Annex
LETTER TO
JIMMY HOOD
MP, DATED 2 MARCH
2004
Thank you for your letter of 11 February asking
for the Government's interpretation of Article 308 TEC and the
significance in that Article of the phrase "in the course
of the operation of the common market".
I am advised that the accepted meaning of Article
308 and its predecessor, Article 235, which had identical wording,
is that the two elements of the phrase "to attain, in the
course of the operation of the common market, one of the objectives
of the Community" should be read conjunctively, and that
"in the course of the common market" is used descriptively;
the purposive part of the phrase is "to attain ... one of
the objectives of the Community".
On this advice, Article 308 does not therefore
require that every proposal using it as a legal base should relate
in a narrow and restrictive sense to the operation of the common
market. This view is supported by the limited ECJ case-law on
the issue, and, significantly, by the practice of the Institutions
and Member States over a long period—the use of Article
308 having been heaviest between 1975 and 1985.
The directives and regulations which have used
it as a legal base include the following, and clearly indicate
how broadly the reference to "the operation of the common
market" has been interpreted:
— in 1981, a Regulation to grant exceptional
food aid to the least-developed countries (Council Regulation
(EEC) No 3723/81 of 21 December 1981);
— in 1983, a Regulation to introduce
an exceptional Community measure to promote urban renewal in Northern
Ireland (Council Regulation (EEC) No 1739/83 of 21 June 1983);
— in 1994, a Regulation to set up a
Translation Centre for bodies of the European Union (Council Regulation
(EC) No 2965/94 of 28 November 1994);
— in 1996, a Regulation to provide
assistance to economic reform and recovery in the New Independent
States and Mongolia (Council Regulation (Euratom, EC) No 1279/96
of 25 June 1996).
We will only support its use in cases which
meet the requirements of the Article, and will continue to explain
to the Committee in each case how we believe they do so. Since
the Article requires unanimity, the UK has a veto over its use,
case-by-case, and we are alive to the need to avoid it becoming
a vehicle for a general extension of competences. We hope however
that the Committee will give the "common market" phrase
the same broad interpretation that it has been given hitherto.
It has, I think, been relied upon sensibly. Recent examples of
these include PHARE and TACIS (which allocated aid to Poland,
Hungary and the CIS) and measures to impose restrictions on the
Taleban, all of which relied on Article 308 (in the case of the
Taleban, because Article 301 TEC provides only for action against
countries).
The draft Constitutional Treaty would introduce
a provision (Article I-17(2)) that all legislative proposals brought
under the flexibility clause will be notified by the Commission
to national Parliaments, which will be able to object to them
through the subsidiarity early-warning mechanism. We strongly
support this, and it will provide an additional way for Parliament
to express concern at any proposed use of Article 308 that it
considers inappropriate.
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