Documents considered by the Committee on 23 March - European Scrutiny Committee Contents

14   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 considerationMinister's letter of 7 March 2011
Previous Committee ReportHC 428-xiii (2010-11), chapter 8 (19 January 2011)
Committee's assessmentLegally and politically important
Committee's decisionCleared

Background and previous scrutiny

14.1  The EU Fundamental Rights Agency was established by means of a Regulation in 2007 to provide advice and expertise on fundamental rights to EU institutions, bodies, offices and agencies and to Member States when implementing EU law. Subsequently, in 2008, the Council adopted a Decision, based on Article 5 of the 2007 Regulation, containing a five-year Multiannual Framework which set out nine thematic areas which would provide the focus for the Agency's activities. The purpose of the draft Council Decision proposed by the Commission is to amend the Agency's Multiannual Framework to include an additional thematic area covering "judicial cooperation in criminal matters and police cooperation."

14.2  In our previous Report on the draft Council Decision, we noted that the legal base for the 2007 Regulation establishing the Fundamental Rights Agency was Article 308 of the EC Treaty. The Agency's activities were therefore similarly confined to matters falling within the scope of the EC Treaty. As a result, the Multiannual Framework did not include as one of its thematic areas police and judicial cooperation in criminal matters, since such matters were contained in a separate intergovernmental "Third Pillar" in the Treaty on European Union.[76]

14.3  With the entry into force of the Lisbon Treaty on 1 December 2009, measures on police and judicial cooperation in criminal matters previously contained in the Treaty on European Union were brought into the Treaty on the Functioning of the European Union (TFEU), which replaced the EC Treaty. As a result, the Commission considers that the remit of the Fundamental Rights Agency extends to all policy areas now within the scope of the TFEU and that the 2007 Regulation does not require further amendment to enable the Agency to provide advice and assistance on the formulation and implementation of EU measures concerning policing and criminal law. However, the Commission does see a need to amend the 2008 Council Decision so as to include police and judicial cooperation in criminal matters in the Agency's Multiannual Framework. This is what the draft Decision seeks to do.

14.4  Although the 2008 Council Decision was based on Article 5 of the 2007 Regulation, the Commission proposes Article 352 TFEU (an amended and renumbered version of Article 308 of the EC Treaty) as the legal base for the draft amending Decision. It says that Court of Justice rulings preclude the continued use of a secondary legal base (such as Article 5) and that it is necessary to cite a substantive legal base in the TFEU.

14.5  We thought that the Explanatory Memorandum provided by the Minister of State for Justice (Lord McNally) suggested that the Government harboured some doubt as to the correct legal base for the draft amending Decision and so asked him to provide a more detailed analysis of the Government's views on the legal base proposed by the Commission and on the policy implications of including police and judicial cooperation in criminal matters as a new thematic area for the Fundamental Rights Agency's activities.

The Minister's letter of 7 March

14.6  The Secretary of State for Justice (Mr Kenneth Clarke) tells us that, during negotiations on the draft Council Decision, concerns have been expressed about the proposed legal base, which the Government also shares. He says that the Commission has chosen Article 352 TFEU because it considers that "a secondary legal base not provided for in the Treaties is not a legitimate legal basis" for the adoption of the draft amending Decision. He continues:

"Concerns have been raised that it is not permissible for an implementing act such as [the 2008 Decision] to be amended by a legislative act adopted using a legal basis in the Treaties, because the Treaties do not permit hybrid instruments that are partly of an implementing nature and partly of a legislative nature. Furthermore, it appears to be implicit in the Commission's proposal that in the light of Case C-133/06[77] the existing Multiannual Framework was adopted in reliance on an unlawful secondary legal base, which would seem to undermine any proposal to extend the thematic areas in which the Fundamental Rights Agency can work which relies on the current Multiannual Framework."

14.7  The Secretary of State highlights a further concern regarding the 2007 Regulation establishing the Fundamental Rights Agency. He says that:

"[the 2007] Regulation was originally limited to areas covered by Community law, and so excluded the former second and third pillar. Article 352 TFEU can only be used as a legal base if the EU legislator decides that action is necessary to attain an objective set out in the Treaties and that the Treaties have not otherwise provide the necessary powers. But the EU legislator did not make that decision in relation to third pillar areas when Regulation 168/2007 was adopted, and indeed could not have done so because at the time Article 308 EC could only be used in relation to the first pillar. It follows that former third pillar areas can only be included in the Multiannual Framework following such a decision by the legislator to amend the Regulation and enlarge the scope of the Fundamental Rights Agency's activities in the Regulation. This is not what the Commission has proposed."

14.8  Because of these "technical concerns", the Secretary of State says that the Government intends to oppose the draft amending Council Decision and expects other Member States to do so as well. He thinks that the Commission will withdraw its proposal and replace it with another that seeks to address the concerns expressed, although this process could take several months.


14.9  We understand the necessity for a fresh Council Decision to re-establish the Multiannual Framework using a legal base in the TFEU. In addition to a new draft Council Decision, the Government also appears to suggest that a further draft amending Regulation would be needed because police and judicial cooperation in criminal matters was not contemplated as an area of activity for the Fundamental Rights Agency when it was established in 2007 and so cannot implicitly be assumed to form part of its activities by simple virtue of the fact that EU competence in this area has moved out of the intergovernmental sphere and been brought within Title V of the TFEU. It is not yet clear whether the Commission and/or other Member States also accept that there is a need to amend the 2007 Regulation, or whether they consider that the Agency's remit automatically extends to all areas within the competence of the EU, as set out in the TFEU and, as a consequence, that a new draft Council Decision which expressly includes police and judicial cooperation in criminal matters as an area of activity for the Fundamental Rights Agency would alone suffice.

14.10  We note that the Secretary of State's letter provides a factual explanation of the consequences of amending the Multiannual Framework. However, in asking the Government to comment on the policy implications, we had hoped for a clearer indication of the Government's view on the desirability of including police and judicial cooperation in criminal matters within the remit of the Fundamental Rights Agency.

14.11  As, in any event, there appears little likelihood of proceeding with the draft amending Council Decision, we are content to clear it from scrutiny and will pursue the issues highlighted in our Conclusion as and when a new proposal, or proposals, are put forward by the Commission.

76   See HC 428-xiii (2010-11), chapter 8 (19 January 2011).  Back

77   In Case C-133/06, Parliament v. Council, judgment of 6 May 2008, the Court held that that the Council was not entitled, when adopting a legislative act, to establish a secondary legal base and procedures different from those provided for in the EU Treaties.  Back

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