Select Committee on European Union Nineteenth Report

CHAPTER 3: Scrutiny of Legislative Instruments

The legislative process

60.  In order to better understand the particular difficulties faced by national parliaments when conducting scrutiny of CFSP it is necessary to understand how the legislative process under Pillar II differs from that under Pillar I.

61.  The Council is the legislative body for both the European Community (EC) and the European Union. However, whereas under Pillar I it often shares that power with the European Parliament,[27] under Pillar II legal instruments are decided primarily by the Council of Ministers (normally the General Affairs and External Relations Council (GAERC)) or by the European Council. The Commission generally has the right of initiative for EC law.[28] However, the role of the Commission and the European Parliament is very limited in regard to CFSP.

62.  Under Pillar II[29] the Council is both the promoter of initiatives and the ultimate decision-maker. Initiatives usually originate from the Presidency or the High Representative for CFSP,[30] but any Member State may put forward proposals for new legislation. CFSP came into being with the entry into force of the Maastricht Treaty on 1 November 1993. The Treaty created two new CFSP instruments: common positions and joint actions. The 1997 Treaty of Amsterdam added one further instrument: the common strategy. These instruments are binding in international law but are not directly or indirectly applicable in the same way as EC law in Member States. Box 2 provides an overview of these instruments, and of those EC legal instruments which are also used to implement the EU's foreign policy.


CFSP Instruments

a) Common positions[31] define the approach of the Union to a particular matter of a geographical or thematic nature. Common positions commit Member States to ensuring that national policies conform to the common position An example of a common position would be the coordination of Member State policies against the illicit traffic in diamonds in relation to Liberia, Sierra Leone and Angola (2001/758/CFSP).

b) Joint actions[32] are operational actions by the Member States under the auspices of CFSP. One example is the support for the Palestinian Authority in its efforts to counter terrorist activities emanating from its territories (2000/298/CFSP). All ESDP missions require a joint action to become operational.

c) Common strategies[33] set out overall policy guidelines for activities with individual countries. These guidelines apply to both the EU and its Member States. Each strategy specifies its objectives, its duration and the resources that will have to be provided by the EU and the Member States. The Council implements them by adopting joint actions and common positions. The last common strategy to be adopted was the strategic partnership with Ukraine in 1999 (1999/877/CFSP).

d) Decisions[34] are implementing instruments, which derive their legal base from a previously agreed joint action or common position. For example, in 1999 the Council agreed to a Joint Action for a European Union contribution to combating the destabilising accumulation and spread of small arms and light weapons in Cambodia (1999/34/CFSP). In the same year, the Council adopted a Decision to implement that Joint Action (1999/730/CFSP). In November of 2005, the Council extended and amended the 1999 Decision.

e) Regulations[35] are used to implement economic or financial sanctions against a third country, for example where it is in breach of international human rights. A regulation provides the legal basis for the sanction in EC law and will usually be supplemented by another CFSP instrument. An example is Regulation (EC) No 1334/2000 setting up a Community regime for the control of exports of dual-use items and technology.

The European Council may also set out general guidelines[36] for CFSP, including matters with defence implications. These are non-binding.

63.  The differences in procedures under Pillars I and II lead to two distinct problems for the scrutiny of CFSP: shortage of time available for scrutiny and lack of opportunity to examine proposals before they are effectively agreed at working level. This Chapter examines these two problems and makes recommendations as to how the Government can best work within the current legislative processes to aid effective Parliamentary scrutiny.

Speed of decision-making within CFSP

64.  Under the Treaty of Amsterdam, where a proposal for new EC legislation is formulated a period of six weeks must elapse between a Commission proposal and the Council's first examination of the proposal[37]. This is to ensure that there is sufficient time for parliamentary scrutiny. Under Pillar II, however, there is no agreed time which must pass between a proposal first being made and the Council taking a binding decision on the proposal. This means that scrutiny may have to take place just days before an instrument is due to be agreed in Council. In these cases we may not be able to respond to the Government and raise our concerns prior to a decision being made.

65.  The Government have themselves recognised this problem in their response to our earlier Scrutiny Review Report, stating that: "left to the last moment, or wielded as a delaying device, scrutiny by any national parliament can be viewed in Brussels more as a procedural requirement than a substantive contribution to the policy debate."[38]

66.  It is rare to have months to examine early drafts of CFSP proposals as can be the case in relation to proposals for EC law. This is clearly necessary as the Council must be able to respond quickly to international crises. But the speed with which the Council can take CFSP decisions poses an acute problem for scrutiny.

67.  This issue has become more pertinent since January 2003 when the first European Security and Defence Policy (ESDP) mission became operational. The EU now has a crisis management capacity which it can choose to employ in a very short time. National parliaments are thus left with little opportunity to make a considered input into decisions to launch ESDP missions.

68.  The EU agreed to develop crisis management capability, both civilian and military, in 1999.[39] Four years later, in January 2003, the first mission became operational in Bosnia and Herzegovina. The EU has now embarked upon three military and twelve civilian missions.[40] On ESDP missions the Council will often need to take decisions within a short time-frame, as illustrated by Box 3.


Council decision-making on ESDP missions

EU Police Mission in Bosnia and Herzegovina (EUPM): the Council stated that it would examine the ''possibility of the European Union taking part in the development of the international police force in Bosnia and Herzegovina'' in its Conclusions of 10 December 2001 and announced its readiness to establish the EUPM in its Conclusions of 18 February 2002.

EU Police Mission in the Former Yugoslav Republic of Macedonia (EUPOL Proxima): just 13 days elapsed between the Macedonian authorities inviting the EU to deploy a Police Mission on 16 September 2003 and the Council adopting a Joint Action on 29 September 2003 to establish the mission.

EU Rule of Law Mission in Georgia (Just Themis): there was a period of 25 days between the Prime Minister of Georgia inviting the EU to deploy a Rule of Law Mission on 3 June 2004 and the Council adopting the Joint Action on 28 June 2004.

EU Rule of Law Mission for Iraq: it took over three months from the European Council's consideration of the report of the fact-finding mission to Iraq on 5 November 2004 and the GAERC's political agreement on 21 February 2005 on the full mission.

EU Security Sector Reform Mission in the Democratic Republic of the Congo (EUSEC DRC): on 26 April 2005 the DRC government officially requested EU assistance of security sector reform; the Council had already approved the General Concept for setting up such a mission on 12 April 2005; on 2 May 2005 the Council adopted, using the written procedure, a Joint Action to establish the mission.

69.  Despite the short time-frames available, we have been able to examine these missions prior to agreement in Council, with the exception of the integrated rule of law mission to Iraq. This has only been possible due to the new procedures outlined in Chapter Two. Nonetheless, we highlight the importance of the Government's taking additional steps in relation to ESDP missions.

70.  The EU's decision to launch an ESDP mission, through agreement of a joint action, is preceded by a number of other developments. Normally a country's authorities will make an official request for assistance, which is followed by an EU fact-finding mission to that country. On the basis of that fact-finding mission the EU decides whether or not to send an ESDP mission. However, as was the case with the Police Mission in Macedonia and the Security Sector Mission in the DRC, this is not always the order of events. The EU can choose to send a fact-finding mission to a country prior to the official request for assistance to allow for a very quick response once that request comes through.

71.  The Government has developed the practice of sending a first letter informing us of an impending mission at the time of deployment of the fact-finding mission. Where there is time, the Government sends a second letter informing us of the outcome of that fact-finding mission.

72.  This is a highly welcome practice but one which the Government is yet to apply in a systematic way. At the 3 October 2005 GAERC the Council recorded its intention to respond positively to a request from the Moldovan and Ukrainian authorities for a border mission on the Moldova/Ukraine border. A fact-finding mission was despatched, which concluded that the Commission rather than the Council was best placed to carry out this mission. It was only in the context of an explanatory memorandum relating to the mandate of the EU Special Representative to Moldova that we were informed of the fact-finding mission's mandate and recommendations.

73.  We underline the great importance of the Government keeping us informed of potential ESDP missions at an early stage, including in those cases in which the Council chooses not to act. Given the speed at which eventual joint actions on ESDP missions are adopted, early warning is crucial for scrutiny. We urge the Government to make these letters as detailed as possible. It is at this stage, when the Council is yet to make a final decision, that we can most usefully make a contribution.

Upstream scrutiny

74.  In our Scrutiny Review we reached the conclusion that we should aim to work at the earliest possible stage in the policy-making cycle: so-called upstream scrutiny.[41] The Government strongly supported this view, stating in its response: "As we have repeatedly stressed, scrutiny by the Committee is most effective, and influential, the earlier it takes place. … Reliance on definitive texts, which by their nature are only produced late in the decision making process, reduces the practical influence of the Committee and the impact of its work."[42]

75.  Performing upstream scrutiny of CFSP poses particular problems, not only because of the limited time which may be available, but because of the way in which proposals are initiated. In most cases there is little opportunity for the Sub-Committee to examine an early proposal which is intended to form the basis for a new legislative instrument since the Commission is not involved. Drafts at working group level are necessarily restricted due to the political sensitivities involved in the negotiations between Member States. This means, however, that the "draft" proposal which the Sub-Committee examines is normally already agreed as the final version. The function of scrutiny is thus reduced to agreement or otherwise with the overall policy with details no longer negotiable.

76.  Even where the Commission has been involved in the early stages of a proposal, usually when there is a development aid as well as a foreign policy aspect to the proposal, we are often left uninformed of any discussions which take place between the Commission proposal and the adoption of the final policy by Council. The EU Strategy for Africa[43] (Box 4) demonstrates that the Government is willing to discuss proposals with the Sub-Committee, but that it is difficult to have any substantive input into proposals before they are decided upon by Council.


Scrutiny of the EU Strategy for Africa

The June 2005 European Council invited the Council to draw up a long-term global strategy towards Africa, in the light of the UN Summit outcomes, with a view to the European Council in December 2005.

The United Kingdom Presidency also listed Africa as one of its priorities and stated its commitment to the Strategy for Africa.

We were thus aware that a Strategy would be forthcoming at an early stage in its development.

The Commission published its draft Strategy on 12 October 2005. The Government deposited its explanatory memorandum on 20 October and Sub-Committee C considered the document at its meeting on 27 October.

The Sub-Committee agreed to hold the document under scrutiny and to request that Ministers give oral evidence on the proposed Strategy. We were informed by officials within the FCO that the final Strategy, whilst it would take into account the Commission document, would differ from it significantly. It was therefore agreed that the evidence session should be held in late November in order that the Sub-Committee might have as much information at its disposal as possible, but sufficiently early for views to be made known to the Government prior to the adoption of the final Strategy by the European Council.

We were provided with two papers which had been prepared for the working groups by the United Kingdom Presidency and Javier Solana respectively which outlined a number of proposed priorities for the Strategy. We were able to take these into account in formulating questions for the Secretary of State for International Development, Hilary Benn, and the Parliamentary Under-Secretary of State for the FCO, Lord Triesman, when they came to give evidence on 29 November. We were extremely grateful for this information.

However, the final Strategy, which bore little resemblance to the original Commission proposal, was not made available until after its adoption by the European Council on 15 December. Thus, despite the help given to the Sub-Committee by both Ministers and officials within the FCO and the Department for International Development (DfID), we were not practically able to scrutinise the Strategy prior to a decision being made.

77.  We recognise that it is not possible for national parliaments to be involved at every stage of the decision-making process, and that political sensitivities prevent the Government alerting us to differences of opinion that exist between the Member States. However, we ask that the Government aid the Sub-Committee's work in the following ways.

78.  As with letters alerting us to putative ESDP missions, we wish to be kept informed of potential new initiatives at an early stage. The Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC), at its recent meeting in London in October 2005, noted that upstream scrutiny of CFSP is difficult and pointed out that "governments of Member States can assist national parliaments by alerting scrutiny committees to policy reviews being undertaken by Council working groups."[44]

79.  We strongly support this recommendation and highlight in Box 5 a recent example where early warning would have been very helpful to assist upstream scrutiny. Since the Council is a largely closed institution, we can only be alerted to policy reviews by the Government.


Scrutiny of the EU Code of Conduct on Arms Exports

In May 1998 the EU adopted a Code of Conduct on Arms Exports. The Code is a politically binding instrument that seeks to create "high common standards" for all EU members to use when making arms export decisions and to increase transparency among EU states on arms exports.

In October 2003 Council working groups started a review of the EU Code.

The Minister for Europe wrote to alert the Committee to the forthcoming Code of Conduct on 24 June 2005 and we received an explanatory

memorandum on the revised Code on 4 July 2005, only two weeks before the substantially revised Code was agreed in Council on 18 July.

On such a wide-ranging and important issue the Sub-Committee may have chosen to conduct an inquiry if alerted to the review at a much earlier stage.

80.  The Government should alert the Committee to potential new initiatives and reviews of existing legislation and policies at as early a stage in the process as possible. Where draft proposals cannot be provided due to the restricted nature of the documents, the Government should outline the main proposals along with a statement of the Government's position.

81.  During the United Kingdom Presidency the Government has been understandably reluctant to set out its position on proposals where negotiations are still continuing. Now that the Presidency has passed to Austria, we expect to receive a full statement of the Government's position on each draft legislative instrument, whether in agreement or disagreement. Although this may not be possible during the course of negotiations, there is no reason why it should not be possible once a text has been agreed. The process of scrutiny is not only important for the purpose of Parliamentary input into proposals, but for ensuring that the process by which they are agreed is as transparent as possible. Thus a full analysis of the advantages and disadvantages of a particular proposal serves a useful function even where effective agreement has already been reached.

82.  Where advance notification of proposals or draft instruments cannot be given the Government should provide a full indication of the reasons for this in either its explanatory memorandum on the deposited document or by letter. This should include, where necessary, an explanation of the main points of disagreement on a particular proposal.

The different procedures are the co-decision procedure, the consultation procedure, the cooperation procedure and the assent procedure. Back

28   The European Parliament has a limited right of initiative in that it has the possibility of asking the Commission to put forward a proposal. Back

29   This is equally the case under Pillar III. Back

30   Dr Javier Solana is the current High Representative of the CFSP and the Secretary-General of the Council. Back

31   Article 15 Treaty on European Union (TEU). Back

32   Article 14 TEU. Back

33   Article 13 TEU. Back

34   Article 23(2) TEU. Back

35   Arts 301 and 133 Treaty Establishing the European Community. Back

36   Article 13 TEU. Back

37   Protocol IX to the Treaty of Amsterdam on the role of national parliaments. Back

38   European Union Committee 20th Report (2002-03): Government Responses: Review of Scrutiny; Europol's role in fighting crime; and EU Russia Relations (HL 99), para 162. Back

39   European Union Committee, 7th Report (2002-03): EU-Effective in a Crisis? (HL 53).  Back

40   The Austrian Presidency website provides a comprehensive list of the ESDP operations undertaken to date: Back

41   European Union Committee, 1st Report (2002-03): Review of Scrutiny of European Legislation (HL 15), para 40.  Back

42   European Union Committee 20th Report (2002-03): Government Responses: Review of Scrutiny; Europol's role in fighting crime; and EU Russia Relations (HL 99), para 162. Back

43   15961/05: The EU and Africa: Towards a Strategic Partnership, adopted by the European Council on 15-16 December 2005.  Back

44   COSAC Fourth Bi-annual Report: Developments in European Union Procedures and Practices relevant to Parliamentary Scrutiny, October 2005, p 6.  Back

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