the
effect that Article 152 is not the appropriate legal base and
that the measure should have been adopted under Article 308.
"You ask for my comments on your view that
the Government's support for the measure is immaterial if the
legal base is inappropriate. In my view, a balance needs to be
struck between the degree of risk to the principle of the appropriate
Treaty base, getting what amounts to routine EU business done
expeditiously, and ensuring that a position we take in one case
does not undermine our negotiating position in others. In this
case, the Government supports the existence of the EMCDDA, and
the judgement was made during our presidency that the public interest
would be better served by getting this particular piece of routine
EU business completed quickly, so as to demonstrate a willingness
to be flexible where appropriate and thus support our negotiating
position on other dossiers. As this measure is subject to being
introduced via Qualified Majority Voting and the UK would not
be able to influence the outcome by voting against this measure,
I remain of the view that our proposed course of action to register
our disagreement and preference for the use of Article 308 through
a minutes statement is the appropriate one.
"As the matter is likely to become urgent,
we would ask the Committee to indicate that the Government's agreement
to the proposal need not be withheld pending your Committee's
further consideration of the proposal.
"We would like to notify you that in the
event of an urgent vote in this matter it is our intention to
vote for the measure based on our previous position."
Conclusion
20.13 We have quoted extensively from the Minister's
letter of 23 May not only because of what it says about the legal
base of the draft Regulation but also because it raises two important
general issues.
20.14 We understand why, in the light of the judgments
of the European Court of Justice in the Smoke Flavourings and
ENISA cases, the Government considers it likely that the Court
would find that Article 152 provides an appropriate legal base
for the proposed EMCDDA Regulation. We share the Government's
view that the substance of the draft Regulation is acceptable.
In the circumstances, we see no objection to the Government taking
part in the adoption of the Regulation while putting in a minute
statement reiterating its opinion about the legal base. We are,
therefore, content to clear the document from scrutiny without
prejudice to consideration of the following two general points.
20.15 First, it seems to us that the Court's reasoning
and conclusions in the Smoke Flavourings and ENISA cases are not
only surprising but also of wide importance. They suggest an interpretation
of the Treaty which appears to go well beyond the plain meaning
of the words of Article 95 EC. This is a matter of importance
for Departments generally, not just for the Department of Health.
We should be grateful, therefore, if the Minister for Europe would
provide us with written evidence about the Government's considered
views on the Court's rulings and if he would subsequently appear
before us to answer our questions.
20.16 Second, in a passage on the considerations
it is proper to take into account in deciding whether to support
the adoption of the Regulation, the Minister's letter of 23 May
refers to getting EU business done expeditiously and demonstrating
a willingness to be flexible on one proposal so as to support
the Government's negotiating position on others. We do not know
if this reflects the Government's general approach to negotiations
or if it is confined to the Minister's approach to this particular
measure. Accordingly, we ask the Minister for Europe to tell us:
- if, in principle, the Government
considers it proper, in order to get EU or EC business done quickly,
to take part in the adoption of measure when it believes that
the cited legal base is inappropriate;
- if he considers it proper for the Government
to support a measure, despite reservations about its lawfulness,
in order to strengthen its negotiating position on other matters;
and
- what hard evidence, if any, there is that
such a trade off is effective in "routine EU business".
62 Council Regulation (EEC) No. 302/93: OJ No. L36,
12.2.1993, p.1. Back
63
See (25287) 5085/04: HC 42-xi (2003-04), para 24 (25 February
2004). Back
64
See headnote. Back
65
Article 95 of the EC Treaty provides for the Council to adopt
measures to harmonise Member States' law on the establishment
and functioning of the Community's internal market. Back
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