Documents considered by the Committee on 19 January 2011 - European Scrutiny Committee Contents

8 Fundamental Rights Agency



COM(10) 708

Draft Council Decision amending Decision 2008/203/EC implementing Regulation (EC) No 168/2007 as regards the adoption of a Multiannual Framework for the EU Fundamental Rights Agency for 2007-12

Legal baseArticle 352 TFEU; EP consent; unanimity
Document originated2 December 2010
Deposited in Parliament10 December 2010
DepartmentMinistry of Justice
Basis of considerationEM of 22 December 2010
Previous Committee ReportNone, but (28922) 13025/07: HC 16-i (2007-08), chapter 23 (7 November 2007) and HC 41-xxxvi (2006-07), chapter 2 (24 October 2007) are relevant
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


8.1 In 2007, the Council adopted a Regulation establishing a European Union Agency for Fundamental Rights (the Agency).[36] Its objective was to provide advice and expertise on fundamental rights to support EU institutions, bodies, offices and agencies and Member States when implementing EU law. The Agency was established at a time when EU measures on police and judicial cooperation in criminal matters were contained in an intergovernmental "Third Pillar" in the Treaty on European Union (TEU). As the legal base for the Agency was Article 308 of the EC Treaty, its activities were similarly confined to matters falling with the scope of the EC Treaty and so did not extend to EU criminal law and police cooperation measures.

8.2 Article 5 of the 2007 Regulation required the Council to adopt a five-year Multiannual Framework for the Agency setting out the thematic areas of the Agency's activities. It did so by means of a Decision adopted in February 2008 which identified nine thematic areas, as follows:

  • racism, xenophobia and related intolerance;
  • discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation or against individuals belonging to minorities;
  • compensation of victims;
  • the rights of the child, including child protection;
  • asylum, immigration and the integration of migrants;
  • visa and border control;
  • the participation of EU citizens in the democratic functioning of the Union;
  • respect for private life and the protection of personal data, and other issues related to the information society; and
  • access to efficient and independent justice.

8.3 The original Commission proposal had also included the prevention of crime and related aspects relevant to the security of citizens within the thematic area concerning the compensation of victims. Our predecessors agreed with the then Government that the thematic areas had to fall within the scope of the EC Treaty and said that the reference to crime prevention and the security of citizens should be excluded as they were Third Pillar matters.[37] The Multiannual Framework finally adopted by the Council in 2008 deleted any reference to Third Pillar matters.

8.4 The Lisbon Treaty, which entered into force on 1 December 2009, brought the provisions previously contained in the TEU on police and judicial cooperation in criminal matters into a new Title V in Part Three of the Treaty on the Functioning of the European Union (TFEU). The TFEU replaced the EC Treaty and introduced the ordinary legislative procedure (governed by qualified majority voting) or the special legislative procedure (governed by unanimity) for the adoption of police and criminal law measures which had been subject to intergovernmental procedures under the TEU. At the same time, the scope of the UK's Opt-In Protocol was extended to all Title V measures so that all EU criminal justice or police measures are subject to the opt-in.

The draft Council Decision

8.5 The purpose of the draft Council Decision is to amend the Agency's Multiannual Framework to include an additional thematic area covering "judicial cooperation in criminal matters and police cooperation." In its accompanying explanatory memorandum, the Commission says that the Council, when it adopted the 2007 Regulation establishing the Agency, made the following declaration:

"The Council agrees to re-examine, before 31 December 2009, the remit of the Agency for Fundamental Rights with a view to the possibility of extending it to cover the areas of police and judicial cooperation in criminal matters. The Council invites the Commission to submit a proposal to this effect as appropriate."[38]

8.6 Since then, with the entry into force of the Lisbon Treaty, the Commission considers that the 2007 Regulation establishing the Agency covers all matters falling within the scope of the TFEU and so requires no amendment to bring EU measures on criminal law and policing within the scope of the Agency's activities. However, the Commission says that the 2008 Decision establishing the Agency's Multiannual Framework does need to be amended to include police and judicial cooperation in criminal matters as one of the Agency's "thematic areas," not least to enable the Agency to "contribute to the Union's goal of ensuring that the measures it adopts, as well as their implementation, comply with the Charter of Fundamental Rights."[39] This is what the draft Council Decision seeks to do.

8.7 The Commission considers that the draft Council Decision should be based on Article 352 TFEU which is an amended and renumbered version of Article 308 of the EC Treaty. While the 2007 Regulation establishing the Agency was based on Article 308 of the EC Treaty, the 2008 Decision establishing the Agency's Multiannual Framework (which the draft Council Decision would amend), was based on Article 5 of the 2007 Regulation. The Commission says that the use of this secondary legal base is at odds with recent Court of Justice case law[40] and, as a result, that the draft Council Decision should, like the parent Regulation, be based on the successor to Article 308 EC, namely Article 352 TFEU.

The Government's view

8.8 The Minister of State for Justice, Lord McNally, says that the Coalition Government's Programme for Government included a commitment to protect Britain's civil liberties and preserve the integrity of its criminal justice system while also engaging constructively with the EU. He continues:

"The FRA was set up in 2007 and its role is to collect, analyse and disseminate data on the situation of fundamental rights in the EU, develop comparability and reliability of data and to carry out and promote research in the field of fundamental rights. It has no powers to examine individual complaints, to examine the fundamental rights situation particularly in any given Member State or EU institution, or to set new standards. Instead, the clear vision for the FRA — shared by the Commission — is for it to develop comparable data from across the EU on fundamental rights in relation to current policy issues. The development of such comparative data provides a useful tool in measuring the impact of EU legislation on fundamental rights across Europe including, as appropriate, in candidate countries. For example it undertook a comparative legal analysis of the position for gay, lesbian, bisexual and transsexual people across the EU states, providing useful data in an area where there is little research. The FRA has been mindful of its legal remit as set out in the establishing Regulation and the current MAF and has not strayed beyond its remit.

"During the process to establish the FRA, the UK expressed concerns about including former 'third pillar' issues within the Agency's remit. These concerns were based primarily on the establishment of a clear legal base and the workload of a new organisation. The Lisbon Treaty has gone some way towards providing a legal base."

8.9 He concludes by saying that the Government is continuing to consider carefully the implications of the draft Decision and will provide further information to Parliament.


8.10 We note that the Government appears to harbour some doubt as to the correct legal base for the draft Council Decision. We ask the Minister, when providing further information to Parliament, to include a more detailed analysis of the Government's view on the legal base proposed and on the policy implications of including police and judicial cooperation in criminal matters as a new thematic area for the Agency's activities. Meanwhile, the draft Council Decision remains under scrutiny.

36   Council Regulation (EC) No 168/2007, OJ L 53, 22.02.07, p.1. Back

37   (28922) 13025/07: see HC 41-xxxvi (2006-07), chapter 2 (24 October 2007).  Back

38   Page 2, footnote 4 of the Commission's explanatory memorandum.  Back

39   See page 4 of the Commission's explanatory memorandum.  Back

40   The Commission cites C-133/06, Parliament v Council, judgment of 6 May 2008. Back

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