11 Managing the EU's archives
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13183/12
COM(12) 456
| Draft Regulation amending Regulation No 354/83 as regards the deposit of the historical archives of the institutions at the European University Institute in Florence
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| Legal base | Article 352 TFEU; unanimity; consent
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| Department | Justice
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| Basis of consideration | Minister's letter of 9 November 2012
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| Previous Committee Report | HC 86-xviii (2012-13), chapter 7 (31 October 2012)
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| Discussion in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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The document
OVERVIEW
11.1 The proposal is for a Regulation that will seek to regularise
existing arrangements for the management of the physical historical
archives of the European institutions by the European University
Institute ("EUI"), Florence, in premises provided on
a permanent basis by the Italian government.
11.2 Currently, the European institutions are obliged
by Regulation (EEC, Euratom) No 354/83 ("the existing Regulation")
to make arrangements for the preservation and provision of access
to their archives once records are 30 years old. Although the
existing Regulation does not require it, the Council, Commission,
European Court of Auditors, European Economic and Social Committee
and European Investment Bank have, as a matter of practice, deposited
their physical (paper) archives with the EUI under a series of
contracts dating from 1983, 1984 and 2005.
11.3 The proposed Regulation would formalise these
arrangements and would also require all the European institutions
to deposit their physical archives at the EUI. The European Court
of Justice (ECJ) and the European Central Bank (ECB) have asked
to be excluded from the requirement to deposit their archives
at the EUI, but may voluntarily deposit their records there if
they wish to, and this is reflected in the proposed text. The
proposal will not change the point at which the public can access
historical records, which will remain at 30 years.
11.4 A different approach is intended for the European
institutions' digital archives, with individual institutions taking
responsibility for the permanent preservation of their own digital
material. The existing Regulation does not mention digital archives
and the proposal to amend the Regulation intends to help address
this gap. The proposal therefore includes the provision that the
EUI shall have permanent access to each institution's digital
archives in such a way as to allow it to fulfil its obligation
to make historical archives accessible to the public from a single
location once they are 30 years old.
LEGAL AND PROCEDURAL ISSUES
11.5 The legal basis for the proposal is the residual
legal base of Article 352 TFEU, which is relied upon in the absence
of a specific legal base. In this case, whilst the EU has competence
to adopt measures to support, coordinate or supplement the actions
of Member States in the preservation of national culture or educational
objectives by virtue of Article 6 TFEU, the Treaties do not provide
the EU with the necessary powers with regard to the historical
archives of the institutions.
11.6 For proposals adopted on the basis of Article
352 TFEU, unanimity in the Council and the consent of the European
Parliament are required.
11.7 As the proposal is being brought forward under
a legal base of Article 352 TFEU, under section 8 of the European
Union Act 2011 a Minister may vote in favour of the proposal only
if one of the subsections (3) to (5) is complied with, the presumption
being that an Act of Parliament is required.
PREVIOUS SCRUTINY
11.8 When we reported on this proposal[84]
we commented that it seemed a sensible, uncontroversial proposal.
What lent it legal and political significance was the application
of the European Union Act 2011 to it. Section 8 of that Act prevents
a Minister from voting in the Council in favour of a proposal
based on Article 352 TFEU unless either:
- the draft proposal is approved
by Act of Parliament; or
- is approved by a resolution of both Houses on
an unamended motion where its adoption is a matter of urgency
in the opinion of the Minister; or
- the Minister has laid a statement saying that
in his opinion the draft proposal relates to one or more exempt
purposes. Exempt purposes are:
(a) to make provision equivalent to that made by
a measure previously adopted under Article 352 of TFEU, other
than an excepted measure;
(b) to prolong or renew a measure previously adopted
under that Article, other than an excepted measure;
(c) to extend a measure previously adopted under
that Article to another Member State or other country;
(d) to repeal existing measures adopted under that
Article;
(e) to consolidate existing measures adopted under
that Article without any change of substance.
11.9 We did not consider that this proposal fell
within an exempted purpose: the legal obligation on EU institutions
to deposit archives at the EUI was new, rather than equivalent
to or a consolidation of an existing provision; as were the provisions
concerning the EUI as a data processor within the terms of Regulation
45/2001, and concerning the EUI having permanent access to each
institutions' digital archives. We therefore concluded that an
Act of Parliament would be required before the Minister could
agree to this proposal in the Council.
11.10 We asked the Government to confirm it agreed
with this analysis. We also asked it to explain why the ECJ and
ECB had been excluded from the obligation to deposit their archives
with the EUI.
The Minister's letter
11.11 The Parliamentary Under-Secretary of State
for Justice (Mrs Helen Grant) writes on 9 November in response
to our questions. She confirms that, in light of the legal base
of Article 352 TFEU, section 8 of the European Union Act 2011
will apply, and that the section 8 exemptions listed above are
not capable of applying to this proposal, so that an Act of Parliament
will be necessary.
11.12 Turning to the ECJ and ECB, she says that they
are the only two institutions which asked for an exception to
the general rule of mandatory deposit at the EUI. The ECJ archives
are a considerable size, the majority of which is case files,
and many of which need to remain accessible to the Court and often
contain sensitive personal data. Arrangements for managing
the records of courts and whether they are subject to national
archives legislation vary across Member States. The ECJ retains
the possibility of voluntary deposit with EUI and giving the EUI
access to digital archives which the Court might open to the public
in the future. The ECB refers to its organisational autonomy,
staff expertise in guiding users to historical information and
that public access to its documents is subject to specific Bank
rules from 2004 (not Regulation No. 1049/2001 regarding public
access to European Parliament, Council and Commission documents).
This is in line with national arrangements in most Member States
(for example the Bank of England is not subject to the Public
Records Act 1958).
Conclusion
11.13 We thank the Minister for her helpful reply.
We are pleased to note the Government's conclusion that exemptions
under section 8 of the European Union Act 2011 do not apply in
this case; we think this is consistent with a faithful interpretation
of that section, even if the consequence is that an Act of Parliament
will be required before the Government can agree to this unimportant
proposal in the Council.
11.14 Having no further questions to ask we now
clear the document from scrutiny.
84 See headnote. Back
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