House of Lords - European Union - Twenty-Second Report

81. By way of example, Sir Kim Darroch referred us to the draft Directive on facilitating cross-border enforcement in the field of road safety,[24] the proposal for which was brought forward in March 2008 in response to a request contained in Conclusions of the Transport Council in June 2006. (Q 252) Another example, the Registration, Evaluation and Authorisation of Chemicals (REACH) Regulation, was referred to in the evidence submitted by the FCO. (p 110)

BOX 1

The REACH Regulation

The first EU law covering the classification and labelling of chemicals was adopted in 1967. In the late 1990s, concerns were expressed that the law was inadequate, largely because most chemicals were not required to be accompanied by basic safety information.

EU Ministers, meeting informally in Chester in 1998, encouraged the Commission to review EU chemicals legislation and, if appropriate, propose a new EU-wide system. This led to a Commission proposal[25] which became Regulation (EC) 2006/1907 adopted by the Council and the European Parliament.[26]

82. Requests from the Council are unlikely to come as a surprise to the Commission. While it not unknown for a Minister to raise at a Council meeting an idea which has not previously been ventilated, usually the idea will already have been put forward to the Commission; or as Sir Kim Darroch put it, it will have been "worked through the system". (QQ 266, 267) Proposing a new piece of legislation at a Council meeting or COREPER, without having secured support from most of the other members in advance, "would be a recipe for failure". (Q 292)

83. The Council may seek to set the agenda for legislation by adopting a multi-annual strategy in a policy area. The FCO told us that such plans can be very effective and gave the example of the 6th Environment Action Programme. This was agreed in July 2002, by the Council and the European Parliament, and set out a framework for environmental policy-making for the period to 2012. The proposals for revision of the Waste Framework Directive,[27] for example, resulted from the Programme. (p 114)

84. Less formal contacts between the Council and the Commission provide ways in which the Council can continually seek to influence the output of draft legislation. In the Commission's view: "the informal political interplay of the different institutions and political groups is the normal channel to make the Commission aware of a demand for legislation". (p 86)

COMMISSION RESPONSES TO THE COUNCIL

85. The Commission is not obliged to comply with a request for a legislative proposal but usually does so. Catherine Day confirmed that it is rare for the Commission to decline to make a proposal where legislation calls for it, and in such cases, the Commission gives its reasons. But she explained that while the Commission is very conscious of its position as servant of the EU legislature, it also holds to the position that it does not exist to do the bidding of the Member States. (Q 335)

86. In paragraph 9 of the Inter-Institutional Agreement on Better Law-making, the Commission undertook to "take account" of Article 208 requests made by the Council and to "reply rapidly and appropriately". Sir Kim Darroch interpreted this commitment as a promise always to consider a Council request seriously (whether or not it cites Article 208) and to explain, if it chooses not to respond positively. (Q 252) Where the Commission does not bring forward a proposal, that may mean that opinion within the Commission is opposed to the request. It may alternatively reflect the Commission's perception of the low priority it should accord the request in relation to other business.

The European Parliament

87. The European Parliament sees itself as one of the principal actors in the process of initiation and development. David Harley saw this as a role that has increased in recent years, particularly since 2004. This is partly due to the additional influence attributable to the extension of areas of EC competence subject to the co-decision procedure but also to the beginning of attempts to improve legislative programming. (Q 389)

88. The Treaty provides one way in which the European Parliament can influence the initiation of a legislative proposal. Article 192 TEC provides:

The European Parliament may … request the Commission to submit any appropriate proposal on matters on which it considers that a Community act is required for the purpose of implementing this Treaty.

CALLS FOR LEGISLATION FROM THE EUROPEAN PARLIAMENT

89. Richard Corbett MEP noted that 17 resolutions have been adopted under Article 192. (p 139) David Harley pointed to six reports by the current parliament (i.e. since the European Parliamentary elections of 2004): (Q 390)

Heating and cooling from renewable sources of energy (February 2006);

Access to the Institutions' documents (April 2006);

Protecting European healthcare workers from blood-borne infections due to needle-stick injuries (July 2006);

Succession and wills (November 2006);

European Private Company Statute (February 2007); and

Cross-border disputes involving injuries and fatal accidents (February 2007).

90. He explained that the Commission always follows up the reports to some extent, and he considered that the Commission does its best to satisfy the Parliament by bringing forward legislation corresponding to the Parliament's wishes, though he added that this occurred where those wishes could be integrated into the Commission's own priorities. For example, the Commission's recent proposal for a revised Regulation on access to documents[28] refers, in its preamble, to the report of the European Parliament of April 2006.

91. The small number of formal reports shows that the Parliament has other ways in which its influence is brought to bear. Richard Corbett MEP drew our attention to "own initiative" reports. These are not made formally under Article 192 TEC but are used to call on the Commission to take action on a particular matter, frequently including calls for new legislative proposals. (p 139) David Harley also mentioned reports responding to green papers and white papers published by the Commission as part of a consultation process. (Q 389) While individual members of the European Parliament (MEPs) as well as committees and the political groups may make demands of the Commission, those adopted by the Parliament in plenary session carry most weight. Box 2 provides an illustration.

BOX 2

Legislation to combat discrimination

Article 13 TEC provides for "appropriate action" by the EU (including legislation) to combat discrimination based on sex, racial or ethnic origin, religion or belief, age or sexual orientation. The EU has adopted two directives under Article 13: on discrimination based on race or ethnic origin, and on all forms of discrimination in employment.

The Commission's Annual Legislative and Work Programme for 2008 included in its list of Priority Initiatives the publication of a proposal for a directive, under Article 13 TEC, implementing the principle of equal treatment outside employment.

Reports appeared in the press in 2008 that some, at any rate, of the members of the Commission were hesitating to propose legislation covering discrimination based on sexual orientation, fearing opposition on the part of some Member States.

On 20 May 2008 the European Parliament in plenary session adopted an "own initiative" report noting that the Commission might put forward legislation not covering all grounds of discrimination, and reminding the Commission of its commitment in its work programme to complete the package of anti-discrimination legislation under Article 13.[29]

At a hearing before the Civil Liberties Committee of the European Parliament on 16 June 2008, the Commissioner-designate, Jacques Barrot, announced that the Commission was drawing up a proposal for a cross-cutting directive aimed at combating all the forms of discrimination referred to in Article 13 of the Treaty.

On 2 July 2008 the Commission published a Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation.[30]

92. David Harley explained the process by which the reports are made. There is fairly extensive discussion in the relevant committee of the Parliament, sometimes in more than one committee, on the basis of a draft report prepared by the member acting as rapporteur. A draft report goes to the political groups and then to the Parliament in plenary session where a vote is taken. He made the point that, in contrast with the work of the parliamentary committees, the role of the political groups in this process is sometimes neglected. (Q 393)

93. Richard Corbett MEP also drew our attention to the use of written declarations which, he explained, can be tabled on any matter within the EU's sphere of activity (and are similar to Early Day Motions in the House of Commons). (p 140) Normally, a declaration does not attract much attention but one that achieves an absolute majority becomes the position of the Parliament. He gave the recent example (2006) of a declaration calling on the Commission to bring forward legislation to ban the import of commercial seal products.

COMMISSION RESPONSES TO THE EUROPEAN PARLIAMENT

94. Paragraph 9 of the Inter-Institutional Agreement on Better Law-making, the Commission gave the same undertaking to the European Parliament as it gave the Council, namely, to take account of the Parliament's requests for legislative proposals made under the Treaty and to "reply rapidly and appropriately". The Commission responds to reports in the parliamentary debate on the report, and in a later report back stating how it has responded to the request for action. Richard Corbett MEP gave two example of legislation resulting from calls by the Parliament: the ban on tobacco advertising, which he traced back to a parliamentary initiative of 1990, and a directive on trans-frontier television broadcasts. (p 139) David Harley summarised the Commission's responses to the six "own initiative" reports made since 2004. (p 108)

95. Comparing the influence of the European Parliament's requests for legislation with that of the European Council, David Harley acknowledged that the European Council may well be considered to carry greater weight and authority. On the other hand, he thought the Parliament made fewer, more focussed, requests which makes them easier for the Commission to follow up. (Q 394) Professor Rasmussen noted that, in the past, the Parliament and the Commission were allies, the Parliament supporting legislative provisions delegating power to make subordinate legislation to the Commission subject to a committee procedure. But more recently, the Commission/Parliament relationship had tended to become more "conflictual". (Q 41)

THE PLANNING PROCESS

96. The European Parliament has some opportunity to influence legislative planning through the Commission's Annual Legislative and Work Programme. The planning process begins with the annual 'state of the Union' debate in the Parliament each spring, continuing with meetings between the parliamentary standing committees and their counterpart Commissioners, and concluding with the presentation of the Programme to the Parliament by the President of the Commission in the autumn. Although the Programme is primarily concerned with prioritising proposals,
Richard Corbett MEP pointed out that the Parliament can seek to influence relative priorities and may press for the inclusion of additional items (for example, based on an "own initiative" report) or the exclusion of items. (p 140)

The Economic and Social Committee

97. The Economic and Social Committee (ESC) was established when the European Community (then the European Economic Community) was founded. Its composition and responsibilities are now set out in Articles 257-262 TEC. Its 344 members represent the "various economic and social components of organised civil society" (Article 257 TEC). Its formal role is to assist the Council and the Commission in an advisory capacity (Article 7(2) TEC) and in that capacity it gives opinions on legislative proposals. The Commission has been working recently with the ESC, for example, on sustainability and, at the Commission's request, the ESC keeps a database on voluntary regulation and self-regulation. (Q 387)

98. The ESC pointed out that increasingly it seeks to give its opinion "upstream" in order to influence the initiation or the nature of Commission proposals. A Protocol of Cooperation between the ESC and the Commission provides a framework for such activity. The ESC has used "initiative opinions" for this purpose.[31] Since 2001, it has also become customary for the ESC to make "exploratory opinions". In 2007, in response to a request from the German Presidency the previous year, the ESC adopted such an opinion on the subject of food labelling in support of animal welfare standards.[32] The Agriculture and Fisheries Council in May 2007 took note of the opinion and referred to its recommendations when calling on the Commission to submit a report on the matter. (pp 146-147)

The Committee of the Regions

99. The Committee of the Regions (CoR) is another body established by the Treaties with advisory status (Article 7 TEC). Its composition and responsibilities are set out in Articles 263-265 TEC. Its members represent regional and local government bodies, and it must be consulted by the Council and the Commission in particular on matters concerning cross-border cooperation (Article 265). The Commission worked actively with the CoR, for example, on the revision of legislation concerning waste management. (Q 387)

100. Within a framework established by a Protocol governing arrangements for cooperation with the Commission, the CoR has regular contact with the Commission, for example, during the preparation of the Commission's Annual Legislative and Work Programme. It provides input into the development of legislation through the consultation process (opinions on green papers and the like), "outlook opinions" on future policies at the request of the Commission, and "own initiative opinions" on matters of particular significance from a regional or local perspective. In 2006 the CoR adopted an opinion on the Commission's mid-term review of its 2001 white paper on transport, calling for harmonisation of the conditions governing the rail and land transport sectors. The Commission's draft Directive published in 2007 made proposals for strengthening the criteria for transport operators. (p 137)

23 This statement of its role would be unchanged if the Treaty of Lisbon were to come into force. Back