APPENDIX 4: SUB-COMMITTEE RESPONSES
TO CODECISION QUESTIONNAIRE
Sub-Committee A
(1) How many codecision dossiers have
you scrutinised so far this year?
Sub-Committee A has scrutinised five codecision documents
in 2009, out of a total of 28.
(2) Do the Sub-Committee's procedures
for scrutinising codecision dossiers differ from the procedures
to scrutinise other dossiers? If so, how?
No, however scrutiny notes may need to take into
account proposal as amended by the European Parliament and the
Government's view on the EP amendments.
The Sub-Committee is kept informed for the most part
informally, through contact between officials and the Clerk and
particularly the Committee Specialist. Where the Committee has
asked to be kept updated on progress of negotiations, the Minister
has provided formal updates although this tends to be a slower
process than informal information gathering. The Minister's letters
are often brief and in one case (Capital Requirements Directive)
the Minister explained where compromises had been reached between
the EP and Council, but gave no details on the contents of the
agreement. However, Minister's letters on other documents have
gone into great detail on compromises agreed with the EP (Preliminary
Draft Budget for 2009).
This could be improved through access to compromise
texts at an unofficial level on a more regular basis, so the Committee
team can inform the Committee of what has been suggested/ agreed
on a faster timescale. This could then be followed by a formal
Ministers letter.
In general Government departments must be more rigorous
in keeping the Committee informed on likely developments so that
they can be taken into account in the scrutiny process. This should
be formalised to ensure the Committee receives the correct documents.
In one case the Sub-Committee has received documents
giving details of Government negotiating positions, but this has
been in the minority of cases. Receiving this type of document
on a more regular basis would significantly improve Sub-Committee
scrutiny of codecision dossiers and should be formalised.
(5) Have first reading deals and early
second reading deals impacted on the ability of the Sub-Committee
to scrutinise effectively?
(a) Does the Sub-Committee employ special
procedures to scrutinise dossiers which are likely to be agreed
at an early stage?
First reading deals have a negative impact on the
ability of the Committee to scrutinise properly due to the rapidity
of the process underpinning the deal.
(6) Does the Sub-Committee communicate
its views on codecision dossiers to those other than HMG?
The Sub-Committee had initially planned to send a
letter to interested MEPs on the credit rating agencies scrutiny
dossier. This was intended to inform the MEPs of the Sub-Committee's
views as they would be voting on the dossier in advance of their
report on the EU response to the financial crisis, during the
inquiry for which evidence was taken upon this subject. Upon reflection
the Committee decided not to continue with this plan as the Sub-Committee
concluded it should not pre-empt the conclusions of its report,
particularly as there may not have been unanimous agreement amongst
the Committee.
There was also some discussion in the Committee as
to whether it was appropriate to attempt to influence the views
of MEPs, who are not accountable to the House of Lords nor its
Committee's.
(7) Please give details of a dossier where
the Sub-Committee has been able to scrutinise codecision negotiations
effectively.
(a) Why was this effective?
(8) Please give details of a dossier where
the Sub-Committee has not been able to scrutinise codecision negotiations
effectively.
(a) Why was this not effective?
Questions 7 and 8:
The only significant codecision dossiers Sub-Committee
A have scrutinised recently are the capital requirements directive
and the regulation on credit rating agencies. Our scrutiny of
these documents formed part of the current inquiry into EU financial
supervision and regulation in response to the financial crisis.
This showcased both effective and less effective procedures for
the scrutiny of codecision dossiers.
We took evidence from British MEPs (of all parties)
who had a significant interest in both these dossiers. This helped
provide more effective scrutiny of the dossiers as the Sub-Committee
was informed of the views and debates within the European Parliament
first hand, which in turn helped inform the views of the Committee
on these issues. We also received regular updates on the progress
of the documents through contact at official level and information
gained by the Committee Specialist and Advisor. This enabled the
Committee to keep up-to-date on the progress of negotiations.
However, it may have been useful for there to be a more formal
structure for receiving updates on negotiations.
The speed at which these documents were agreed first
in Council and then in the European Parliament reduced the effectiveness
of the scrutiny as the dossiers formed only a part of a larger
report. Although we spoke to many witnesses about the dossiers
we did not publish our conclusions before the dossiers were agreed
in Parliament. This perhaps is more informative of the speed at
which these dossiers were agreed than the process by which the
Sub-Committee scrutinised them.
In conclusion, the scrutiny of these dossiers was
made more effective by the informal updates by officials and by
meeting with MEPs. However, the effectiveness was reduced by the
speed of agreement and the relative scarcity of official updates
on the progress of negotiations.
Sub-Committee B
(1) How many codecision dossiers have
you scrutinised so far this year?
So far in 2008-09, Sub-Committee B has scrutinised
20 codecision dossiers.
(2) Do the Sub-Committee's procedures
for scrutinising codecision dossiers differ from the procedures
to scrutinise other dossiers? If so, how?
No. Agreement at Council is the deadline for scrutiny
rather than First Reading. On some occasions, the Committee has
continued to hold items under scrutiny simply to await the outcome
of First Reading negotiations (e.g. 11285/08 on the remit of the
European Aviation Safety Agency).
This varies. Usually we receive an update letter
just before the First Reading deal is agreed. It would be useful
to know a little more about what positions have been taken in
codecision negotiations and why, preferably before a deal has
been agreed.
The documents the Committee has access to are usually
the original proposal and an update letter from the Government.
(5) Have first reading deals and early
second reading deals impacted on the ability of the sub-committee
to scrutinise effectively?
(a) Does the Sub-Committee employ special
procedures to scrutinise dossiers which are likely to be agreed
at an early stage?
In most cases the Committee has accounted for First
Reading deals by holding the item under scrutiny until it knows
what the deal consists of. For example, it is holding a proposal
about spectrum use at the moment (16115/08). The Committee has
no questions about it and it is happy with the proposal and the
Government's view. However, the details of the proposal mean that
the European Parliament has shown a particular interest in it.
The Committee is therefore holding the item under scrutiny to
await the details of the expected First Reading deal.
(6) Does the Sub-Committee communicate
its views on codecision dossiers to those other than HMG?
No.
(7) Please give details of a dossier where
the Sub-Committee has been able to scrutinise codecision negotiations
effectively.
(a) Why was this effective?
Because of their nature, the Committee has not been
able to scrutinise codecision negotiations. It has been able to
scrutinise original proposals and make its view known to the government
and it has also been able to scrutinise the contents of proposed
First Reading deals. The process of agreeing First Reading deals,
however, has not been open to the Committee to scrutinise.
(8) Please give details of a dossier where
the Sub-Committee has not been able to scrutinise codecision negotiations
effectively.
(a) Why was this not effective?
See above.
Sub-Committee C
(1) How many codecision dossiers have
you scrutinised so far this year?
None.
(2) Do the Sub-Committee's procedures
for scrutinising codecision dossiers differ from the procedures
to scrutinise other dossiers? If so, how?
No, however scrutiny notes may need to take into
account proposal as amended by the European Parliament and the
Government's view on the EP amendments.
The Sub-Committee is kept informed for the most part
informally, through contact between officials and the Committee
Specialist or Clerk. Where the Committee has asked to be kept
updated on progress of negotiations, the Minister has provided
formal updates although this tends to be a slower process than
informal information gathering.
This could be improved through access to compromise
texts at an unofficial level on a more regular basis, so the Committee
team can inform the Committee of what has been suggested/agreed
on a faster timescale. This could then be followed by a formal
Ministers letter.
In general Government some departments could have
been more rigorous in keeping the Committee informed on likely
developments so that they can be taken into account in the scrutiny
process. This should be formalised to ensure the Committee receives
the correct documents.
The Sub-Committee has occasionally been kept in touch
with Government negotiating positions, and this should be continued
and perhaps made more systematic. Receiving such information on
a more regular basis could improve Sub-Committee scrutiny of codecision
dossiers.
(5) Have first reading deals and early
second reading deals impacted on the ability of the Sub-Committee
to scrutinise effectively?
(a) Does the Sub-Committee employ special
procedures to scrutinise dossiers which are likely to be agreed
at an early stage?
No special procedures, but the Sub-Committee seeks
to adapt its timing of scrutiny to the Brussels machinery.
(6) Does the Sub-Committee communicate
its views on codecision dossiers to those other than HMG?
In the past (2008) the Sub-Committee has informed
selected UK MEPs of the Committee's views on a particular dossier,
but we have not had any co-decision dossiers in 2009.
(7) Please give details of a dossier where
the Sub-Committee has been able to scrutinise codecision negotiations
effectively.
(a) Why was this effective?
(8) Please give details of a dossier where
the Sub-Committee has not been able to scrutinise codecision negotiations
effectively.
(a) Why was this not effective?
Sub-Committee D
(1) How many codecision dossiers have
you scrutinised so far this year?
11 (See Annex)
(2) Do the Sub-Committee's procedures
for scrutinising codecision dossiers differ from the procedures
to scrutinise other dossiers? If so, how?
In general, the Sub-Committee approaches scrutiny
of the Government position in the same way as it would for other
dossiers. When scrutinising codecision dossiers, however, greater
attention is paid to the amendments proposed by the European Parliament,
and to the Council's emerging approach to those amendments.
(3) How does the Sub-Committee keep updated
on progress in negotiations at each stage in the codecision procedure?
When responding to the Government in writing, the
Sub-Committee always requests that it be kept up to date formally
on the progress of negotiations. Informal updates also take place
through officials.
This is sometimes effective although it is heavily
dependent on the Department's willingness to provide updates promptly,
and on the information available to departmental officials themselves,
as also on the timescale of the negotiations.
(b) How could it be improved?
Government departments (DEFRA in this case) can be
sluggish in providing updates on the progress of inter-institutional
negotiations, sometimes only providing them when prompted by Committee
staff. There is also a problem with updates only being received
after a first or second reading deal has been struck.
The Government must ensure the accuracy of the information
provided and, should there be doubt as to what progress might
be made on a dossier, this must be indicated. When scrutinising
the pesticides regulation (see Annex), the Sub-Committee was inadvertently
misled by the Government ahead of a Council meeting
(4) At each stage of the codecision procedure,
does the Sub-Committee have access to the right documents to ensure
that it is able to scrutinise effectively?
The Government's usual practice is to summarise the
emerging approach to the key issues rather than to provide copies
of Council documents. An exception to that most recently was the
Government's provision of a Presidency Compromise document relating
to the proposed Regulation on the protection of animals at the
time of killing.
The emerging consensus between the European Parliament
and Council can be almost impossible to determine. Updates from
the Government are usually too infrequent, and negotiations proceed
too rapidly and opaquely to allow for accurate tracking of the
inter-institutional negotiations. We must give thought to how
we can keep systematically abreast of discussions in the European
Parliament and to how we might actively feed in to those discussions
as appropriate.
(a) Which documents are particularly
useful?
Pre-council Presidency compromises
(b) Which additional documents would
be helpful?
Whether in the form of official documents, or in
the form of summarised information provided either formally in
a letter or informally, greater indication of the emerging consensus
between institutions would be useful, particularly if a first
or second reading deal is expected.
(5) Have first reading deals and early
second reading deals impacted on the ability of the Sub-Committee
to scrutinise effectively?
Yes. The ability of the Sub-Committee to scrutinise
first reading deals and early second reading deals depends on
the willingness of Departments to keep Parliament updated promptly,
whether formally or informally.
(a) Does the Sub-Committee employ
special procedures to scrutinise dossiers which are likely to
be agreed at an early stage?
When necessary, the Sub-Committee is content to work
with the Government to provide the conditions for timely release
from scrutiny as long as the Government supply the information
required. Recourse may be made to informal telephone updates from
officials.
(6) Does the Sub-Committee communicate
its views on codecision dossiers to those other than HMG?
Reports are widely communicated but its views on
other codecision dossiers are not routinely communicated to those
other than HMG. Exceptionally, the Committee wrote to Commission
President Barroso with regard to the proposed Regulation on the
placing on the market of Plant Protection Products (pesticides)
due to the Committee's strong concerns about the inadequacy of
the impact assessment process.
(7) Please give details of a dossier where
the Sub-Committee has been able to scrutinise codecision negotiations
effectively.
The revision of the Emissions Trading System Directive
and the linked Proposal on the geological storage of carbon dioxide
in October-December 2008.
(a) Why was this effective?
The Committee was conducting an inquiry into the
revision of the Emissions Trading System at the time, so was already
in touch with the relevant officials. We received a regular and
comprehensive flow of information from Government officials. A
feature of this was that the information was generally provided
informally to Sub-Committee officials over the phone. While not
necessarily ideal, this did allow the Sub-Committee to be kept
up to date on a major dossier which moved extremely quickly towards
a first reading agreement.
(8) Please give details of a dossier where
the Sub-Committee has not been able to scrutinise codecision negotiations
effectively.
First reading deal: The
proposed directive on Stage II petrol vapour recovery during refuelling
of passenger cars at service stations
(a) Why was this not effective?
The dossier moved swiftly from initial publication
of the Commission's proposal on 4 December 2008 to a first reading
deal adopted by the European Parliament on 5 May. The information
that we received from the Government was poorly timed and insufficient.
Indeed, the initial EM was submitted two months after publication
of the Commission's Proposal (4 February 2009) and indicated a
lack of clarity as to possible progress before the European Parliament
elections. Towards the beginning of March, the Government wrote
to the Committee and simply stated that the Presidency, Commission
and European Parliament "appear agreed on fast-tracking this
proposal". No further information was made available. A Supplementary
EM (SEM) was subsequently provided on 1 May in which it was noted
that negotiations were in fact proceeding very rapidly, and that
a first reading agreement was envisaged at the beginning of May.
A very brief indication of the issues at the heart of the negotiations
was given but no text was supplied and the SEM did not reflect
trilogue discussions on 14 April (having apparently been drafted
prior to that meeting, but not submitted to the Committee until
1 May).
Second reading deal: The
proposed regulation on the placing on the market of Plant Protection
Products (pesticides). See Annex for a full explanation
(a) Why was this not effective?
Incomplete and misleading information by the Government
led the Sub-Committee to release the Proposal from scrutiny at
Council First Reading. The Common Position that was finally agreed
proved to be unsatisfactory to both the Sub-Committee and the
Government. Communication with the Sub-Committee after that stage
was weak, including a paucity of information as regards the evolution
of the eventual Second Reading deal with the European Parliament.
Information on the deal reached in December 2008 was provided
by the Government on 30 April 2009.
The Sub-Committee and Government also found the poor
quality of impact assessment to be a major problem in discussions
on this Proposal. This concern was raised with President Barroso
by the Sub-Committee in a letter of 17 December.
ANNEX
Plant Protection Products (Pesticides) Regulation
The Commission's Proposal was published on 27 July
2006. The Committee raised a number of concerns, with which the
Government concurred. There was no prospect of a first reading
deal and the European Parliament adopted its position on 23 October
2007. By letter of 27 April 2008, the Government informed the
Committee that the Slovenian Presidency had developed a compromise
text, which the Government summarised and considered to be reasonable.
On the basis of the information provided by the Government, the
Committee released the proposal from scrutiny on 14 May in advance
of the 19 May Agriculture Council.
At the Council, it became clear that the Commission
would not support the compromise text, and a number of Member
States also withdrew their support for that reason. The Slovenian
Presidency therefore put a revised compromise text to the June
Agricultural and Fisheries Council. The UK could not support that
revised compromise text, and abstained. Several other Member States
also abstained, but the text was nevertheless adopted as a Common
Position.
Three months later, the Government wrote to the Committee,
informing it of this turn of events. The Committee responded on
10 October, expressing the Committee's regret at the delay in
informing the Committee of the failure of the compromise text
and the tabling of a revised compromise, which the UK had strong
reservations about. The Committee expressed support for the Government's
intention to lobby all the parties involved in the negotiations,
and asked to be kept informed of the progress of negotiations.
The Government subsequently did so by letter of 5 December and
during an oral evidence session on 10 December.
At that point, the Minister made it clear that the
French Presidency was seeking a second reading deal, and the Government
remained concerned that the end result would not be satisfactory
to them, nor would it fully address the Committee's concerns.
The Minister also revealed that agreement at the May Council was
less likely than implied by the letter of 27 April 2008. Ultimately,
a second reading agreement was reached in December 2008. We were
warned about this aspiration by letter of 5 December, but no further
communication was received from the Government until 30 April
2009, when the Government informed the Committee that they would
vote against the Regulation when the final text as agreed in December
is put to Council.
Throughout the procedure, the Committee was concerned
about the potential impact of the Regulation, and the lack of
appropriate impact assessments. The Committee wrote to the Commission
President expressing those concerns.
Sub-Committee E
(1) How many codecision dossiers have
you scrutinised so far this year?
9 (out of 19)
(2) Do the Sub-Committee's procedures
for scrutinising codecision dossiers differ from the procedures
to scrutinise other dossiers? If so, how?
No. We would normally ask the Government to keep
the Sub-Committee informed of any developments on the dossier,
regardless of whether it is codecision. However, a codecision
procedure may result in more opportunities for the Government
to provide us with updates and for us to continue asking, particularly
if the scrutiny reserve still applies.
(3) How does the Sub-Committee keep updated
on progress in negotiations at each stage in the codecision procedure?
We would normally do this informally, through contact
at officials level, but also through the aforementioned requests
to be kept informed.
No.
(b) How could it be improved?
Greater disclosure of documents over the course of
the process of authorisation and negotiation, and more frequent
contact with the committee where legislation is moving away from
the term of the original proposal.
(4) At each stage of the codecision procedure,
does the Sub-Committee have access to the right documents to ensure
that it is able to scrutinise effectively?
No.
The final compromise text on which agreement is to
be reached would be useful, however, due to the nature of codecision,
this text is only likely to emerge very late in the process. If
the text is likely to change significantly from that considered
by the Sub-Committee, earlier versions of a compromise might be
useful if they provide a strong indication of the likely content
of the final text. This is particularly the case when a first
reading deal is anticipated; it would be useful to see the text
agreed by COREPER as the basis for negotiation with the Parliament,
although it is not formally depositable.
(5) Have first reading deals and early
second reading deals impacted on the ability of the Sub-Committee
to scrutinise effectively?
These deals can sometimes progress so quickly that
scrutiny of any emerging compromise text is impossible. Details
of occasions when this has happened are provided in the answer
to Q 8.
(a) Does the Sub-Committee employ
special procedures to scrutinise dossiers which are likely to
be agreed at an early stage?
No.
(6) Does the Sub-Committee communicate
its views on codecision dossiers to those other than HMG?
No?
(7) Please give details of a dossier where
the Sub-Committee has been able to scrutinise codecision negotiations
effectively.
Procedure for Member States to make bilateral agreements
with third countries in the field of contractual and non-contractual
obligations.
(a) Why was this effective?
The Minister and officials were timely in keeping
the Committee informed of progress, including by providing texts.
The matter did not proceed as quickly as the Presidency intended.
The Commission proposal was made on 12 January 2008
with updates from the Minister on 18 March and 21 April. Prior
to 18 March in particular there was useful contact from MOJ officials
enabling paperwork to be turned around quickly in the Committee
Office when the formal letter from the Minister arrived.
Scrutiny was assisted by fact that the matter was
not ready to go to the Council in April, as at one time had been
expected.
The European Parliament agreed the text 7 May.
(8) Please give details of a dossier where
the Sub-Committee has not been able to scrutinise codecision negotiations
effectively.
(a) Why was this not effective?
Ship Source Pollution (1st reading deal)
The dossier was cleared by the Sub-Committee in November
2008, after an exchange of correspondence with the Minister. The
Sub-Committee had expressed doubts about the quality of drafting,
and in October the Government provided an amended Presidency text
which improved the drafting of the measure.
The European Parliament's Transport Committee Report
was published in February 2009. On 24 April, the Committee received
a letter from Lord Bach, explaining the state of the negotiations.
The EP amendments were to be further discussed on 27 and 28 April.
On 29 April, Lord Bach wrote again, enclosing a Limité
compromise text, which was due to be agreed at COREPER that
afternoon for agreement by the European Parliament (which was
given on 5 May). Sub-Committee E therefore had no opportunity
to consider the revised proposal. In the event, this was not a
problem, as the proposal was not radically different from the
original one. Had it been significantly different, we would have
expected the new proposal to have been deposited, as suggested
in the revised CO Scrutiny Guidelines, or at the very least to
have received a Ministerial letter in good time. However, due
to the rapid development of the situation, this would not have
been possible.
The House of Commons European Scrutiny Committee
has encountered more serious difficulties with this dossier as
they had not cleared it from scrutiny (although in October 2008
they had indicated that agreement to the proposal could nevertheless
be given—26th Report of session 2007-8). Not
only had the scrutiny reserve been overridden originally at Council
but it was still in place during the negotiation of the deal as
described above. The ESC is due to take oral evidence from Lord
Bach on the subject shortly.
Shipowner's Liability Proposal (2nd
reading deal)
No effective scrutiny was possible due to lack of
timely information from the Minister, the speed of negotiations
after a long period when the proposal was dormant, and interposition
of the summer recess.
This was a proposal made by the Commission and formed
part of a package of measures concerning maritime safety. The
original proposal was made as far back as November 2005. The proposal
was amended by the Commission in the light of the view taken by
the European Parliament at its first reading and a fresh Explanatory
memorandum was submitted in November 2007 to cover the amended
proposal. In July 2008 the Minister updated the Committee indicating
that, despite failure at a Transport Council in April to secure
the support of a majority of Member States for such a measure,
the French presidency would be seeking to pursue the matter in
the latter half of 2008, with a scheduled debate at a Transport
Council in December. No text was submitted.
On 1 October the Minister wrote "In recent weeks
the French Presidency has sought the co-operation of the Member
States in a concerted effort to achieve political agreement at
the 9 October Transport. The proposal as currently drafted is
now very close to what the Government can accept…" with
limited further information and still no text. Sub-Committee E
felt unable to clear this on the information provided.
On 28 October the Minister reported on the political
agreement that had been reached in exercise of the scrutiny override
and provided a text that had been agreed at the Transport Council.
He indicated that there was no depositable document since the
amended Commission proposal that the fast moving nature of the
negotiations during the run up to the Council meant that it was
impossible to provide a definitive description of the changes
made. Even at this stage the explanation did not address subsidiarity
concerns raised by the Government themselves.
The Sub-Committee considered that the letter of 1
October pointed to sufficient information being available by 1
October at the latest to enable effective scrutiny to take place.
The Common Position was adopted on 24 November 2008
and it was agreed by the European Parliament on 11 March 2009.
Sub-Committee F
(1) How many codecision dossiers have
you scrutinised so far this year?
8 (see annex)
(2) Do the Sub-Committee's procedures
for scrutinising codecision dossiers differ from the procedures
to scrutinise other dossiers? If so, how?
Not the procedure as such, but scrutiny notes may
need to pay greater attention to the position of the European
Parliament so to be aware of any difficulties with the dossier.
Briefings on discussions of European Parliament draft reports
and HMG briefings to MEPs are a valuable source in this respect.
(3) How does the Sub-Committee keep updated
on progress in negotiations at each stage in the codecision procedure?
In theory by being informed by the Home Office. In
practice they seldom used to do this until we had asked what (if
anything) was going on with a dossier where we suspected there
should be something happening. Things are now improving.
Not until recently, since the initiative was usually
ours. Often it still is, but Home Office are now sometimes acting
off their own bat.
(b) How could it be improved?
By the Home Office following para 3.5 of the Cabinet
Office Guidelines.
(4) At each stage of the codecision procedure,
does the Sub-Committee have access to the right documents to ensure
that it is able to scrutinise effectively?
Only in a minority of cases are the right documents
provided for scrutiny. Most of them are LIMITE and therefore not
given to us. Committee staff are in some instances able to obtain
LIMITE documents informally from the internet.
(a) Which documents are particularly
useful?
Working Group documents which annotate in bold significant
changes from previous texts; compromise texts of the Presidency.
(b) Which additional documents would
be helpful?
A report on negotiations issued by the Presidency,
deposited with an EM. This was done for the PNR Framework Decision.
Although not a codecision matter, it shows how codecision dossiers
should ideally be handled.
(5) Have first reading deals and early
second reading deals impacted on the ability of the Sub-Committee
to scrutinise effectively?
Yes, they generally impact negatively as not enough
information is provided or advance notice given that such a deal
is likely.
(a) Does the Sub-Committee employ
special procedures to scrutinise dossiers which are likely to
be agreed at an early stage?
Only reminding the Home Office to keep us posted.
(6) Does the Sub-Committee communicate
its views on codecision dossiers to those other than HMG?
No, unless they are the subject of an inquiry in
which case the report is distributed widely.
(7) Please give details of a dossier where
the Sub-Committee has been able to scrutinise codecision negotiations
effectively
Proposal for a Regulation amending Council Regulation
(EC) No 2252/2004 on standards for security features and biometrics
in passports and travel documents issued by Member States (Document
14217/07)
This dossier has been under scrutiny since November
2007. Although this is a Schengen-building measure and so (after
an ECJ challenge failed) not binding on the UK, what is agreed
is likely to influence the Government, which is participating
in the negotiations. The Committee engaged in intense correspondence
over a fundamental rights issue arising from the dossier over
which the EP had concerns too. Home Office informed us in December
2008 about forthcoming deal with EP (which was reached in January
2009) but has since failed to inform us that dossier was coming
up for adoption at the GAER Council on 27 April. This is therefore
a scrutiny override.
(a) Why was this effective?
This was a relatively simple dossier amending an
existing Regulation on a single issue. We shared the concern of
the EP on the human rights issue that arose (in particular the
age at which children should first be fingerprinted: the Government
wanted 6, we and the EP both said 12, and this is what prevailed).
This standoff protracted negotiations until first reading deal
was reached in January 2009.
(8) Please give details of a dossier where
the Sub-Committee has not been able to scrutinise codecision negotiations
effectively.
Proposal for a Directive of the European Parliament
and of the Council on common standards and procedures in Member
States for returning illegally staying third-country nationals
(document 10737/08)
The Returns Directive was first proposed by the Commission
in September 2005 and sifted to Sub-Committee F who launched an
inquiry and reported on 9 May 2006. The report was subsequently
debated and the document cleared from scrutiny. Note that the
UK opted out of the Directive (although this does not change the
scrutiny requirements on the Government).
In the months following the publication of the Report
discussions in the Council stalled and the Committee received
no updates on negotiations from the Home Office. However, significant
informal trilogue work was undertaken under the Slovenian Presidency
(first semester 2008). This led to political adoption of a compromise
text by the Council in June 2008 in advance of the EP voting in
favour of a first reading deal that month. The view of the Committee
Specialist to sub-committee F was that the adopted text differed
"significantly from what was originally proposed by the Commission."
However the Department did not seek to update the Committee until
a revised text was issued after the first reading deal. At that
stage the Department's EM stated that "The proposed directive
has developed along lines different from those originally proposed".
(a) Why was this not effective?
Because the original Commission proposal had been
the subject of a report and cleared by debate, the Home Office
seemed to assume that this was of no further interest to us.
Annex: Session 2008-09: Codecision dossiers
Draft Regulation of the European Parliament and of
the Council amending the Common Consular Instructions on visas
for diplomatic and consular posts in relation to the introduction
of biometrics including provisions on the organisation of the
reception and processing of visa applications (Document 5090/09)
Cleared from scrutiny
Proposal for a Council Regulation on laying down
a uniform format for visas (codified version) (Document 5256/09)[30]
Under scrutiny
Proposal for a Regulation amending Council Regulation
(EC) No 2252/2004 on standards for security features and biometrics
in passports and travel documents issued by Member States (Document
14217/07) Under scrutiny (scrutiny override)
Proposal for a Regulation of the European Parliament
and of the Council establishing the criteria and mechanisms for
determining the Member State responsible for examining an application
for international protection lodged in one of the Member States
by a third country national or a stateless person (Document 16929/08)
Under scrutiny
Proposal for a Regulation of the European Parliament
and of the Council concerning the establishment of "Eurodac"
for the comparison of fingerprints for the effective application
of [the Dublin] Regulation (Document 16934/08) Under scrutiny
Proposal for a Directive of the European Parliament
and of the Council laying down minimum standards for the reception
of asylum seekers (Document 16913/08) Under scrutiny
Proposal for a Regulation of the European Parliament
and of the Council establishing a European Asylum Support Office
(Document 6700/09) Under scrutiny
Proposal for a Decision of the European Parliament
and the Council amending Decision 573/2007/EC establishing the
European Refugee Fund for the period 2008 to 2013 by removing
funding for certain community actions and altering the limit for
funding such actions (Document 6702/09) Under scrutiny
Sub-Committee G
(1) How many codecision dossiers have
you scrutinised so far this year?
14 (See Annex)
(2) Do the Sub-Committee's procedures
for scrutinising codecision dossiers differ from the procedures
to scrutinise other dossiers? If so, how?
Broadly speaking, no. Scrutiny of the Government's
position is comparable to the approach taken for other dossiers
that are subject to alternative decision-making procedures.
Greater attention is, however, paid to the amendments
proposed by the European Parliament and the Government's view
on those amendments. The Committee would in all cases wish to
remain alert to the possibility of first or second reading deals.
(3) How does the Sub-Committee keep updated
on progress in negotiations at each stage in the codecision procedure?
The Committee asks the Government to keep the Committee
up to date and makes use of informal contacts between officials.
Most recently, Department of Health officials informed Committee
officials that the Council is moving towards agreement, in June
on the proposed Cross Border Healthcare Directive. Officials in
the UK Permanent Representation can be particularly useful, often
due to the fact that they may have good informal contacts within
the European Parliament. Specialist media can also be a useful
source of information.
The effectiveness or otherwise is somewhat dependent
on the Department or officials involved. We have noted that the
ability of the Government to update the Committee is also dependent
on the information received by the Government from the Presidency,
and the timing of such information.
(b) How could it be improved?
While not exclusive to codecision dossiers, the failure
or reluctance of Presidencies to release details of compromises
to national delegations until a short time before a Council or
COREPER meeting can render scrutiny particularly problematic.
In the example given below of a codecision dossier which was scrutinised
effectively, the Committee experienced both good and bad practice
in that regard. More generally, it is important that Government
departments are aware of the importance of giving the Committee
as early a warning as possible on likely developments.
(4) At each stage of the codecision procedure,
does the Sub-Committee have access to the right documents to ensure
that it is able to scrutinise effectively?
On some occasions, the Committee has been provided
with copies of Presidency compromise documents. This is not always
the case. For reasons of confidentiality, the Government may sometimes
prefer to offer a summary of the content of such documents.
The emerging consensus between the European Parliament
and Council can be difficult to determine (see example below of
a codecision dossier which proved difficult to scrutinise).
(a) Which documents are particularly
useful?
Pre-council Presidency compromises
(a) Which additional documents would
be helpful?
Whether in the form of documents, or in the form
of summarised information, greater indication of the emerging
consensus between institutions would be useful, particularly if
a first or second reading deal is expected.
(5) Have first reading deals and early
second reading deals impacted on the ability of the Sub-Committee
to scrutinise effectively?
It is easier to scrutinise a dossier that passes
more formally through the decision making procedure as the Government
themselves have more complete information (see example of Working
Time Directive below).
(a) Does the Sub-Committee employ
special procedures to scrutinise dossiers which are likely to
be agreed at an early stage?
See the analysis below, indicating that an extraordinary
meeting was held in order to provide the Government with scrutiny
clearance in advance of a Council discussion on working time two
days later, the day when the Committee would normally have met.
This was an exceptional case, but the Committee would often seek
to assist, rather than impede, the process of releasing a document
from scrutiny (or of allowing a Minister to agree in Council without
the Committee considering the scrutiny reserve to have been overridden,
under paragraph 3(b) of the scrutiny reserve resolution).
(6) Does the Sub-Committee communicate
its views on codecision dossiers to those other than HMG?
Reports are widely communicated but its views on
other co-decision dossiers are not routinely communicated to those
other than HMG.
(7) Please give details of a dossier where
the Sub-Committee has been able to scrutinise codecision negotiations
effectively.
Working Time Directive—see below
(a) Why was this effective?
Regular and comprehensive flow of information from
HMG, both formally and informally. The Council and European Parliament
positions were distinct which meant that there was less room for
informal negotiations between the European Parliament and Council
than might have otherwise been the case.
(8) Please give details of a dossier where
the Sub-Committee has not been able to scrutinise codecision negotiations
effectively.
Proposal for an amended Directive on the Safety of
Toys (see Annex)
(a) Why was this not effective?
Incomplete provision of information by the Government,
due partly to the speed of negotiations in Brussels.
Working Time Directive
Scrutiny of this Proposal took place against the
background of a Committee Report (8 April 2004) assessing possible
review of the Directive. The Commission published its Proposal
for to revise the Directive on 22 September 2004. The Committee
was in regular contact with the Government through a series of
letters, giving clear views based on the Conclusions of the Report,
which were broadly in line with the Government's proposed negotiating
position, and receiving regular updates from the Government, including
with regard to the failure to secure agreement at either the December
2004 or June 2005 Council meetings.
Following the European Parliament's adoption of a
position in May 2005, the European Commission published an amended
Proposal, which became the subject of a new scrutiny procedure.
The Government provided the Committee with substantial information
in the course of the UK Presidency (July-December 2005), including
a summary (letter dated 29 November 2005) of the proposed Presidency
compromise. It appears that the Sub-Committee held an extraordinary
meeting on Tuesday 6 December 2005 in order to consider the latest
information from the Government ahead of the Council meeting on
Thursday 8 December. In addition to formal information from the
Government, further informal clarification was provided to officials
prior to that meeting of the Committee.
Agreement was not reached at Council in December
2005. The subsequent work of the Committee in the first half of
2006 was hampered by a paucity of information from the Austrian
Presidency in advance of the COREPER meeting on 24 May 2006 and
Council on 2 June 2006. The Finnish Presidency later in the year
provided more information, but a formal compromise proposal was
still unavailable when the Minister wrote to the Committee on
30 October 2006 in advance of the Council meeting on 7 November.
Again, the Council failed to reach agreement. The next stage was
possible agreement under the Portuguese Presidency on 5 December
2007. On that occasion, the Government supplied the Committee
with the Presidency compromise. Agreement was not reached. In
May 2008, the Government formally deposited (under cover of an
EM) a copy of the draft Slovene Presidency compromise. Further
to the 9 June 2008 Employment Council, where agreement was finally
reached, the Minister wrote to the Committee explaining the agreement
and the Committee then explored the issues further with the Minister
in an oral evidence session on 10 July 2008.
The European Parliament's Second Reading started
formally on 22 September. In advance of that process, the Minister
informed the Committee that the Government would engage with the
European Parliament. By letter of 23 February 2009, the Government
informed the Committee that they and the Council as a whole were
unable to accept the European Parliament's Second Reading amendments
and that the Conciliation Committee would be convened formally
on 17 March. He promised to write as necessary to update the Committee
on the progress of those negotiations. No formal information was
received although officials were contacted after the first Conciliation
Committee meeting and were informed that no progress had been
made. The Conciliation process collapsed on 27 April with no agreement,
and the proposal therefore fell.
Toy Safety Directive
First discussed by the Committee on 20 March 2008,
at which point progress on the draft proposal was expected to
be slow. The Committee were supportive of the Commission's draft
but were not entirely clear of the impact of the proposal. The
Government indicated that, once the detail of the proposed revisions
to the Directive became clearer, a full UK impact assessment would
be prepared and submitted.
A supplementary EM and partial Impact Assessment
were submitted on 18 November and considered by the Committee
on 4 December 2008, although it was noted by the Government that
preparation of the Impact Assessment was difficult because: a)
in Council discussions, the negotiations had commenced from a
wide range of options, making it unclear what form the final directive
would be likely to take; b) the European Parliament had also tabled
a wide range of options, though the Parliament's position was
becoming clearer; and c) Council Working Groups negotiations were
proceeding weekly, with some emerging consensus. Despite this
range of doubt, the Minister did suggest that the final directive
would reflect the original Commission draft "fairly closely".
On the basis of the Minister's judgement, and the
Committee's support for the original draft, the Committee chose
to release the proposal from scrutiny at its meeting of 4 December
in advance of an expected first reading agreement in mid-December.
Annex 1: Codecision dossiers scrutinised this
year (or under scrutiny this year)
- Proposal for a Directive of the European Parliament
and of the Council on the application of the principle of equal
treatment between men and women engaged in an activity in a self-employed
capacity and repealing Directive 86/613/EEC
- Proposal for a Directive of the European Parliament
and of the Council amending Council Directive 92/85/EEC on the
introduction of measures to encourage improvements in the safety
and health at work of pregnant workers and workers who have recently
given birth or are breastfeeding
- Proposal for a European Parliament and Council
Directive on consumer rights
- Proposal for a Directive amending Directive 2002/15/EC
on the organisation of the working time of persons performing
mobile road transport activities
- Proposal for a Directive of the European Parliament
and of the Council on standards of quality and safety of human
organs intended for transplantation
- Amended proposal for a Directive concerning certain
aspects of the organisation of Working Time
- Proposal for a Regulation on the provision of
food information to consumers
- Proposal for a Regulation amending, as regards
information to the general public on medicinal products for human
use subject to medical prescription, Regulation (EC) 726/2004
laying down Community procedures for the authorisation and supervision
of medicinal products for human and veterinary use and establishing
a European Medicines Agency
- Proposal for a Directive amending, as regards
information to the general public on medicinal products for human
use subject to medical prescription, Directive 2001/83/EC on the
Community code relating to medicinal products for human use
- Proposal for a Regulation amending, as regards
pharmacovigilance of medicinal products for human use, Regulation
(EC) 726/2004 laying down Community procedures for the authorisation
and supervision of medicinal products for human and veterinary
use and establishing a European Medicines Agency
- Proposal for a Directive of the European Parliament
and of the Council amending, as regards pharmacovigilance, Directive
2001/83/EC on the Community code relating to medicinal products
for human use
- Proposal for a Directive of the European Parliament
and of the Council amending Directive 2001/83/EC as regards the
prevention of entry into the legal supply chain of medicinal products
which are falsified in relation to their identity, history or
source
- Proposal for a Decision of the European Parliament
and of the Council Establishing an Audiovisual Co-operation Programme
with Professionals from Third Countries—MEDIA Mundus
- Proposal for a Directive of the European Parliament
and of the Council on the application of patients' rights in cross-border
healthcare
30 It is not clear whether this dossier is subject
to co-decision or consultation, procedural arrangements in the
European Parliament are pending. Back
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