14 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
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| Legal base | Article 352 TFEU; EP consent; unanimity
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| Document originated | 2 December 2010
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| Deposited in Parliament | 10 December 2010
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| Department | Ministry of Justice
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| Basis of consideration | Minister's letter of 7 March 2011
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| Previous Committee Report | HC 428-xiii (2010-11), chapter 8 (19 January 2011)
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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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.
Conclusion
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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