Correspondence between the Chairman of
the European Union Select Committee and the Department of Trade
Letter from Lord Grenfell to Ms Meg Munn
dated 14 June 2005
7244/05 COM (2005) 81 FINAL AND 7244/05 ADD
1 SEC (2005) 328: PROPOSAL FOR A REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL ESTABLISHING A EUROPEAN INSTITUTE FOR GENDER
EQUALITY AND COMMISSION STAFF WORKING DOCUMENT
Your Department's Explanatory Memorandum (EM)
dated 31 March was sifted to Sub-Committee G for examination on
5 April, but too late for it to be considered before Parliament
was dissolved for the General Election. It was considered by Sub-Committee
G on 8 June.
Although we note that the Council has already
approved the setting up of the Institute in principle, and that
the Department supports that decision, we question whether it
is really necessary or whether the work it is supposed to do could
not be more efficiently and economically done by some existing
We wonder whether the Department has consulted
any of the British public bodies and NGOs working in this field
to see whether they see a need for the Institute or whether they
might be able to carry out the proposed activities as effectively
themselves, if necessary with some additional Commission funding,
in collaboration with counterparts in other Member States.
A succession of EU Institutes of this sort have
been set up over the years. We have expressed concern in the past
about the value of some of their activities and the efficiency
and accountability of their administrative structures.
If we can be satisfied about the need for the
Institute, we will fully support the Government's wish to ensure
that it will bring added value, avoid duplication and be "budget
neutral". We see a risk of duplication not only of the work
done by Member States institutions but also by international bodies
such as UN and World Bank agencies working in this field. The
proposed activities also seem to us to be far too vaguely defined
to judge their real worth.
The Commission have not shown so far what savings
it proposes to make to compensate for the additional costs of
setting up and running the agency. The overall costs estimates
should also be probed rigorously.
We would be glad if you would explain more fully
the Department's reservations about the proposed legal base. We
recall difficulties in the past over the appropriateness of the
legal base proposed for similar EU institutions.
We would also be grateful if you would explain
what is meant by having "some concerns" about the relative
proportion of members nominated by the Commission and the Council.
We also wonder how a 15-member Management Board
can have "an equal representation between men and women".
Your EM says that appropriate SMART (sic) objectives
should be developed for these proposals. We would be grateful
if you would remind us what the acronym SMART means and how you
expect to see those criteria applied in this particular case.
While we agree that the Institute should have clear and sensible
objectives and allocate its resources properly, we are anxious
to avoid the pitfalls of excessive targeting and measurement.
We also note that Working Group meetings about
this proposal were due to take place in April and that the Luxembourg
Presidency were keen to make progress by the end of their term
of office. We would welcome a report on any significant developments
during these discussions since the EM was submitted.
We also see that the agenda for the ESPHCA Council
meeting on 2 June showed that the proposal was due to be considered
for a "partial general approach". We understand from
your officials this means that the Council would be invited to
agree in principle to a text that has yet to be considered by
the European Parliament and that the text would revert for further
Council consideration once the Parliament had given its opinion.
We trust that it was made clear in any discussion
at the Council meeting that the UK Scrutiny reserve had to be
maintained because the relevant documents had not arrived in time
to be considered before Parliament was dissolved. Please let us
know what happened at that meeting and how you plan to carry discussions
forward during the UK Presidency.
We are retaining the proposal under scrutiny
pending your response.
Letter from Ms Meg Munn MP to Lord Grenfell
dated 23 June 2005
I am writing to update you on the progress made
during the negotiations on this proposal and on the outcome of
the Employment, Social Policy, Health and Consumer Affairs (ESPHCA)
Council on 2 June 2005.
At the Employment and Social Affairs Council
on 2 June the proposal reached General Approach, which the UK
Government is happy with and is supportive of the Council's position.
However, as the proposal is subject to co-decision, negotiations
will continue into the UK Presidency when the European Parliament
begins its examination of thetext. The UK was able to maintain
its parliamentary reserve on this dossier, but in terms of smooth
handling of this dossier during the UK Presidency I hope the information
below will enable the Committee to complete its consideration
of this proposal at this stage.
Negotiations on the European Institute for Gender
Equality were progressed quite quickly by the Luxembourg Presidency,
who tabled 6 social questions working groups in two months. As
outlined in our original EM, the main issues of concern for the
UK were on the legal base, the budget and the composition of the
management board. These issues were addressed within the working
In relation to the proposed legal base the Council
maintained the Commission's position and supported the use of
Article 13(2) and Article 141(3) in this instance. As stated in
the Explanatory Memorandum, the UK Government considers the use
of Article 13(2) inappropriate, as its view is that the scope
of incentive measures does not cover the establishment of an Institute.
This is a view the UK has consistently taken in relation to other
proposals. However, although the UK view is that on balance the
legal base is incorrect, it accepts that there are arguments for
taking the opposite view, which is the position taken by other
Member States. They are content to focus on the point that the
role of the agency would be to support action taken by the Member
States in order to contribute to the objective of combating discrimination,
and consider that Article 13(2) is an appropriate base for this
aim, in combination with Article 141(3). There is precedent for
the establishment of agencies using a legal base referring to
incentive measures in Regulation 851/2004 of 21 April 2004 establishing
a European Centre for disease prevention and control. The UK issued
a joint Minute Statement with Germany in that case in relation
to the use of Article 152(4).
Consequently, in view of the lack of support
from other Member States, together with the sensitivity of the
issue and the fact that the legal argument was not entirely clear,
the UK took the view that it was an appropriate course of action
to issue a Minute Statement at Council on 2 June to record our
objections to the legal base.
It was made clear at the outset of negotiations
that the budget would not be discussed until the EU Financial
Perspective 2007-13 has been agreed. The UK firmly agrees with
this approach. For this reason, the UK supported a Minute Statement
at Council stating that decisions on financial aspects must not
prejudice the Financial Perspective.
The composition of the Management Board has
been a point of much discussion during negotiations. The Presidency
proposed a Management Board comprising one representative per
Member State, alongside a smaller Bureau to take day to day decisions.
This was unanimously adopted by Member States as the final position
at Council. The Commission preferred to retain its original proposal
to have a smaller Management Board, and issued a Minute Statement
at Council reflecting this.
I hope that this information is helpful to your
Committee. I will, of course, update you regarding the outcome
of the European Parliaments consideration and any ensuing discussions.
If you wish to discuss any of these aspects further please do
not hesitate to contact my office.
Letter from Ms Meg Munn MP to Lord Grenfell
dated 17 July 2005
Thank you for your letter dated 14 June requesting
further information on the proposal for a European Institute for
Gender Equality and its progress in Working Groups and at the
ESPHCA Council on 2 June.
It would appear that my letter, dated 23 June,
which answers some of the points in your 14 June letter, crossed
with yours. My letter of 23 June updated you on negotiations in
Council Working Groups and the outcome of the ESPHCA Council on
2 June, and also answered the points you raise on the budget,
legal base and management board. In particular, the fact that
there have not been any discussions on the budget means that the
Working Group has not been able to explore the costs estimates.
This will be done once the Financial Perspective of the EU budget
has been agreed.
You question whether the European Institute
is really necessary, whether it would duplicate work already being
done by other bodies and whether the proposed activities of the
Institute could be done by some existing agency.
Gender equality is a key objective of the EU
and is a fundamental principal of the current Treaty and will
therefore continue to be a high profile area of EU policy. In
the Commission's Communication on the Social Policy Agenda, the
European Institute for Gender Equality is highlighted as a key
tool for assisting the Commission and the Member States in implementing
the next phase of the Community's objectives for promoting equality
between men and women and ensuring that they are incorporated
into Community policies.
The Institute will therefore be able to, with
its data collection, research and sharing of good practice, provide
key information to policy makers in the European Commission, the
European Parliament and the Member States on how best to achieve
the Community's objectives. It will also help them devise policies
and take action to meet the targets of the Lisbon agenda on removing
the barriers to labour mobility by promoting equal opportunities.
The purpose of the Institute is to carry out
some of the tasks which existing institutions are not currently
involved in, such as questions of coordination; centralisation
and dissemination of information; the raising of gender visibility;
and the provision of tools for gender mainstreaming. Indeed, the
importance that you attach to the Institute not duplicating work
done elsewhere, but adding value to other activity, has been a
key element of the UK negotiating position and is well reflected
in the general approach reached by Council. The current text negotiated
in Council makes clear that the Institute shall "ensure appropriate
coordination with all relevant agencies in order to avoid any
duplication and to guarantee the best possible use of resources."
However, merging the activities of the Institute with other bodies
or agencies runs the risk that gender equality could be sidelined,
and be inconsistent with the priority which the Commission and
the Treaty currently give to gender equality.
We have taken informal sounding from other Government
Departments and the Equal Opportunities Commission on this proposal
and this leads us to consider that the Institute's activities
would add value to the work of other British public bodies and
NGOs. In addition, the Institute will compare data from Member
States at a European level, which is not necessarily being done
at a national or even international level.
It is also for this reason that we do not consider
that duplication of work by international bodies such as the UN
is a danger. The UN's International Research and Training Institute
for the Advancement of Women (INSTRAW) carries out research and
training activities on different topics at national, regional
and international levels, but to date its functions have not provided
comparative relevant information which is one of the key tasks
for the Institute. INSTRAW's focus is more international, particularly
developing countries, and it does not look specifically at how
EU Member States are achieving targets set out in the Lisbon Strategy.
You also asked about SMART targets. These are
targets which are Specific, Measurable, Achievable, Relevant and
Timed. In a budgetary context having these targets is a way to
ensure that there is both accountability for spending and to try
and make sure that spending is focussed in the right way. SMART
objectives are legally required for all EU spending programmesspecified
in Article 27 para 3 of the EU Financial Regulation 1605/2002. In
negotiations a number of Member States supported amending the
text to ensure the overall objective meets the SMART targets.
We are also pleased to see included in the text time-bound evaluation
and review clauses.
In terms of the UK Presidency's handling of
this dossier, it is our aim to maintain, where possible, the Council's
general approach on the text during the European Parliament consideration.
I visited the European Parliament on Wednesday 13 July and there
is significant interest in the proposal there, not all of which
is consistent with the Council and Commission's thinking. The
relevant Committee is planning to hold five sessions to discuss
the Proposal and has appointed two Rapporteurs. This will make
it less rather than more likely that we will be ready to see the
Proposal on the ESPHCA Council agenda in December.
You will also see from my letter of 23 June
that we were able to retain our parliamentary reserve at the June
Council. However, I would like to point out that we submitted
the EM on 31 March, which matched the deadline given to us by
the Cabinet Office.
I hope these answers satisfy your concerns with
which you can see I have a great deal of sympathy. In light of
my response I would be grateful if your committee would be willing
to lift its reserve, as this would be particularly helpful for
the UK President of the EU to help progress on this dossier.
Letter from Lord Grenfell to Ms Meg Munn
MP dated 21 July 2005
Thank you for your letters dated 23 June and
17 July about this proposal.
Your letter dated 23 June crossed with, but
did not deal with the points raised in, my letter to you dated
14 June. We therefore agreed with your officials that we would
withhold a reply to that letter until we had seen and had an opportunity
to consider your substantive reply to my letter dated 14 June.
Although your letter dated 17 July was only received on the afternoon
of 18 July, Sub-Committee G exceptionally agreed to consider both
letters at their meeting on 20 July.
We are glad to see that the Government maintained
the Parliamentary reserve when this dossier was considered by
the Employment, Social Policy, Health and Consumer Affairs Council
on 2 June. Nevertheless, we regret that the Government should
have felt it necessary to have gone along with even a partial
decision in favour of this proposal in principle when neither
Parliamentary Scrutiny Committee could have had an opportunity
of considering it. We do not understand why the Government are
in such a hurry to be seen to be endorsing this proposal which
clearly needs thorough examination.
Your letter dated 17 July points out that the
Department's Explanatory Memorandum was submitted on 31 March
which matched the deadline set by the Cabinet Office for submission.
Nevertheless, it was clear to your officials at the time that
a document submitted on 31 March could not be considered by the
Sifting process until the following week, by which time it was
not possible for it to be considered by the relevant Sub-Committee
before Parliament was dissolved for the General Election.
We note what you say about the need for the
Institute. We accept that gender equality is a key objective for
the EU and a fundamental Treaty principle. We share the Government's
commitment to the principles of equal opportunity and would support
any sound, practical and cost-effective proposal that would add
significant value to the work already being done by the Commission
and Member States to improve gender equality and combat discrimination.
But that does not mean that we are prepared, simply because the
cause of gender is invoked, to go along with proposals which seem
to us to be of doubtful merit.
As I pointed out in my letter dated 14 June,
we have expressed concern in the past about the value of some
of the institutions which have been set up the EU over the years.
We will continue to look searchingly at any proposals to set up
new EU-funded institutions, whatever the cause they are supposed
We note that informal soundings from other Government
Departments and the Equal Opportunities Commission have led the
Government to conclude that the proposed Institute would add value
to the work of other British public bodies and NGOs. But in my
letter dated 14 June I asked whether the Department had consulted
any of the relevant UK public bodies and NGOs to see whether they
also saw a need for the Institute or whether they might be able
to carry out the proposed activities as effectively themselves.
We are still not clear precisely what purposes
the data-collection, research, and sharing of good practice described
in your letter dated 17 July are supposed to serve. Nor do we
understand why it should be necessary to have a separate institute
to provide policy-makers in the Commission, the European Parliament
and Member States with information which they could presumably
already obtain for themselves from existing sources.
The description in your letter dated 17 July
of the proposed tasks of the Institute seems to us to be aspirational
but vague, and in some cases positively obscure. We therefore
remain unconvinced at this stage that the proposed Institute is
Thank you for your explanation of the acronym
SMART. If we can be satisfied that the Institute does indeed have
a worthwhile purpose, we would undoubtedly expect to see that
these objectives could be assured, so long as they did not impose
unnecessary bureaucracy in the process.
We fully understand what you say about the effect
of the Government's position on the Financial Perspective on budgetary
considerations. But, given that the proposal is supposed to be
"budget neutral", we still want to know what savings
the Commission propose to make to compensate for the additional
costs of setting-up and running the Institute. Even if the result
is "budget neutral", we would expect the Government
to probe the costs estimates rigorously and report their conclusions.
We regret that the Government has apparently
gone along with the proposal to increase the membership of the
Management Board from 15, as proposed by the Commission, to 25. This
seems to us to be potentially unwieldy, as well as needlessly
costly. Nor does it explain how the Board can have "an equal
representation between men and women" as stated in Article
10.2 of the Commission's proposal, which I mentioned in my letter
dated 14 June.
Moreover, you have not explained, as requested
in my letter dated 14 June, what is meant in your EM about having
"some concerns" about the relative proportion of members
nominated by the Commission and the Council.
We are also surprised to see what appears to
be a new proposal for a "smaller Bureau" which your
letter dated 23 June says is supposed to take "day-to-day
decisions". This appears to be separate from, and in addition
to, the Advisory Board provided for by Article 12. We wonder
how this additional layer of bureaucracy can be justified in an
organisation of the size envisaged and would be glad to know how
it is supposed to be constituted and work, what legal authority
it would have, how it would affect the responsibilities and accountability
of the Director and what the extra cost might be.
What you say in your letter dated 23 June about
the proposed legal base for the Institute is noted. You should
be aware that, in the past, we have consistently recorded our
opposition to the adoption of any proposal on an inappropriate
legal base, regardless of the merits in other respects. Those
reservations were raised very strongly in the case of the proposed
European Centre for Disease Prevention and Control (12098/03)
mentioned in your letter where the Minister concerned eventually
over-rode scrutiny on this very point in order to secure adoption.
That hardly seems to us to be an acceptable precedent.
We also regret that the Government does not
appear to have managed to persuade other Member States to support
their view on the legal base. We wish to give further consideration
to this aspect of the proposal.
Although we are also grateful to you for reporting
on your visit to the European Parliament on 13 July, we would
be glad to know what you mean by saying that the Parliament's
interest is not fully consistent with the Council and Commission's
thinking on the Institute.
For all these reasons, I regret that we are
not prepared to acquiesce in your proposition that we should lift
scrutiny at this stage. We cannot understand why you should suggest
this when it is clear from your letters that, quite apart from
all the work that is still needed to justify and clarify the proposal,
the timetable set by the European Parliament for consideration
means it is unlikely to be ready for Council decision during the
The document will be retained under scrutiny.
To assist our further examination of this proposal, we would be
grateful if you could give oral evidence to the Sub-Committee
about it on a mutually convenient date after Parliamentary business
is resumed in October. My staff will be in touch with your officials
with a view to arranging this. In the meantime, we would be grateful
for your considered reply to the above points.
Letter from Ms Meg Munn MP to Lord Grenfell
dated 12 October 2005
Thank you for your letter of 21 July on the
Proposal for a European Institute for Gender Equality.
I regret the detailed information that I provided
you with in my last letter, dated 17 July, did not fully address
all your concerns. I am now replying to your further specific
questions on the Institute and I trust that this explanation will
The Commission brought forward a proposed Inter
Institutional Agreement this year, setting out a horizontal framework
for Regulatory Agencies. An EM on this was submitted to Parliament
in March. Since then the proposal has stalled while further consultation
takes place. We will update the scrutiny committees on any further
developments. But until such a time, it remains necessary to consider
Agency issues on a case-by-case basis.
As I stated in my previous letter the objective
of the Institute should be to develop methods that will improve
the comparability, objectivity and reliability of gender equality
data in the EU. These methods should also help to support the
integration of gender equality into all Community policies. However,
the UK maintains its position that the creation of such an Institute
should add value and not be burdensome for Member State Administrations.
At present there is no single EU body that collects
and disseminates information on gender equality that is easily
accessible and draws on MS good practice. Eurostat produces some
basic statistical data that is used by the Commission, but this
is limited. The Council working group has agreed that the Institute
should take account of existing information and not duplicate
the research done elsewhere, in particular by Eurostat. A national
body would find it difficult to justify, as well as actually undertake,
the production of comparable, EU level data, drawing on good practice
in 25 MS, which is the defined purpose of the EGI.
The discussion in Council working groups of
the proposed tasks of the Institute is at this stage a broad exploration
of the Institute's role and structure. The detailed work programme
will be drawn up by the Director of the Institute and with full
agreement of the Commission and the Management Board. One of the
reasons the Government supported having a Management Board of
25 is to ensure that Member States have influence over the priorities
of the Institute's work programme.
You are right to expect the UK Government to
probe the costs of the Institute rigorously and we will do so
when the Council is given the opportunity to review the budget
and the Commission has presented its figures formally. However,
the Commission have explained in working groups for the new EU
Programme, PROGRESS, and the Institute, that budget neutrality
implies that the combined funding requirements of the Institute
and the activities under the Gender Equality strand of the PROGRESS
programme should be in line with the funding in the current budget
heading for the existing Programme relating to the Community framework
strategy on gender equality. The Treasury is content with this
in principle but agrees that the Commission should provide further
information on how the funds are to be re-distributed in the light
of this proposal.
Although, the membership of the Management Board
has increased from 15 to 25 and would appear unwieldy, Member
States were reluctant to move away from the precedent of other
Agencies' structures and felt that if one of the main objectives
of the Institute was to share good practice then this would be
more effective if all Member States were able to be present. The
proportion of Commission to Member State representation has decreased,
and equal representation between men and women no longer applies
to this proposal (as simpler wording such as "balanced representation"
was suggested). The group has also moved away from a separate
advisory forum, to take into account the increased number of members
on the Board and the smaller executive bureau. This therefore
reduces bureaucracy overall.
With regard to your comments regarding the proposed
legal base for the Institute, we would repeat the remarks we made
in the letter of 23 June. But first I must clear up any misunderstanding
that the UK considers the current legal base to be illegal. This
is not the case. We do consider that Article 13(2) EC may be viewed
as an acceptable legal basis for the Institute. We have however
argued that there is a more appropriate legal basis for this proposal.
Although we consider, on balance, that Article 13(2) EC is not
the most appropriate legal base for the establishment of an Institute,
I accept that respectable opposing legal views may be taken, which
is the position taken by other Member States.
They take the line that the role of the Agency
would be to support action taken by the Member States in order
to contribute to the aim of combating discrimination, and that
thus Article 13(2) EC together with Article 141(3) EC is appropriate.
I did not therefore believe that the difference between the positions
of the UK and other Member States merited any recourse stronger
than a Minute Statement.
A further reason why we consider a Minute Statement
was appropriate in this case is the ongoing case C-217/04 relating
to the establishment of the European Network and Information Security
Agency (ENISA). This is a challenge brought by the UK on the inappropriate
use of Article 95 EC as a legal base for the establishment of
an agency. Although it is not directly related to the present
issue or Article 13(2) EC, it was expected that it might clarify
what legal base will be appropriate for an agency. The Advocate
General's Opinion, given on 22 September, supported the UK's challenge
on the facts but failed to provide any clear guidance as to the
correct legal base to be used for the establishment of an Agency.
It remains possible that the judgment of the European Court of
Justice will be more helpful.
The European Parliament has made strong calls
to increase the budget of the Institute and enhance its role and
scope to make it a more political instrument. The Council's position
on the Institute is modest compared with the approach taken by
the EP. You will no doubt understand that as EU President, the
UK's role now is to maintain where possible the Council's position
in negotiations with the EP, but if that were to move further
away, the UK would endeavour to pursue its objectives of value
added, budget neutrality and avoid duplication in other activities
in this area. The EP's consideration is likely to continue into
I am pleased to be given the opportunity of
appearing before the Sub-Committee on 24 November to further assist
in the Committee's examination of the proposal and to explain
more fully the Government's position.
Letter from Lord Grenfell to Ms Meg Munn
MP dated 31 October 2005
Thank you for your letter dated 12 October which
was considered by Sub-Committee G on 27 October.
We are grateful for your detailed reply to the
various points raised in my letter dated 21 July about the Proposal.
We are very glad that you have kindly agreed to give oral evidence
to the Sub-Committee about the Proposal on 24 November and look
forward to further discussion of most of these points then.
So far as the proposed legal base for the Institute
is concerned, however, our view is that Article 13(2) and Article
141(3) would not be the correct legal base in this case. As we
see it, the key question is whether or not the current proposal
is an "appropriate action" within the meaning of Article
13. Article 13(1) is the enabling provision which allows the
Council to "take appropriate action to combat discrimination".
Article 13(2) does not grant any greater, or different, power.
Instead it changes the procedural rules which apply to certain
measures adopted in the context of Article 13(1) to allow for
qualified majority voting instead of unanimity where the measure
is "a Community incentive measure". Thus any reference
should be to Article 13 (as in recital 3) or Article 13 (1) and
(2), and not to Article 13(2).
The next question is whether it is an "incentive
measure" under Article 13(2) (an "incentive measure"
being one type of "action" under Article 13(1)).
As views appear to differ on this, it would
be helpful to understand in what sense the proposal can be seen
as an incentive measure. It is not clear from the correspondence
why the majority of Member States and the Commission apparently
consider that this proposal falls within the scope of Article
13(2). What is their reasoning? We would also be glad to know
whether any other agency has been created on the basis of powers
granted to adopt "incentive measures". In this context,
we note that the Government take the view that the creation of
European Monitoring Centre for Drugs and Drug Addiction (reference
12143/05) is not an "incentive measure" as defined in
Article 15(2) 4(C). I attach a copy of Lord Warner's recent undated
Explanatory Memorandum about that, which you may wish to consider
and will send you a copy of my reply to him.
The issue is important since, if the proposal
fell outside the scope of Article 13(2) but remained within Article
13, unanimity would be required (the basic rule for measures under
that Article). Such a change in the legal base could affect the
balance of the negotiations and would also result in incompatible
legal bases for the proposal, because Article 13(1) requires unanimity
and Article 141(3) prescribes qualified majority voting.
We also note from the correspondence note that
the Government do not appear to have defined what legal base they
consider to be "appropriate" as an alternative and would
be glad to know. Do the Government believe that the Regulation
should be made under Article 308?
We look forward to your comments. Scrutiny of
this item is retained.
Letter from Ms Meg Munn MP to Lord Grenfell
dated 22 November 2005
Thank you for you letter of 31 October about
the proposal for a European Institute for Gender Equality, in
particular on the legal base.
I entirely understand your view that Article
13(2) and Article 141(3) would not be the correct legal base.
Perhaps it might be helpful if I set out in some detail our own
thinking on this point, and in particular why I am of the view
that the opinion of the Commission and my colleagues in Council,
that the proposed legal base should be those two Articles, is
sufficiently respectable, on balance, as to warrant no further
objection than the inclusion of an appropriate Minutes Statement.
You asked what the Government's preferred legal
base would be for this proposal. Our view is that Article 13(1)
EC is to be preferred to the combination of Articles 13(2) and
141(3) EC as legal base(s) for this proposal. It was acknowledged
that a substantial pay element brought Article 141(3) EC into
play. However, we recognised that in view of the conflicting procedures
of Articles 13(1) and 141(3) EC, to which you referred in your
letter, there would have been compatibility issues. On balance
we felt that Article 13(1) EC was sufficient legal base as lex
specialis for discrimination, and Article 141(3) EC, although
substantial, was subsidiary to that.
However, if there had been pressure for a further
legal base, we would have considered use of Article 308 EC. This
would have been something of a last resort though as use of Article
308 EC where a specific legal base existed in the Treaty, despite
the compatibility justification, would have been undesirable.
Hence we took the view that Article 13(1) EC alone would be the
most appropriate legal base and this was the approach taken at
the Working Group.
Our impression of the view taken by the other
Member States was that they focused particularly on the wording
within Article 13(2) EC concerned with "measures to support
action taken by the Member States in order to contribute to the
achievement of the objectives [in Article 13(1) EC]". They
took the view that it was appropriate to make reference to the
objectives in Article 13 EC, which Article 13(2) EC does. They
did not support our view that Article 13(1) EC was the more appropriate
legal base for this proposal. They also considered that it was
desirable to cite Article 141 EC as lex specialis for equality
in working conditions and pay. Thus they took the view that Articles
13(2) and 141(3) EC in combination were the most appropriate legal
base. Although their view is not one the UK supported, it is recognised
that it is not one without foundation. Let me elaborate that point.
The stated aims of the Institute are collecting,
analysing and disseminating information, developing methods for
improving the comparability of data, developing methodological
tools to support the integration of gender equality into Community
policies and resulting national policies, carrying out surveys,
organising meetings of experts, organising conferences and meetings
with stakeholders to exchange information and good practice and
setting up documentation resources. It could be argued that some
or all of these could constitute measures designed to encourage,
facilitate and (in a broad sense) provide incentives for Member
State action in the field of gender equality.
Accordingly, I think that a respectable argument
can be made that these activities are sufficient to constitute
The legal base(s) for the Gender Institute Regulation
will of course determine the procedure during the legislative
process. While we accept that Article 13(2) EC is in some respects
parasitic on Article 13(1) EC as a legal base we are not of the
view that this necessitates additional reference to the latter
as a legal base for this proposal. The clear intention as respects
Article 13(2) EC is that it should be available as a separate
and standalone legal base, as evidenced by the fact that it is
subject to a different procedure. Provided Article 13(2) EC is
an appropriate legal base given the content of the measure then
we believe that reference to Article 13(1) EC is unnecessary.
There is a precedent for an institution created
with an incentive measures legal base. Regulation 851/2004 establishing
the European Centre for Disease Prevention and Control (ECDPC)
was adopted using Article 152(4) ECincentive measures designed
to protect and improve human health. The UK objected to use of
that legal base and produced a joint minute statement with Germany.
Letter from Lord Grenfell to Ms Meg Munn
MP dated 1 December 2005
Thank you for your letter dated 22 November
about the legal base for this Proposal, which was considered by
Sub-Committee G on 1 December.
We note what you say but are disappointed that
your reply does not fully answer our concerns on this matter.
In my letter dated 31 October I directed your attention to the
proposal for the creation of a European Monitoring Centre for
Drugs and Drug Addiction (reference 12143/05), currently held
under scrutiny by this Committee, and pointed out that, in that
instance, the Government said it does not consider the creation
of the Centre to be an "incentive measure". In your
reply you informed the Committee of another case in which the
Government objected to the use of an "incentive measure"
legal base for the creation of an agency.
We are troubled by the "a la carte"
approach which the Government appears to be taking to the matter
of legal bases. This is all the more concerning where two apparently
similar proposals held under scrutiny by this Committee at the
same time give rise to opposing views on the suitability of the
legal base proposed. We would be grateful for a full explanation
of the Government's position on when it is appropriate to rely
on an "incentive measure" legal base. In particular
it would be helpful if you would explain specifically why such
a legal base is considered appropriate in the present case when
it is not so considered in relation to the Monitoring Centre for
Drugs and Drug Addiction, and indicate the differences between
the two proposals which, in the Government's view, would justify
taking these apparently conflicting approaches.
On a technical point, as I explained in my previous
letter, we do not consider it appropriate to refer to Article
13(2) without referring in addition to Article 13(1), which appears
to be the enabling provision. While we continue to question whether
or not the creation of this Institute can be properly classed
an "incentive measure", if 13(2) is the base upon which
the proposal relies we do not understand why a legal base of Articles
13(1) and 13(2) and 141(3) has not been considered. This would
not result in inconsistency of legal bases as Articles 13(1) and
13(2) together require qualified majority voting, as does Article
141(3). We would be grateful for your specific comments on this
Letter from Ms Meg Munn MP to Lord Grenfell
dated 3 January 2006
Thank you for your letter of 1 December about
the proposal for a European Institute for Gender Equality, in
particular on the legal base.
In previous correspondence I have set out in
some detail the views of the Government on the legal base for
this proposal. While we believe that Article 13(1) EC is the most
appropriate legal base for the Gender Institute, we acknowledge
that a respectable argument can be made for a combination of Articles
13(2) and 141(3) EC. The question of the appropriate legal base
for a Community Agency is presently before the ECJ in Case C-217/04,
establishment of the European Network and Information Security
Agency (ENISA). The Government brought this challenge not because
we were unhappy with the policy behind ENISA but as a result of
concerns over the legal base of Article 95 EC used to establish
it. We are presently awaiting judgment.
However, given existing case law of the ECJ,
the Advocate General's Opinion in the ENISA case, the Opinion
of the same AG in Case C-66/04 smoke flavourings (another challenge
brought by the government on grounds of legal base) which has
certain parallels with ENISA and the subsequent judgment of the
ECJ in the smoke flavourings case a pattern is starting to emerge
as to how legal base issues are likely to be addressed by the
ECJ. When the judgment in ENISA is handed down we hope that the
legal position will be clarified further.
The approach being taken by the ECJ indicates
that when considering the correct legal base for establishment
of a Community Agency they may look at the end result of the activities
to be undertaken by the Agency. The correct legal base to establish
the Agency would then be found by reference to the EC Treaty and
the corresponding Article covering those activities. For example,
in the case of the Gender Institute if the end result of the proposed
Institute's activities would constitute incentive measures then
an incentive measures legal base could be used to set the Institute
up. While the Government does not accept either that an incentive
measures legal base should be used to establish an agency, or
that in this case the proposed activities of the Institute constitute
incentive measures, the above points add up to a respectable opposing
view on the principle of an incentive measures legal base being
used to set up an agency. I set out in previous correspondence
the arguments which could be made to categorise the activities
of the Gender Institute as incentive measures. The judgment of
the ECJ in ENISA will probably bring some measure of clarification.
Therefore, while our view is that Article 13(1)
EC is the most appropriate legal base for the Gender Institute,
we accept that there is a respectable argument in favour of Articles
13(2) and 141(3) EC instead. The same general arguments can be
applied in respect of the European Monitoring Centre for Drugs
and Drug Addiction (EMCDDA) and its proposed incentive measures
legal base of Article 152.4(c). We understand that the Department
of Health will be responding to you on this issue. We do not believe
that there is any significant difference between the two Departments
in the legal approach to identifying the most appropriate legal
In response to the second point raised in your
letter of 1 December, we have considered carefully whether the
addition of Article 13(1) EC as a legal base, in addition to Articles
13(2) and 141(3) EC, is appropriate. Our conclusion, having taken
advice from Cabinet Office Legal Advisers, is that Article 13(2)
EC does not depend upon Article 13(1) EC in order to have effect
as a legal base. If a proposal satisfies the requirements of Article
13(2) EC in terms of subject matter then no reference to Article
13(1) EC is required. If the contrary had been intended then it
would not have been necessary to include a new paragraph (2) to
Article 13 EC with a separate voting rule and legislative procedure
and introductory words explaining that the paragraph operated
independently of paragraph (1) in the case of proposals which
met particular conditions. A similar position can be seen with
the relationship between Articles 94 and 95(1) EC.
I would also like to take this opportunity to
provide you with the proposed breakdown of costs which you requested
at the Committee's meeting on 24 November. The original proposal
outlines that the annual budget for 2007 is envisaged to be about
4.5 million euros, rising to 8.5 million euros by 2013 once the
institute has reached its full complement of 30 staff.
Below are the proposed costs, broken down into
three categories for the next 5 years: staff (salaries, rent.
IT etc), administration (Management Board, visits, and other meetings,
interpreting and translation plus other admin costs) and operations
(research and publications).
1.080 million Admin
1.23 million Operations
2.19 million Year 2
1.925 million Admin
1 million Operations
3.5 million Year 3
2.576 million Admin
0.999 million Operations
3.625 million Year 4
2.875 million Admin
1 million Operations
3.625 million Year 5
3.159 million Admin
1 million Operations
These figures support the original Commission
proposal and will change according to the final shape and function
of the Institute, and the Financial Perspective as concluded.
The annual amounts are purely indicative.