8 EU Committee on Internal Security
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16075/1/09
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| Draft Council Decision on setting up the Standing Committee on operational cooperation on internal security
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| Legal base | Article 240(3) TFEU; — ; simple majority
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| Department | Home Office |
| Basis of consideration | Minister's letter of 11 January 2010
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| Previous Committee Report | HC 5-iv (2009-10), chapter 7 (15 December 2009)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally important
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| Committee's decision | Cleared
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Previous scrutiny
8.1 In December, we considered this draft Council Decision.[33]
We noted that the purpose of the Decision would be to give effect
to Article 71 of the Treaty on the Functioning of the European
Union (TFEU). Article 71requires a standing committee to be set
up within the Council to improve and strengthen operational cooperation
on internal security in the EU.
8.2 The main provisions of draft Decision are
as follows:
- COSI's function would be to
promote and strengthen coordination of the operational actions
of Member States' internal security authorities;
- COSI would facilitate and ensure effective operational
cooperation and coordination on police and customs cooperation,
asylum, immigration, visas, the control of the external borders
of the EU and judicial cooperation in criminal matters;
- COSI would evaluate the "general direction"
and efficiency of operational cooperation, spot weaknesses and
recommend remedies;
- COSI would be expressly prohibited from conducting
operations itself;
- COSI would also be prohibited from involvement
in the preparation of legislation;
- COSI would be able to invite representatives
of Europol, Eurojust, FRONTEX and other relevant bodies to attend
meetings as observers;
- COSI would be required to make regular reports
to the Council about its activities; and
- the Council should keep the European Parliament
and national parliaments informed of COSI's proceedings.
8.3 In her Explanatory Memorandum of 10 December,
the Parliamentary Under-Secretary of State at the Home Office
(Meg Hillier) told us that the Government was content with the
proposal and would be represented on COSI. She also told us that
the draft Decision had received wide support from other Member
States.
8.4 In the conclusion to our report on the draft
Decision, we said that we recognised the potential benefits of
practical cooperation between Member States through the creation
of the Committee on Internal Security. The drafting of proposed
Decision was clear and we had no questions about the substance
of the document.
8.5 We had doubts, however, about the use of
Article 240(3) TFEU as the legal base for the measure. It requires
the Council to act by a simple majority on procedural matters
and for the adoption of its rules of procedure. Our doubts about
whether Article 240(3) is appropriate arise from the fact that
Article 242 TFEU is expressly and specifically about "the
rules governing the committees provided for in the Treaties".[34]
Accordingly, we asked the Minister why Article 242 should not
be cited as the legal base and whether Article 240(3) is appropriate.
Pending the Minister's reply, we kept the draft Decision under
scrutiny.
The Minister's letter of 11 January 2010
8.6 In her reply of 11 January, the Minister
says:
"I acknowledge that Article 242 TFEU would appear
to be an appropriate legal base as it is specifically targeted
at rules for committees provided for under the Treaties. However,
the Government believes that Article 240(3) is also credible as
it is the more generic legal base for procedural matters within
Council, including Coreper and its rules of procedure. The use
of these two legal bases under the previous comparable Treaty
provisions demonstrates that they have been used flexibly.[35]
For example, the statutes of the Economic Policy Committee and
the Economic and Financial Committee were brought forward under
the predecessor to Article 242, whereas the predecessor to Article
240 was used to establish the Political and Security Committee
and the EU Military Committee. The Government believes therefore
that Article 240(3) is an acceptable legal base … ."
Conclusion
8.7 We are grateful to the Minister for her
prompt and clear reply to our question. It seems to us that, if
the Treaty provides a specific legal base for a measure, it is
reasonable to expect that the specific power rather than a general
one should be used. However, we accept that the Government's view
is not unreasonable and that the legislation setting up committees
required by the EC Treaty provides a precedent for using the general
power in some cases and the specific power in others. We have
decided, therefore, not to pursue the point further and to clear
the draft Decision from scrutiny.
33 See headnote. We also considered an unofficial draft
of the Decision which the Government had sent us in September.
We cleared the unofficial draft because it had been superseded
by the official text of the proposed Decision. Back
34
Article 242 provides that: "The Council, acting by a simple
majority shall, after consulting the Commission, determine the
rules governing the committees provided for in the Treaties." Back
35
Articles 207 and 209 of the EC Treaty. Back
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