Legal base	Council Regulation -Article 308 EC; consultation; unanimity. Council Decision — Articles 30, 31 and 34(2)(c)EU; consultation; unanimity
Document originated	30 June 2005
Deposited in Parliament	7 July 2005
Department	Constitutional Affairs
Basis of consideration	EM of 20 July 2005
Previous Committee Report	None; but see (26126) 14223/04: 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	No date set
Committee's assessment	Legally and politically important
Committee's decision	Not cleared; further information requested

Background

11.1 The European Monitoring Centre on Racism and Xenophobia (EUMC) was established by Council Regulation (EC) No. 1035/97[43] 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".

11.2 The Commission subsequently published a consultation document seeking views on how the objective outlined by the European Council might be achieved. The previous Committee considered this document on 1 December 2004 and 10 February 2005 and recommended it for debate in European Standing Committee B, which debate took place on 14 March 2005. The proposal for a fundamental rights agency was also debated in Westminster Hall on 2 February 2005. 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.

The proposed draft Council Regulation

11.3 The proposed draft Council Regulation seeks to establish a "European Union Agency for Fundamental Rights". An associated draft Council Decision is 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 cooperation in criminal matters). The Commission explains that the objective of the proposal is to "establish a centre of expertise on fundamental rights at the EU level" and that establishing an agency "will make the Charter more tangible".

11.4 The draft Council Regulation is based on Article 308 EC. Article 1 provides for the establishment of a "European Union Agency", but it is not explained how an agency of the European Union can be created under the powers conferred on the European Community by Article 308 EC.

11.5 The objective of the Agency, as provided for in Article 2, is "to provide the relevant institutions, bodies, offices and agencies of the Community and its Member States when implementing Community law with assistance and expertise relating to fundamental rights". Such assistance and expertise would be given "in order to support them when they take measures or formulate courses of action within their respective spheres of competence to fully respect fundamental rights".

11.6 According to Article 3 the Agency will carry out its tasks within the competences of the Community as laid down in the EC Treaty, and in so doing will "refer" to Article 6(2) EC and the Charter of Fundamental Rights. Article 3(3) provides that the Agency will "concern itself" with the situation of fundamental rights in the EU and its Member States when implementing Community law. By virtue of Article 3(4), the Agency will also provide information and analysis, as requested by the Commission, on human rights in third countries with which the Community has concluded association agreements, where those agreements contain provisions on human rights.

11.7 Article 4 sets out a series of tasks for the Agency which include collecting data and making studies, but also formulating "conclusions and opinions on general subjects" for EU institutions and Member States when implementing Community law, either on its own initiative or at the request of the European Parliament, the Council or the Commission. However, by virtue of Article 4(2) such "conclusions and opinions" may not be made in respect of the legality of Commission proposals under Article 250 EC, positions taken by the institutions in the course of the legislative procedure, the legality of acts within the meaning of Article 230 EC or the question of whether a Member State has failed to fulfil an obligation under the Treaty within the meaning of Article 226 EC. In addition, the Agency is to "make its technical expertise available" to the Council at its request in the context of proceedings under Article 7 EU[44].

11.8 Article 5 enables the Commission to adopt a five year framework programme for the Agency in accordance with the regulatory procedure[45]. The programme or "Multiannual Framework" would determine the "thematic areas" of the Agency's work "always including racism and xenophobia".

11.9 Articles 6 to 9 provide for working methods of the Agency and its cooperation with other bodies, notably the Council of Europe. Article 11 provides for a Management Board composed of one independent person appointed by each Member State, one by the European Parliament and one by the Council of Europe. The Commission may appoint two representatives, but there is no requirement that these be independent. The Agency is also to have an Executive Board composed of the chairman and vice-chairman of the Management Board and the two Commission representatives. The Director of the Agency is to be appointed by the Management Board on the basis of a list of candidates proposed by the Commission.

11.10 Article 14 provides for a "Fundamental Rights Forum" to be chaired by the Director of the Agency and composed of representatives of non-governmental organisations "responsible" for fundamental rights and efforts to combat racism, xenophobia and anti-semitism as well as trade unions and employers' organisations, social and professional organisations, churches, religious, philosophical and non-confessional organisations, universities and qualified experts and European and international bodies and organisations. The maximum number of the Forum is to be 100, and it is to be selected by an "open selection method" to be determined by the Management Board. The Forum is to meet annually and is to act as a mechanism for the exchange of information and the pooling of knowledge and is to "ensure close cooperation between the Agency and the relevant stakeholders". The Forum may also make suggestions for the annual work programme.

11.11 Provision is also made for the Agency to have legal personality and to enjoy the privileges and immunities of the European Communities and for the application of the EC Staff Regulations.

The draft Council Decision

11.12 The draft Council Decision is a measure proposed under Articles 30, 31 and 34(2)(c) EU. It provides that "in conformity with" Article 28 of the draft EC Regulation[46] the Agency is empowered to pursue its activities also in the areas covered by Title VI of the EU Treaty (i.e. police and judicial cooperation in criminal matters). It is further provided that the provisions of the Regulation are to apply by analogy to the Agency's activities in the areas covered by Title VI EU, and that references to Community bodies, agencies and offices are to be understood as referring also to 'Union' bodies established on the basis of Title VI.

The Government's view

11.13 In her Explanatory Memorandum of 20 July 2005 the Parliamentary Under-Secretary at the Department for Constitutional Affairs (Baroness Ashton of Upholland) explains that on initial consideration the Commission proposal seems to be broadly in line with the UK positions on the Agency, and that the legal basis for the Regulation, the objective, scope and tasks of the Agency, its areas of activity and its structure are all "broadly acceptable to the UK government".

11.14 On the use of Article 308 EC as the legal base for the proposal, the Minister comments that the European Court has confirmed that fundamental rights are part of the general principles of Community law and that compliance with fundamental rights is a condition of legality of Community acts. The Minister also refers to Article 6(2) EU[47] as demonstrating the importance of fundamental rights, suggests that there are reasonable arguments for arguing that it is a general objective of the Community to ensure that its own action fully respects human rights and concludes that this objective, which applies in all areas of the Community's action, including in the course of the operation of the common market, will be furthered by the establishment of the Agency.

11.15 On the general policy implications of the proposal, the Minister comments as follows:

"The decision to bring anti-racism and xenophobia responsibilities together with human rights within one body is consistent with UK policy to create a Commission for Equality in Human Rights in the UK. The Government supports measures aimed at building a genuine human rights culture within the Union, based on the institutions".

11.16 The Minister adds that, as holding the Presidency, the UK expects that the main areas for discussion will be the remit of the Agency, both for third countries and the third pillar,[48] the question of duplication of roles, the degree of independence of the Agency and way in which its work programme is set, the legal base for the Agency and its management structure.

11.17 The Minister explains that the annual budget for the present European Monitoring Centre on Racism and Xenophobia of €8.2 million with a present staff of 37 is likely to increase to €29 million in 2013, with a staff of 100. The Commission has proposed that the Agency should have a growing budget for the period 2007-2013 "to allow for gradual growth and transition".

Conclusion

11.18 We note the description of areas for discussion which the Minister expects to arise during the UK Presidency, but we would have found it helpful if the Minister had been more forthcoming on the UK's attitude to such issues as the likely duplication of roles with the Council of Europe and the independence and management structure of the Agency.

11.19 The Minister has explained the use of Article 308 EC as the legal base for this proposal, but has not explained how provisions of the EC Treaty can be used to create a European Union body. If the Minister believes this may properly be done, we ask the Minister to explain the grounds for such belief.

11.20 We ask if the Minister is content with the role envisaged for the Commission in the running of the Agency. In particular, we ask if the Minister agrees that it is acceptable to impose an obligation on the Member States, the European Parliament and the Council of Europe to appoint an independent person, but to impose no requirement of independence on the Commission when appointing its two representatives to the Management Board. We also ask if the Minister is content that at least two of the four members of the Executive Board should be representatives of the Commission, despite the views apparently unanimously expressed in consultation that the Agency should be independent of EU institutions.

11.21 We note that a reason advanced by the Commission for the proposal is that "securing fundamental rights depends on governance mechanisms to ensure that they are fully taken into account in policy setting and decision-making in the Union", but that the proposal prohibits the Agency from expressing any view on the legality of Commission proposals. This appears to us substantially to undermine the purpose of the Agency and we ask the Minister if the Government agrees with this aspect of the proposal.

11.22 We also ask the Minister if the Government is content with the way the Charter of Fundamental Rights is referred to in the proposal and if the Government agrees with the Commission that establishing the Agency will make the Charter "more tangible".

11.23 We shall hold the document under scrutiny pending the Minister's reply.

44   Article 7 EU provides for action by the Council where there is a clear risk of a serious breach by a Member State of the principles of liberty, democracy, respect for human rights and fundamental freedoms and respect for the rule of law. Back

45   i.e. the delegated legislation procedure under Council Decision 1999/468/EC. The scope of the powers delegated to the Commission under the "regulatory" procedure is less than that enjoyed by it under the advisory or management procedures.  Back

46   This simply provides that the Regulation is to be without prejudice to the possibility of the Council empowering the Agency under Title VI of the EU Treaty to pursue activities in the areas covered by Title VI. Back

47   This provides that "The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law".  Back

48   i.e. questions of police and judicial cooperation in criminal matters under Title VI EU. Back