8 Fundamental Rights Agency
| (32319)
17564/10
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 base | Article 352 TFEU; EP consent; unanimity
|
| Document originated | 2 December 2010
|
| Deposited in Parliament | 10 December 2010
|
| Department | Ministry of Justice
|
| Basis of consideration | EM of 22 December 2010
|
| Previous Committee Report | None, 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 Council | No date set
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; further information requested
|
Background
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.
Conclusion
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
|
