European Scrutiny Committee Contents


11 EU participation in GRECO

(a)

(32843)

11205/11

COM(11) 307

(b)

(34358)

15305/12

COM(12) 604


Commission Report on the modalities of European Union participation in Council of Europe Group of States against Corruption (GRECO)

Commission Communication Participation of the European Union in the Council of Europe Group of States against Corruption (GRECO)

Legal base(a) and (b) —
Document originated(b) 19 October 2012
Deposited in Parliament(b) 25 October 2012
Department(a) and (b) Justice
Basis of consideration(b) EM of 7 November 2012
Previous Committee Reports(a) HC 428-xxxvii (2010-12) chapter 9 (12 October 2011); and HC 428-xxxiv (2010-12) chapter 10 (19 July 2011)

(b) None

Discussion in Council(b) No date set
Committee's assessmentLegally and politically important
Committee's decision(a) Cleared; further information requested

(b) Not cleared; further information requested

Background

11.1 The main effects of corruption are well-known and are identified by a 2011 Commission Communication[62] "Fighting Corruption in the EU" as undermining trust in public institutions, distorting competition, deterring investment and reducing public finances.

11.2 GRECO, established in 1999 by the Council of Europe, is the principal anti-corruption organisation in Europe, enabling its now 49 members, (48 EU and non EU states, including the UK, together with the USA) to target corruption through mutual evaluation, peer pressure and compliance with Council of Europe anti-corruption standards (through the publication of reports and recommendations as GRECO has no legislative powers). EU involvement in GRECO dates from a 2007 Memorandum of Understanding between the EU and the Council of Europe,[63] committing the parties to cooperate on rule of law issues, including the fight against corruption.

11.3 This Communication of 23 October 2012 represents the Commission's latest anti-corruption initiative at EU level, by proposing to "step up" the EU's informal cooperation with GRECO to a level of full participation (as opposed to full membership). Following the Framework Decision on combating corruption in the private sector[64] (which required Member States to criminalise bribery and impose sanctions), the Commission was first tasked with developing a comprehensive anti-corruption policy, in conjunction with GRECO, by the Stockholm Programme in 2009.

Legal context: Article 218 and Article 220 TFEU

11.4 The alternative legal bases for EU involvement in international organisations are Articles 218 and 220 TFEU. An appreciation of the respective scopes of these legal bases is important for understanding the implications of the Commission's proposals for initially progressing EU participation in GRECO.

11.5 Article 218 TFEU provides that:

"1.Without prejudice to the specific provisions laid down in Article 207, agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.

"2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them."

11.6 It continues at paragraph 4:

"4. The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted.

"5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.

"6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement."

11.7 Article 218(7) requires the consent of the European Parliament to be obtained for the conclusion of certain types of agreement (association agreements, EU accession to the ECHR, organisation of cooperation procedures through institutional framework agreements, agreements with EU budgetary implications and agreements in fields where the ordinary legislative or special legislative procedures apply). Otherwise, in the case of other agreements, only consultation of the European Parliament is required.

11.8 The choice of Article 218 TFEU as the appropriate legal base for EU involvement in international organisations turns on the question of whether the proposed involvement will require the conclusion of an "agreement" (as interpreted by the Court of Justice (ECJ)) as opposed to mere cooperative involvement which will not.

11.9 The question of what amounts to an "agreement" is therefore determinative of the question of choice of legal base. The ECJ has ruled that the concept of agreement is to be interpreted widely as meaning "any undertaking entered into by entities subject to international law which has binding force, whatever its formal designation".[65] The issue appears to turn on the intention of the parties to enter into legally binding commitments as this was the rationale provided by the ECJ when it held that an EU-US antitrust agreement could not be adopted as a binding document unless Article 218 TFEU procedure was used.[66] Conversely, if it is clear that the intention of the parties is not to be so legally bound, then use of Article 218 TFEU legal base and legislative procedure is not required.[67]

11.10 In which case, the issue is whether Article 220 TFEU would apply, even if the level of EU involvement envisaged would appear to go beyond mere cooperation with the international organisation in question. Article 220 TFEU provides that:

"1. The Union shall establish all appropriate forms of cooperation with the organs of the United Nations and its specialised agencies, the Council of Europe, the Organisation for Security and Cooperation in Europe and the Organisation for Economic Cooperation and Development.

"The Union shall also maintain such relations as are appropriate with other international organisations.

"2. The High Representative for Foreign Affairs and the Commission shall implement this Article".

11.11 The scope of this Treaty provision is wide in the sense that it refers to "all appropriate forms of cooperation". Historically, this has included a range of forms of EU involvement in international agreements, including EU participation in agreements either establishing international organisations (for example, in relation to WTO) or governing existing organisations, whether by means of full membership (again as in the case of the WTO) or a lesser "observer" status (as in the case of UNESCO).

Previous scrutiny of EU anti-corruption proposals

The Commission's anti-corruption package

11.12 On 6 June 2011, in response to a request in the Stockholm Programme, the Commission published its anti-corruption package, a Communication entitled "Fighting Corruption in the EU" and two related reports (one on the modalities of EU participation in GRECO, document (a)). The Commission suggested various options for EU involvement in GRECO in the latter report, with its preferred option being that of full participation, authorised by the Council under Article 218 TFEU.

11.13 In our first Report of 19 July 2011,[68] we noted the Commission's view that a more active role for the EU in GRECO would bring benefits to both organisations; that the political role provided by the EU institutions could be used as an effective tool in encouraging better enforcement of GRECO anti-corruption measures; and that the EU would benefit from GRECO's expertise in formulating its own EU anti-corruption report.

11.14 We also reported that, according to the Commission, the main objectives of EU participation in GRECO were:

  • participation in country visits to EU Member States and/or candidate and potential candidate countries, leading to evaluation reports, should the latter agree;
  • making suggestions on draft evaluation reports on EU Member States and/or candidate and potential candidate countries, should the latter agree;
  • association with the work of GRECO's Bureau;[69]
  • a contribution to the GRECO budget;
  • input for future EU evaluation reports to be considered by GRECO; and
  • identifying outstanding GRECO recommendations of relevance for the EU, for which the future EU reporting mechanism may provide additional impetus for adequate follow-up.

11.15 However, we noted that although it was clear from these objectives that the Commission wanted to participate in the GRECO evaluation procedure for Member States, it was not convinced that EU institutions should be bound by such an evaluation procedure.

11.16 We reported on how the Commission concluded its report by requesting authorisation from the Council to open negotiations for the EU's participation in GRECO, and calling on Member States fully to support the EU's application for participation in GRECO within the Council of Europe's Committee of Ministers.

THE GOVERNMENT'S VIEW

11.17 As part of that initial Report, we considered the Explanatory Memorandum dated 23 June 2011 submitted by the then Lord Chancellor and Secretary of State for Justice, Mr. Kenneth Clarke.

11.18 The Minister said that the Government supported the principle of EU accession to GRECO and the efforts being made to raise anti-corruption standards in EU Member States. He agreed that full membership or membership with limited voting rights were likely to be the most suitable options for EU participation in GRECO, but the implications of both needed to be further explored including the question of evaluation of the EU institutions.

11.19 The Minister also explained that the Government's position would be informed by the view that GRECO effectiveness comes from its evaluation mechanism, which ensures that all Council of Europe countries are held to account and subjected to evaluation and peer pressure to raise their anti-corruption standards. There had been tangible progress including legislative changes resulting from implementing GRECO recommendations, although the Government agreed that the EU's renewed focus on this could deliver increased political will to make long-lasting changes to States' legislation and enforcement of corruption offences. It would be regrettable, however, "if EU accession were to dilute the effectiveness of GRECO as regards those Member States of the Council of Europe which are not members of the EU."

11.20 We identified a number of questions which in our view required a further response from the Government.

11.21 Firstly, we asked the Minister whether he agreed with the Commission's characterisation of GRECO as not generating the necessary political will in its Member States to tackle corruption effectively. The Minister's Explanatory Memorandum painted a rosier picture of GRECO's achievements, and warned of the possibility of EU accession "diluting" its effectiveness. Without further explanation from the Minister, we were not persuaded that EU accession was necessary.

11.22 Secondly, we noted that the Commission would like to participate in the GRECO evaluation procedure of Member States, including participating in country visits to EU Member States and contributing to draft evaluation reports on EU Member States. However, it was less convinced that such an evaluation procedure should apply to EU institutions. So we asked the Minister to say why he supported the Commission participating in country visits by GRECO to EU Member States and contributing to draft evaluation reports on EU Member States (in his Explanatory Memorandum he said the Government agrees that full membership or membership with limited voting rights are likely to be the most suitable options for EU participation in GRECO). We had reservations about such significant powers being given to the Commission.

11.23 Thirdly, we asked the Minister to say whether he thought the EU institutions should be evaluated by GRECO as well — as a general principle of multilateral organisations if the Commission wants to be part of GRECO's evaluation procedures, it should accept to be subject to them too.

THE MINISTER'S LETTER OF 27 JULY

11.24 The Minister replied by letter dated 27 July 2011, which we reported on 12 October 2011.[70]

11.25 In his letter the Minister said:

"As an introduction, I note that Article 5 of the Statute of the Group of States Against Corruption states: 'The European Community may be invited by the Committee of Ministers to participate in the work of the GRECO. The modalities of its participation shall be determined in the resolution inviting it to participate'. It is this modality of participation which EU Member States are now considering and discussions remain on-going with the Commission to clarify the detail of the Commission's participation under each proposal.

"You asked whether I consider the European Commission's view of GRECO's achievements to be justified. The Commission is right to say that there has not been uniform implementation of the Council of Europe's Criminal Law Convention on Corruption by EU Member States. When individual States join GRECO it is understandable that they will not necessarily have existing legislation in place to meet the provisions of the Convention, but that their membership demonstrates the willingness to do this. Some States may therefore require additional time to improve their own provisions to meet the standard of anti-corruption measures already in place in some other States. I also agree with the Commission's assessment that comparative analysis of implementation and enforcement levels between EU Member States has not been undertaken by GRECO and that there would be value in the EU undertaking this exercise.

"However, I do not consider that GRECO focuses less on areas of interest to the EU. Previous evaluation rounds have assessed Member States' standards in wide ranging areas of corruption, all of which should be of central interest to the EU. Evaluations have included assessments into authorities in charge of preventing, investigating, prosecuting and adjudicating corruption offences; seizure and confiscation of proceeds of corruption; connections between corruption and money laundering/organised crime; corruption in public administration and transparency of political party funding. The new GRECO evaluation round will examine corruption prevention in parliamentary assemblies, the judiciary and prosecutors; again of strong interest to the EU.

"Taking this into account, I would welcome the EU's accession to GRECO as a way of helping to strengthen anti-corruption standards, strengthen political will to address corrupt practices and a way for the EU in turn to focus better on anti-corruption issues internally. My reference to the potential dilution of the effectiveness of GRECO relates to the possible risk of the EU — or indeed any other country or body — joining GRECO in a way that could create disparity between members. This is a matter the UK would wish to avoid. We have already been given assurances that the EU would be given only one vote, and that EU Member States are not obliged to vote in line with the EU. However, at the same time I understand that the EU Institutions are not Member States and some consideration will need to be given to this, hence Article 5 of the GRECO Statute which permits some discretion over the modalities of EU participation.

"Turning to your second question, you raised the issue of whether the Commission should participate in all country visits to EU Member States. Firstly I would highlight that full membership does not automatically confer onto the Union the right to participate in all country evaluation visits of EU Member States or the right to contribute to draft evaluation reports of all EU Member States.

"The Commission is currently consulting with EU Member States as to whether the Union should have special status as a member of all evaluation missions to EU Member States if the Union joins as a full member of GRECO. I understand the concerns you have raised about powers being given to the Commission; this is also a matter of particular interest to me and the UK has already requested that the Commission clarifies the benefits to be gained by participation in all country visits to EU Member States. Our position on this matter remains under discussion and I remain mindful of the possible issues related to this proposal.

"Finally, I would like to address your question asking whether I think EU institutions should be evaluated by GRECO. As a general principle, it seems right that the EU should be treated as an equal partner in GRECO. Achieving this balance may include the need for the EU Institutions to undergo GRECO evaluations in the same manner as other full participants in GRECO, particularly if the Commission wishes to participate in GRECO's evaluation procedures.

"The UK understands that the Union is already undergoing discussions with the UN Convention Against Corruption (UNCAC) to clarify how their institutions can be evaluated as part of that evaluation mechanism. The EU is a state party to UNCAC. It is possible that the modalities of that evaluation process could be replicated for GRECO. If the EU seeks to exert political pressure on those countries underperforming in their commitment to tackle corruption (as it suggests), it would seem that the most credible way of exerting that pressure would come through the EU itself demonstrating a commitment to be evaluated and for recommendations made into how it can improve its own institutions.

"The modality of EU accession to GRECO is now being discussed at working party level in the EU. We will continue discussions with the Commission on the matters requiring clarity. I will inform the Committee of the outcome of those discussions".

11.26 Notwithstanding the Minister's reply, we reiterated our concern about the proposed EU accession to GRECO and expressed doubts about the basis in EU law of EU competence, express or implied, to do so. This was irrespective of the Stockholm Programme request to the Commission to submit a report to the Council on "the modalities for the Union to accede to GRECO", and of Article 5 of GRECO's Statute.

11.27 Similarly, we remained unconvinced of the basis on which the EU had competence to participate in evaluations of EU Member States under GRECO procedures. We considered that the inclusion of a supranational organisation (for EU Member States) in a hitherto intergovernmental evaluation procedure under the auspices of a different regional body was a significant step, with consequences for the relationship between the European Commission and Member States in this field. We were of the view that such an outcome, with the Commission being able to participate in evaluation visits to the UK, would be of considerable national political sensitivity.

11.28 So we asked the Minister to explain the basis on which EU Member States have conferred such external competence in the field of corruption on the EU and we asked him to do this with reference to the settled ECJ case law in the field of EC/EU external competence. We asked how the EU's internal exercise of its competence in this field justified its claim to external competence. We said that this would mean going further than the Commission does in its report of 6 June 2011 at page 3:

"EU participation in GRECO was already outlined as a key element of EU anti-corruption policy in the Communication of 28 May 2003. Following the adoption of the 2003 Communication, different possibilities for participation were explored against the legal competences of the EU under the Treaty on the European Union and the Treaty establishing the European Community. Given the then limited Community competence with regard to the Council of Europe's Civil and Criminal Law Conventions on Corruption, a decision had to be postponed until the adoption of the Lisbon Treaty. The Treaty on the Functioning of the European Union (TFEU) provides a more streamlined EU competence on anticorruption and paves the way for a reinforced EU anti-corruption policy, including participation in the work of GRECO."

11.29 Accordingly, we retained the document under scrutiny pending the Government's response. This response is still outstanding, and so we have not yet cleared the 6 June 2011 Commission report from scrutiny.

The current document

11.30 In this latest Communication of 23 October 2012[71] the Commission sets out proposals not only for the EU's formal participation in GRECO, but also for possibly progressing to a second stage of full membership within four years of initial participation (informed by a reassessment of participation and an EU impact analysis).

11.31 The Commission acknowledges potential difficulties in full membership, not least because it would involve full monitoring and evaluation of EU institutions within a system designed for countries as opposed to organisations. So it says that the two stage approach:

"will allow cooperation to be increased, within a relatively short time-frame, on the basis of full participant status and pending an analysis of how full membership, including evaluation of EU institutions by GRECO, would be organised in practice."

11.32 The Commission attempts to explain the meaning of the envisaged "full participant status" as follows:

" 'Full participant status' is the expression commonly used to refer to situations in which, albeit not a full member of an organisation, the EU enjoys very similar rights to those enjoyed by members except for voting rights (see also the EU's status in the World Health Organisation, UNESCO, the International Civil Aviation Organisation, the Council of Europe or the OECD)."

11.33 According to the Commission, this "first stage" status would enable the EU to be only partially involved in the evaluation process as its own institutions would not themselves be subject to that process. On this limitation the Commission reports that:

"GRECO's plenary, when analysing the outcome of the preliminary discussions between the Commission and the GRECO Secretariat, has expressed the view that the evaluation of the EU institutions by GRECO should be one of the key items in the discussions and that it has to be considered as more than just a remote possibility.

"Nonetheless, a further assessment of the requisites, feasibility and potential impact of such an evaluation is needed. Indeed, GRECO has developed an evaluation system geared to countries and not organisations; this means that, for instance, the applicability to the EU of the Council of Europe's Twenty Guiding Principles for the Fight against Corruption, which are conceived as commitments by countries, would have to be assessed.

"EU institutions have their specific features, which do not coincide with those of classic state institutions. There are limitations to EU competences as opposed to those of a country. Questions arise also as to how the evaluation teams would be established for evaluating EU institutions. The GRECO evaluation system would therefore need to be adapted to the specifics of the EU legal and institutional framework. Given that such a system has not been tested before, both sides would need to carefully analyse the practicalities and legal aspects of such evaluations. That assessment would require time and thought, and the fact of the EU being already involved in GRECO activities would support the EU analysis on this matter.

"This two-stage approach would be in line with the stance of GRECO's plenary, since it would establish a clear deadline for the reassessment of the form of EU participation and a decision by the EU would be taken in this regard based on the concrete findings of a working group set up at EU level.[72]"

11.34 As a result of this limited aspect of its proposed participation, the EU would not have any voting rights, nor have a representative on GRECO's Bureau[73] consisting of full members only. However, according to the proposals, the EU would be able to:

  • be involved in the country visits forming part of the evaluations of EU Member States and/or candidate countries and potential candidates, should the latter agree;
  • formulate suggestions on draft evaluation reports and participate in the debates of the GRECO plenary on the evaluation/compliance reports for EU Member States and/or candidate countries and potential candidates, should the latter agree;
  • formulate proposals to GRECO's Bureau which has an important role in preparing evaluations and drafting the reports;
  • access and consider comparative analysis carried out by GRECO on the basis of the existing evaluation and compliance reports on the Member States in the preparation of the EU Anti-Corruption Report;
  • access information gathered and updated by GRECO in the framework of the evaluation process;
  • reflect outstanding GRECO recommendations of relevance for the EU in the EU Anti-Corruption Report; and
  • consider involving a GRECO representative in the EU expert group on corruption established to help prepare the EU Anti-Corruption Report.

11.35 The Commission estimates that the cost of EU "first stage" participation would be €300,000 annually with a further EU contribution of €150,000 per year earmarked for joint activities with GRECO such as data gathering and preparation of studies as background to the EU Anti-Corruption Reports. Alluding to the proposed legal and procedural basis of Article 220 TFEU for EU participation (discussed further below), the Commission does not envisage being subject to direct Council control in respect of funding, saying that it:

"will consider the payment of its financial contribution through the signing of joint programmes with the Council of Europe."

11.36 EU participation would be subject to the following five principles, set out in the annex to the Communication:

  • account would be taken of the limits of EU competence;
  • participation would not affect the existing rights and obligations of the Member States under GRECO;
  • participation would not affect the conferral of powers by the EU Treaties;
  • GRECO would not be called upon to interpret EU law; and
  • the EU representative would participate in other Council of Europe bodies linked to the activities of GRECO.

THE COMMISSION'S VIEW ON THE LEGAL AND PROCEDURAL FRAMEWORK

11.37 The Commission's view is that EU participation between the EU and the Committee of Ministers of the Council of Europe, once agreed, would involve two separate processes.

11.38 Firstly, under GRECO's statutes, EU participation would require an invitation from the Committee of Ministers. The Commission explains that:

"In GRECO's Statute, a specific provision (distinct from that on membership) is dedicated to the participation of the European Community and reads as follows: 'The European Community may be invited by the Committee of Ministers to participate in the work of the GRECO. The modalities of its participation shall be determined in the resolution inviting it to participate'."[74]

11.39 The Commission further explains that the text of the Resolution to be adopted by the Committee of Ministers inviting the EU to participate in the GRECO will be the text discussed and agreed by both the Committee of Ministers and the Commission, acting on behalf of the EU. This would then be endorsed by GRECO's Statutory Committee.[75]

11.40 Then, in contrast with the view taken by the Commission in its June 2011 report (that it would have to request the Council to authorise the opening of EU participation negotiations with GRECO under Article 218 TFEU), it asserts that the second process would amount to the Commission simply accepting GRECO's invitation through a "unilateral decision" and then "informing the Council, the European Parliament and the ECSC of its discussions". It says that this is because EU participation will not involve the conclusion of an accession agreement or other international treaty and is:

"...rather about establishing an appropriate form of cooperation with GRECO for which Article 220 of the Treaty on the Functioning of the European Union (TFEU) is applicable."

11.41 The Commission further justifies this choice of legal base by referring to examples of comparable existing EU participation international organisations:

"EU status in the Council of Europe is also a full participant status, as established by the Commission from the beginning (ex-Art. 302 TEC). Since GRECO's activities do not deal with common foreign and security policy, it is for the Commission to establish an appropriate form of cooperation with the GRECO under Article 220 TFEU."

11.42 In explaining the change in approach on Treaty base, the Commission implies that the scope of the initial proposals was broader, encompassing various options of participation and full membership on which the Council's views were being canvassed, whereas this current Communication recommends that only participation, not membership, should be committed to as a first stage of involvement. It says that:

"The Report on modalities of EU participation in GRECO of 6 June 2011 stated that the Council will be requested to authorize the opening of negotiations on behalf of the EU with a view of a membership. However, the approach for which the Commission has eventually opted after an assessment of all modalities available does not consider in a first phase full membership of the EU in GRECO."

11.43 The Commission concludes its Communication by reiterating its choice of legal and procedural basis for participation by stating:

"The Commission will start discussions on a full participant status of the EU in GRECO on the basis of this Communication. The Commission will inform the Council, the European Parliament and the European Economic and Social Committee of the outcome of these discussions."

The Government's view

11.44 In an Explanatory Memorandum dated 8 November, the Lord Chancellor and Secretary of State for Justice (Chris Grayling) says that the Government supports the activities of GRECO as a "useful, multilateral forum allowing participating countries to benefit from each others' experience of best practice in the fight against corruption, by means of mutual evaluation and peer pressure".

11.45 However, in the absence of any proposal to subject the EU and its institutions to the GRECO's system of monitoring and evaluation, the Minister remains unconvinced about the added value of the EU fully participating in GRECO, for the EU, for GRECO or any of the Member States including the UK.

11.46 The Minister is also minded to challenge the Commission's assertion that EU participation would not affect EU competences nor the rights and obligations of the Member States. He would also want to ensure that EU participation is "subjected to appropriate oversight by the Council, including as regards the commitment of financial contributions towards the GRECO's budget."

11.47 There are also significant legal issues raised by the Minister in the Memorandum. As regards legal base, he says:

"The communication cites Article 220 TFEU as the legal base. The Communication sets out that the first step foreseen for EU participation in GRECO ('full participant status') does not amount to an accession to an international organisation or to an international treaty requiring the conclusion of an agreement under Article 218 TFEU. It is rather about establishing an appropriate form of cooperation with GRECO for which Article 220 of the Treaty on the Functioning of the European Union (TFEU) is applicable.

"The Government's view is that Article 220 is not the appropriate Treaty base. EU participation in GRECO of the type proposed in the Commission communication goes much further than "co-operation" anticipated under Article 220. The Government's view is that any EU participation in GRECO, assuming that it is ultimately appropriate, should be governed by an agreement under Article 218 TFEU."

11.48 On the question of the appropriate legislative procedure to be used in relation to the proposed EU participation in GRECO, the Minister further notes that:

"The Communication states that Article 220 TFEU provides the power for the Commission to open discussions with GRECO without the need for any legislative procedure as it will only be gaining 'participant status'. The Government's view is that Article 220 does not displace the ordinary decision-making role of the Council, nor the normal division of responsibilities between the Council and the Commission as set out in Articles 16 and 17 TEU, including the provision in Article 16(1) that the policy-making function is for the Council."

Conclusion

11.49 While this Communication clarifies the Commission's thinking on the form of participation it envisages for the EU in GRECO, it gives rise to considerable areas of concern which we ask the Minister to address.

11.50 Firstly, we note that we did not receive a response from the Government to our questions on the Commission report on the modalities of European Union participation in GRECO, document (a), which we put to his predecessor in our Report of 12 October 2011. We ask the Minister to explain why.

11.51 As concerns this current document, document (b), we would be grateful for a more detailed explanation of the Government's assertion that Article 218 TFEU, and not Article 220 TFEU, is the appropriate legal base for the form of EU participation in GRECO now proposed by the Commission. In so doing, we would ask the Government to confirm:

i)  in what way Article 220 TFEU is deficient in providing power for the Commission to open discussions with GRECO on participation;

ii)  what legally binding obligations for the EU might arise (or be contemplated by the parties as arising) from the proposed participation in GRECO, such that the conclusion of an "agreement" (as interpreted by the ECJ) requiring authorisation by the Council under Article 218 TFEU, could be said to be at issue;

iii)  whether other Member States share the Government's concerns on legal base; and

iv)  what action the Government proposes to take in relation to its concerns, including at Council working group level.

11.52 Finally, we ask the Minister to say whether he thinks it is appropriate for GRECO evaluation mechanisms not to apply to the EU institutions at a time when there is heightened public concern about fraud in the disbursement of EU funds.

11.53 We clear document (a) from scrutiny, it having been superseded by document (b). Pending the Minister's replies on document (b), it remains under scrutiny.




62   Com (2011) 308 Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee - Fighting Corruption in the EU, 6 June 2011 Back

63   CM (2007) 74 adopted on10 May 2007 by the Committee of Ministers of the Council of Europe. Back

64   Council Framework Decision 2003/568/JHA of 22 July 2003, OJ L 192, 31.7.2003, p.54. Back

65   Opinion of the Court 1/75 (n76)1359-1360, 11 November 1975. Back

66   Case C-327/91 France v Commission [1994] ECR I-3641. Back

67   Case C-233/02 French Republic v Commission (Guidelines on regulatory cooperation and transparency concluded with the USA) [2004] ECR I-2759. Back

68   See headnote. Back

69   The Bureau is composed of GRECO's President and Vice-President, and five other representatives of the GRECO members entitled to vote. The Bureau prepares the draft annual programme of activities and the draft annual activity report, makes proposals on the draft budget, organises country visits, proposes the composition of evaluation teams, prepares the agenda for the GRECO plenary, and proposes the provisions to be selected for evaluation. Back

70   See headnote. Back

71   See headnote. Back

72   Pages 3 and 4 of the Communication. Back

73   See footnote 69. Back

74   Article 5 of GRECO's Statutes. Back

75   Rule 2 of GRECO's Rules of Procedure. Back


 
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Prepared 13 December 2012