Select Committee on European Union Fortieth Report


EUROPEAN MONITORING CENTRE FOR DRUGS AND DRUG ADDICTION (EMCDDA) (12143/05)

Letter from Caroline Flint MP, Parliamentary Under Secretary of State for Public Health, Department of Health to the Chairman

  Thank you for your letter of 4 November[202] about the proposed regulation on the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) and, in particular, about the proposed legal base.

  I apologise that it has now been some time since you wrote to me about this matter. We have been waiting for outstanding judgments from the ECJ on relevant matters and I had hoped that my reply would be informed by these. Unfortunately, one of these is still pending, but as there is no indication of when this might be given, I have decided to respond without the benefit of that judgment.

  As you say, the proposed legal base for the EMCDDA regulation raises similar issues to those for the proposed European Institute of Gender Equality. In each case a legal base chosen allows for the adoption of "incentive measures". Also in each case, the Government does not accept that an incentive measures legal base should be used to establish a body, although it does recognise that a respectable argument could be made for the use of incentive measures Articles.

  My colleague, the Parliamentary Under-Secretary for Women and Equality, [Meg Munn], has recently responded to you about this and set out arguments based on case law that could support the alternative approach that is taken in the draft regulation. Her reply gives details of challenges to the ECJ that the Government has made over similar proposals and of the opinions and judgments that have so far been given. Judgment in one case, that of the European Network and Information Security Agency (ENISA) is expected shortly and may provide further clarity on the legal position. I will not repeat the details of those cases here.

  However, in conclusion, she states that while it is important to record our view that the legal base being used in respect of the European Institute of Gender Equality is not the most appropriate legal base for the establishment of an Institute, there is a sufficiently respectable opposing argument on balance as to warrant no further objection than the inclusion of an appropriate Minutes Statement. It is hoped that the legal position will be clarified further once the ENISA judgment is handed down.

  A further consideration is that the measure involved is one that the UK strongly supports.

  A similar position applies in the case of the EMCDDA regulation. Again, the Government does not accept either that an incentives measures legal base should be used to establish an agency, or that in this case all of the proposed activities of the EMCDDA are likely to constitute incentive measures. However, it does recognise that there is a reasonable argument for the opposing view namely that the end result of the activities undertaken by EMCDDA could be considered to be incentive measures and as such it would then be appropriate to use an incentive measures legal base (ie Article 152) to establish the Agency.

  This position is consistent with that we have taken on similar cases. By registering our dissent through a minutes statement, we preserve the possibility of taking stronger action in similar cases where we have a greater reason to object to the proposal.

  You also asked me if the Government had taken a view about the composition of the proposed Executive Committee for the EMCDDA. An earlier draft of the Regulation had not included any further representation on this Committee from Member States other than the Chair and Vice Chair of the Management Board. The latest proposal is that the Executive Committee will also include two further representatives of Member States from the Management Board. Because of this, the Government now supports this proposal.

31 March 2006

Letter from the Chairman to Caroline Flint MP

  Thank you for your letter dated 31 March which was considered by Sub-Committee G on 4 May.

  We are content with the Government's view that the Commission's latest proposal for the Executive Committee of the Centre to include two further representatives of Member States from the Management Board is acceptable.

  As for the legal base question, you should be aware of our views from my letter to Norman Warner dated 4 November 2005. Since you say that the ENISA judgment is expected shortly and may provide further clarity on the legal position, we would prefer to await your considered opinion on that judgement before commenting further.

  We will continue to hold this document under scrutiny in the meantime. When you do reply, we would be glad if you could also let us know when a Council decision on this Proposal is expected.

5 May 2006

Letter from Caroline Flint MP to the Chairman

  Thank you for your letter of 5 May on this Draft Regulation.

  I must first make clear the position that we have now got to in negotiations on this draft Regulation. We have previously registered our disagreement with the Treaty base on which the EMCDDA is being constituted. Since then, negotiations have been continuing with the measure being based on Article 152.

  These negotiations have been within the Council working group and between the Council working group and the Parliament. During the UK presidency, the Parliament offered the Council the possibility of a first reading deal. Given the complexity of the co-decision procedure, particularly when weighed against the routine nature of this piece of legislation, this was attractive to us as the presidency; and the current Austrian presidency shares that view.

  However, there has been some disagreement between the European Parliament's LIBE committee and some members of the Council over points of detail in the regulation. There have been protracted negotiations over these. But agreement on them now looks to be in sight, and the Austrian presidency is hopeful that it will be achieved in time for the European Parliament's plenary debate on the matter at the end of this month.

  Such agreement will mean that all Member States agree with the content of the Regulation. And, since no other Member State is maintaining an argument that the Treaty base is wrong, the measure will be adopted by qualified majority. We have a scrutiny reservation in place but, in this scenario, it will serve no practical purpose.

  You asked me to provide you with the argument for the use of Article 152 as the legal base for this regulation. The argument derives from the broad approach being adopted by the European Court of Justice in considering the appropriate legal base for a measure. The UK has challenged in the ECJ two measures where it has contended that Article 95 was not an appropriate Treaty base and that Article 308 was. In the Smoke Flavourings case, ECJ C-66/04, the UK disputed the choice of Article 95 for the establishment of a centralised procedure for the authorisation of smoke flavourings in food. The UK argued that a centralised authorisation procedure was not a harmonisation measure. However, the Court held that to provide for a staged harmonisation by means of a centralised authorisation procedure was within the discretion granted by the Treaty provided (i) the basic act determines the essential elements of the harmonisation measure, and (ii) the mechanism for implementing those elements leads to harmonisation within the meaning of Article 95. The Court essentially looked at whether the end result of the measure would lead to harmonisation.

  The recent ENISA judgment in case C-217/04 concerned the use of Article 95 for establishment of the European Network and Information Security Agency, which like the EMCDDA is a Community agency with an advisory role. The Court rejected the UK's argument that setting up such a body is not a measure that could be achieved by using the domestic legislation within each Member State so as to harmonise provisions of national law, and that therefore it could not be a harmonising measure. The Court found that the expression "measures for the approximation" in Article 95 conferred discretion on the Community legislature depending on the general context and specific circumstances of the matter to be harmonised, particularly in fields with complex technical features. It found that the tasks conferred on ENISA were closely linked to the Framework Directive and the specific directives in the area of network and information security and concluded that the Regulation was adopted under the appropriate legal base.

  The Court did not address whether an incentive measures legal base such as Article 152 could be used for the establishment of an agency. However, given the broad approach the Court has taken to what constitutes a harmonisation measure, if the matter were brought before it the Court seems likely to take an equally broad view of what constitutes an incentive measure. In the case of a measure based on Article 152, it might look at whether the tasks conferred on the body seek to achieve the objectives in Article 152.1 but do not affect the competence of Member States to organise or deliver health services and medical care.

  The objective of the EMCDDA is to provide "the Community and its Member States with objective, reliable and comparable information at European level" which is "intended to help provide the Community and Member States with an overall view of the drug and drug addiction situation when, in their respective areas of competence, they take measures or decide on action" (Article 1). This assists Member States "to take measures or decide on action" but does not actually require them to take action or interfere with their responsibilities for the organisation and delivery of services related to drug misuse.

  The ENISA judgment was delivered on 2 May. The Government is considering the implications of the judgment. In the meantime, I will continue to rely on our existing line. If the matter comes before the Council of Ministers, the Government intends to vote in favour but to enter a minute statement to the effect that Article 152 is not the appropriate legal base and that the measure should have been adopted under Article 308.

  You also asked for my comments on your view that the Government's support for the measure is immaterial if the legal base is not appropriate. In my view, a balance needs to be struck between the degree of risk to the principle of the appropriate Treaty base, getting what amounts to routine EU business done expeditiously, and ensuring that a position we take in one case does not undermine our negotiating position in others. In this case, the Government supports the existence of the EMCDDA, and the judgement was made during our presidency that the public interest would be better served by getting this particular piece of routine EU business completed quickly, so as to demonstrate a willingness to be flexible where appropriate and thus support our negotiating position in other dossiers. As this measure is subject to being introduced via Qualified Majority Voting and the UK would not be able to influence the outcome by voting against this measure, I remain of the view that our proposed course of action to register our disagreement, and preference for the use of Article 308, through a minutes statement is the appropriate one.

  As the matter is likely to become urgent, we would ask the Committee to indicate that the Government's agreement to the proposal need not be withheld pending your Committee's further consideration of the proposal.

  We would like to notify you that in the event of an urgent vote in this matter it is our intention to vote for the measure based on our previous position.

23 May 2006

Letter from the Chairman to Caroline Flint MP

  Thank you for your letter dated 23 May which was considered by Sub-Committee G on 8 June.

  We are grateful for your lengthy explanation of the present position over the legal base. We note that the Government is still considering the implications of the ENISA judgment, although you continue to believe that Article 152 is not an appropriate legal base for the EMCDDA and that Article 308 should be adopted.

  The position is clearly unsatisfactory. You will know from our previous correspondence that we are content with the Proposal in all other respects. We would want to see it go ahead without further delay, as you clearly do. On the other hand, as we have indicated in previous correspondence, we attach importance to ensuring that all Commission Proposals should have an appropriate base.

  We understand from your officials that a Council vote may be expected as soon as 27 June. In the circumstances, we are prepared to release the document from scrutiny to give you the leeway requested to vote in favour of the Proposal at Council, if you judge it to be necessary.

  But, before doing so, we recommend that you should give serious further consideration to the alternative of abstaining from the vote on the grounds that the legal base proposed is inappropriate. That would seem to us to be a rather more robust defence of the principle that appropriate legal bases should be adopted. Given that the Proposal is likely to be carried by QMV, it would still enable what you describe as routine EU business to be done expeditiously in this case.

  Although we are content to leave the judgment on that in your hands, if the need arises, we would be grateful if you would report as soon as a Council vote is taken and explain your reasons if you still decide to vote in favour rather than abstaining. We also look forward to learning the Government's considered opinion on the significance of the ENISA judgment in due course.

8 June 2006

Letter from Caroline Flint MP to the Chairman

  Thank you for your letter of 8 June on this Draft Regulation.

  I would first of all like to thank you for your agreement to release this document from scrutiny, thereby giving the Government the ability to vote in favour of this proposal at Council, should we wish to.

  Our position in this matter has not changed over a long period of time. We have registered our disagreement with the Treaty base on which the EMCDDA is being constituted. However, as this issue will be subject to Qualified Majority Voting (QMV) and we support the objectives of the EMCDDA we have maintained the position of voting in favour, while recording a minute of dissent.

  As you are aware from my previous correspondence, the UK has challenged in the ECJ two measures where it has contended that incorrect legal bases were being used as a basis for establishing procedures in Europe.

  In the Smoke Flavourings case, ECJ C-66/04, the UK disputed the choice of Article 95 for the establishment of a centralised procedure for the authorisation of smoke flavourings in food. The UK argued that a centralised authorisation procedure was not a harmonisation measure. However, the Court held that to provide for a staged harmonisation by means of a centralised authorisation procedure was within the discretion granted by the Treaty, provided (i) the basic act determines the essential elements of the harmonisation measure, and (ii) the mechanism for implementing those elements leads to harmonisation within the meaning of Article 95. The Court essentially looked at whether the end result of the measure would lead to harmonisation.

  The case, which has most relevance to the EMCDDA, however relates to the recent ENISA judgment in case C-217/04 concerned the use of Article 95 for establishment of the European Network and Information Security Agency, which like the EMCDDA is a Community agency with an advisory role. The Court rejected the UK's argument that setting up such a body is not a measure that could be achieved by using the domestic legislation within each Member State so as to harmonise provisions of national law, and that therefore it could not be a harmonising measure.

  The ENISA judgment was delivered on 2 May. The Government is currently considering the implications of the judgment. In the meantime, I will continue to rely on our existing line. If the matter comes before the Council of Ministers The Government intend to vote in favour but to enter a minute statement to the effect that Article 152 is not the appropriate legal base and that the measure should have been adopted under Article 308.

  Once we have had the opportunity to fully reflect on the implications of the ENISA judgment for future decisions on how the UK will vote when similar issues arise, detailed correspondence will be sent to both Scrutiny Committees.

  You will be aware that this matter has separately been cleared by the Scrutiny Committee of the House of Commons, who have also agreed to the proposed way that the UK intends to vote on this matter.

  I understand that they have separately written to the Minister for Europe, seeking written evidence in relation to a number of questions on the way the Government votes on European legal base issues. I hope that this evidence will help clarify the way that the Government considers which way to vote on these matters.

5 July 2006

Letter from the Chairman to Caroline Flint MP

  Thank you for your letter dated 5 July which was considered by Sub-Committee G on 20 July.

  We are grateful to you for setting out the Government's present position on the legal base issue and for promising to report further once the Government has been able to reflect fully on the implications of the ENISA judgment, which is relevant to other matters under scrutiny.

  Meanwhile, it appears that the Council vote expected last month did not take place. We are grateful for your assurance that, should a Council vote be required on the Proposal, the UK will make a formal Minute Statement recording the Government's position on the legal base issue. Please report if that happens.

20 July 2006



202   Correspondence with Ministers, 45th Report of Session 2005-06, HL Paper 243, p 578. Back


 
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