Documents considered by the Committee on 13 November 2017 Contents

37Improving the electronic publication of the Official Journal of the EU

Committee’s assessment

Legally important

Committee’s decision

Cleared from scrutiny; further information requested

Document details

Proposal for a Council Regulation amending Regulation (EU) No 216/2013 on the electronic publication of the Official Journal of the EU

Legal base

Article 352 TFEU; special legislative procedure; unanimity

Department

Exiting the European Union

Document Number

(38837), 6887/17, COM (17) 87

Summary and Committee’s conclusions

37.1Together with a selection of other EU documents, EU legislation and CJEU judgments are officially published and publicised in the gazette of the EU, the Official Journal (OJEU). Non-EU legal acts must be published in the OJEU570

37.2In 2013 the EU adopted a Regulation 216/2013/EU571 to authorise publication of the OJEU online rather than on paper. Article 2(1) of this Regulation requires that the electronic edition bears an advanced electronic signature, based on a qualified certificate and created with a secure-signature-creation device, in accordance with Directive 1999/93/EC. The Regulation was based on Article 352 TFEU.572

37.3This is a very technical proposal to amend the 2013 Regulation. The aim is to increase the speed with which the Official Journal can be published and yet ensure its authenticity, integrity and inalterability, by enabling it to be authenticated by means of an automatic electronic seal as opposed to an electronic signature. Authentication by electronic seal (or advanced electronic seal based on a certificate) was introduced by Regulation (EU) No 910/2014. The main difference between the (advanced) electronic signature and the (advanced) electronic seal is that, in the former case, the signatory is a natural person whereas in the latter case, the signatory is a legal person. The use of this advanced electronic seal would make it possible to automate the electronic signature and accelerate the procedure for publication on EUR-Lex. But since it makes an actual difference in terms of type of legal personality involved, the Commission decided that this proposed amendment to the 2013 Regulation was required.

37.4The European Union Act 2011 (EU Act) requires that before a Minister can vote in support of a proposal based on Article 352 TFEU it must be approved by Act of Parliament unless an exemption applies. Section 8(6)(a) of the EU Act provides an exemption where the proposal will:

“make provision equivalent to that made by a measure previously adopted under Article 352 of TFEU, other than an excepted measure.”

37.5Approval under the EUA has already been given in relation to the previous 2013 Regulation which introduced electronic publication. This approval was set out in the European Union (Approvals) Act 2013 (section 1(2)(a)).573 So the question as to whether approval is needed again rests on whether the current proposal could be considered to be equivalent to the 2013 proposal. The Government now confirms in its Explanatory Memorandum that in its view the proposed is equivalent, the exemption applies and there are no other policy implications for the UK.

37.6We thank the Minister for her Explanatory Memorandum. We are content with the legal explanation and approach taken to the application of the European Union Act 2011 and the exemption in Section 8 (6)(a). We therefore clear the document from scrutiny, but ask the Minister to send us a copy of her statement to the House in due course confirming that the exemption applies in accordance with Section 8(5) of the Act.

Full details of the documents

Proposal for a Council Regulation amending Regulation (EU) No 216/2013 on the electronic publication of the Official Journal of the EU: (38837), 6687/17.

Background

37.7The OJEU consists of two “series” and one supplement: the L Series publishes legislation and other acts of the European Union, as set out in Article 297 in the Treaty on the Functioning of the European Union (TFEU); the C series publishes EU information and notices including judgements of the European courts; and the Supplement S publishes invitations to tender for a wide range of contracts. Since OJEU’s inception in 1958 it has been a paper publication. Since 1998 it has also been available for consultation online. It is published every working day, i.e. five days a week.

37.8In 2007, the Court of Justice ruled in Case C-161/06 Skoma-Lux sro v Celní ředitelství Olomouc that internet publication of OJEU: “does not equate to a valid publication in the Official Journal of the European Union in the absence of any rules in that regard in Community law”.

The Government’s view

37.9The Minister of State Europe, Department for Exiting the European Union (Rt. Hon. Baroness Anelay of St. Johns):

“On 23 June 2016, the EU referendum took place and the people of the United Kingdom voted to leave the European Union. The government respected the result and triggered Article 50 of the Treaty on European Union on 29th March 2017 to begin the process of exit. Until exit negotiations are concluded, the UK remains a full member of the European Union and all the rights and obligations of EU membership remain in force. During this period the Government will also continue to negotiate, implement and apply EU legislation.

“There are no policy implications for the UK, as the Journal and its authentication methods are already fully digitised. The Government is a strong advocate of digitalisation, so we welcome the amendment in maintaining a progressive and efficient approach to the delivery of digital services.

“The extent of the role and relevance of the Journal after we exit the EU is uncertain, as this is dependent on future trade agreement/s.”

37.10On the question of the legal basis, the Minister says:

“The Proposal for a Regulation is based on Article 352 TFEU. However it does not require an Act of Parliament approving the measure, pursuant to the exemption under Section.8(6)(a) EU Act 2011. The proposal is to make a provision equivalent to that made by Council Regulation (EU) No 216/2013 which was previously adopted under Article 352 TFEU. The proposal has the same substance matter in that it relates to electronic authentication of the Official Journal. All that has altered is the specific form the authentication is to take”.

Previous Committee Reports

None.


571 Council Regulation (EU) No 216/2013 of 7 March 2013 on the electronic publication of the Official Journal of the European Union.

572 The 2011 proposal was made under Article 352 TFEU, because Article 297 TFEU, which concerns publication of EU legislation in the OJEU, does not provide for on-line publication of the OJEU. Article 352 TFEU states: ‘If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures’.

573 https://www.publications.parliament.uk/pa/bills/cbill/2012–2013/0121/20130121.pdf: Section 1(2)(a): “ The following draft decisions of the Council of the European Union under Article 352 of TFEU are approved—(a) the draft decision to adopt the Council Regulation on the electronic publication of the Official Journal (document number 10222/5/11).




20 November 2017