Examination of Witnesses (Questions 248-259)
Mr Kim Darroch, Mr Vijay Rangarajan, Ms Sally Langrish,
Mr Paul Heardman, Ms Clelia Uhart and Mr Gian Marco Currado
8 MAY 2008
Q248 Chairman: Thank you for coming.
Thank you for housing us and, indeed, prospectively entertaining
us.
Mr Darroch: It is a pleasure.
Q249 Chairman: Whether that affects
our objectivity, I hope is—
Mr Darroch: We hope so!
Q250 Chairman: --- not open to question!
We are very grateful. This will be recorded and there will be
a transcript. If there any points which arise on it, please let
us know, and if there are any supplementary points I am sure you
will too. I should perhaps also say if there are any interests
which any members have they have been disclosed in the Lords'
Register. The Council of Ministers has a power to request the
Commission to submit proposals under Article 208 at the moment.
Is this right much exercised? If so, could we have any examples.
What happens to such requests, in practice are they coercive or
do they produce results at all?
Mr Darroch: My Lord, first of all welcome, and
thank you for your interest in all of this and for coming here.
Would you like me to introduce my team?
Q251 Chairman: I should have said
if there are any preliminaries, please do.
Mr Darroch: We are slightly different from those
who may have been billed. Sally Langrish is the Legal Counsellor.
Paul Heardman is Head of our European Parliament Section. Clelia
Uhart is First Secretary, Single Market. Gian Marco Currado is
First Secretary, Environment. On this side, Vijay Rangarajan is
a Counsellor, JHA.
Q252 Chairman: Thank you. If there
are any preliminary remarks you want to make, please do.
Mr Darroch: I should say while I like to think
I have got a general grasp of all of this stuff I will turn to
the experts at various points, or they may interrupt me and add
to what I say. The short answer to your question is that the Council
frequently requests the Commission to submit proposals to use
Article 208. This usually comes through Council Conclusions and
the requests usually produce results. We looked through the records
and could only find one example which actually quotes Article
208, which is a Council decision of 22 September 1997 based on
Article 152, which is the old 208, which called for the Commission
to table proposals for a Single Programme for Culture. This led
the Commission to produce what was called the Culture 2000 Programme
which acknowledges the 1997 decision in its recital. That is specifically
quoting 208, or what was 208 but 152. Actually, even when not
specifically cited, 208 is the underlying Treaty base for a whole
range of methods of calling for the Commission to bring forward
legislative proposals, so there are lots of Council Conclusions
which have had this intention. To give you some examples: in 1998
EU Ministers called for the REACH Regulation, which is the Registration,
Evaluation and Authorisation of Chemicals, a very big piece of
legislation, and that eventually emerged as a Commission proposal
in 2003, it was agreed in the British Presidency in 2005 and we
are now in the process of setting up the REACH Agency and it is
going to have a big impact. There was a whole package of proposals
brought forward when requested in Council Conclusions as the EU
follow-up to the events of 9/11. The most famous bit of that package
was the European Arrest Warrant, but there were lots of other
bits and pieces to it. A third example, the Transport Council
Conclusions of June 2006, called for legislative proposals on
road safety and in response to that the Commission published in
March 2008 a Directive on cross-border enforcement of road safety
offences. Two other points, if I may. The Commission rather strictly
and jealously, if that is the right word, guards its sole right
of initiative, so although the Council can, and frequently does,
request legislation the Commission will always say that they are
not under the Treaty mandated to respond. They do not have to
respond. Usually they do, but they are not absolutely required
to. They would always avoid any commitment which required them
to respond to such a Council request. However, there is a 2003
Inter-Institutional Agreement on better law making in which the
Commission undertakes to, and I quote: "take account of Article
208 requests from the Council" and "will reply rapidly
and appropriately to the Council's preparatory bodies". Our
interpretation of that is while the Commission is still preserving
its right occasionally to say "no", it is basically
promising that it will always (a) consider the Council request
seriously, and (b) will find a way of explaining itself if it
chooses not to respond.
Q253 Chairman: Has there been an
example you can quote of the Commission saying "no",
and, if so, would it be a reasoned "no"?
Ms Langrish: It would have to be a reasoned
"no". We could not lay our hands immediately on an example.
Impressionistically, I would say that sometimes the issue would
be a matter of timing—the time that the Commission takes
to respond to a Council request.
Q254 Baroness O'Cathain: My Lord
Chairman, can I just ask, when they do not respond would it be
timing because they have too much work or they just want to delay
it?
Mr Darroch: It can be either. It can be that
inside the Commission there is a body of opinion that the request
is not a good idea.
Q255 Baroness O'Cathain: But they
would not say that.
Mr Darroch: More usually I would guess it is
because, as we will discuss later, in the JHA area they have a
big programme of legislative proposals which they are required
under previous Council Conclusions to work through and the basic
message would be, "Look, we can't do two things at once.
What is your priority? At the last European Council you said this
was a priority and now you say this". It can be either.
Q256 Chairman: A request under Article
208 by the Council is in practice, even if not necessarily in
law, going to be a unanimous request, is it?
Ms Langrish: I believe it is by simple majority,
which is the default rule in the Treaty at the moment.
Q257 Chairman: In practice, would
a request be made? I think this was the gist of my question. Would
it in practice be made without a pretty unanimous view?
Ms Langrish: In practice, given that most requests
come through the form of Council Conclusions, which are traditionally
adopted by unanimity or consensus, then, yes, it would be a view
representing all Member States.
Q258 Chairman: So would it be right
to view it as a pretty powerful instrument when the Commission
receives it, one which sends a strong message?
Ms Langrish: Absolutely.
Q259 Lord Norton of Louth: Related
to that, I got the impression from the examples you were giving
that they possibly were close to exhaustive. Would that be a fair
impression or more frequent than that?
Mr Darroch: No, there are lots more examples.
It is really quite frequent, I think. It is not in every set of
European Council Conclusions, but it is quite common in European
Council Conclusions to have an initiative, often described in
rather general terms, from which inevitably legislation occurs.
We quoted you the response to 9/11 but there is also, for example,
going through at the moment a big package on climate change and
renewable energy which you can track back to a Commission report,
a discussion at the European Council in March 2007 and eventually
Commission proposals which came out on 23 January 2008, and then
a further European Council endorsement of the principle in March
2008. Also the Tampere and Hague JHA Programmes, one from the
European Council 1999 and then the 2004 Hague Programme, the Sixth
Environment Action Programme, a decision of the Council and European
Parliament of 2002. I think we could have found a lot more examples.
| 
