1 Introduction
1. Article 5 of the Treaty establishing the European
Community (the EC Treaty) requires the Community to act within
the limits of the powers conferred on it, and of the objectives
assigned to it, by the Treaty. So whenever we are scrutinising
a proposal for legislation or action, we examine whether there
is a "legal base" for it in the Treaty.[1]
2. There are specific legal bases to enable most
of the Community's objectives to be given effect. For example,
Article 63 of the EC Treaty authorises the Council of Ministers
to adopt legislation on asylum, refugees and immigration. And
Article 148 requires the Council to adopt decisions to implement
the European Social Fund.
3. But there is not a specific legal base for some
of the Community's objectives. In such case, Article 308 of the
EC Treaty may fill the gap. It provides:
"If action by the Community should prove
necessary to attain, in the course of the operation of the
common market [our emphasis], 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."
4. Whenever Article 308 is cited as the legal base
for a proposal, it is our practice (and was that of previous Committees)
to check that the proposal:
- is necessary to attain one
of the Treaty's objectives
- in the course of the operation of the common
market and
- the Treaty has not provided the necessary power
elsewhere.
5. We, and our predecessors, have identified some
proposals for legislation for which Article 308 was cited as the
legal base but which, in our opinion, had no or no substantial
connection with the operation of the common market. For example,
in 2006 the Commission, citing the Article as the legal base,
proposed a draft Decision which would, among other things, provide
for assistance from Member States and the EC to third countries
in the event of a major emergency outside the geographical area
of the Community. We questioned whether Article 308 would provide
a lawful legal base for the provision of assistance outside the
Community if no connection could be shown to the operation of
the common market. The Government told us, however, that it considered
the use of Article 308 to be acceptable because, in its view,
it is not necessary that "every proposal under Article 308
should relate in a narrow and restrictive sense to the operation
of the common market". There was support from no other Member
State for the view that the Article was not appropriate. We remained
unpersuaded by the Government's view and drew the arguments to
the attention of the House.[2]
6. In that case and others, it was clear to us that
there was a difference of opinion between the Committee and the
Government which was unlikely to be resolved by consideration
of individual cases. The difference turned on a question of general
application: what weight should be given to the reference in Article
308 to "in the course of the operation of the common market"?
We decided, therefore, to conduct an inquiry into the question.
7. We asked the Secretaries-General of the Council
and the Commission for their views on the interpretation of the
reference and suggested an informal meeting to discuss the question.
We had a most constructive and helpful meeting with representatives
of the Commission and the Council's Legal Service in February.
We subsequently agreed with them a note of the main points they
had made about their understanding of Article 308.
8. We sent the note of the meeting to the Foreign
Secretary and asked whether her understanding of Article 308 was
the same as that of the Commission and the Council's Legal Service.
We are grateful for her response.[3]
9. We are also grateful to Professor A A Dashwood
CBE, of Sidney Sussex College Cambridge, for his written evidence
to us.[4]
10. The next Chapter sets out the evidence we have
received. Chapter 3 contains our findings and conclusions.
1 Where action by the Community is proposed, it is
normally necessary to identify a specific provision in the EC
Treaty authorising the EC institutions to adopt the proposed measure.
Such provisions are known as "legal bases". Back
2
(27264) 5865/06: see HC 41-ii (2006-07), para 7 (29 November 2006).
Back
3
Ev 1. Back
4
Ev 3. Back
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