Legal base	Council Regulation: Article 308 EC; consultation; unanimity. Council Decision: Articles 30, 31 and 34(2)(c)EU; consultation; unanimity
Department	Constitutional Affairs
Basis of consideration	Minister's letter of 9 June 2006
Previous Committee Report	HC 34-v (2005-06), para 11 (12 October 2005) and see HC 38-i (2004-05), para 1 (1 December 2004) and HC 38-viii (2004-05), para 1 (10 February 2005)
To be discussed in Council	General Affairs and External Relations Council 12-13 June
Committee's assessment	Legally and politically important
Committee's decision	Not cleared; information on negotiations requested

Background

3.1 The European Monitoring Centre on Racism and Xenophobia (EUMC) was established by Council Regulation (EC) No. 1035/97[13] as a Community body to provide the Community and the Member States with objective, reliable and comparable information on racism, xenophobia and anti-Semitism. The European Council decided on 12 and 13 December 2003 to extend the mandate of the EUMC "to make it a Human Rights Agency". A subsequent consultation document seeking views on how the objective outlined by the European Council might be achieved was published by the Commission and considered by the previous Committee on 1 December 2004 and 10 February 2005 and debated in European Standing Committee B on 14 March 2005. The proposal for a fundamental rights agency was also debated in Westminster Hall on 2 February 2005.

3.2 The previous Committee drew attention to the risk that the proposed agency might duplicate the work of the institutions of the Council of Europe under the European Convention on Human Rights (ECHR) and did not think that the Charter of Fundamental Rights of the European Union should be relied on to determine the powers of the new agency, unless and until the Charter were to become legally binding.

3.3 In our consideration of the proposed draft Council Regulation to establish a European Union Agency for Fundamental Rights, we noted that it would be based on Article 308 EC and that in the Government's view there were reasonable arguments that it was a general objective of the Community to ensure that its own action fully respected human rights and that this objective, which applied in all areas of the Community's action, including in the course of the operation of the common market, would be furthered by the establishment of the Agency. We noted in this context that the Agency was to carry out its tasks within the competences of the Community as laid down in the EC Treaty.

3.4 We also noted that an associated draft Council Decision was proposed under Articles 30, 31 and 34(2)(c) EU which would "empower" the Agency to pursue its activities in the areas covered by Title VI of the EU Treaty (i.e. police and judicial co-operation in criminal matters).

3.5 We raised a number of general and specific points with the Minister about the proposal. We had general concerns over the likely duplication of the Agency's work with the role of the Council of Europe, and the arrangements for governance of the Agency. Although we accepted that the Minister had explained the use of Article 308 EC as the legal base for this proposal, it remained unclear to us how provisions of the EC Treaty could be used to create a European Union body. We also asked the Minister about the role envisaged for the Commission in the running of the Agency, in particular, why the two representatives the Commission could appoint to the Management Board were not required to be independent, unlike the persons appointed by the Member States, the European Parliament and the Council of Europe. We also asked if the Minister was content that at least two of the four members of the Executive Board should be representatives of the Commission, despite the view expressed in consultation that the Agency should be independent of EU institutions. In relation to the functions of the Agency, we noted that the proposal prohibited the Agency from expressing any view on the legality of Commission proposals, which appeared to us substantially to undermine the purpose of the Agency and we asked the Minister if the Government agreed. Finally, we asked the Minister if the Government was content with the references to the Charter of Fundamental Rights in the proposal.

The Minister's reply

3.6 In her letter of 9 June 2006 the Parliamentary Under-Secretary at the Department for Constitutional Affairs (Baroness Ashton of Upholland) addresses our concerns. In relation to our general concerns over the duplication of the work of the institutions of the Council of Europe in relation to the European Convention on Human Rights (ECHR) and over the governance of the Agency, the Minister comments as follows:

"The Government has maintained throughout the negotiations a firm position against any overlap or duplication of the activities of the Council of Europe by the Agency. There seems to be consensus among Member States that the independent person appointed by the Council of Europe should sit in the Agency's Management Board (with restricted voting rights) and Executive Board (as an observer). The mechanisms of co-operation between the Agency and the Council of Europe have also been reinforced to the extent that the Agency will also be referring to the findings and activities of the Council of Europe and the Commissioner for Human Rights.

"In addition, there also seems to be consensus among Member States to appoint 'independent persons' instead of 'representatives' of Member States to the Agency's Management Board. Although negotiations are still in progress, most Member States now seem in favour of ensuring that the European Parliament will be consulted on the adoption of the Agency's Multiannual Framework. The European Parliament will also have a greater role in the appointment of the Director.

"Finally, there seems to be consensus among Member States on a management structure composed of Management Board (with 'independent persons' instead of 'representatives'), Executive Board (with one representative of the Commission, instead of two), Director (appointed by the Management Board after consultation with the European Parliament), Scientific Committee (composed of independent human rights experts appointed by the Management Board as guarantors of the scientific quality of the Agency) and a Fundamental Rights Platform (a network of human rights NGOs that will maintain the link with organised civil society)."

3.7 On the question of the use of Article 308 EC as the legal base, and on the use of the provisions of the EC Treaty to create a European Union body, the Minister refers to the draft Council Decision to supplement the draft EC Regulation establishing the Agency. The Council Decision (adopted under Article 30, 31 and 34(2)(c) EU) would extend the Agency's activities to the third pillar activities of police and judicial co-operation in criminal matters, and would constitute the basis for creating a "European Union body". However, the Minister informs us that the Government, with the support of four other Member States, opposes the adoption of the Council Decision and considers that the Agency should be primarily focused on assisting in relation to fundamental rights issues arising from the implementation of Community law.

3.8 The Minister comments further that, by limiting the Agency's scope to EC matters, the Council would further minimise the risk of duplication between the Agency and the Council of Europe and states:

"The Government is clear that, in contrast to those matters covered by the Treaty establishing the European Community (TEC), the Members States chose to retain the more intergovernmental processes of the TEU for police and judicial co-operation in criminal matters. There is no equivalent in the TEU to Article 308 TEC , which enables the establishment of an Agency that will exercise its functions in the field of Community activity. It is not the case that the area of police and judicial co-operation in criminal matters would be free of any scrutiny concerning fundamental rights if the Agency did not have a third pillar remit. Well-established mechanisms exist through the Council of Europe and national law and these would continue to operate as they do now."

3.9 In relation to our comments on the role of the Commission, the Minister recalls that there now appears to be consensus between the Member States that the Commission should have only one representative, rather than two, on the Executive Board, and that the Agency's Multiannual Framework should be adopted by the Council (instead of by the Commission) and in consultation with the European Parliament. The Minister adds that there appears to be consensus that the persons appointed by the Commission may remain qualified as "representatives" as, in the Minister's words, "the Commission does not pursue a national position specific to any Member State and will not prejudice the Agency's independence".

3.10 We drew attention to the fact that the proposal appeared to prevent the Agency from expressing any view on the legality of Commission proposals, which appeared to us substantially to undermine the purpose of the Agency. In reply, the Minister points out that the proposal has been amended to allow for a limited role in legislative scrutiny. Accordingly, the Agency will be able to formulate opinions on "specific thematic topics" at the request of the European Parliament, Council or Commission in relation to legislative proposals from the Commission. However, the Agency will have no power to consider whether a Member State has failed to fulfil an obligation under Community law.

3.11 In relation to our question on the references made to the Charter of Fundamental Rights, the Minister states that "it is to expected that the Agency would refer to the Charter in its work, since the Charter acts as a reference document for fundamental rights in the European Union". The Minister adds that the Charter is not legally binding, but that it "showcases" the right freedoms and principles which already exist at European level and that the rights in the Charter are re-affirmations of rights and freedoms contained in other international human rights instruments, in particular the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The Minister comments that, by referring to the Charter, "the Agency will be likely to increase public references to, and visibility of, the Charter".

3.12 The Minister informs us that the proposal will be discussed at the General Affairs and External Relations Council on 12-13 June and that the Austrian Presidency is hoping to reach a political agreement in the Council. We have since learned that no such political agreement could be reached, and that the matter has been remitted to COREPER for further consideration.

Conclusion

3.13 We thank the Minister for her letter informing us of the changes which have been made to this proposal.

3.14 A particular concern which we have expressed is that the work of the proposed Agency should not duplicate that of the institutions of the Council of Europe in relation to the European Convention Human Rights. We agree with the Minister that the focus of the Agency, if it is created, should be on fundamental rights issues arising from implementation of Community law. We agree with the Minister that the risk of duplication with the ECHR would be minimised if the Agency were not given a role in relation to police and judicial co-operation under the EU Treaty.

3.15 We welcome the changes which have been made to the arrangements for the governance of the Agency, but we are not persuaded of the reasons why the Commission may appoint "representatives". Since one of the roles which the Agency may undertake is to review the legality of Commission proposals, we consider that there may be a risk to the Agency's independence from the appointment of such "representatives".

3.16 We note that the matter has been remitted for further consideration, and we ask the Minister to keep us informed of the state of negotiations and to deposit a revised text when this becomes available. In the meantime, we shall hold the existing document under scrutiny.