Ministerial Correspondence, House of Commons European … · 2016-03-30 · Letter from Rosie...

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Ministerial Correspondence, House of Commons European Scrutiny Committee

BUSINESS, INNOVATION AND SKILLS

Letter from Lord Davies of Abersoch to the Chairman

5091/06: Proposal for a Council Regulation on indication of the country of origin of certain products imported from third countries

I am writing to update you on the position of the EU proposal on origin marking introduced in 2005.

Whilst there is no new or revised proposal, the European Commission has recently produced an options paper. This suggested a number of possible ways to make progress in order to gather an updated picture of Member State positions’ on the proposal. The options were:

1) narrowing the product coverage to ‘end-user’ goods;

2) amending the geographical application to address potential anomalies for certain preferential trading partners; and,

3) setting up a 3 year pilot scheme to evaluate costs and benefits of the regime over an initial period and covering consumer products in a range of sectors (Textiles & Clothing, Ceramics, Furniture, Brooms).

The proposal remains that made by the European Commission in 2005, on which the UK and a number of other Member States had strong reservations. The main concerns then were that country of origin labelling would not deter origin fraud; was not wanted by consumers nor the majority of stakeholders; could be difficult and expensive for manufacturers and government to implement; would send the wrong signals in the context of the Doha Development Round of trade negotiations; could be seen as a protectionist technical barrier to trade; and ran contrary to the trade-facilitation agenda.

An initial discussion was held with Member States on 23 October 2009. Although Member States generally expressed support for exploring the options further, a number also reiterated their original concerns. The Swedish and succeeding Spanish Presidencies are now discussing the way forward with the Commission.

Development of the options is still at an early stage and the Government has not come to a definitive position. It will consult stakeholders again once the promised further work has been done by the Commission.

10 January 2010

Letter from the Chairman to Lord Davies of Abersoch

Thank you for your letter of 10 January.

We were grateful for this update, and have noted the position.

27 January 2010

12281/09 PROPOSAL FOR A REGULATION (EU) NO.../2010 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

AMENDING REGULATION (EC) NO 1080/2006 ON THE EUROPEAN REGIONAL DEVELOPMENT FUND AS REGARDS THE

ELIGIBILITY OF HOUSING INTERVENTIONS IN FAVOUR OF MARGINALISED COMMUNITIES

Letter from Rosie Winterton to the Chairman

I am writing to inform you of the current position regarding the above proposal following Agreement reached at the European Parliament on 16 February 2010.

Under the present Regulation, with the exception of energy efficiency and renewable energies intervention accessible to all Member States, ERDF supported interventions in the housing sector are reserved only for Member States that acceded to the European Union on or after 1 May 2004, and according to specific conditions (which are set out in Article 7 paragraph 2 of Regulation No 1080/2006 and Article 47 of the Commission Regulation No 1828/2009).

The European Parliament and the Council asked the Commission to take action to promote inclusion of those communities facing deprivation and marginalisation with the intention to support measures to improve the living conditions of these communities through the ERDF. The Commission document COM(2009)0382 therefore proposed a change to European Regional Development Fund Regulation (ERDF) (EC) No 1080/2006, Article 7(2) to extend the types of housing for which the ERDF can provide financial support in the Member States that acceded to the European Union on or after 1 May 2004.

The proposal included amendments to the Regulation so that expenditure for such purposes is programmed within one of the following frameworks:

the framework of an integrated urban development approach for areas experiencing or threatened by physical deterioration and social exclusion;

ii) the framework of an integrated approach for marginalised communities.

On 10 February the European Parliament adopted the text of the Regulation in Plenary Session but proposed modifications to the text such that the amended proposal would apply to all Member States ie:

“Expenditure on housing, except for energy efficiency and the use of renewable energy as set out in paragraph 1a shall be eligible in the following cases:

For the Member States that acceded to the EU on or after 1 May 2004 and in the framework of an integrated urban development approach for areas experiencing or threatened by physical deterioration and social exclusion;

For all Member States only in the framework of an integrated approach for marginalised communities.”

Following further discussion at the Working Party on Structural Actions held on

15 February 2010 the majority of the Member States agreed to the European Parliament amendment in the interest of a first reading deal. However they also acknowledged that housing should remain the competence of Member States and an accompanying statement was subsequently issued by the Commission and Member States (with the exception of Germany, Hungary and the Czech Republic) to the effect that the proposal should only be applied when interventions are part of an integrated approach to tackling the social and economic conditions of marginalised communities and that this exception should in no way be regarded as a general opening of Cohesion Policy to financing housing interventions.

The proposal was submitted as an ‘I’ point at Coreper on 23 February. A delay in the process is currently being experienced as text changes to the recitals are being discussed in order to reach an agreement between the Council and the European Parliament on appropriate wording. This is however a minor delay relating to a wider procedural issue due to the entry into force of Lisbon and does not impact on the substance of any of the points concerning the Structural Fund Regulations.

17 March 2010

Letter from the Chairman to Rosie Winterton

Thank you for your letter of 17 March.

We are grateful to you for your progress report on the consideration of this draft Regulation by the European Parliament (EP) and the Council. We note that the Regulation, as agreed between the Council and the EP, will shortly be adopted.

30 March 2010

12761/09 : Proposal for a Council Directive implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP AND ETUC and repealing

Directive 96/34/EC.

Letter from Pat McFadden to the Chairman

Further to sight of the Report of your Committee (30873) concerning the Parental Leave Directive, I am grateful to the Committee for lifting the scrutiny reserves on the Directive. I can confirm that as anticipated, and as the Committee will be aware, the Directive was agreed at the Employment and Social Affairs Council meeting on 30th November.

I have noted your continuing concerns and request that the Government put these to the Commission Legal Service. In response to the points you have raised, and as set out in

detail in my letter of 17 November the Government’s legal assessment is that the Commission's position in relation to Article 139(2) is entirely compatible with the Treaty. I am therefore satisfied that the proposal to implement the Framework Agreement by means of a Directive is the appropriate measure. The same reasoning will apply to interpretation of Article 155(2) TfEU, which re-enacts Article 139 EC.

To assist the Committee further I draw their attention to Impact v Minister for Agriculture and Food and Others Case C-268/06 [2008] ECR I-2483. The case confirmed the direct effect of specific clauses of the 1999/70 framework agreement on fixed-term work, which as my previous letter outlined is also implemented by a Directive under Article 139(2). The Court does not question the validity of the adoption of the agreement by way of a Directive under Article 139(2) (see paragraph 58). This approach was followed in joined Cases C-378/07 to C-380/07 Angelidaki and Others [2009] ECR I-0000 which also concern the fixed-term work framework agreement (see paragraph 195). Recital 4 of this agreement also clearly refers to a 'decision' of the Council in the broader meaning of the word. Therefore, the Commission is not setting aside an express requirement contained within Article 139(2), it is acting in accordance with Article 139(2) which does not require implementation via a decision in the narrow meaning of the word.

I hope that this puts the issue beyond doubt.

21 January 2010

Letter from the Chairman to Pat McFadden

Thank you for your letter of 21 January about the interpretation of Article 139(2) EC and Article 155 TFEU.

We note the Government’s legal opinion.

27 January 2010

14183/08 PROPOSAL FOR A EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE ON CONSUMER RIGHTS

Letter from Kevin Brennan to the Chairman

As requested in your letter of 10 September 2009, I would like to inform you of progress in the negotiation of the proposed Consumer Rights Directive which you have retained under scrutiny.

The negotiations, both in Council and the European Parliament, are ongoing but progress remains slow.

I participated in a policy debate on the Directive at Competitiveness Council in December of last year. During the debate I expressed my support for the Directive and for full harmonisation, where evidence shows that the current divergence of laws is creating barriers to trade. I stressed, however, that this must not be at the expense of key consumer protections, such as the right to reject faulty goods in the UK, and made clear that amendments are necessary before the UK will be able to agree the text. Whilst it was clear that the majority of Member States are supportive of the proposal for a new Directive and are keen to make progress, many of them share our strong concerns that the proposal as drafted would result in a reduction in consumer protection.

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Progress was made during Council Working Group meetings under the Swedish Presidency during the latter half of 2009. I am pleased to say that certain key UK concerns have been addressed in recent Presidency redrafts, including the insertion of provisions on the right to reject, exclusion of financial services from Chapter 3 of the proposal (on information and withdrawal rights for distance and off premises contracts) and amendments to the provisions on off-premises selling. However, these areas still need improvement and there are other areas where I feel that amendments are necessary before the text is acceptable to the UK. Negotiations are continuing under the Spanish Presidency and a policy debate on the Directive is scheduled for Competitiveness Council in May.

In the European Parliament the Internal Market and Consumer Protection Committee (IMCO) have been considering the proposal. The Rapporteur is due to produce his report on the Directive in early May, with the Committee vote scheduled for the end of September. The Legal Affairs and Economic and Monetary Affairs Committees are expected to provide opinions on the proposal. It is intended that the First Reading Plenary vote in Parliament will take place in November of this year. Initial indications suggest that the IMCO Committee share the concerns of some Member States that full harmonisation would lead to a reduction in levels of consumer protection. They are therefore unlikely to support full harmonisation of the whole Directive and are likely to propose a mix of full and minimum harmonisation provisions.

When the new Commission was appointed earlier this year responsibility for consumer contract and marketing law, including the Consumer Rights Directive, was split from the rest of the consumer portfolio in DG Health and Consumers and now comes under the remit of Commissioner Reding at DG Justice, Freedom and Security. It is too early to say whether this will have any significant impact on the Directive but Commissioner Reding has made clear that she sees legislative agreement on this Directive as a priority.

11th March 2010

Letter from the Chairman to Kevin Brennan


As you say, the negotiations are proceeding very slowly. We are glad to learn, however, that some useful amendments were agreed in the Council working group during the Spanish Presidency. We note that further changes are needed before the text will be acceptable to the Government.

Because of the importance of the draft Directive, we should be grateful for further progress reports. Meanwhile, we shall keep the document under scrutiny.

17 March 2010

MICROFINANCE

Letter from Lord Davies to the Chairman

I am writing to update you about the establishment of the PROGRESS Microfinance Facility (11778/09) and the reallocation of funding from the Community Programme for Employment and Social Solidarity (PROGRESS) DWP EM 11717-09, both of which have been cleared from scrutiny. Given the two proposals are linked, I thought you would appreciate a single update on both, this response therefore includes information from DWP colleagues.

As I said in my letter of 21 November the European Parliament had opposed funding the Microfinance Facility through the reallocation of EURO 100 million from the PROGRESS

budget. Instead, they proposed increasing the funding to EURO 150 million, to be taken from the margins.

The UK has always supported the original Commission proposal, and we have consistently pushed to ensure that we achieve an outcome as close to these original proposals as possible. During negotiations, the UK formed part of a blocking minority in Council to resist the European Parliament’s proposals, lobbying finance ministries in other Member States to ensure they maintained an equally budget disciplined approach.

As a result of the position taken by the Council, the European Parliament agreed to drop their proposal to increase the funding for the Microfinance Facility from EUR 100 million to EUR 150 million. They also agreed to compromise on the amount of funding from the margins, agreeing to set up the Facility with EURO 60 million from PROGRESS and EURO 40 million from the margins.

As part of the compromise package, the Commission will also make an official declaration stating that the Council and the European Parliament may consider making available an additional EURO 20 million of funding for PROGRESS over the course of the Microfinance Facility. However, this statement simply restates what would in any case be possible and places no binding commitment on the Member States. Any increase in the PROGRESS budget would need to be justified during budget negotiations by an activity statement from the Commission, and it remains the prerogative of the Council to oppose any unnecessary or inappropriate increase. Given the position of the different Member States during the negotiations I believe is unlikely that agreement would be obtained.

We believe this is a good final compromise. Through a successful negotiating strategy on the part of the Council, the European Parliament has given considerable ground from their starting position. There have been no material changes to the PROGRESS Microfinance Facility (11778/09), which is fully in line with UK objectives and which we continue to support. The Government is therefore proposing to vote in favour of both the establishment of the Facility, including the new funding proposal.

18 February 2010

EU BUSINESS SPANISH PRESIDENCY

Letter from Lord Davies to the Chairman

January saw the start of the Spanish Presidency of the European Council, and I would like to take this opportunity to set out what we anticipate to be their priority areas for BIS.

The Presidency’s top priority is to agree the successor to the Lisbon Agenda of economic reform – known as the EU 2020 strategy - by the June European Council. It focuses on jobs and growth, the EU’s global competitiveness, research and innovation, and the transition to a low-carbon economy. The expected publication date for a Commission Communication is early March. HM Treasury is the lead Department, however BIS has a strong interest.

The second priority for the Presidency is the endorsement of a new EU Innovation Plan at the Competitiveness Council in May. The Commission is aiming to publish the Plan in March or April. Among the proposals we expect it will include: structuring the next generation of EU programmes; creating demand through public procurement for innovative products and services; and the creation of a large scale venture capital fund to support innovation – a pan-European innovation fund.

During the course of the Presidency’s term, there will be discussions on social equality, electric cars, Service Directive implementation, SMEs and standardisation.

In addition, below is a short summary outlining where specific dossiers are in the EU process. Where possible we have highlighted the likelihood of new Commission communications/ proposals which may be subject to future scrutiny by your Committee should they emerge.

Consumer Rights Directive – the Spanish are only planning a policy debate at the May Competitiveness Council.

Although aspects of the European patent court are due to be discussed, no official agreement can be considered until the ECJ has issued its opinion on the compatibility of the court with EU Treaties (not expected until at least May). The Commission proposal on EU Patent Languages is also unlikely to be published before May. Therefore, unless the Presidency can get agreement on outstanding issues exceptionally quickly, any formal agreement at the May Council is unlikely.

Spain is keen to agree an early deal on extended Copyright term, but will need to be sure that an established blocking minority has fallen before it will proceed with that deal. You will also be aware of an impact assessment from our Intellectual Property Office on the same subject which has been sent for your consideration. Google Books is likely to remain high on the agenda and a Commission communication is expected.

The Presidency is keen to agree a first-reading deal on the Late Payments Directive in June.

Better Regulation agenda - little development being made; however the Commission is working towards their new ‘Smart Regulation’ strategy, due in the summer.

The new Commissioners will be in office by late -February/ early March, so we are expecting little activity until the second half of this year.

I hope you find the above information useful.

8 February 2010

Letter from the Chairman to Lord Davies

Thank you for your letter of 8 February. We discussed it at our meeting this morning.

We are grateful to you for providing us with such a clear and concise overview of the likely developments during the Spanish Presidency and for confirming our own impression that there is unlikely to be much activity on BIS business until the second half of 2010.

9 February 2010

Doc 12217/08: Proposal for a Directive amending Directive 2006/116/EC on the term of protection of copyright and certain

related rights

Letter from David Lammy to the Chairman

I enclose an Impact Assessment relating to the above proposal. The Impact assessment was initially requested by Lord Roper, Chairman of the House of Lords Select Committee on the European Union.

The IA shows that the cost of Option 3 is less than Option 2. As you may know the UK has argued within Europe for an extension of term that better reflects the lifetime of a performer and one that delivers real and lasting benefits to performers; Option 3 delivers this.

As you may be aware, the proposal to extend copyright term was not discussed in Europe under the Swedish presidency however, I believe that the Spanish presidency is likely to progress the proposal as they take up their position in January 2010. I would therefore be grateful if you could consider the attached Impact Assessment at your earliest convenience.

I will inform you of further developments should they arise.

27 January 2010

Letter from the Chairman to David Lammy

The Committee was grateful for your letter of 27 January, enclosing the impact assessment, and for notice that negotiations are likely to recommence under the Spanish Presidency.

We would, as ever, be grateful for being kept informed of the progress of those negotiations.

9 February 2010

CABINET OFFICE

SCRUTINY RESERVE OVERRIDES: JANUARY-JUNE 2009

Letter from Jon Cunliffe to the Chairman

I am writing to provide the latest list of scrutiny overrides which was agreed recently with your Clerk.

Numbers have decreased from the high figure recorded for the period July-December 2008 on which you commented in your letter to me of 10 September. I am also aware that Lord Roper has written to Baroness Royall, to highlight his committee’s concern following the July-December 2008 figures and noting some actions his committee will take to raise the profile of overrides; these actions were also highlighted in his Committee’s annual report.

We will promote awareness of this new approach, alongside acknowledging the seriousness which your committee continues to attach to overrides, particularly those which might have been avoided.

8 December 2009

Jan-June 2009

Overrides as a

Dept

No. of docs deposited

No. of leg proposals scrutinised (i.e covered by reserve resolution)

No. of non-leg issues subject to scrutiny

Total proposals/issues subject to scrutiny

Total No. of legislative instruments which were overridden

Overrides in Lords

Overrides in Commons

percentage of proposals covered by scrutiny reserve resolution

FCO 71 40 17 1 1 2.50 BERR/BIS 96 35 22 1 1 2.86 DEFRA 109 45 29 5 5 2 11.11 DECC 8 1 3 0.00 HMT 99 59 23 6 6 5 10.17 HO 42 29 8 0.00 DFT 35 12 12 0.00 DFID 140 9 11 0.00 DIUS/DCFS 22 5 10 1 1 1 20.00 DCMS 7 4 0 0.00 MOJ 24 9 7 1 1 11.11 HMRC 6 4 1 0.00 DWP/HSE/GEO 18 5 6 0.00 CO 6 1 2 0.00 HEALTH 5 3 2 0.00 ONS 2 1 1 0.00 FSA 1 1 0 0.00 MOD 0 0 0 #DIV/0! DCLG 0 0 0 #DIV/0! Forestry 0 0 0 #DIV/0! Totals 691 263 154 417 15 14 9 5.70

The number of documents deposited is a higher figure than issues scrutinised since some documents have working docs and other annexes which are deposited as separate documents but which form part of the single issue being scrutinised; equally some documents contain more than one legislative proposal.

U/N EMs are submitted where depositable docs were not available at the time (or subsequently) or where the text was attached to the EM.

These EMs are included in the figure for deposited documents

Scrutiny Overrides: January-June 2009

Doc Title Date of Date of Date of Date of over- Lead Lords: Reports Commons: Ref Doc Deposit EM ride Dept and Reports and

correspondenc correspondence e

1 16271 Council 24.11.08 28.11.08 17.12.0 19.1.09 DEFRA 20.1.09: Cleared No override /08 decision

concerning 8 Ag & Fish

Council without reference to 14.1.09: Cleared as

the placing Sub-Committee politically important on the (Report 3, 08-09) market, in accordance with Directive 2001/18/E C of the European Parliament and of the Council, of a carnation (Dianthus caryophyllu s L., lin 123.8.12) genetically modified for flower colour

2 5223/ 09

Council Decision granting mutual assistance for Latvia

12.1.09 13.1.09 15.1.09 20.1.09 Ecofin

HMT 15.1.09: Ian Pearson to Lord Roper

27.1.09: Sifted to Sub-Committee A

15.1.09: Ian Pearson to Michael Connarty

21.1.09: Cleared as politically important (Report 5, 08-09)

20.3.09: Cleared

3 5223/ Council 12.1.09 13.1.09 15.1.09 20.1.09 HMT 15.1.09: Ian 15.1.09: Ian 09 decision

providing Ecofin Pearson to Lord

Roper Pearson to Michael Connarty

EU medium- 27.1.09: Sifted 21.1.09: Cleared as term financial

to Sub-Committee A

politically important (Report 5, 08-09)

assistance for Latvia 20.3.09: Cleared

4 5981/ Council 2.2.09 5.2.09 16.2.09 9.3.09 HMT 24.2.09: Sifted No override 09 Recommen ESPHCA to Sub-

dation on Committee A 25.2.09: Cleared as the 2009 up-date of 6 3.09: Angela


the broad Eagle to Lord guidelines Roper for the economic 18.3.09: Cleared policies of the Member States and the Community and the implementa tion of Member States' employmen t policies



5 Unnu mber ed EM

Council Joint Action appointing the European Union's Special Representat ive in Bosnia and Herzegovin

12.3.09 11.3.09 FCO 17.3.09: Sifted to Sub-Committee B

19.3.09: Caroline Flint to Lord Roper

24.3.09: Lord Roper to Caroline Flint

No override

2.3.09: Debated in European Committee and also cleared in correspondence before the Council

a.6 5972/

09 Regulation of the EP and of the

30.1.09 4.2.09 12.2.09 20.3.09 GAERC

BIS 24.2.09: Sifted to Sub-Committee B

No Override

18.3.09:Cleared as Council establishin g a programm

3.3.09 & 23.3.09 : Lord Roper to Mike O’Brien


e to aid economic recovery by

13.3.09, 25.3.09 and 7.4.09: Mike O’Brien to

granting Communit y financial

Lord Roper

25.3.09: Cleared

assistance to projects in the field of energy

7 7481/ 09

Council Decision on the establishme nt of the Community position to be adopted

8.3.09 17.3.09 19.3.09 23.3.09 Ag & Fish Council

DEFRA 26.3.09: Huw Irranca-Davies to Michael Connarty

24.3.09: Cleared

26.3.09:Huw Irranca-Davies to Lord Roper

25.3.09: Cleared as not important (Report 13, 08-09)

in the Indian Ocean Tuna Commissio n

8 7616/ 08

Directive of the European

13.3.08 19.3.08 30.4.08 29.4.08 Coreper First reading

MOJ 13.5.08: Sifted to Sub-Committee E

10.6.09: Cleared as legally and politically important

Parliament and of the

agreement 5.6.09: Lord

(Report 21, 08-09)

Council amending

Roper to Lord Bach

1.7.09: Lord Bach gave evidence to

Directive the Committee 2005/35/E C on ship-

No override about agreement before completion

source of scrutiny pollution and on the introductio n of penalties for infringeme nts

9 8642/ Council 14.4.09 15.4.09 24.4.08 5.5.09 HMT 12.5.09: Sifted 6.5.09: Cleared as

Doc Title Date of Date of Date of Date of over- Lead Lords: Reports Commons: Ref Doc Deposit EM ride Dept and

correspondenc e

Reports and correspondence

09 Regulation amending Regulation (EC) No 332/2002, establishing a facility providing medium-term financial assistance for Member States' balances of payments

Ecofin to Sub-Committee A

5.7.09: Ian Pearson to Lord Roper

15.7.09: Lord Roper to Ian Pearson


1 9052/ Recommen 24.4.09 6.5.09 28.4.09 5.5.09 HMT 28.4.09: Ian 28.4.09: Ian 0 09 dation for a

Council Decision Granting mutual assistance for Romania

Ecofin Pearson to Lord Roper


Pearson to Michael Connarty


1 9052/ Proposal 24.4.09 6.5.09 28.4.09 5.5.09 HMT 28.4.09: Ian 28.4.09: Ian 1 09 for a

Council Decision Providing EU medium-term financial assistance for Romania

Ecofin Pearson to Lord Roper


Pearson to Michael Connarty


1 2

12259 /08

Council Regulation on the Community legal framework for a European Research Infrastructu re (ERI)

29.7.08 7.8.08 30.9.08 28.5.09 Comp Council (Political Agreement)

DIUS 21.10.08: Sifted to Sub-Committee B

28.10.08: Lord Grenfell to Lord Drayson

30.11.08, 11.12.08, 19.5.09: Lord Drayson to Lord Roper

8.12.08 & 3.6.09: Lord Roper to Lord Drayson

17.12.08: Not cleared, politically important (Report 2, 08-09)

1 9537/ Proposal 6.5.09 8.5.09 27.5.09 28.5.09 DEFRA 2.6.09: Sifted to 3.6.09: Cleared as 3 09 from the

Commissio n for a Council Decision on the establishme nt of the Community

Ag & Fish Council

Sub-Committee D

11.6.09: Lord Roper to Huw Irranca-Davies – Cleared

Recess

not important (Report 20, 08-09)

Recess



position to be adopted I the North Atlantic Salmon Conservati on Organisatio n (NASCO)

1 10261 Council 27.5.09 1.6.09 18.6.09 25.6.09 DEFRA 28.06.09: Dan No override 4 /09 Decision Environment Norris to Lord

concerning Council Roper 24.6.09: Cleared as the non-inclusion of 30.6.09: Sifted

not important (Report 23, 08-09

Paraffin to Sub-oils CAS Committee D 64742-46-7, CAS 8.7.09: Lord 72623-86-0 Roper to Dan and CAS Norris 97862-82-3 in Annex 1 to council directive 91/414/EE C and the withdrawal of authorisatio ns for plant protection products containing those substances

1 10263 Proposal 27.5.09 1.6.09 18.6.09 25.6.09 DEFRA 28.06.09: Dan No override 5 /09 for a Environment Norris to Lord

Council Council Roper 24.6.09: Cleared as Decision concerning 30.6.09: Sifted

not important (Report 23, 08-09

the non- to Sub-inclusion of Committee D Paraffin oils CAS 8.7.09: Lord 8042-47-5 Roper to Dan in Annex 1 Norris to council directive 91/414/EE C and the withdrawal of authorisatio ns for plant protection products containing that substances

Letter from the Chairman to Jon Cuncliffe

Thank you for your letter of 8 December enclosing the report on scrutiny reserve overrides in January-June 2009.

The Committee continues to find the provision of the table of overrides by department extremely helpful.

I am pleased to see that the number of overrides is back in single figures. In fact, since two of the Treasury’s overrides were on contingent decisions, I would suggest that seven would be a more realistic number for the overrides incurred.

The Committee takes breaches of the House’s scrutiny reserve resolution very seriously and therefore welcomes this improvement in performance. We will continue to monitor the incidence of overrides and will invite Ministers to oral evidence sessions to explain the reasons for overrides in those cases where we do not consider that a sufficient justification has been provided.

6 January 2010

DEPARTMENT FOR ENERGY AND CLIMATE CHANGE

Letter from Commissioner Wallström to the Chairman

Thank you for your letter dated 4 November 2009, informing me about the time constraints experienced as far as your scrutiny of different Commission proposals is concerned, and your concern that national parliaments had insufficient time to conduct effective scrutiny. The documents in question related to Council decisions establishing an international negotiating mandate for the Community (COM(2009)420, COM(2009)474 and COM(2009)537).

As you now, this Commission has put great emphasis on engaging in a political dialogue with national Parliaments, encouraging them to examine both legislative and non-legislative Commission documents and to express their respective opinions. The Commission considers that with over 600 opinions now received from national Parliaments, this has brought real added value for the policy-making process within the Commission, as well as illustrating the depth of our dialogue.

The Commission is of course very conscious that in order to properly analyse and discuss a Commission document, national Parliaments need enough time. Even if a formal eightweek period does not apply - as is the case for the particular proposals you mention, which concern negotiating mandates (old article 200(2); new article 218(9)) - I have, for future reference, seen to that the services concerned have been made aware of your particular interest in this matter. Negotiating mandates are however justifiably a different case, and their timing is often reliant on discussions with third countries and progress in international organisations, not fully in the control of the Commission.

Let me take the opportunity to thank you for the smooth cooperation between your Committee and the Commission over the last years and for your personal dedication to strengthening our relations.

30 November 2009

Letter from the Chairman to Commissioner Wallström

Thank you for your letter of 30 November, responding to the points raised in my letter of 4 November to you.

We were glad to note your recognition of the need for national parliaments to have sufficient time to analyse proposals, and, whilst we appreciate the difficulties which can arise in the case of negotiating mandates, we were grateful for your undertaking to see that the relevant Commission services are made aware of our particular interest in this matter.

15 December 2009

SPANISH PRESIDENCY PRIORITIES ON ENERGY AND CLIMATE CHANGE

Letter from Ed Miliband to the Chairman

I am writing to inform you of the energy and climate change issues we expect to be dealt with in the Council of Ministers under the Spanish Presidency. The Spanish have timetabled two Energy (12 March and 31 May) and Environment Councils (15 March and 21 June). Informal Energy and Environment Councils have already taken place (15-17 January) and Lord Hunt and I have already written to you outlining the discussion at both Councils.

As outlined in Lord Hunt’s letter, the discussions at the Informal Energy Council on 15 January focused on Europe’s priorities for energy policy over the next five years and beyond in the context of a new ‘Energy Action Plan 2010-2014’. Ministers identified a number of issues that they felt should be included in an Action Plan as a priority – for example, how to make EU energy markets work better; investment in low carbon technologies, and further diversification of energy supplies and sources. Once the new European Commission has taken up office, we expect one of its first actions to be the publication of an ‘Energy Action Plan 2010-2014’, drawing on these discussions. Currently, the Presidency is hoping that the Commission will be able to present its Action Plan at the Energy Council on 12 March. Council conclusions could then be adopted at the Energy Council on 31 May. Due to uncertainties around the timing of the new Commission, however, this timetable may slip.

The Spanish Presidency will also consider the Gas Security of Supply Regulation and is aiming for political agreement between the European Parliament and the Council in May. My officials will keep you informed of the progress of negotiations on this Regulation.

Other issues that may be taken forward in the Energy Council are:

the Commission Communication ‘Investing in Low Carbon Technologies’ (published in October 2009), where the Presidency is aiming for adoption of Council conclusions in March;

the Regulation concerning the notification to the Commission of investment projects in energy infrastructure within the European Community, where the Presidency is aiming for political agreement on the proposal in March;

a proposal for a new Directive on Radioactive Waste and Spent Fuel Management.

The Spanish have indicated that energy will also be an important issue in their external relations policy. The Mediterranean Solar Plan will be a political priority and a conference will take place to discuss it in Valencia on 11-12 May. In addition, the Presidency is keen to work with Russia on energy security issues and to do further work on the EU-US Energy Council. There will be a report on a number of external energy dialogues at the May Council.

In relation to environment priorities for the Spanish Presidency, we expect these to include working towards the adoption of a globally binding international agreement on Climate Change and promoting the implementation of agreements reached in Copenhagen.

Initial discussions on next steps following Copenhagen and the Copenhagen Accord began at the Informal Environment Council on 16-17 January. The Presidency and the Commission have now submitted a target of ‘20/30%’ (move to 30% is conditional: “as part of a global and comprehensive agreement for the period beyond 2012 … provided that other developed countries commit themselves to comparable emission reductions and that developing countries contribute adequately according to their responsibilities and respective capabilities.”) on behalf of the EU and its Member States to the Copenhagen Accord Annex.

The Spanish Presidency has set up a Road Map, detailing the plan for their Presidency, in conjunction with the European Commission, with the objective of upholding European leadership on climate change. In addition, the Commission is due to present a Communication on implementing the different elements of the Copenhagen Accord ahead of the March Environment Council.

The Presidency will focus on regional cooperation on climate issues to strengthen the leadership role of the EU, in particular on financial flows and environmental technologies. The Presidency is aiming for adoption of Council conclusions at either the March or June Environment Council.

Separately, the Commission is expected to give a presentation on a Communication on the EU 2020 strategy (the successor to the Lisbon Strategy for economic reform) at the March Environment Council, where there will be opportunities to promote a low carbon and sustainable economy.

4 February 2010

Letter from the Chairman to Ed Miliband

Thank you for your letter of 4 February setting out the energy and climate change issues which are expected to be dealt with by the Council under the Spanish Presidency.

We were interested to see this, particularly as it chimed in well with the impression which members of the Committee formed during their pre-Presidency visit to Madrid in early December.

9 February 2010

DEPARTMENT FOR CULTURE, MEDIA AND SPORT

Letter from Gerry Sutcliffe to the Chairman

Following my letter of 28 January 2009, I am writing to update you on the progression of the UK’s EU sports policy, with particular regard to the European Commission’s White Paper on Sport and associated discussions.

Since I last wrote to you, there have been two further meetings of the EU Sports Stakeholders Working Group, which includes representatives from the FA, Premier League, LTA, RFU, RFL, ECB, CCPR and Sport England (the latter two representing many of the smaller sports). UK Sport has since been invited to join this Working Group and will be attending the next meeting which is scheduled for March this year. There have also been two further meetings of the Devolved Administration EU Sports Working Group with the next meeting also scheduled for next month. As I’ve previously stated, discussions with domestic sports plays an important role in concluding our policy position on many issues.

EU Presidencies

During the last two EU Presidencies in 2009, held by the Czech Republic and Sweden, there were no informal meetings of EU Sports Ministers, however, there were Presidency conclusions resulting from informal meetings of EU Sports Directors which the UK was represented at.

The key conclusions of the Czech and Swedish Presidencies included references to ensuring:

That sport policy should be aimed at supporting and providing the sport sector with the best possible conditions for its activities.

That if the sport sector takes responsibility, it will have a greater chance of gaining acceptance for its regulatory framework within the framework of Community law.

That the Commission would not support any general exemptions from the Lisbon Treaty’s provisions regarding the sport sector, but was committed to continue the dialogue with the sport sector and Member States to further clarify the legal conditions, area by area.

That the sport sector has special responsibility for ensuring that any regulation was effective, proportional and necessary.

That the fight against doping in sport must include efforts to protect individuals’ fundamental rights in Europe, including in the area of data protection and the right of sportsmen and sportswomen to compete in clean sport on equal terms with other athletes.

For the Commission to organise a conference on internal market barriers to the funding of grassroots sport, to complement the study currently underway. To include participants from across the sports and gambling movements.

That a study on the access of non-nationals to individual sport competitions was being launched.

Recognition of the importance of the non-profit sports movement and volunteering in sport based on a Czech survey in advance of the European Year of Volunteering in 2011.

Lisbon Treaty – implementation

You will already know that, with the Lisbon Treaty being ratified in December 2009, sport now becomes a formal EU competence for the first time, similar in scope to the existing competences for education, culture and youth. Some of the consequences are still to be determined. However we already know that the the newly-appointed Commissioner for Education, Culture, Multilinguism and Youth (including sport) is Mrs Androulla Vassiliou from Cyprus.

The Commission’s Sport Unit will issue a formal Communication later this year on the implementation of the Lisbon Treaty regarding sport. An EU ‘mini’-sport programme, due to run in 2012-2013, will drafted in parallel and this will feed into the 2014-2020 EU sport programme which will be drafted next year.

There will also be a new formal Council structure for sport. This will involve meetings of EU Sport Ministers within the Education Council, and a new Council Working Party for Sport. The first formal Sport Council Meeting will take place on11 May in Brussels. This will follow the informal meeting of EU Sports Ministers which will take place on 20-21 April in Madrid. We expect that both the Communication and the ‘mini’ sport programme will be brought before the new Council in the autumn.

Together with special events in the field of sport proposed and approved by the European Parliament, the total EU budget for sport in 2010 will be €11 million. Specifically, there will be a new call for new projects and proposals this year, with a total budget of €3 million.

Bilateral meetings

I recently held a helpful bilateral meeting with my Spanish counterpart, Mr Jaime Lissavetzky, to find out more about Spain’s sporting priorities for its current EU Presidency and to present the UK’s views. I have now held a similar meeting with my Belgian counterpart, Mr Philippe Muyters, to discuss their priorities for the EU Presidency in the second half of this year.

One of the priority areas that Spain has indicated it would like to progress during its Presidency is the idea of a permanent EU sports Structured Dialogue mechanism with the International Olympic Committee and other international sports federations. I agree with the principle of this proposal and I am keen to ensure that the full breadth of the sport movement is included, particularly so that national sport voices can be clearly heard. I believe that to do otherwise is likely to result in a one-sided discussion with the risk of conclusions that do not fit with the reality of the sporting landscape, particularly here in the UK.

I am pleased to have gained support for this view from a number of other countries and we will ensure that we continue to work closely with sports stakeholders to get the best possible outcome on this issue.

I have taken the opportunity of meetings with my Spanish and Belgian counterparts to welcome the Commission’s intention to focus attention on the issues of the new digital economy, intellectual property rights and related broadcasting issues. It is vital that sports’ voice continues to be heard loudly and clearly in these discussions. The UK will continue to advocate strongly on these areas as the Commission’s policy proposals are developed in the light of the new Lisbon Treaty.

Commission workstreams

A new Working Group on Education and Training in Sport was formed last year to focus on the promotion of dual careers for athletes. The UK successfully hosting a meeting of the Group in London in December 2009, including a visit to Chelsea’s Academy.

The UK continues to be represented on the other Working Groups: the White Paper on Sport; Sport and Economics; Sport and Health; and Non-Profit Sport Organisations. One outcome of the UK’s membership of the Working Group on Sport and Economics was the publication of EU-comparable data on the importance of sport to the economy in the UK. The key findings show the value of consumer expenditure on sport being over £23bn per year, with sport related employment accounting for 569,000 jobs. Work will continue by publishing the UK’s results for each year from 2005 to 2009 by the end of 2011.

Spain has indicated that it would like to form a new Working Group on Social Exclusion, Poverty and Equal Opportunities. The UK does not object to this in principle, but has also

called for the period of adjustment after the Lisbon Treaty adoption to result in the minimum possible number of working groups, with the focus firmly on practical action.

The Commission hosted a large-scale conference in autumn 2009 on the topical issue of professional sport, governance and financial licensing. The context for the conference was football, but other sports were also included. The Commission indicated their satisfaction with the widespread support for the principles presented by UEFA on what they have termed ‘financial fair play’. It is clear that the Commission will look to other sports to take a similar approach to governance issues. Our approach has been to welcome the work carried out by the international football authorities in this area, whilst remaining conscious of national competence and defending the principles of subsidiarity.

In a related area, the Commission has recently published the conclusions of its report on players’ agents. The report is equivocal on the need for EU-wide regulation. The next stage is for the Commission to produce a formal impact assessment on the recommendations. The UK will remain engaged on this issue, but it does not appear as though this is an area where there will be immediate action.

Conclusion

With the ratification of the Lisbon Treaty there is no doubt that we are entering a new period of challenges and opportunities for the UK in the area of sport. But based on the progress made over the last year, we can be confident that by continuing to work closely with our sports stakeholders we can ensure that we get the best possible deal for the UK and for our sports.

The UK will continue to defend the principles of subsidiarity; to ensure that national voices on sport are heard clearly in Brussels; and that action taken at EU level is clearly adding value, rather than duplicating national competences. I believe that through our active, challenging and proportionate engagement we can continue to both shape the agenda and benefit from EU-wide action on sport.

I propose to write and provide you with a further update on the Government’s EU sports policy discussions towards the end of this year.

10 March 2010

Letter from the Chairman to Gerry Sutcliffe

Thank you for your letter of 10 March. We are grateful for your further report on developments since the publication of the White Paper.

DEPARTMENT FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS

AFRICAN HORSE SICKNESS (30225) 16456/08

Letter from Jim Fitzpatrick to the Chairman

I am writing to you in response to your letter of the 19 November 2009 in which you asked me to keep the Committee updated on the Commission’s codification proposal for the African Horse Sickness Directive.

The proposal to codify legislation for African horse sickness (AHS) remains as set out in my letter of 4 November 2009. I will ensure the Committee is updated should there be any further developments. In the meantime, Defra has been working with equine sector stakeholders to develop a new strategy for the control of AHS should there be an outbreak in Great Britain. We are currently considering the responses to a full public consultation on the draft strategy and proposals for a new Statutory Instrument transposing Directive 92/35/EEC.

17 March 2010

Letter from the Chairman to Jim Fitzpatrick


We have noted that the position on this proposal has not changed since you wrote to us on 4 November.

24 March 2010

Letter from Huw-Irranca-Davies to the Chairman

Draft Instrument 16810/09 of 27 November 2009 concerning a Proposal for a Council Decision repealing Council Decision N° 2009/473/EC concerning the conclusion of an Agreement in the form of an Exchange of Letters on the provisional application of the Fisheries Partnership Agreement between the European Community and the Republic of Guinea.

I am writing to advise you that this proposal is due to go to council on the 22nd December as an A Point. An EM will accompany this letter, unfortunately due to the tight timescale it has not been possible to have the EM considered by the committees before this point.

The purpose of the proposal is to terminate the fisheries partnership agreement with the republic of Guinea in reaction to serious political and civil unrest.

It is essential that the proposal is agreed at council as soon as possible, if agreement is not reached before January 1st the agreement will continue for another year. The Council on the 22nd December is the last chance to get this proposal through.

15TH CONFERENCE OF PARTIES OF THE CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES (CITES)

TAKING PLACE IN DOHA, QATAR 13 – 25 MARCH 2010.

Letter from Huw Irranca-Davies to the Chairman

The Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) aims to protect species in danger of overexploitation as a result of international trade. It works by subjecting international trade in selected species to certain controls through a licensing system. The UK is a signatory to CITES and is fully supportive of this objective.

One of the main tasks of the Conference of Parties is to decide whether to add or remove species (or certain populations of species) to either Appendix I or II of CITES or to uplist / downlist between the Appendices.

The proposed amendments to the CITES Appendices will affect the EU legislation implementing CITES. In these circumstances Member States cannot assume obligations outside the framework of the Union that might affect or alter the scope of this legislation. For these reasons Member States must act jointly in the EU interest to decide on the issues debated at the Conference of Parties in accordance with the position decided by the European Council. A common EU position on the proposals is currently being prepared and it is hoped that a Council Decision will be agreed in March prior to the Conference.

However, as a result of internal European Commission delays in preparing a draft Council Decision, I am not in a position to lay an Explanatory Memorandum before Parliament for scrutiny at this time. As things stand, I do not know whether a text will be received in sufficient time for Parliament to fully consider it, so I am writing to alert you of the issues that will be considered by the Conference of Parties. Details are annexed to this letter. If we do receive a Council Decision prior to the Conference I will submit this to Parliament at the earliest opportunity.

As a member of the European Union we are working closely with the European Commission and other Member States to assess whether the listing proposals are justified, before make a collective decision on whether or not to support them. Underpinning those decisions will be the principle of sound science and the need to ensure that whatever decisions are taken they should maintain and, where possible, improve the conservation of species in the wild in the face of threats posed by international trade.

The views of key stakeholders have been sought in respect of all proposals. Representatives from the relevant conservation groups, animal welfare and trade organisations have met with officials regularly since June 2009 to discuss the issues and proposals for consideration by the Conference of Parties. In addition, certain conservation and animal welfare groups have had other meetings with Ministers and officials on specific issues. Other organisations have also commented on the CITES listing proposals, including the CITES Secretariat and a wide range of Non-Governmental Organisations. EU Member States have been reviewing all comments to inform our decision-making process.

CITES is not a devolved matter and responsibility lies solely with the Secretary of State for Environment, Food and Rural Affairs. There will be no direct impact on UK legislation, as CITES is implemented at the EU level by EU CITES Regulations which are directly applicable in the UK. Any changes agreed at the Conference of Parties may necessitate some minor amendments to these EU Regulations. However, it is thought unlikely that these changes will have a significant impact on businesses within the UK and an Impact Assessment is not considered necessary.

22 February 2010

Letter from the Chairman to Huw Irranca-Davies

Thank you for your letter of 22 February.

Whilst it is of course unfortunate that a draft Council Decision is not yet available, we recognise that this is for reasons outside the Government’s control, and we are grateful for your having put us in the picture in this way. We have also noted that, if a such a Decision does become available before the Conference of the Parties to the Convention, you will be letting us have an Explanatory Memorandum as soon as you can.

24 February 2010

EU-GUINEA FISHERIES AGREEMENT (31192) 16810/09


Thank you for your letter of 20 January which I received on 28 January in which you raise concerns regarding the handling of the above Explanatory Memorandum (EM).

I apologise that the EM was not sent to you straightaway. The delay occurred as a result of staff illness and absences over the Christmas period. Defra's performance in 2009 in submitting EMs promptly was, on the whole, good, as the enclosed table shows. As Hilary Benn mentioned in his letters of 22 December 2009 to Lord Roper and Michael Connarty, we are committed to improving our scrutiny procedures and the work transferred to Defra's Customer Contact Unit (CCU) on 18th January. The CCU has put in place a range of measures specifically designed to improve the timeliness and quality of EMs. One of the measures is having in place a shared mailbox that is regularly monitored and is not left unattended when staff are absent. So I hope that this relatively simple improvement in our procedures will prevent such long delays happening in the future. I know the CCU has been trying to identify any other EMs that are either outstanding or require action and has been in touch with your office about two other EMs that might have been overlooked prior to this work transferring to CCU. Again, the systems we now have in place are aimed at avoiding such problems.

On your second point, the decision to terminate the EU-Guinea Fisheries Agreement is part of planned or active sanctions taken against the republic of Guinea in reaction to civil and political unrest. All funding associated with the fisheries partnership agreement has been withdrawn. However, I cannot provide further information on non-fisheries sanctions.

SUBMISSION OF EMs BY 10-DAY DEADLINE

2008 cross-Whitehall performance:

No. Of 1‐5 days 6 days + Ems No. Late late late

1014 376 (37%) 209 (20%) 167 (16%)

2008 performance of large Departments:

Dept No. Of Ems No. Late

1‐5 days late

6 days + late

BERR 169 69 (41%) 42 (25%) 27 (16%)

FCO 166 45 (27%) 30 (18%) 15 (9%) HMT 163 62 (38%) 45 (28%) 17 (10%) HO 73 23 (31%) 13 (18%) 10 (13%) DFT 66 25 (38%) 11 (17%) 14 (21%) DEFRA 140 70 (50%) 31 (26%) 33 (24%)

Defra’s performance since February 20091:

Month No. Of Ems No. Late

1‐5 days late

6 days + late

February 14 0 0 0

March 8 1 1 0

April 11 5 5 0

May 9 2 2 0

June2 13 12 8 4

July 14 5 5 0

August 9 0 0 0

September 4 2 2 0

October 18 6 6 0

November 12 4 0 0

December 7 2 0 2

Total 119 39 (33%) 29 (24%) 6 (5%)3

1 After introduction of revised procedures following Huw Irranca-Davies evidence to Commons European Scrutiny Committee on I 1 February 2009. 2 Delays all due to EMs submitted to Private Offices and awaiting outcome of Ministerial reshuffle. 3 All delayed EMs submitted to Parliament following Ministerial reshuffle.

6 February 2010



We have noted your explanation of the delay in dealing with this particular document, and have been pleased to see the more general steps which have now been put in hand to improve the department’s scrutiny procedures.

24 February 2010

EXPLANATORY MEMORANDUM 11216/09: NON-COMMERCIAL MOVEMENT OF PET ANIMALS


I am writing to inform you of progress on this issue. The proposal is heading for a first reading deal, with Member States having reached agreement in Council and the European Parliament voting in favour on 9 March 2010.

The only amendments to the proposal have been very minor administrative points, with the most significant changes being those to reflect modified ‘Comitology’ (delegated power) procedures following the ratification of the Lisbon Treaty. I am pleased to inform you that the UK achieved its primary objectives, which were:

to secure an 18-month extension to the derogation which allows us to impose stricter controls than those in place under the harmonised EU rules set out in Regulation 998/2003;

for the proposal to include provisions whereby additional controls can be put in place for ‘other (i.e. non-rabies) diseases’ through the delegated powers mechanism.

In negotiating this good outcome, we have been mindful of the points raised by both Scrutiny Committees. We have been working to develop the evidence-base on rabies, tapeworm and tick-borne diseases which will allow us to demonstrate that future changes to our pet movement controls, including at the end of the derogated period, will be justified by disease risk.

19 March 2010


Thank you for your letter of 19 March, confirming that agreement has now been reached on an 18 month extension to the derogation which allows the UK (and certain other Member States) to impose stricter controls than those in place under the harmonised EU rules set out in Regulation 998/2003.

Whilst this is of course a welcome step in its own right, it does — as we noted in our Report of 10 September 2009 — leave open the question whether any kind of alternative special arrangements might still 1be introduced after the end of 2011. Do you see any likelihood of that, and, if the UK were then to be subject to Regulation 998/2003, is this something with which the Government would be content?

24 March 2010

OPERATION OF PARLIAMENTARY SCRUTINY

Letter from Hilary Benn to the Chairman

Thank you for your letter of 19 November about Defra’s handling of the Parliamentary scrutiny process. I am writing to you about practical steps we will be taking to improve our performance.

As you are aware, the particular need for improvement relates to our systems for recording, handling, processing and assuring the quality of correspondence. One of the Department’s Directors has looked into these and other aspects of the scrutiny process, and has consulted the Committee clerks in both Houses. As a result, we have decided to transfer our scrutiny operation to Defra’s Customer Contact Unit (CCU) by mid-January 2010.

The CCU has a good track record of improving the quality of Defra’s service delivery in relation to Parliamentary questions and Ministerial correspondence. There is also a close fit between the unit’s established expertise and the areas where we need to do better on scrutiny. The benefits of transfer will include improved systems of process management for Explanatory Memoranda and correspondence, better management information and reporting, more flexible staff resourcing, and the ability to devote more attention to relationship management on service delivery issues. No doubt you will let me know how the new system works.

Helen Ghosh will be writing to Sub-Committee B with further details, as she promised last July.

22 December 2009

Letter from the Chairman to Hilary Benn

Thank you for your letter of 22 December, letting us know that you have decided to transfer your department’s scrutiny operation to its Customer Contact Unit.

Whilst we were pleased to learn of this change, the acid test — as you recognise — will be whether the new system works, and we will be taking a keen interest in this.

6 January 2010

EXPLANATORY MEMORANDUM 5088/08: PROPOSED DIRECTIVE ON INDUSTRIAL EMISSIONS (INTEGRATED

POLLUTION PREVENTION AND CONTROL) (RECAST)


I was grateful to have last July your Committee’s scrutiny clearance of the proposed industrial emissions (integrated pollution prevention and control) Directive. I am now writing to update you on progress.

As I reported in my 14 July 2009 letter to you, the UK fully supported the political agreement. Although the Jurist/Linguist stage following the political agreement in June 2009 was completed by the end of September, the further stage of formal adoption of the Council position had not been completed when the Treaty of Lisbon entered force on 1 December. Since the Treaty on the Functioning of the European Union (TFEU) introduced by Lisbon contains changed comitology provisions, it was necessary for the Council to reconsider the six instances of comitology provisions which were in the politically-agreed

text. Upon completion of that task, the Council formally adopted its position on 15 February 2010.

The Commission’s views on the Council position are set out in its 24 February 2010 Communication (COM(2010) 67 final - 2007/0286 (COD)). Its conclusion is that

`the changes [to the Commissions original proposal in December 2007] introduced by the Council are acceptable, since they are consistent and build upon the Commission's proposal, except certain assessments made by the Council regarding the conferral of powers on the Commission, as provided by Articles 290 and 291 (TFEU).’

The exception here relates to the post-Lisbon changes. Whereas Member States were virtually unanimous in favouring the use of TFEU Article 291 (providing for the adoption of implementing acts), the Commission favours the use of TFEU Article 290 (providing for delegated acts).

The Council’s reasons for its position are set out in a statement of reasons dated 15 February 2010 (11962/3/09 REV 3 ADD 1). The statement concludes that `the Council believes that its position at first reading represents a balanced package. It looks forward to constructive discussions with the European Parliament with a view to the early adoption of the Directive.’

The Council position was sent to the European Parliament at the beginning of March to initiate the 2nd Reading process which is currently scheduled to culminate in a Plenary vote in the period 5-8 July 2010. A draft recommendation from the Environment committee rapporteur on the Council position became available at the same time.

17 March 2010


Thank you for your letter of 17 March about the most recent developments on this proposal to recast the Directive on industrial emissions, and for enclosing two documents summarising the Council’s position in the light of the amendments put forward by the European Parliament and the Commission’s reactions.

We have noted the position, including the fact that the Council’s views have been sent to the European Parliament in order to initiate the second reading process.

30 March 2010

REFORM OF THE COMMON FISHERIES POLICY

Common Fisheries Policy (CFP) Reform: UK response to the Green Paper on CFP Reform


I wrote to you on 22nd April 2009 with an Explanatory Memorandum (Document 8977/09), at the time of the publication of the Green paper.

Please see attached the UK’s response to the European Commission’s Green Paper on Common Fisheries Policy (CFP) Reform, along with a baseline Impact Assessment on the current state of the fish stocks and fishing industry.

NSID (EU) cleared the UK response on 21st December. The UK response was submitted to the European Commission via UKREP on the 23rd December. In summary, the UK is looking for the CFP to deliver ecological sustainability through a mixture of decentralised decision-making, the integration of the CFP with EU and international commitments to marine conservation, more flexible fishing rights and long-term management plans based on scientific data that takes into account the full range of factors impacting on stocks.

Our response was based on extensive consultation with stakeholders and partners. Hilary chaired a stakeholder event in September to launch Defra’s Discussion Paper on CFP Reform. That event brought together interests from several sectors including the fishing industry, the major supermarkets, consumer groups, scientists and environmental NGOs. This was followed up by meetings around the coast to gather views and ideas. We invited a range of stakeholders drawn from local communities. People from the fishing industry, retail, local authorities, marine conservation and environmental NGOs fully contributed to a wide-ranging discussion. DAs managed consultations in their respective administrative areas and Defra officials attended when possible

The view that is emerging from other Member States from discussions in 2009 (so far there have been eleven MS responses to the Green Paper placed on the Commission website, though some have not yet been translated) is that the majority favour the Green Paper’s call for fundamental reform and are looking for significant changes to the CFP. There are indications of a growing consensus around some of the issues, for example that industry and regional interests should be given more responsibility for making decisions about how to manage the fishery and to be able to do on a long-term basis; that conservation of the marine environment needs to be better integrated with the CFP and the waste of discards and bycatch must be reduced to a minimum. It is also clear from our engagement with other Member States that agreeing a successful economic framework for creating the incentives to invest in the long term stability of the stocks will, in particular, require sustained engagement.

The European Commission have committed to produce a summary of responses in the 1st

half of 2010and submit a draft legislative proposal to the European Parliament early 2011. The Spanish Presidency have scheduled the presentation of an EC working paper at Junes Council of Fisheries Ministers. I will ensure that you are kept up to date with progress.

26 January 2010


Thank you for your letter of 26 January, enclosing the UK’s response to this Commission Green Paper, together with a baseline Impact Assessment.

Whilst we were grateful for a sight of these, we note that they essentially express at rather greater length the views which the Government set out in its Explanatory Memorandum of 6 May 2009, and which we noted in our Report of 3 June. In view of this, we do not think there is any need for us to make a further Report to the House, bearing in mind that this document has now been cleared by virtue of the debate held in European Committee in 2 November. That said, we will of course wish to look in some detail at the legislative proposals which the Commission has indicated it will put forward after it has considered all the responses to the Green Paper.

3 February 2010

SECURITY OF GAS SUPPLY

Draft Regulation concerning measures to safeguard security of gas supply and repealing Directive 2004/67/EC

Letter from David Kidney to the Chairman

In its response to the Government on the above document, indicating that it recommended this for debate in European Committee A, the Committee asked the Government to update them on two key issues which it saw as relevant to the debate, specifically:

the Committee was concerned at the extent to which the proposals would extend the Commission’s powers in the area of security of supply and the implications this would have for subsidiarity whether the proposal has the correct legal base.

Powers of the Commission

On the issue of the Commission’s powers under the proposed Regulation, and whether such powers are consistent with the principle of subsidiarity and proportionality, the Government’s view is that:

This area an area of shared competence. Internal market legislation in natural gas has been an area of shared competence since Directive 98/30/EC, the first internal market package, which also dealt with aspects of security of supply. Subsequently, security of gas supply Directive 2004/67/EC confirmed that security of supply was a shared competence with an emphasis towards greater Community action in order to work further towards an internal market and a co-operative approach between Member States on security of supply;

the proposals in the main, but subject to our views set out below, are consistent with the principle of subsidiarity. It is clear that the Commission is best placed to oversee Community wide application of the Regulation, the appropriate interaction of emergency plans of Member States, and the co-ordination of action in a Community Emergency e.g. in declaring a Community Emergency or requiring a change of action where an action by a Member State or Competent Authority impacts negatively on the interests of other Member States and/or distorts the internal market. One or two Member States have indicated that they consider that the Commission should not have powers to require changes in Member States’ preventative and emergency plans in respect of actions to mitigate purely national risks. However, even with the current level of integration between Member States (and in particular that between the UK and continental Europe and Ireland) and the expected

increase in interconnection when current internal legislation is fully implemented, we consider that it is now difficult to envisage how a national market can remain isolated – and thus we accept that some strengthening of the Commission’s powers in this area is consistent with the principle of subsidiarity.

on the issue of proportionality, the arguments turn on the degree to which some level of central action (be it direction or co-ordination) is necessary to ensure energy security when market measures prove inadequate to deal with a crisis in the supply of natural gas. The effects of the Russia / Ukraine gas dispute in January do show that greater coordination of Member State preparation and the existence of some overall co-ordinating powers during a crisis could help the EU should a similar crisis arise in the future.

Nevertheless, the Government does have some concerns over the apparent open-ended scope of proposed Commission powers in a number of areas. For example, we have concerns over the potentially wide scope of proposed Commission powers to require Member States to change their emergency and preventative plans without clear criteria as to how the Commission might make its judgement. We also recognise the proposed Commission powers to require changes to a Member State’s course of action during a national or an EU emergency needs clarification. We have sought greater clarity from the Presidency and will, with other Member States, press for these powers to be more narrowly defined. We hope that these issues will become clearer once the Presidency produces a revised text reflecting Member State discussion so far (expected in early December). There are also a number of ambiguities in the text relating to flows of gas and access to storage that need to be clarified. My officials will continue to make these points in the interim – as I shall do so at the Energy Council on 7 December.

Legal Base

On the issue of the legal base, the view is emerging that the Energy Article 194 in the new Treaty on the Functioning of the European Union (TFEU) is now considered to be the most appropriate base for this Regulation. Article 194, under the new Energy Title in the TFEU, provides that:

‘In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to:

(a) ensure the functioning of the energy market;

(b) ensure security of energy supply in the Union;

(c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and

(d) promote the interconnection of energy networks’.

The Article 194 captures the elements of the draft Regulation in so far as it deals with the functioning of the internal energy market (including promoting greater interconnection to fill gaps in infrastructure), as well as security of energy supply. We would not dissent from this view since there is a strong emphasis throughout the draft Regulation that a well functioning market is the best means of enhancing security of supply and that the market should be allowed to function for as long as possible, including into early stages of an emergency. If Article 194 TFEU is confirmed as the appropriate legal base, the ordinary legislative procedure would apply. Ordinary legislative procedure is defined in Article 289(1) TFEU as joint adoption by the European Parliament and the Council on a proposal from the Commission – in essence this is the same as the co-decision procedure as set out previously in Article 255 EC Treaty.

I hope this further information is helpful in advance of the debate in European Committee A.

23 November 2009

EM13388/06 AND EM13401/06: PROPOSAL FOR AN EU DIRECTIVE ESTABLISHING A FRAMEWORK FOR THE

PROTECTION OF SOIL

Letter from Huw Irranca Davies to the Chairman

I wrote to you in May 2009 to update you on the progress of negotiations, and on my own stance towards the above proposal, ahead of the June Environment Council. At that time, I had serious outstanding concerns remaining, despite positive progress that had been made under the Czech Presidency. My letter to you outlined my intention to vote against the proposals should the Czech Presidency pursue political agreement at Environment Council in June 2009.

In the event, the Czech Republic did not pursue political agreement, and instead tabled a progress report only. The subsequent Swedish Presidency did not prioritise the dossier. It was handed over to the Spanish Presidency, which resumed negotiations in January this year. Spain initially restarted discussion on the basis of the text which was rejected when the UK formed a blocking minority with Germany, France, Austria and the Netherlands at Environment Council in December 2007. It has since presented two compromise texts of its own, but has failed to address my fundamental concerns, and those of the rest of the blocking minority.

Following COREPER discussions on the dossier it was clear that there was no prospect of a qualified majority in favour of agreement. The Spanish therefore abandoned the hope of reaching political agreement at Environment Council on 15 March, when they presented a progress report. It is not yet clear how discussions will be further progressed, as Spain could choose to continue negotiations during the rest of its Presidency, or may hand over the dossier to the following Belgian Presidency.

In the meantime, my own position remains unchanged, and my continuing concerns are as I outlined to you in May last year.

After three and a half years of discussions on the dossier, the blocking minority, though still fragile, remains in place and there appears to be little prospect of agreement under the Spanish Presidency. Furthermore there are indications that my concerns are increasingly shared with a widening range of Member States. To make progress I continue to believe that there is a need to look afresh at the issues that the Directive is designed to address and where EU action can best add value.

I will continue to keep the Committee updated on developments in negotiations and progress towards the UK’s negotiating objectives.

14th March 2010

Letter from the Chairman to Huw Irranca Davies


We were grateful for this update, and have noted that the Czech Presidency did not in the event seek to reach political agreement last June, and that, for various reasons, there has been little substantive progress since then. We also note that the blocking minority (including the UK) not only remains in place, but may be attracting wider support, and that there appears to be little prospect of an early agreement.

17 March 2010

DRAFT INSTRUMENT 15086/09 OF 23 NOVEMBER 2009: PROPOSAL FOR A COUNCIL REGULATION FIXING FOR THE 2010 FISHING YEAR THE GUIDE PRICES AND COMMUNITY

PRODUCER PRICES FOR CERTAIN FISHERY PRODUCTS PURSUANT TO REGULATION EC NO 104/2000

Letter from Huw Irranca-Davies to Lord Roper and the Chairman

I am writing to advise you that this proposal will be put to the General Affairs and External Relations Council on 30th November 2009. An Explanatory Memorandum has been prepared and is attached.

The purpose of this regulation is to introduce allied Commission regulations for fisheries market support mechanisms, providing compensation to fishermen in the absence of a buyer. Aid rates are calculated on the basis of agreed guide price levels, for 2010. The prices are set deliberately low so that this option is very much a last resort.

The absence of these measures may threaten the stability of the EU market for fish and fish products. In view of this, the UK will vote in favour of this proposal by written procedure prior to it being cleared by the Scrutiny Committees. I do, however, acknowledge that voting on these issues without scrutiny clearance is not usually acceptable.

FISHERIES CATCH QUOTAS 2010 (31036) 14738/09


Thank you for your supplementary Explanatory Memorandum of 3 December, providing information on the Commission’s latest thinking on the effort reduction needed in 2010, and enclosing an initial Impact Assessment.

We have considered whether to report this further information to the House, but have decided not to do so, partly because the Impact Assessment necessarily omits important details relating to those stocks still subject to negotiation with Norway, and partly because the proposal has in any case now cleared scrutiny following the debate in European Committee A on 7 December (and of course the general debate on fisheries on the Floor of the house on 1 December).

9 December 2009

FOREIGN AND COMMONWEALTH OFFICE

APPROACHING ROLLOVER OF EU COMMON POSITION IN RESPECT OF BURMA

Letter from Chris Bryant to the Chairman

As part of our commitment to keep your Committee better informed on matters concerning sanctions, I am writing to inform you that the current EU Common Position on Burma and the restrictive measures it contains are due to expire on 30 April. We are therefore about to begin negotiations to secure the rollover of these restrictive measures.

Since 1996 the EU has adapted and strengthened its overall policy, including its package of restrictive measures, towards Burma in response to deteriorating circumstances on the ground. These circumstances include the failure of the Burmese regime to improve the human rights situation or make progress on the UN Security Council’s demands for the release of political prisoners and creation of conditions for inclusive political dialogue and national reconciliation. The EU has worked to achieve positive change in Burma through political dialogue directly with the regime and with Burma’s neighbours, the provision of humanitarian aid, and by placing pressure on those responsible for Burmese policies through targeted sanctions whilst minimising any adverse impact of these on the general population.

The aim of EU policy towards Burma, including through sanctions, is to bring an end to human rights abuses in Burma and to encourage an early transition to civilian, democratic rule. The last change to the EU’s Common Position was in August 2009 when we designated several more individuals and entities for asset freezes and travel bans in response to the sentencing, following a sham trial, of Aung San Suu Kyi, leader of the National League for Democracy (NLD), designed to prevent her participation in elections planned for 2010.

In late 2009, the Burmese authorities showed some willingness to engage with Aung Sang Suu Kyi and the international community. In October, Aung San Suu Kyi was permitted to meet the British Ambassador, in his capacity as the EU representative, for the first time in 6 years, to discuss western sanctions along with American and Australian officials. She was also allowed to meet US Assistant Secretary of State Kurt Campbell in early November. These were small but welcome developments, and we continue to pursue dialogue. In December, Swedish Foreign Minister Carl Bildt, representing the EU Presidency, met with his Burmese counterpart in the margins of the Copenhagen conference, and preparations are underway for a senior officials visit to Burma. However dialogue with Aung San Suu Kyi has since stalled and the regime has failed to engage with the US or EU on any issues of substance. The recent release of National League for Democracy Vice-Chairman U Tin Oo, whilst welcome, does not change the fact that we have seen minimal progress towards the changes that we are looking for.

HMGs position is that there should be no easing of sanctions in the absence of tangible progress. We will therefore look for a renewal of the Common Position for a further 12 months. There appears, at this stage, to be a broad consensus amongst Member States on this approach, although formal discussion of the issue has not yet begun.

Your committee has also expressed an interest in our engagement with other parties, particularly China, to try and secure change within Burma. We continue to actively encourage Burma’s regional neighbours, including China, Japan and members of the Association of South East Asian Nations (ASEAN) to press for a transition to democracy. As previously noted, the Foreign Secretary attended the meeting of the UN Secretary General’s Group of Friends on Burma in September 2009, where he stressed that all members, including China, must continue to use their influence to encourage the regime to commit to a path of reconciliation and change. The Prime Minister subsequently raised Burma with Prime Minister Hatayoma of Japan on 26 November 2009, and he and PM Hatoyama agreed on the importance of Aung San Suu Kyi’s release and full participation in the democratic process.

The Government has repeatedly raised the issue of Burma with ASEAN members. We engaged the Vietnamese government both before and as it took over the chairmanship of ASEAN for 2010, making clear how important its robust leadership on Burma is, and highlighting the need for ASEAN to sustain its calls for the release of political prisoners and

credible elections. The Foreign Secretary raised Burma with Vietnamese Deputy Prime Minister Hai in London on 21 October 2009, and in a letter to the Deputy Prime Minister for Foreign Affairs in January 2010 as Vietnam assumed the ASEAN chairmanship. Most recently, the Foreign Secretary raised Burma with the new Indonesian Foreign Minister during a telephone conversation on 8 January 2010. Burma remains a key foreign policy area for the UK Government and we will continue to do all we can, including through Burma’s neighbours, to secure a transition to democracy.

25 February 2010

Letter from the Chairman to Chris Bryant

The Committee has asked me to respond to your letter of 25 February 2010, informing them that, with the current EU Common Position on Burma and the restrictive measures it contains due to expire on 30 April, negotiations to secure the rollover of these restrictive measures are therefore about to begin.

The Committee looks forward to receiving the outcome in due course. In the meantime, the Committee is most appreciative of your full exposition of recent developments, of the Government’s position on the proposed rollover and of recent representations by the government about the continuing need for a transition to democracy with respect to Burma’s regional neighbours and members of the ASEAN.

10 March 2010

COUNCIL DECISION APPROVING THE APPOINTMENT OF THE EUROPEAN UNION SPECIAL REPRESENTATIVE TO

AFGHANISTAN, VYGAUDAS USACKAS


The FAC will meet on 22 March to discuss the appointment of Vygaudas Usackas as the European Union Special Representative (EUSR) to Afghanistan. The mandate of the current EUSR, Ettore Sequi, will run out on 31 March.

The EUSR role is important in focusing the EU effort, ensuring that it dovetails with the work of other bilateral and multilateral partners. The Government continues to believe in the importance of our work in Afghanistan and in the benefits of continued international co-ordination.

Given that this is the last opportunity to agree a Decision before the date of Usackas’ appointment I will have to agree to the adoption of this Decision before your Committee has cleared it from scrutiny. The failure to allow your Committee to fully scrutinise this Decision has come about due to an administrative oversight by my Department. This is something I sincerely regret. I attach an Explanatory Memorandum and the draft Decision for your consideration and for deposit in the House.

19 March 2010


CSDP Mission to tackle the security situation in Somalia (31259)

I am writing with regard to my Explanatory Memorandum on the Council Decision 2010/.../CFSP on a European Union military mission to contribute to the training of Somali Security Forces, which was deposited on 19 January.

This Explanatory Memorandum was considered by the European Scrutiny Committee on 20 January. I should like to thank the Committee for giving its attention to this document at such short notice. I understand the document was not cleared by the Committee. But was recommended for debate in European Committee B to give the House an opportunity to pursue the issues that came up in discussion and other questions that interested Members may wish to raise.

Due to time constraints and the need to reach a political agreement on the legal basis for the launch of this CSDP training mission Ministers need to agree to this Council Decision at the Foreign Affairs Committee meeting on 25 January 2010. This means that, unfortunately, I need to override your decision. There will be a further opportunity for Parliamentary Scrutiny before the final decision is taken on whether to launch the training mission.

Without a decision on Monday The Council Secretariat cannot proceed with further planning and preparation for the mission. This would result in an operational impact on the mission, reducing its effectiveness in providing much-needed assistance to the Transitional Federal Government of Somalia. In particular key documents such as a Memorandum of Understanding with Uganda, a Concept of Operations and the necessary contracts will not be finalised. Also, it will not be possible to build and prepare the necessary infrastructure required for the mission. Timing is key. The training mission aims to contribute to the strengthening of the Somali Security forces through the provision of specific military training which enhances and supplements existing training by the Ugandans. The next Ugandan training programme is due to begin on 1 May. If the EU can be ready to launch the mission by this date it will be able to ensure its work links closely with training led by Uganda, thus enhancing the overall outcome.

The training proposed by the EU will support the findings of the emerging Security Sector Assessment carried out by the UN, TFG, US, EU and AU.

The Committee asked that the recommended debate be arranged before any further related Council Decision is put forward for scrutiny. I look forward to providing evidence at this debate, answering your questions on this Explanatory Memorandum and other questions that interested Members may wish to raise. I will also answer any further questions on the reasons for deciding to override should agreement need to be given to this Council Decision on 25 January.

21 January 2010

COUNCIL DECISION EXTENDING THE PERIOD OF APPLICATION OF THE MEASURES IN DECISION 2007/641/EC CONCLUDING CONSULTATIONS WITH THE REPUBLIC OF FIJI ISLANDS UNDER ARTICLE 96 OF THE ACP-EC PARTNERSHIP

AGREEMENT AND ARTICLE 37 OF THE DEVELOPMENT COOPERATION INSTRUMENT


I am writing with regard to my Explanatory Memorandum for amending Decision 2007/641/EC on the extension of the Article 96 measures in respect of Fiji for a period of six months.

No changes to the current arrangements will take place during this six month extension. Member States are in agreement. Any documents on new arrangements will be put before the Committee, for scrutiny in the normal way, prior to agreement.

16 March 2010


You wrote to the Committee on 16 March about the Council Decision on the extension of the Article 96 measures in respect of Fiji for a period of six months. You said that no changes to the current arrangements will take place during this six month extension; Member States are in agreement; and any documents on new arrangements will be put before the Committee, for scrutiny in the normal way, prior to agreement.

The Committee has asked me to thank you for this assurance. In the meantime, you will wish to be aware that the Committee cleared the extension at its meeting today.

24 March 2010

COUNCIL DECISION AMENDING COMMON POSITION 20061276/CFSP CONCERNING RESTRICTIVE MEASURES

AGAINST CERTAIN OFFICIALS OF BELARUS AND REPEALING COMMON POSITION 2009/314/CFSP


I am writing with regard to a recent Explanatory Memorandum on the Council Decision amending Common Position 2006/276/CFSP concerning restrictive measures against certain officials of Belarus and repealing Common Position 2009/314/CFSP.

The Decision further extended the restrictive measures imposed on Belarus until 31 October 2010, whilst at the same time extending the suspension of the travel ban against certain individuals. The suspension does not apply to those involved in disappearances which occurred in 1999 and 2000 or the Chair of the Central Electoral Commission. The current suspension of the travel ban was due to expire on 15 December so we had needed to adopt these new measures prior to this date.

I welcome the Committee's interest in Belarus sanctions, and am grateful that you cleared this document at your meeting on 9 December. In your conclusions from this meeting you state that the Foreign and Commonwealth Office had had to override scrutiny on this

Decision. I am pleased to inform you that we did not have to override scrutiny. The initial intention was to adopt this Decision at the GAERC on 7 December. However, when it became clear that we would not have cleared scrutiny by this point we exceptionally used our reserve to push back this adoption. The adoption instead took place at the Agripeche Council on 14 December.

14 December 2009


The Committee has asked me to respond to your letter of 14 December 2009 in which, after welcoming the Committee’s interest in this matter and expressing your gratitude for its having cleared the Council Decision on 9 December, you says that, when it became clear that the original intention of adoption at the 7 December GAERC would necessitate over-riding scrutiny, “we exceptionally used our reserve to push back this adoption” until the 14 December Agripeche Council.

The Committee is glad that, in the end, an over-ride was avoided. But it is not clear as to why the action taken should be regarded as “exceptional”: on the contrary, it expects this to be the case wherever possible, and not just “exceptionally”.

6 January 2010

COUNCIL CONCLUSIONS ON THE EU’S COMMON SECURITY AND DEFENCE POLICY UNDER THE SWEDISH PRESIDENCY


I am writing to update you on developments in the field of European Security and Defence Policy (ESDP), re-branded by the Lisbon Treaty as the Common Security and Defence Policy (CSDP), during the Swedish EU Presidency of the latter half of 2009. Unlike previous Presidencies, the Swedish Presidency has not produced a separate end of Presidency report on ESDP developments. Instead, the conclusions from the usual biannual GAERC with Defence Ministers, held on 16-17 November, which were endorsed by the 10-11 December European Council, contain a detailed update on ESDP over the last six months. Other decisions relating to ESDP were concluded in the most recent Foreign Affairs Council.

The UK welcomes the ESDP conclusions as a comprehensive description of progress and achievements in ESDP under the Swedish Presidency. The UK has continued to take a leading role in the development of ESDP to ensure that it remains in line with our objectives of having a more capable, coherent and active policy that remains supportive of, and complementary to, NATO.

With the support of Member States, the Presidency has pushed forward progress in developing both civilian and military capabilities. In particular, the UK welcomes:

the substantial progress in the field of civilian capabilities, especially improving the EU’s ability to respond rapidly to a crisis by reworking the mechanism for deploying Civilian Response Teams, and establishing a temporary warehouse to store civilian equipment in order to ensure rapid deployment to new or existing missions;

the increased focus on coordinating civilian and military capabilities where this is useful. We support this logical step which is an important component in delivering the comprehensive approach. The work has re-emphasised the need for greater coherence and consultation between the civilian and military capability development processes and institutional bodies. In delivering a more coherent approach to civ/mil capability development we have stressed (and the Presidency has supported) the urgency in establishing the Crisis Management Planning Directorate and the centrality of the

directorate in all future civ/mil cooperation. We will continue to support further work in developing more concrete areas for co-operation, for example in logistics;

agreement that EU Battlegroups could be used in a more flexible manner, on a voluntary and case-by-case basis, when Battlegroups’ participants are willing and subject to unanimity in the Council that the Battlegroup is the best instrument for a given situation; and

the progress made on the EU/NATO strategic partnership in crisis management, which is vital, given that 21 European countries are members of both organisations. Progress includes better use of the EU/NATO capability group and agreement that the EU and NATO defence planning processes should be more coherent with each other.

Operational Activities

On operations, countering piracy remains a key priority, with the UK-led EU Operation ATALANTA successfully escorting over 300,000 tonnes of World Food Programme aid to Somalia over the last year. Operations in Bosnia and Herzegovina and civilian missions, most notably in Kosovo, Georgia and Afghanistan, also continue to provide stability in areas of strategic importance.

Western Balkans

Bosnia and Herzegovina (BiH)

The EU/US BiH initiative was launched by Swedish Foreign Minister Bildt, Enlargement Commissioner Rehn and US Deputy Secretary Steinberg in early autumn. The aim is to bind Bosnian leaders into reforms that would: (i) complete the ‘5+2’ conditionality for closure of the Office of the High Representative (OHR) and transition to an EU-led presence only; and (ii) set BiH more credibly on the path to the EU and NATO. Two meetings have been held to date. While there has been no breakthrough, Bosnian leaders are continuing discussions. The UK is a strong supporter of the initiative.

There are still around 2000 international peace-keeping troops in BiH under EU command (EUFOR). The UK currently contributes 10, reducing to 5 by the end of the financial year. While we agree that EUFOR’s military tasks are largely accomplished, we believe the time is not yet right to draw down the executive mission, taking into account the political situation in BiH and the need to maintain stability.

The operation manages residual elements of the Dayton Agreement, and we believe this remains crucial, not least for the strong psychological deterrent it provides. We are also concerned that the period around OHR closure and transition solely to an EU presence led by an EU Special Representative could be an unstable time. We have argued that the current EUFOR presence should be retained in BiH up to and through to a point beyond Office of the High Representative (OHR) transition; and that we should keep open options which retain an open-ended executive mandate for EUFOR.

The EU Police Mission (EUPM) was the first civilian ESDP operation launched by the EU in January 2003. The mission followed on from the UN’s International Police Task Force and focuses on raising the standards of policing in BiH in accordance with European and international best practice. The mission is playing an important role as part of overall EU efforts to stabilise BiH.

Kosovo

The EU Rule of Law mission (EULEX) aims to support the Kosovo authorities by monitoring, mentoring and advising on all areas related to the rule of law and exercising limited executive functions. It started operations on 9 December 2008 and reached Full Operational Capability on 6 April 2009. EULEX now has more than 1600 international staff deployed on the ground.

The mission has progressed significantly in the first 10 months since Initial Operating Capability, but in order for mission objectives to be met, we would like to see changes to the mission structure and working methods: for example, better cooperation between the

police, justice and customs pillars of the mission needs to be institutionalised at working level. The UK has recommended a rebalancing of staff to support the customs and legal pillars, which is currently being implemented. We expect to roll over the mission’s mandate under the Spanish Presidency.

South Caucasus

Georgia

The EU Monitoring Mission (EUMM) was deployed to Georgia on 1 October 2008 in the zones adjacent to South Ossetia and Abkhazia to monitor the terms of the 12 August 2008 ceasefire agreement.

Although the mandate encompasses all of Georgia, the EUMM does not have access to the two break-away regions and cannot fulfill all of its mandate. The mission has currently 306 international staff deployed on the ground, including 13 UK secondees.

The mission has contributed significantly to the overall EU effort towards conflict resolution in Georgia, especially by monitoring the implementation of the Agreements of 12 August and 8 September 2008. Following the Russian veto of the UN and OSCE monitoring missions’ mandates, EUMM is now the sole international monitoring mission in Georgia. This has increased the significance of its activities. During the Swedish Presidency, the mission played a key role in defusing increased tensions around the anniversary of the 2008 conflict and the publication of the Tagliavini report into the conflict by increasing its patrols. It also increased its role in local-level confidence-building measures. The mandate of the mission was extended by the Council for another year until 14 September 2010 in line with UK policy. The mandate is largely unchanged except for a reconfiguration of field offices to split them into functional teams focused on human rights, compliance and confidence-building. Discussions are ongoing in Brussels to agree a wider EU policy on Georgia with consideration of how EUMM fits in with this wider strategy.

Asia

Afghanistan

The EU police mission (EUPOL) in Afghanistan was launched in June 2007 to support strategic-level reform in the Afghan Police and supporting institutions. In May 2008, the EU agreed a target of deploying 400 international staff members. Despite the slower than expected pace of recruitment, numbers have now increased to 278 personnel, and a force generation conference in November led to promises for further international contributions. The UK will be increasing its contingent to 19 personnel from January 2010.

EUPOL plays a unique role in Afghanistan with its strategic-level civilian policing expertise which is key to the sustainability of police reforms in Afghanistan.

By focusing on six key priorities the mission has established its credibility with the international community and delivered some important projects, including the Kabul City Security Project, and involvement in training 35,000 Afghan National Police ahead of the August elections, and a “train the trainers” programme.

Challenges remain for the mission. Whilst numbers of international staff are rising, they need to be sustained and it is essential to encourage Member States to contribute good quality officers.

Middle East

Palestinian Territories

The EU Police Co-coordinating Office for Palestinian Police Support (EUPOL COPPS) was launched on 1 January 2006 with an initial duration of three years. It has a long-term reform focus and provides enhanced support to the Palestinian Authority in establishing sustainable and effective policing arrangements. The mission mandate was extended in November 2008 for two years and, under the Swedish Presidency, the budget for the final year of the mission was set.

In 2009, under the leadership of the British Head of Mission, EUPOL COPPS has made progress in all areas of its mandate, ensuring Palestinian ownership for reforms. The mission has made particular progress in coordinating Member States’ bilateral contributions and in starting implementation of an ambitious Criminal Justice Action Plan. The advisory section maintained its regular visits to the Palestinian Civil Police (PCP) Districts, supporting and advising PCP Officers, particularly District Commanders. Management training has also been developed and delivered to assist the commanders.

The UK plans to increase the size of its contingent going forward.

Rafah

The opening of the Rafah Crossing Point represented the only part of the 2005 Agreement on Movement and Access to be fully implemented. After the 2007 Hamas takeover of the Gaza Strip, the Rafah Crossing Point was closed and the mission put on standby with 18 staff ready to reactivate should a settlement be reached. Following the crisis in Gaza at the end of 2008, the mission increased to 43 staff in country, with border monitors on stand-by ready to deploy. Under the Swedish Presidency the number of staff was reduced to 18 as part of a further six month extension of the mandate. The UK will continue to monitor the readiness of the mission to redeploy, whilst working to ensure that scarce EU resources are used most effectively in support of wider EU aims in the region.

Iraq

The EU rule of law mission in Iraq (EUJUST LEX) has been involved in training Iraqi police, penitentiary and judiciary officers since 1 July 2005. Originally the mission operated solely by taking groups of Iraqis out of the country for training courses provided by Member States, but it has recently begun conducting training activities within Iraq. So far the mission has successfully hosted activities in Baghdad, Sulaymaniyah and Tallil covering training on serious crimes, best practice and cross-sector cooperation. The mission aims to hold up to 18 in-country activities under its current mandate (July 2009 - June 2010).

Since the summer of 2005, the mission has provided 107 training courses, 21 work experience secondments and three in-country activities for over 2,819 Iraqis (including 116 female participants). In that time, the UK has provided 15 training courses and 5 work experience secondments. The UK recently hosted a Management of Training course at the National Police Improvement Agency in Bramshill in which senior Iraqi police officials were taught training management skills.

Africa

Somalia

Operation Atalanta was launched in December 2008 with a one-year mandate. The mandate, due to conclude on 12 December, has now been extended for a further year. The UK continues to provide the Operation Commander and Operation HQ at Northwood.

Atalanta continues to contribute successfully to maritime security off the coast of Somalia by protecting World Food Programme chartered vessels delivering aid to Somalia, vessels supplying critical shipments to the AU peace support operation in Somalia (AMISOM), and other vulnerable vessels, notably in the critical trade artery of the Gulf of Aden and in the Somali Basin. So far countries have provided sufficient ships and other assets for the operation but more will be required, including maritime patrol aircraft early in 2010. The UK plans to provide a frigate in the latter half of 2010. Particularly welcome has been the growing participation of third states, either inside or working closely with the EU operation, including from countries who have not traditionally been involved with major international maritime operations such as China, Russia, India and Japan.

Due to the complex challenges involved in combating piracy over vast maritime areas, the EU is pressing all actors to continue to coordinate their efforts closely, for example by exchanging information and intelligence.

Atalanta has taken a leading role in the coordination between the multinational, national and regional naval forces operating in the area to ensure de-confliction, shared awareness and coordination in the disruption of piracy.

Kenya has made a crucial contribution by detaining and prosecuting suspected pirates apprehended by Atalanta's warships. The EU and the Republic of Seychelles concluded an exchange of letters on 30 October 2009 for the transfer of suspected pirates and armed robbers apprehended by Atalanta, constituting an important new contribution to the counter-piracy efforts.

The EU is currently considering ways in which the EU might contribute to international efforts in Somalia, including in the security field. The EU has approved a Crisis Management Concept on a possible ESDP mission to contribute to the training of the security forces of Somalia’s Transitional Federal Government (TFG) and has requested further planning work. Whilst the UK supported this Concept, we believe that a final decision on a mission must consider the resources available and ensure it meets those needs identified in the joint needs assessment conducted in the region with the US and UN. The GAERC decision on the Concept was “without prejudice to subsequent decisions on a possible EU action”.

The UK has pressed that any further EU support to the Somali security sector should be considered within a comprehensive EU approach and any support should be part of a larger and coherent framework involving close EU cooperation with the AU, the UN and other relevant partners, in particular the US. In regard to the AU, the role of AMISOM is especially important. The EU has also stressed the importance of a clear TFG commitment to build a viable and sustainable security sector.

Democratic Republic of Congo (DRC)

The EU’s security sector reform mission (EUSEC DRC) was launched in 2005 with the primary focus of providing assistance to the Congolese authorities in order to prevent the resumption of civil war and contribute to the establishment of security conditions compatible with the preparation and holding of national elections. Following the deal between the Congolese government and the CNDP (Congress for the National Defence of the People) political-military organisation on 23 March, the CNDP officially ended its armed struggle and is reintegrating its military forces into the main DRC army. Making real advances now towards implementing this agreement will help stabilisation efforts.

The mission has delivered a number of projects to help establish a professional Congolese Army including: a biometric census project which has registered and identified 130,000 Congolese soldiers; the introduction of a Military ID card system; and a chain of payments project to ensure that soldiers are paid correctly.

Under the Swedish Presidency, the mandate for EUSEC DRC was extended until 30 September 2010. In negotiating the new mandate the UK argued successfully for a new focus on tackling sexual and gender-based violence (SGBV) and promoting human rights as part of the Army reform process.

EUPOL DRC followed on from EUPOL Kinshasa (April 2005 - June 2007). The mission has supported and advised the Congolese authorities on strategic reform and re-structuring of its national police force, as well as on police interaction with the criminal justice system.

The mission’s activities include advising the police on the creation of a border police service, supporting the Inspectorate General on Police Auditing, and advising on police aspects of the peace process in eastern DRC.

Under the new mandate, the mission has expanded to include two multidisciplinary teams to aid the fight against SGBV. The teams will be based initially in eastern DRC where the majority of SGBV crimes are committed, but their competence will cover the whole of the

country. One of the main tasks for these teams will be to ensure that legal services are provided for victims of SGBV and that offenders are successfully prosecuted.

Guinea-Bissau

The EU has a small Security Sector Reform (SSR) mission (EUSSR Guinea-Bissau), supporting the national government’s efforts to create the conditions to implement its national security strategy. The aim is to help the government improve the effectiveness of the country’s security actors, such as the army, navy, coastguard, prison service and judiciary, so that they can tackle major security threats.

EUSSR Guinea-Bissau’s work has been hampered by difficult circumstances and a climate of political instability. However, a number of positive developments, including successful presidential elections, present a more promising outlook for progress on SSR reform. The new President has expressed his intent to re-engage in the SSR process through a letter sent from the Prime Minister to the Secretary General of the EU. We have taken this letter to be a sign that the mission will receive the necessary political support over the next six months to complete the tasks in its mandate.

In November 2009 the mandate for EUSSR Guinea-Bissau was extended for a further six months until 31 May 2010. The main purpose of the extension is to complete the activities foreseen in the current mandate and to prepare the ground for the future implementation of the legal framework by the authorities of Guinea-Bissau.

A strategic review on the future of the EU engagement in Guinea-Bissau, taking into account regional aspects, will be carried out by January 2010.

Capabilities EU

Civilian Capabilities

The biggest challenge to the success of civilian ESDP missions is the availability of sufficient resources: both personnel and the rapid availability of equipment. If the EU is to capitalise on the full range of stabilisation and development tools that it has at its disposal, addressing the persistent shortfalls in personnel is crucial.

The UK has been fully behind the Presidency’s focus on improving the stock of civilian personnel at a national level, supporting more rapid deployment of those personnel, and building up mission support functions, including more flexible financing and the rapid availability of equipment.

Enhancing the availability of civilian personnel

The December 2008 European Council Conclusions set out that Member States would draw up national strategies to facilitate the deployment of civilian experts. The Swedish Presidency has made considerable progress in facilitating exchanges of best practice between Member State experts in this field and has focused on four areas of action: national regulatory measures, national budgetary measures, national rosters and training. In line with the 2008 UK National Security Strategy commitment to develop a pool of 1000 deployable civilian experts, the Government has been fully engaged in the EU-level discussion. We will continue to build considerations of EU requirements into our national planning for international civilian expertise. Sharing best practice and lessons at an EU level will continue to be an important way to link EU ambitions to resource at Member State level.

Rapid deployment: Civilian Response Teams (CRTs), preparatory measures, temporary warehouse

Improving the EU’s ability to deploy civilian personnel rapidly is a key aim of the Civilian Headline Goal 2010. To take this forward, the Swedish Presidency revised the policy framework for the rapidly deployable Civilian Response Teams in order to reflect the

changing demands of ESDP activities. The new concept adds more flexibility into the decision-making procedures for mobilising the teams, and increases the size of the pool of experts available to participate in CRTs to 200 personnel. Additional areas of expertise have also been added to reflect the situations in which CRTs have so far been asked to deploy. The UK fully supports these changes and we plan to review how we engage with the pools on a national level.

A key lesson from civilian ESDP missions to date has been the difficulty that the EU has experienced in deploying equipment rapidly to support ESDP operations. Under the Swedish Presidency, greater flexibility has been agreed for the use of the EU budget line that supports funding for the early stages of preparation for possible operations. In addition, a temporary warehouse to store equipment that is released from civilian ESDP missions as they downsize has been established in EUPM Bosnia. This should enable the EU to recycle equipment and use it to quickly meet many of the equipment requirements of existing or future missions.

Cooperation on Justice and Home Affairs

The UK has pushed for greater cooperation between EU activities in the Justice and Home Affairs sphere and civilian ESDP operations. A number of ESDP operations deliver on EU external JHA objectives: for example, support from EULEX Kosovo is central to the EU’s aims of combating organised crime in the Western Balkans. The Swedish Presidency established initial dialogue on this topic and we hope to take forward further collaboration between the ESDP and JHA sides under future Presidencies and through the establishment of the European External Action Service.

Military Capabilities

EU/NATO Defence Planning

As separate organisations with different memberships, the EU and NATO have operated separate defence planning processes. However, both face many common security challenges and 21 of the EU Member States that take part in the Headline Goal process are also members of NATO and participate in the NATO defence planning process.

Germany has initiated a series of extra-institutional workshops aimed at 'brainstorming' ways of improving the links between the two planning processes at a technical level. The UK fully supports the initiative as a way of exchanging detailed ideas on an informal basis as to how these two processes might be closer aligned.

We have taken an approach aimed at agreeing some broader principles, which would serve as guidance to the institutions for further work. We hosted a seminar in London for all EU Member States, NATO Allies and the two institutions to discuss these principles. The seminar was well attended and the main themes of coherence and transparency were endorsed at November’s GAERC.

EU Battlegroups

In May 2004 the EU launched its Battlegroup initiative for rapid response operations: a force of around 1500 troops able to deploy within 15 days of a crisis, capable of operating for a period of between 30 and 120 days. They are designed to meet a short-term need, either working in isolation or as an interim measure prior to the arrival of a larger peacekeeping force.

Since 1 January 2007, the EU has had the ability to carry out two simultaneous Battlegroup operations, if required. The EU Battlegroups rotate every six months. Each Battlegroup is supported with a fully deployable set of military capabilities – including combat and logistical support and transport.

Battlegroup operations may include evacuations, humanitarian assistance, conflict prevention and ‘initial entry’ operations.

To date, 22 EU member states have announced their participation in EU Battlegroups. Nonmember states may also take part; Croatia, Macedonia, Norway and Turkey are accordingly involved in multinational Battlegroups. The following Battlegroups have been promised for 2010:

Jan to Jun 10

British-led EU Battlegroup with the Netherlands using the UK/NL Amphibious Force

Polish-led EU Battlegroup with Germany, Latvia, Lithuania and Slovakia

Jul to Dec 10

Italian-led EU Battlegroup with Romania and Turkey

Spanish-led EU Battlegroup with France and Portugal

The six-monthly Battlegroup Coordination Conference was held on 15 October, where Member States’ commitments, with the related pre-identified Operation Headquarters, were confirmed until the end of 2011. It encouraged Member States to make new offers for Battlegroups from 2012 onwards and to fill in particular the vacant slot in first semester of 2012. Under the Swedish Presidency, Member States have reached agreement on more flexible guidelines on increasing the flexibility and usability of the EU Battlegroups, on a voluntary, case-by-case basis.

UK-France Multinational Helicopter Initiative

We announced at the Anglo-French Summit in March 2008 that both countries were establishing a funding mechanism aimed at addressing the shortfall in mission-capable helicopters for operations outside of the Euro-Atlantic theatre. This was given further impetus by the Prime Minister at the 2008 NATO Bucharest summit and subsequently, the initiative has received high-level political support across the EU and NATO. In order to drive this forward, the UK established a project fund to be administered by SHAPE to assist NATO Allies and EU Member States in accessing funding to upgrade their helicopters or to train the necessary personnel to operate them in theatre. The UK operates as the secretariat to the initiative. France has offered cash for upgrades and for training of crews. Currently, other countries who have indicated they will make a direct financial contribution to the initiative are: the Czech Republic, Hungary, Norway, Sweden, Iceland, Norway, Denmark, Finland, Lithuania, Luxembourg, Estonia, the Netherlands, Greece, Turkey, Japan and Australia.

In-kind offers have been made by Spain (training ranges), the United States and Ukraine. Currently, the fund stands at approximately €28m of pledged contributions, most of which has already been allocated to finance various projects.

So far, the Czech Republic, Hungary, Bulgaria, Slovenia and Macedonia have indicated they wish to utilise the initiative to improve their ability to deploy to operational theatres. A number of others have indicated their interest, but as yet have not made a firm proposal. At this stage we expect most if not all deployments emanating from the initiative to be in Afghanistan. This is in line with operational requirements and the wishes of contributors. It is likely that most upgrade work will be on Soviet-built Mi bureau helicopters, such as the medium transport Mi-8/Mi-17 family, although Slovenia has asked for work to be undertaken on their Puma helicopters and this has been agreed by the initiative’s Steering Board.

The first helicopters and crews funded and trained as a consequence of the Initiative are expected in theatre in December 2009.

Cooperation with International Organisations

EU-UN Relations

Co-operation between the UN and the EU in crisis management has significantly increased in the past few years with the launch of around twenty ESDP military and civilian missions. Several EU and UN missions are currently deployed in the same theatres, including:

i) Kosovo (UNMIK handed over the rule of law lead to EULEX in Dec 08, a residual UNMIK presence remains)

ii) Afghanistan (EUPOL Afghanistan and UNAMA)

iii) Chad (EUFOR was handed over to MINURCAT II in Mar 09),

iv) DR Congo (EUPOL Congo, EUSEC Congo and MONUC)

v) Guinea-Bissau (EU SSR and UNPBOGB)

With a current focus on Somalia the UK is clear that the EU must coordinate with the UN and other partners in the efforts to step up international support to peace, security and development in the country.

EU-UN cooperation is mutually beneficial: EU operations can benefit from the political legitimacy conferred by the UN Security Council mandates and the UN benefits from the credibility and operational capabilities provided by the EU to conduct complex operations in difficult regions. The EU-UN partnership was formalised in a joint declaration signed in 2003 and updated in 2007. In July 2007, concrete proposals were approved for strengthening EU-UN cooperation in areas such as early warning, planning and Security Sector Reform.

Progress has been made in implementing this, including through the implementation of the agreed action points of the 10th EU-UN Steering Committee, and in this context encouraged further work on developing concrete co-operation, notably in the area of planning and arrangements between the EU and UN for transition between operations.

The UN Department of Peacekeeping Operations (DPKO) has put forward a proposal to support and reinforce the EU-UN partnership in peace and security issues by establishing a UN Secretariat Partnerships Liaison Capacity. This would consist of two staff, and associated administrative costs, to act as liaison with the EU for DPKO, the Department of Field Support and the Department of Political Affairs. The aim would be to enhance the communication and operational planning coordination between the UN and the EU. The UK is supportive of this proposal, but is of the clear view that it must be met from within existing UN resources and not be seen as an extra budgetary request for new or additional funding.

The UK’s mandatory share of UN and EU peacekeeping assessed costs has become more expensive both because of the growth in global peacekeeping and because of the decline in sterling’s value against the dollar and euro. The UK has therefore undertaken a prioritisation exercise to focus remaining resources for discretionary expenditure on countries where the risk and impact of conflict is greatest. Within a tightened budget the UK has prioritised strategically our contributions to ESDP civilian missions. We maintained our contributions to the crucial police reform and rule of law mission in Afghanistan and important monitoring mission in Georgia. In EULEX Kosovo, we have concentrated resources on key areas where UK secondees can add real value e.g. in the judicial component.

EU/NATO

Both institutions agree that they must improve their relationship. NATO recently reaffirmed its support to a stronger and more capable European defence and welcomed the EU's efforts to strengthen European capabilities and its own capacity to address common security challenges. We continue to see the two organisations as complementary vehicles through which European forces can be deployed. Co-operation between the two organisations is a key part of this. The Berlin Plus arrangements continue to work well in Bosnia (Operation Althea). And NATO continues to play a role in anti-piracy operations off the coast of Somalia through Standing NATO Maritime Group 2, which is working in harmony with the EU’s Operation Atalanta.

There has been good progress under recent Presidencies of the EU on improving the information exchange between the two institutions. This has notably been through the EUNATO Capability group, which has met at both expert and Policy Director level in the last year. We have also made good progress (as outlined earlier in this brief) on a more coherent approach to defence planning.

Despite this progress there are still fundamental political problems which seriously undermine the EU and NATO’s relationship. The sensitivities of some Member States and Allies regarding the exchange of classified information remain an immediate problem which impacts directly on operational theatres. We will continue to work with partners and Allies to take practical steps to improve relations, building on, for instance, the work we have done in increasing transparency in the two organisations’ defence planning processes.

22 December 2009

COUNCIL REGULATION (EC) NO. 12475/04 CONCLUSION OF A PARTNERSHIP AGREEMENT BETWEEN THE EC AND THEIR

MEMBER STATES AND TAJIKISTAN


I am writing to inform you of the final stages regarding a decision of the Council and of the Commission on the conclusion of a Partnership and Cooperation Agreement between the European Communities and their Member states and the Republic of Tajikistan.

The original proposal for a Partnership and Cooperation Agreement with Tajikistan dates back to 26 July 2004. The UK agreed to the proposal later that year, and the proposal passed scrutiny. The Tajik authorities did not ratify the agreement until December 2005. The UK ratified on 19 December 2007 after a debate in the House of Commons the previous October. Greece was the final country to ratify in July 2009, with the European Parliament giving its assent on 17 September 2009.

The Explanatory Statement on the Protocols extending EU Partnership and Cooperation Agreements with Tajikistan and Turkmenistan to take account of EU enlargement was submitted to the Committees on 13 July 2007. The House of Commons European Scrutiny Committee cleared it as not legally or politically important on 18 July 2007. The House of Lords Select Committee on the European Union cleared it at the Chairman’s sift on 17 July 2007. Given these previous events we opted not to submit for further scrutiny.

The EU’s General Affairs and External Relations Council adopted the Partnership and Cooperation Agreement in November and the decision is now expected to be published in January.

EU MEMBERSHIP APPLICATION BY ICELAND


I am writing in response to the request from the Committee (in your report 31366) for further information about the timetable for consideration of the Commission’s Opinion on Iceland’s application for membership of the EU.

On 24 February 2010 the Commission published their Opinion recommending opening accession negotiations and a detailed Analytical Report. In the report the Commission assessed that Iceland generally applies the acquis on financial services but that some improvements are necessary in order to fully implement the acquis. In particular, Iceland must address the weaknesses in its financial supervisory system and the deposit guarantee scheme at an early stage. The Government has made clear that it is essential for Iceland to meet its international obligations, including those under the Deposit Guarantee Directive which is part of its obligations under the EEA agreement.

In my Explanatory Memorandum of 18 March I explained that it was not yet clear when the Presidency would bring this issue to the Council for a decision. The issue was not on the agenda of the recent Spring European Council. The timetable for consideration remains

unclear. At the time of writing the UK is waiting for a new proposal from Iceland for the finalisation of the Icesave loan agreement.

The Government will, as requested, keep the Committee informed of the progress of Iceland’s membership application.

31 March 2010

EUROPEAN CITIZENS’ INITIATIVE (31169:16195/09)


As requested in your Committee's report of 9 December, I hereby enclose for your Committee's information a copy of the Government's response to the Commission Green Paper on the European Citizen's Initiative.

The response to the Green paper is of course only a preliminary position, and the government now awaits the Commission's full proposal, which is expected in late April.

The Committee may also wish to be aware that the Commission is planning to hold a public hearing on the issue on 22 February.

EUROPEAN EXTERNAL ACTION SERVICE


I wrote to you on 12 February about the European External Action Service (EEAS), passing to you in confidence copies of papers that Coreper Ambassadors had received to date. I explained that we had yet to see the High Representative’s draft text of the Decision to establish the EEAS, which will need to be adopted by unanimity by the Council.

In the meantime, I attach in confidence a set of three papers from the High Representative: a vision for the EEAS; a note on the key issues; and, some detail around a suggested organisation structure. These were presented to Coreper Ambassadors on 24 February. We expect discussion on these to commence this week. None of these papers are the text of the Decision but they do bring out the key elements that the Decision will need to address.

Finally, my offer to host an informal round table to discuss the European External Action Service still stands. My preference would be to have a joint session with the scrutiny committees of both Houses. But I am happy to fit in with whatever works best for you.

1 March 2010

PROVISION OF LIMITÉ DOCUMENTS


I am writing with a Government proposal for enhancing Scrutiny, in particular increasing the amount of information that is available to the Committees by sharing Limitetexts With the Committee on an `in confidence' basisThis was an issue that the European Union Committee focused on in their inquiry last year on enhancing the scrutiny of legislation jointly agreed between the Council and the European Parliament. And of course you have also raised this with me and my predecessors in evidence sessions.

The Government has recently agreed to provide Limite documents to your Committee on an "in confidence" basis. In providing these documents the Government is seeking to enhance existing scrutiny arrangements and improve the

ability of the Committee to reach fully informed' decisions, particularly on the passage of legislation through the Brussels machinery.

The Government proposes to send EU documents with the'Lirnitc' classification to the Committees on the following basis and with the following handling caveats, to help the Committee in its scrutiny of legislation and where in particular the document may be helpful in updating the Committee on the progress of legislation.

The Government will provide Limite documents where:

Limite documents requested by the Committees fall within the bounds of the Scrutiny Reserve Resolution:

Limite documents requested by the Committees relate to documents currently under Scrutiny and;

Limite documents are requested by the Committee, and where the Government agrees to provide them.

The above will not apply to Council Legal Service Opinions where such documents contain legal advice protected under Article 4(2) of regulation (EC) No. 1049/2001 of the EP and of the Council dated 30 March 2001. This is consistent with the handling of internal Government legal advice. Government Departments will determine whether a document can, or should, be released to the Committees.

In receiving these documents on an `in confidence' basis we would ask that the Committee agrees that:

These documents cannot be deposited or become subject to the Scrutiny Reserve Resolution;

These documents should not be copied or distributed beyond the Committee members;

The Committee will respect the information contained within the documents and not draw on content substantively in reports or correspondence in a way that might prejudice the information within them;

These documents should not be placed in the public domain.

I hope the Committee can agree to this approach as a pragmatic way of using these documents to help the Committee as part of a wider effort to keep the Committee fully informed on EU issues, but which protects the content of the documents. I look forward to hearing from you with your agreement to this approach.

23 March 2010


Thank you for your letter of 23 March concerning the provision of limité documents to the Committee. We welcome the proposals in principle.

In your letter, you say that the Government will provide limité documents where:

— (1). Limité documents requested by the Committee fall within the bounds of the Scrutiny Reserve Resolution;

— (2). Limité documents requested by the Committee relate to documents currently under Scrutiny and;

— (3). Limité documents are requested by the Committee, and where the Government agrees to provide them.

To avoid ambiguity regarding these criteria. Can I take it that the Government is to provide limité documents in each of the cases numbered (1) to (3) above?

In relation to the “confidential” nature of the documents, the Committee accepts the proposed caveats on handling any confidential documents provided.

Taken literally, your proposals would mean that the Government would supply documents only on request from us. That would not advance the status quo. I imagine that the Government does not want to provide -- and nor does the Committee wish to receive -- vast amounts of routine or trivial texts. The difficulty is that the Committee simply does not know what documents exist that it might ask for. I therefore take you to mean that it that it will be for departments to use the scope they have under this arrangement, and in discussion with the clerks, to send documents with the limité marking which would help the Committee with its scrutiny. I believe this can be achieved by adding the following to your list of categories for when the Government will provide limité documents: “(1A) The Government considers that the Committee should be informed of its contents”.

30 March 2010

UK GOVERNMENT RESPONSE TO THE COMMISSION GREEN PAPER ON THE EUROPEAN CITIZENS' INITIATIVE

1. Minimum number of Member States from which citizens must come

Do you consider that one third of the total number of Member States would constitute a "significant number of Member States" as required by the Treaty? If not, what threshold would you consider appropriate, and why?

The UK agrees with the Commission that one third of the total number of Member States is an appropriate number to satisfy the requirement in the Treaty.

2. Minimum number of signatures per Member State

Do you consider that 0.2% of the total population of each Member State is an appropriate threshold? If not, do you have other proposals in this regard in order to achieve the aim of ensuring that a citizens' initiative is genuinely representative of a Union interest?

The UK agrees with the Commission that 0.2% of the total population of each Member State is an appropriate threshold.

The UK notes that the Commission has taken the figures from the total number of citizens from a Member State, including those under the voting age, and third country citizens. The UK believes that the right to petition an initiative should be open to anyone, as long as they have the legal right to live, work or study in a Member State, since the laws the EU makes affect all such people.

The UK believes that the threshold must above all be achievable and therefore determined on the basis of the total number of those eligible to support an initiative. The 0.2% figure would therefore need to be lowered should eligibility for supporting an initiative be more restrictive than the UK proposes.

3. Eligibility to support a citizens' initiative -minimum age

Should the minimum age required to support a European citizens' initiative be linked to the voting age for the European Parliament election in each Member State? If not, what other option would you consider appropriate, and why?

The UK does not believe that there should be a minimum age required to support a citizens' initiative, and therefore does not believe that the same criteria should apply as with the eligibility to vote in European Parliamentary Elections. This is not a

citizen electing a representative on their behalf to scrutinise legislation in the European Parliament, which needs to have a uniform criteria; it is an active and direct participation to contribute in policy making at the grassroots, in which all citizens should be able to have a voice. For example, young people may want to petition for a new initiative in vocational education and training. The UK considers that limiting the reach of the Initiative would not be in accordance with the spirit of citizen engagement in policy formulation.

In addition, setting a minimum age requirement would go against existing approaches used in recent UK legislation (Local Democracy, Economic Development and Construction Act 2009), which specifically permits all local people, regardless of age, to sign and organise a petition to their local authority.

4. Form and wording of a citizens' initiative

Would it be sufficient and appropriate to require that an initiative clearly state the subject-matter and objectives of the proposal on which the Commission is invited to act? What

other requirements, if any, should be set out as to the form and wording of a citizens' initiative?

The UK does not have particular views on the detail of the form and wording, other than broad support for the Commission's proposal to request clear subject matter and objectives. However, the UK believes that there should be no barriers imposing any further restrictions on form or wording, i.e. a call for specific action should be sufficient.

5. Requirements for the collection, verification and authentication of signatures

Do you think that there should be a common set of procedural requirements for the collection, verification and authentication of signatures by Member States' authorities at EU level? To what extent should Member States be able to put in place specific provisions at national level? Are specific procedures needed in order to ensure that EU citizens can support a citizens' initiative regardless of their country of residence? Should citizens be able to support a citizens' initiative online? If so, what security authentication features should be foreseen?

The UK does not believe there should be a common set of procedural requirements for the collection, verification and authentication of signatures. The UK believes that it should be left entirely and fully to the discretion of each Member State to consider what, if any, appropriate provisions should be put in place in this regard.

The UK believes that the eligibility to join an initiative should be as broad as possible. The UK takes the view that all people regardless of age, nationality and citizenship, should be able to support an initiative in the Member State in which they are living, working or studying.

The UK fully supports the ability for citizens to support an initiative on-line and believes that without the option to organise initiatives on-line, the proposal will probably be unachievable. The UK considers that it should be at the discretion of each Member State to decide on the security requirements of online petitions based on their own procedural requirements, but that each Member State should be required to submit a statement with the petition setting out what process, if any, was used to authenticate the signatures.

6. Time limit for the collection of signatures

Should a time limit for the collection of signatures be fixed?

The UK agrees with the Commission that 1 year is a sensible time limit for the collection of signatures.

7. Registration of proposed initiatives

Do you think that a mandatory system of registration of proposed initiatives is necessary? If so, do you agree that this could be done through a specific website provided by the European Commission?

The UK supports a mandatory system of registration, via a website provided by the Commission, but does not agree that there is no role for the Commission in deciding whether an initiative is within scope of its policy remit. The UK does not accept that the admissibility criteria of the Citizens' Initiative would be known across all sectors and the population of the EU. The UK also does not accept that organisers of a petition would have necessarily undertaken a full analysis of whether the initiative legally falls within the

framework of the Commission's powers before launching an initiative. The UK considers it to be wholly outside the spirit of the measure, as well as a potential waste of public money in a Member State collating and checking details, if signatures were collected only for the Commission to declare an initiative out of scope at a later date.

The UK therefore strongly believes that the Commission must adopt a 'pre-petition check' in which it takes the responsibility of confirming with the organisers the eligibility of the proposal. The UK considers that this can be done without a guarantee that the initiative would ultimately be successful.

In addition, in order to ensure that Citizens' Initiatives are not permitted to undermine community cohesion in Member States and across Europe, it is imperative that the Commission, as part of the 'pre-petition check' the UK suggests, also ensures that discriminatory or inflammatory Citizens' Initiatives are not allowed to be generated. Furthermore, the UK believes that future proposals and subsequent legislation on Citizens' Initiatives should make explicit that these types of initiative will be invalid.

8. Requirements for organisers - transparency and funding

What specific requirements should be imposed upon the organisers of an initiative in order to ensure transparency and democratic accountability? Do you agree that organisers should be required to provide information on the support and funding that they have received for an initiative?

The UK does not consider that requirements should be too onerous, but that all bodies involved in organising support should identify themselves and that evidence of where financial support is coming from should be supplied.

9. Examination of citizens' initiatives by the Commission

Should a time limit be foreseen for the Commission to examine a citizens' initiative?

The UK agrees with the Commission that 6 months is a sensible time limit to examine a citizens' initiative. The UK considers that there should also be a commitment from the Commission to acknowledge the initiative when submitted and set out the steps it intends to take during those 6 months. This could be done through the registration website and would increase transparency, and ensure that the citizens who supported an initiative know something is being done. The UK also agrees that the Commission should publish reasons for its proposed action.

10. Initiatives on the same issue

Is it appropriate to introduce rules to prevent the successive presentation of citizens' initiatives on the same issue? If so, would this best be done by introducing some sort of disincentives - or time limits?

The UK agrees with the Commission that both the registration process and time and cost involved would ultimately limit the likelihood of repeated initiatives. The UK does not therefore believe that additional rules are necessary, as there should be as few barriers as possible.

16 February 2010


Thank you for your letter of 16 February. We are grateful to you for sending us a copy of the Government’s response to the Commission’s Green Paper on the practical arrangements to implement the Citizens’ Initiative. We read it with interest.

24 February 2010

European External Action Service


In my contacts with you and your Committee I have given assurances to keep you up to date with discussions on the European External Action Service (EEAS) and specifically to let you have sight of the High Representative’s draft Decision to establish the EEAS. Because there is no draft decision ready yet, this letter updates you on discussions in Brussels to date and offers the opportunity for you to meet informally with me and my senior officials to go over the key issues for the Decision. Baroness Ashton has formed a High Level Working Group, the Ashton Group, to help her with preparing the draft Decision. This comprises senior members of the Commission, Council Secretariat and three Member State Ambassadors. The Group has met a few times and has started to pass notes to Coreper Ambassadors on issues related to the EEAS responsibility for the geographical programme funding instruments; a possible recruitment procedure for the EU Head of Delegation positions coming available this year; likely changes to the staff and financial regulations to accommodate the establishment of the EEAS. The discussions that are resulting from these papers will help the High Representative decide what to propose in her draft Decision. On programming, the majority view from Member States to date is that splitting the responsibilities for the main development instruments (the development Cooperation Instrument and the European Development Fund) in a horizontal way will allow both the High Representative and the Development Commissioner to play a full role in ensuring that the EU’s external effort is as joined up as possible. By horizontal, we mean that the High Representative would take responsibility for the strategic planning and setting of the overall financial envelope for both the DCI and the EDF, and the Development Commissioner would lead on the multi-annual programming, annual programming and implementation of the instruments. In addition, we have made it clear that the High Representative should have the authority to lead on countries of political sensitivity and those in crisis, as necessary. On staffing, the discussions have been around what needs to happen to ensure that Member State representatives are able to be a part of the EEAS and make a valuable contribution from day one of its establishment. Any recruitment procedure, even a temporary one for the first Head of Mission appointments this year (the process for which will need to start before the formal EEAS Decision has been passed) needs to be transparent and merit-based to enable the best candidates to take up positions in the EEAS. The discussion on changes to the Financial Regulation have focussed on what is needed to ensure that the High Representative and EU Heads of Delegation have the necessary financial authority to carry out their responsibilities. We have not yet seen any specific suggested changes to the regulations themselves but will examine them closely when we do. Given that there is as yet no formal draft of the Decision to pass to you, but that we expect the pace of discussions to speed up over the next month and I have promised to keep you as informed as I can for scrutiny purposes, I should like to offer you and your Committee the opportunity of an informal meeting with me and my senior team to discuss all of the above in more depth. If you agree, then my scrutiny co-ordinator will be in touch to explore possible dates at your earliest convenience. I would be happy to attend an informal round-table meeting in Parliament both with members of your Committee and with members of the House of Lords Select Committee on the European Union. I am enclosing the draft fiches as they currently stand, in confidence. As they are detailed, I am also taking this opportunity to enclose for your information the annex on the EEAS adopted by the European Council in October 2009 which is its guidance to the High Representative on key issues related to the setting up of the EEAS. I will of course also send you the draft EEAS Decision itself as soon as I can.

12 February 2010


The Committee has asked me to respond to your letter of 12 February 2010, updating it on discussions in Brussels to date and offering the opportunity to meet informally with you and senior officials to go over the key issues.

The Committee is most appreciative of both the information contained in your letter and your thoughtful offer. It would, however, prefer at this juncture to continue to receive further written updates. Its primary concern remains that, the pace of developments notwithstanding, you should ensure that the draft Council Decision — particularly one of such significance for the future execution of British diplomacy — is deposited in good time for proper scrutiny and, if the Committee so decides, debate, prior to its adoption.

24 February 2010

EU STRATEGY AGAINST THE PROLIFERATION OF WEAPONS OF MASS DESTRUCTION (WMD)

Letter from Ivan Lewis to the Chairman

The European Council endorsed the following document on 8 December 2010:

Six Monthly Progress Report on the implementation of the EU Strategy against the Proliferation of Weapons of Mass Destruction.

I submit this document to your Committee for information, in accordance with your predecessor’s request of 18 November 2005 to Douglas Alexander.

The progress report draws together the numerous aspects of counter-proliferation work in which the EU is heavily involved.

We welcome the EU’s specific goals (in line with those of the UK) in preparations for a successful Nuclear Non-proliferation Treaty Review Conference (NPT RevCon) in New York in May 2010. The EU continues to have lively discussions internally and with its international partners on the three pillars of the Treaty; nuclear disarmament, nuclear non-proliferation and peaceful uses of nuclear energy. The UK will continue to maintain its balanced approach to these pillars.

The Progress Report highlights positive steps in the field of Chemical, Biological, Radiological and Nuclear (CBRN) Security by the European Commission to adopt an EU CBRN Action Plan in June 2009 in response to possible threats deriving from the misuse of CBRN materials. The EU CBRN Action Plan makes recommendations in the areas of prevention, detection and response to be carried out internally within the EU by individual Member States.

The EU continues to maintain a tough stance against Iran’s nuclear ambitions. Firmness from EU Member States as well as from the US, Russia and China is central to our efforts to work towards a negotiated solution on the Iranian nuclear issue. The UK has been at the heart of negotiations within the EU and International Atomic Energy Agency to find a diplomatic solution.

The EU has continued to be supportive of the Six-Party-Talks process with the Democratic People’s Republic of Korea (DPRK). The EU has strengthened calls for the DPRK to abandon all nuclear weapons and existing nuclear programmes in a complete, verifiable and irreversible manner. The DPRK's admission of the existence of enrichment activities in September 2009 was noted with serious concern and seen as a development which could further aggravate existing tensions in the region.

Ratifying the Lisbon Treaty brings together work of the Commission and Council Secretariat on counter proliferation under the new EU High Representative for Foreign and Security Policy. Other than this change, there is no indication that the Lisbon Treaty will affect internal mechanisms of the EU’s WMD Strategy. We will continue to monitor any developments that may occur.

This latest Report shows good progress towards the envisaged aspirations of EU WMD strategy. These developments reflect substantial UK input, and support our counter-proliferation goals.

25 January 2010

FCO: EU BUSINESS AFTER EASTER


I thought it would be helpful if I were to share with you what we know to be upcoming dossiers subject to the Scrutiny Reserve Resolution and of interest to the Committee in the coming months, These are set out in the attached annex This forward look is based on existing Working Group discussions. Some of the dossiers will need to be agreed at Council, though, as they are subject to ongoing negotiations, we can't always be certain exactly when decisions will need to be taken on individual dossiers.

I hope that the Committee find this read-out useful. As the Committee will be aware am writing separately on ongoing actions on the European External Action Service, so this dossier is not included here.

Annex A

Up-Coming Business

SANCTIONS

The EU may take forward work on updating Regulation No 1283/2009 in order to implement a recommendation received from the Dual-use Goods Working Group to provide for humanitarian exemptions to a ban on the export of dual-use goods. An update to the Regulation would require agreement at Council. The Government supports this work, as it is in line with the Government's support for the provision of appropriate humanitarian exemptions for sanctions measures.

The EU may also take forward work on updating an Annex of Regulation No 1283/2009 in order to populate a list of credit and financial institutions over which EU credit and financial institutions are required to exercise vigilance in their activities. An update to the Regulation would require agreement at Council. The Government supports this work, as it will provide clarity for the EU's financial sector when implementing the provisions of the Regulation.

Eritrea

The EU may take forward work on a Regulation in order to fully implement Council Decision 2010/127/CFSP of 1 March 2010, concerning restrictive measures against Eritrea.

A new Regulation would require agreement at Council. The Government supports the swift implementation of these sanctions measures.

Liberia

The EU will take forward work on a Regulation in order to fully implement Council Decision 2010/129/CFSP of 1 March 2010, amending Common Position 2008/109/CFSP concerning restrictive measures imposed against Liberia. A new Regulation would require agreement at Council. The Government supports the swift implementation of these sanctions measures.

Somalia

We aim to deposit a Regulation implementing existing UN sanctions measures next week. However, the UN Security Council is currently negotiating an extension to the mandate of the Somalia Sanctions Monitoring Group. Any new sanctions measures agreed at the UN would need to be reflected in a new Council Decision and Regulation, which would require agreement at Council. The Government would support swift implementation of UN sanctions measures.

CDSP MISSIONS

EUPOL Democratic Republic of Congo (EUPOL DRC)

EUPOL DRC was launched on 1st July 2007 and supports the Congolese authorities on the strategic reform of the Congolese Police (PNC) and its interaction with the justice system. The mission had an initial mandate of twelve months and was subsequently extended twice, each time for an additional 12 months, thus bringing its current termination date to 30 June 2010. It is likely that the mission will have a short extension proposed of a few months to allow for planning on any possible further intervention to take place after a decision on the future MONUC presence has been taken. This would require a new Council Decision.

EUJUST LEX Iraq

The EU's integrated rule of law mission to Iraq was launched in 2005. The mission provides high level training to senior Iraqi officials through course hosting in EU Members States and within Iraq itself. The mandate for EUJUST LEX expires at the end of June 2010, a new Council Decision is likely to be proposed extending the mission for 2 years, and would require agreement at Council prior to this date.

The Government supports the proposed extension as it believes it will allow EUJUST LEX to conduct a larger number of training activities in-country. Since the last extension EUJUST LEX has worked hard to developed strong working relationships with high level Iraqi officials who have repeatedly expressed their support and desire for the mission to be extended. With the ongoing Iraqi elections, the Government believes an extension to EUJUST LEX will also be an opportunity to demonstrate continued EU / UK support to Iraq and its new government.

EUSSR Guinea Bissau

The EU has a small security sector reform (SSR) mission in Guinea Bissau (EUSSR Guinea Bissau) that was launched in June 2008 The mandate for the current mission expires on 30 May 2010. The EU is proposing a new mission of up to one year that will form a bridge to a different EU tool in the future, which - depending on the European External Action Service (EEAS) set up - may be the EU delegation, other EU activity or EU financial assistance, or another international actor. This `bridging' mission would carry out different tasks from

the current mission. It will be smaller in scale and more focused on providing strategic level advice around a narrower set of tasks particularly related to the military elements of SSR. It will also have a specific remit to coordinate closely with other international actors, especially the UN.

The Government supports continued EU engagement in Guinea Bissau. The current political stability and willingness amongst the Guinea Bissau authorities to engage in SSR provides a window of opportunity to implement a number of the reforms already proposed. The new UN mission was due to deploy in January, but has been delayed. A smaller, more focused EU mission would, therefore, help to ensure continuity in the international effort to support Guinea Bissau.

EU Police Mission in Afghanistan

The EU Police Mission in Afghanistan (EUPOL) is a mission that offers mentoring, monitoring and advising to Afghan counterparts to aid reform of the Afghan National Police. The current three year mandate expires on 30 May 2010. A new Council Decision extending the mission will require agreement at Council prior to this date. We expect that this Decision will extend the mission's mandate for a further

three years.

Since autumn 2008, and under the leadership of Kai Vittrup, EUPOL Afghanistan has built its credibility with Afghan counterparts and key international players. With EU partners, we will continue to keep the mission's mandate under review to ensure that it continues to move in the right direction.

EULEX Kosovo

The current mandate for the EU Rule of Law mission in Kosovo - EULEX Kosovo -expires on 14 June 2010. A new Council Decision extending the mission will require agreement at Council prior to this date. We expect this Decision to extend the mission's mandate for a further two years.

The Government continues to strongly support EULEX in assisting the Kosovan authorities by monitoring, mentoring and advising on areas related to the rule of law. This advice is having a positive impact on the development of Kosovo's police, customs and judicial system. The Government will continue to push for the mission to deliver more effective outcomes, particularly in the field of organised crime and corruption. The Government believes EULEX remains a vital international presence in enabling Kosovo to meet EU standards in rule of law.

EUBAM Rafah

The current mandate for the EU Border Assistance Mission for the Rafah crossing point - EUBAM Rafah - expires on 24 May 2010. A new Council Decision amending the Joint Action, which we anticipate will extend the mission's mandate for a further year, on the basis of its current mandate.

The Government supports the continuation of EUBAM Rafah as a demonstration of EU political commitment to the Middle East Peace Process and is committed to reactivating EUBAM Rafah as soon as political and security conditions allow. The Government continues to look for opportunities for the mission to downsize below 18 international staff, in line with the mission's current standby role. The mission needs to remain in a position to respond to developments on the ground and thus maintain a level of operational readiness.

ENLARGEMENT Chapter 23 of Croatia's accession negotiations

In April 2010 we expect discussion of the closing benchmarks of Chapter 23 of Croatia’s accession negotiations

In April 2010 we expect discussion of the closing benchmarks of Chapter 23 of Croatia’s accession negotiations (Judiciary and Fundamental Rights) to begin. This will be an important opportunity to ensure that Croatia has an independent, effective and impartial judiciary before accession, and that she focuses her attention on areas where reform is most needed. We intend to keep Parliament informed of progress in this area.

Iceland's accession negotiations

The Commission's Opinion on Iceland's EU application, which recommended opening negotiations, was published on 24 February 2010. It is too early for the Council to take a decision on this issue. I understand that the Committee will be interested in this dossier, on behalf of the House. The Government will consider the Opinion of the Commission carefully. Any Decision that flows from this Opinion will be provided, with an explanatory memorandum, as normal.

ARTICLE 96

Madagascar

A Council Decision on the closure of Article 96 discussions in Madagascar may be agreed in the April / May. As expressed in my letter of 7 January 2010 the 120 day consultation period for Article 96 expired in November. We agreed not to push for closure while it looked as though progress might be made under the Maputo and Addis accords. However, there is still no agreement between the political parties. The Government is supportive of a quick closure (which is likely to be negative, i.e. confirmation of suspension of all but humanitarian aid) of the Article 96 consultation.

Guinea and Niger

We will be looking for ongoing Article 96 cases to provide strong support from the EU to the regional and AU efforts to address the latest events in Guinea and Niger. The recent increase in instability in West Africa is concerning and it is vital that regional organisations and the AU are able to work effectively to maintain peace and security in the region. EU support through Article 96 is therefore key in providing the strong response necessary to ensure a rapid transition and return to constitutional rule in Guinea and Niger.

South Africa

South Africa has re-applied for accession to the Cotonou Agreement. Accession will allow South.Africa to again become a full participant to the agreement, helping the ELI develop a strong and useful partnership with South Africa, and all the ACP countries. The Government would therefore be seeking to support South Africa' application when the matter comes to Council.

THIRD COUNTRY RELATIONS

Serbia

Both Serbia's Stabilisation and Association Agreement (SAA) and application for EU Membership are outstanding issues that may come up for discussion at the General

Affairs Council's in either June or July. I wrote to both Committees on 14 January advising them of the General Affairs Council Decision to implement Serbia's Interim agreement

following ICTY Chief Prosecutor Brammertz very positive assessment on Serbia's cooperation with ICTY to the UNSC on 3 December. The Council also agreed to discuss unblocking member state ratification of the

SAA following ICTY Chief Prosecutor Brammertz' next report to the UNSC (due in June 2010).

It is possible that, if Brammertz' June report confirms that the level of Serbia's co¬operation with ICTY has been sustained, that EU Member States could reach a consensus and agree to unblock member state ratification of the SAA.

I also advised your Committee that Serbia submitted an application for EU membership on 22 December. To date the Council has not discussed whether to forward the application to the Commission for an Opinion ("Avis") on whether Serbia is ready to open accession negotiations. If Serbia's SAA is unblocked, it is possible that the Council will also agree, either simultaneously or with a delay, to forward Serbia's membership application to the Commission.

EU Russia Summit

The EU-Russia Summit will take place in Rostov at the end of May 2010. I will write to the Committees after the Summit with an update on the proceedings. The EU¬Russia 'Partnership for Modernisation', which was announced at the Summit in Stockholm in November 2009, is in its early design stages.

Negotiating mandates for Association Agreements with Armenia, Azerbaiian and Georgia

A Decision authorising the start of negotiations with the three South Caucasus countries on comprehensive Association Agreements to replace the Partnership and Co-operation Agreements, currently in place, could move forward in the coming months. The negotiation of Association Agreements is an important part of the deeper, broader relations with these countries envisaged under the EU's Eastern Partnership. The Government strongly supports both the Eastern Partnership and the Association Agreements, which will contribute to stability and security in the region, as well as providing an important lever in our efforts to promote democracy and human rights.

INSTITUTIONAL

Comitology

A draft Commission proposal on a Regulation to implement Article 291 TFEU was published on 9 March. This covers implementing measures, part of the new comitology structures reformed by the Lisbon Treaty. I am in the process of seeking views from other Government Departments on the Commission's proposal in order to clarify the Government's position. We expect to see the Commission proposal change significantly before it is adopted but a Common Position may come for agreement by June 2010.

European Citizens Initiative

The Committee will be interested in the Commission draft proposal on the European Citizens' Initiative (ECI), to be published at the beginning of April 2010. The Committee has seen the Commission's Green Paper on the ECI, in January, and the Government's response to that paper. We expect any new proposal to incorporate a number of changes, following the feedback propose by the Government and other stakeholders during the Green Paper consultation period.

Commission Five Year Workplan

During the next two months we also expect the Commission to issue their five year workplan, which will be of interest to the Committee. This paper will be deposited in the House in the normal way.

24 March 2010


The Committee has asked me to thank you for your letter of 24 March and its comprehensive annex about upcoming dossiers subject to the Scrutiny Reserve Resolution and of interest to the Committee in the coming months — during which, of course, there will be a general election.

All will be deposited in the usual way, and the new Committee will deal with them in due course. In the meantime, this Committee looks forward to your Explanatory Memorandum on the EEAS Council Decision, which we have been told will be with us today; both documents will then be submitted to next week’s post-recess meeting.

30 March 2010

FORTHCOMING EU NEGOTIATIONS ON EU TARGETED MEASURES ON ZIMBABWE AND OTHER COUNTRIES

As part of my commitment to keep your Committee updated on matters concerning sanctions, I wish to inform you that the EU Common Position imposing restrictive measures on Zimbabwe (an arms embargo, travel ban and assets freeze on 40 companies and 203 individuals) expires on 20 February.

In Zimbabwe progress on implementing the Global Political Agreement remains mixed. Political reform continues to lag behind economic progress as hardliners obstruct reform. Human rights abuses including farm seizures and the detention of activists and reformist politicians continue. Following the MDC withdrawal from Government in October to protest against inadequate GPA implementation, South Africa has engaged in intensive mediation. The results so far have been limited. The GPA signatories agreed in December on the formation of human rights, electoral and media commissions, plus land and media reform. Implementation will be the key test. The negotiators have agreed a 15 January deadline to progress outstanding issues, but in practice further progress before the end of January is most unlikely. This makes it likely that decisions on the future of the EU targeted measures on Zimbabwe will have to be taken on the basis of the situation as it is now.

Although the measures expire on 20 February, associated procedural deadlines mean that new texts have to be agreed by the end of January. In considering our approach to extending the EU measures we will want to balance maintaining pressure on hardliners to reform with demonstrating that the EU is prepared to respond positively and gradually to incremental reform in Zimbabwe. Against the current background, major change would not be appropriate.

I would also like to take this opportunity to inform you of some other upcoming EU negotiations on sanctions measures.

The EU restrictive measures in place on Moldova expire on 27 February 2010. Some Member States, and the EU Special Representative for Moldova, have suggested the lifting of sanctions on the Transnistrian leadership. We feel it is too early to completely lift sanctions but agree with others, including the Government of Moldova, that the list should be reviewed resulting in perhaps one that is more targeted. We will therefore be working with the other Member States to achieve the unanimity required to retain sanctions and discuss the options including a more targeted list.

Three UN Security Council resolutions were passed at the end of December concerning sanctions. These UN resolutions will be implemented by the EU ‘translating’ them into EU

legislation in the coming weeks – they will need both Council Decisions and Commission Regulations.

Liberia has been the subject of UN sanctions since 2003. The resolution passed on 17 December 2009 (UNSCR 1903) lifts the arms embargo for supplies of military equipment and training for the Government of Liberia.

New restrictive measures were imposed by the UN Security Council on Eritrea on 23 December 2009 (UNSCR 1907) as a result of its actions “undermining peace and reconciliation in Somalia” and its role in the dispute with Djibouti. A revised Commission Regulation concerning restrictive measures against Somalia is also due to be negotiated in the coming weeks.

On 21 December 2009, the UN Security Council passed resolution 1905 on Iraq, extending a measure contained in UNSCR 1483 (2003) that deposits proceeds from export sales of petroleum, petroleum products and natural gas into the Development Fund for Iraq and other related mechanisms. The Prime Minister of Iraq wrote to the Security Council saying that the Government of Iraq recognises that the Development Fund for Iraq plays an important role in ensuring that oil and gas revenues are employed in the best interests of the Iraqi people, and called for the continued assistance of the international community by means of the adoption of this Security Council resolution.

Letter from Jim Dobbin to Huw Irranca-Davies

In Michael Connarty’s absence, I chaired the Committee’s meeting today.

The Committee had before it today your letter of 17 December, informing us that this proposal, repealing an earlier Council Decision on the provisional application of a new Fisheries Agreement between the EU and Guinea, was due to be put to the Council on 22 December as an A point. There are two points we would like to make on this.

First, we regard it as unacceptable that, despite reminders to your department from both the Committee’s staff and the Cabinet Office, your letter (and the Explanatory Memorandum to which it refers) should not have reached us until yesterday. Indeed, in view of the exchanges which have taken place between the Committee and DEFRA about the department’s scrutiny performance — including those between Michael Connarty and Hilary Benn — this further occurrence casts doubt on your commitment to improve scrutiny procedures. We would therefore like a convincing explanation as to how this happened.

Secondly, your Explanatory Memorandum simply stated that the decision to rescind this Agreement was as a result of political and civil unrest in Guinea, but it would have been more helpful if it had explained — as we assume to be the case — that this was part of a wider package of restrictive measures introduced by the November GEARC in response to the killing of unarmed demonstrators by the illegal régime led by Captain Dadis Camara.

20 January 2010

FCO SCRUTINY PERFORMANCE


I am writing in response to your letter of 9 December about the Scrutiny performance of the Foreign and Commonwealth Office.

I hope you know that I personally am and the FCO in general is completely committed to ensuring the fullest possible level of scrutiny of EU proposals and legislation. As you rightly say, this includes the formally necessary process of depositing of documents with you, but it also includes the informal process whereby we try as assiduously as possible, to help you and your committee informed of developments. This is not, however, a perfect science as policy ideas can develop and transmogrify at very varying speeds. Of course we aspire to perfection, but in all honesty I cannot guarantee it.

Nevertheless, I welcome the Committee’s suggestion to formalise the system for informing Government of weeks during which the Committee can not meet. This will help us to plan our work. I will continue to write to the Chairman to inform the Committee of when an override of Parliamentary Scrutiny may be required. I have reinforced, with officials, that overrides will only be agreed if operationally necessary.

The FCO has also taken the following further steps to strengthen its scrutiny performance:

Underlined with our colleagues in Brussels the need for flagging up to colleagues in London at the Working Group stage issues that might require scrutiny;

Hold a series of scrutiny seminars for FCO desk officers, with the involvement of Committee Clerks and staff from my Private Office;

Provided more regular and informal engagement with the Committees (the most recent example being a private roundtable meeting I held with the Lords Select Committee on the EU);

Updated and publicised the scrutiny guidance on the FCO Intranet Pages

I will continue to engage with the Committee about how the process can be improved and will continue to remind officials of the importance of Parliamentary Scrutiny.


The Committee has asked me to respond to your further letter of 27 January 2010, in response to mine to you of 9 December 2009, about measures to improve the FCO’s scrutiny performance.

The FCO scrutiny unit is aware of the upcoming recess; at the time of writing we are not aware of any issues that may come to a head during that period.

Beyond then, Committee officials will henceforth formally notify the scrutiny coordinator of upcoming breaks in the scrutiny process, and will ask him to notify the Committee of what FCO documents might be affected, and of what action could be taken to bring matters forward or postpone them; and, where this is not done, ask him to provide an explanation. In the meantime, the Committee notes that you have reinforced with officials that overrides will only be agreed if “operationally necessary”; it is in these instances in particular upon which the Committee will expect a full and convincing explanation.

The Committee welcomes the fact that you have underlined with UK officials in Brussels the need for flagging up to colleagues in London at the working group stage issues that might require scrutiny; and updated and publicised the scrutiny guidance on the FCO

Intranet Pages. As you may know, scrutiny seminars for FCO desk officers and staff from your Private Office, with the involvement of Committee Clerks, have been carried out periodically for a number of years. The Committee Clerks look forward to hearing from your officials as to when they might like to hold the next one.

On the question of meetings, you may recall that Caroline Flint suggested just such a “Round Table” with the Committee last year, which (with the intervention of the summer recess and subsequent Ministerial changes) eventually became the October 2009 evidence session that began these exchanges. The Committee would, of course, welcome “more regular and informal engagement”. But, in the time that is now available to us, it seems to the Committee that — particularly since you will be giving evidence to the Committee later this month — more would be gained by having such a meeting after the general election.

3 February 2010

IMPLEMENTATION OF THE LISBON TREATY


As you are aware, one of the priorities of the Spanish Presidency will be the effective implementation of the Lisbon Treaty, following entry into force of the Treaty on 1 December. To this end, I am writing to the Committee with the attached recent note from the Spanish Presidency, setting out their programme of work in respect of Lisbon Treaty implementation.

My colleagues and I will of course continue to provide updates to you and your Committee on the specific issues outlined as progress is made on these in the coming weeks.

20 January 2010


I am writing in response to your letters of 25 November 2009 and 3 December 2009 about the Scrutiny Reserve Resolution, Standing Order 143 and New Powers for Parliament under the Lisbon Treaty. I wrote to the Committee about New Powers, more generally, on 16 November 2009. This letter comes following my meeting with you on 10 December 2009.

As I explained in our meeting of 10 December I am supportive of a new Scrutiny Reserve Resolution, but I note that a debate on any changes would require time on the floor of the House, and this time is unlikely to be found before the General Election.

With regard to the definition of a ‘legislative act’ under Article 289(3) TFEU, our understanding is that the relevant Treaty legal base must explicitly refer to the legislative procedure, whether special or ordinary, for it to constitute a legislative act. We understand that this is also the position of the EU Institutions but we are following up with them to confirm this. This is of course an EU-level definition for the purposes of applying the EU Treaties and is wholly independent from domestic UK scrutiny arrangements. I can assure you that we are committed to continue arrangements for scrutiny, following the entry into force of the Lisbon Treaty, in exactly the same way as previously. This means that there will be no change in the range or scope of documents that we send to you for scrutiny.

With regard to the process of the House submitting its reasoned opinion in order for a 'yellow' or 'orange' card to be raised, I restate the offer in my letter of 16 November for the Government to facilitate this independent power by tabling a motion, which would be amendable, to endorse the Committee's recommendation.

On scrutiny of JHA opt-ins, as I also mentioned in our meeting of 10 December, the entry into force of the Lisbon Treaty does in no way affect the process of opting in to JHA proposals, other than to extend it across the field of JHA measures. The UK has been operating the opt-in procedure since 1999. The Home Office and Ministry of Justice are already implementing the Government's commitments of enhanced scrutiny of JHA opt-ins, as set out in Baroness Ashton's 9 June 2008 statement.

As I mentioned to you in our 10 December meeting, it is up to the Committees to seek scrutiny of a decision of the Government to opt-in to a JHA measure, but from the Government’s perspective I consider it important that sensible conduct of the process is maintained, with scrutiny on a case by case basis. There were at least 14 proposals which led to opt in decisions in 2009; if the Committee seeks a debate on the floor of the House for every opt-in, this will likely cause real difficulties for the manageable conduct of legislative business in the House.

You have asked for a commitment that the opt-in scrutiny period of 8 weeks will also apply to opt-in decisions taken by the Government after the legislation has been adopted. However, I do not consider there is a need to require 8 weeks in cases of post-adoption legislation opt-ins. By definition, the proposal in question will already have been the subject of detailed negotiation in its pre-adoption stages.

Both the Home Office and Ministry of Justice keep the Committee fully informed of progress on dossiers even where the UK has not opted in - particularly in cases where the Government has said that it intends to participate actively in negotiations with a view to securing the amendments necessary to allow us to opt-in to the measure. I therefore consider that the Committee, in such situations, will have had a very good opportunity to scrutinise the measure.

I fully support a new Scrutiny Reserve Resolution to codify the commitment given by Baroness Ashton on 9 June 2008 when Parliamentary time allows; in the meantime Home Office and Ministry of Justice will codify the commitment given by Baroness Ashton in a Code of Practice.

11 January 2010

STANDING ORDER AND SCRUTINY RESERVE RESOLUTION


Thank you for your letter of 11 January in which you respond to the Committee’s letters of 25 November and 3 December concerning our proposals for redrafting the Committee’s standing order and the scrutiny reserve resolution, as well as a proposal for a separate scrutiny reserve resolution on opt-ins.

New resolution

We welcome your support for a new scrutiny reserve resolution, an opt-in resolution and (by implication) an amended standing order. As you know our position is that the changes need to go beyond terminology and updating and address the areas set out in my letter of

25 November, foremost among which is the deposit for scrutiny of draft Council conclusions.

I realise the difficulty of finding time on the floor of the House to consider these changes but there is a possibility that the Wright Committee’s reform proposals may be debated in the coming weeks. If so, this might provide an opportunity to take the Committee’s proposals alongside the wider reform package.

Tabling a motion

You repeat the Government’s offer to facilitate the House submitting its reasoned opinion for a yellow or orange card to be raised, by tabling a motion to endorse the Committee’s recommendation. The Committee’s view is that the House’s endorsement of its reasoned opinion should not itself require endorsement by the Government. It prefers therefore that the chairman or another member acting on behalf of the Committee should table the motion. At present only Ministers can put motions down on the effective order paper (with the exception of Opposition Days and the two Public Accounts Committee days). The Wright Committee’s report talks of restoring private members’ motions in some form, so the issue of who can table motions is up for discussion. This change can be made without any amendment to the House’s standing orders.

The Government is proposing that the ESC’s report and “reasoned opinion” on subsidiarity be debated either in the European Committee or on the Floor. The Modernisation Committee said (and the ESC agrees) that there was a balance to be struck between maximising opportunity for debate in the House and ensuring that the necessary processes can be completed before the end of the (now) eight-week deadline specified in the Treaty. The ESC’s proposal remains therefore for the motion to approve the Committee’s reasoned opinion to be taken without debate but with the chairman of the Committee (or another Committee member) being permitted a short speech to outline the reason for the opinion and with the Minister having the right of a short reply on behalf of the Government.

Legislative acts

Your interpretation of Article 289 TFEU means that certain draft regulations, directives or decisions, although adopted with the “participation” of the European Parliament, are not adopted by a special legislative procedure, and are not therefore legislative acts. That this could have been the intention of the drafters of the Lisbon Treaty we find surprising when other provisions adopted with the same participation of the European Parliament are special legislative procedures. In our view it is the actual legislative procedure, rather than the absence of a classification in the Treaty provision, which should carry more interpretative weight. We also note that the Cabinet Office guidance on this is at odds with your interpretation and confirms our own. Ad Hoc Guidance Letter (09) 25 (7 December) states as follows:

“The common denominator is that they [legislative acts] must be proposals which are subsequently adopted as acts jointly by the Council and European Parliament, or by one with the involvement of the other in the legislative process.”

In addition, your interpretation leads to anomalies in the applications of Protocols 1 and 2. The provisions we cited in our letter of 3 December cover significant EU policies such as competition and state aid, judicial cooperation, criminal procedure, emergency asylum procedures and employment, transport and economic policies. The consequence of your interpretation is that these provisions will not constitute “legislative acts”. They will not therefore be subject either to the eight week period for parliamentary scrutiny before adoption under the national parliament protocol, nor the reasoned opinion mechanism under the subsidiarity protocol (with the wider consequence of whether subsidiarity arguments should apply at all if the protocol is not applicable).

We ask you to confirm the EU institutional interpretation of these provisions as soon as possible. If it is consistent with your own, we would be grateful for precise reasons why, for each Treaty provision we cited in our letter of 3 December, the legislative procedure was not mentioned, thereby rendering them non-legislative acts even though the European Parliament has participated in their adoption.

Scrutiny of opt-ins

On opt-in decisions, surprisingly you say that it is “up to the Committees to seek scrutiny of a decision of the Government to opt-in to a JHA measure”. This is not correct — it is up to the Government to ensure that any European document, including one subject to an opt-in decision, is cleared from parliamentary scrutiny. This is the essence of parliamentary scrutiny, and we wonder whether this misunderstanding has affected your consideration of this issue.

In the meeting of 10 December the one area on which there was agreement was the need for decisions to opt into adopted legislation (as well as draft legislation) to be subject to scrutiny. So your change of view on this is disappointing. You state that “the proposal in question will already have been the subject of detailed negotiation in the pre-adoption stages... I therefore consider that the Committee, in such situations, will have had a very good opportunity to scrutinise the measure”. But the way the Committee scrutinises draft legislation to which the Government has said it will not opt in is very different from scrutiny of the same proposal when the Government has indicated that it will opt in. This is because the former has no or little impact on the UK, and the latter a potentially significant impact. In addition, the Government can decide to opt into legislation months or years after it has been adopted. If Parliamentary scrutiny of EU “Freedom, Security and Justice” policy is to be comprehensive, each decision to opt into legislation must be subject to scrutiny.

27 January 2010

PROPOSAL TO MODIFY THE PROTOCOL ON THE PROVISIONS GOVERNING THE TRANSITION TO THE LISBON TREATY CONCERNING THE COMPOSITION OF THE EUROPEAN

PARLIAMENT


The Lisbon Treaty provides for the allocation of extra MEPs to 12 Member States, including the UK which gains 1 extra MEP. It also reduces the number of MEPs from Germany by 3. This year's European Parliament elections were held under the provisions of the Nice Treaty. To allow the extra MEPs provided for under the Lisbon Treaty to be elected into the current 2009 - 2014 European Parliament without 3 current MEPs who have just been elected having to stand down, transitional arrangements would need to be adopted to enable the number of MEPs to temporarily exceed the limit of 750 plus the President which is laid down in Article 14(2) of the Treaty.

The December 2008 European Council Conclusions therefore set out that: "In the event that the Treaty of Lisbon enters into force after the European elections of June 2009, transitional measures will be adopted as soon as possible, in accordance with the necessary legal procedures, in order to increase, until the end of the 2009-2014 legislative period, in conformity with the numbers provided for in the framework of the IGC which approved the Treaty of Lisbon, the number of MEPs of the twelve Member States for which the number of MEPs was set to increase. Therefore, the total number of MEPs will rise from 736 to 754 until the end of the 2009-2014 legislative period. The objective is that this modification should enter into force, if possible, during the year 2010."

The June 2009 European Council Conclusions confirmed that the European Council:

"recalls its Declaration of December 2008 on transitional measures concerning the

composition of the European Parliament. Once the condition set in its Declaration of December 2008 is met, the necessary steps to implement these measures will be taken by the Presidency."

Although this is would be a transitional measure, as it would require a temporary change to the total number of MEPs laid out in the Treaty, it would require a Protocol and therefore the opening of a limited Intergovernmental Conference (IGC). In order

to take this process forward, the Spanish government has submitted a proposal to the President of the Council to launch a consultation with the European Commission and European Parliament before taking a decision to convene an IGC. One option is to hold the IGC without a Convention beforehand given the limited scope of the provisions under discussion. This will be discussed in the coming days.

The Presidency will shortly be notifying you of this proposal by the Spanish Government. The Spanish plan to make arrangements to hold the limited IGC during their Presidency.

Our aim in negotiations would be to ensure the draft Protocol reflects the agreements at the December 2008 and June 2009 European Councils. I will, of course, keep Parliament fully informed of developments and would welcome any views you may have.

In addition, any amendment to the EU Treaties can only be ratified by this country if it is approved by Act of Parliament. This is set out in section 5 of the European Union (Amendment) Act 2008. Parliament would therefore need to pass primary legislation before any Protocol could be ratified by the UK. Only once this is done, could the changes enter into force.

14 December 2009


Thank you for your letter of 14 December about the Spanish Government’s proposal for an amendment to the Lisbon Treaty to provide that the total number of MEPs in the current European Parliament should not exceed 754.

We are grateful to you for explaining the reasons for the proposal and the next steps. We are also grateful for your offer to keep us informed of developments and look forward to receiving the further information.

Meanwhile, you said that you would welcome any views we might have. We have only one comment: we doubt that many Member States will be enthusiastic to re-open discussion of the Lisbon Treaty so soon after the completion of its ratification.

6 January 2010

TRANSFER OF PASSENGER NAME RECORDS CONCERNING FLIGHTS FROM THE EU TO THE US (DOCUMENT 31238)

Letter from Meg Hillier to the Chairman

I am writing in response to the European Scrutiny Committee’s scrutiny report of 9 February 2010, in which the Committee requested further information in relation to the draft Council Decision on the conclusion of the EU-US Passenger Name Record (PNR) Agreement (Council No. 17697/09).

I would like to apologise again for the delay in depositing the draft Council Decision and for the subsequent delay in depositing the accompanying Explanatory Memorandum. I outlined the reasons for this delay in my letter of 9 February 2010. The delay was most regrettable. I would once again like to assure you that we remain fully committed to the new procedures following the ratification of the Lisbon Treaty and that we take our responsibilities to the Scrutiny Committees very seriously.

I would also like to apologise for the failure to deposit the Council Decision authorising signature of the Agreement (Council Decision 2007/551/CFSP/JHA), as policy officials believed that there was an exception in putting third country agreements forward for scrutiny. I accept that this text should have been deposited for scrutiny.

I note your concerns that that the handling, use and storage of PNR by the Department of Homeland Security (DHS) is not incorporated in the Agreement but in assurances in the letter attached to it. I also note your concerns on the period of PNR data retention, both in active and dormant files, and on the provisions on sharing EU PNR data with third country governments. Aside from the assurances and guarantees made in the US letter to the EU on these subjects, I can assure you that the Government is playing an active role in the regular reviews on the implementation of the Agreement, which have been set up to mutually assure the effective operation and privacy protection of the US PNR system. The latest of these Joint Reviews was held on 8-10 February 2010 in Washington. As well as a UK delegation, the Joint Reviews are attended by data protection and security experts from the European Commission. Data protection and data use are key issues for the UK and for the EU, and remain under the scrutiny of the Article 29 Working Party and the Data Protection Unit of the European Commission. As a final safeguard, paragraph 6 of the Agreement provides a power for the EU to terminate/revoke the Agreement if it determines that the US’s data protection is inadequate.

Both the US Privacy Act and US Freedom of Information Act (FOIA) provide exemptions and exclusions which could prevent an individual who is entitled to make a request for information under either Act from doing so. These exemptions apply equally to US and EU citizens. Both the Acts list the exemptions which might prevent a data subject from accessing their PNR record. These exemptions apply on a case by case basis.

I will provide a progress report of the negotiations with the European Parliament on giving its consent to the conclusion of this Agreement. I will aim to do this following the commencement of the negotiation process

23 February 2010

Letter from the Chairman to Meg Hillier


We considered it at today’s meeting and would be grateful if you could provide us with a list of the exceptions to accessing PNR data held in the US that apply to EU passengers, and the reasons for which those exceptions can be invoked. This information will better enable us to assess the data protection regime currently in place in the US.

I look forward to hearing from you shortly.

3 March 2010

THE EU AND THE ARCTIC

EU Council Conclusions on the Arctic


I am writing to update the Committee on developments within the EU with respect to the Arctic.

You will recall the European Commission Communication: The European Union and the Arctic Region COM (08)763, which was published in November 2008 and the European Standing Committee debate in April 2009 which was answered by my predecessor Gillian Merron. The EU has now adopted a further set of Council Conclusions (which I enclose for information).

The Government continues to support the EU in its efforts to become more engaged on the Arctic and considers the Commission has a valuable role to play in many areas as outlined in the Council Conclusions At the same time, we have striven to ensure that, where competency is reserved or shared, UK interests are protected. We have also sought to ensure that our bi-lateral and multilateral relationships with the Arctic States and the Arctic Council are unaffected.

I should emphasise that these Conclusions do not constitute a formal EU Arctic Strategy but instead provide a set of overarching principles and actions which the Commission can begin to develop in collaboration with Member States. As with the development of these Conclusions, future work will continue to be a partnership between the Commission and Member States. To this end the UK will engage closely, through the relevant EU Working Groups, to further develop policy and ensure that our views are taken into account.

The Conclusions centre on three principle policy objectives:

1) Protecting and preserving the Arctic in unison with its population;

2) Promoting sustainable use of resources; and

3) Contributing to enhanced governance in the Arctic through implementation of relevant agreements, frameworks and arrangements, and their further development.

The first objective stems from recognition of the impact of climate change, not least the rapid decline of summer sea ice and the need to protect the unique Arctic environment and ecosystems. The Conclusions commit the EU to placing greater prominence on the protection of the Arctic as part of the UNFCCC negotiations and to working with other appropriate international bodies to help protect the environment.

Better coordinated science and monitoring are essential to achieving this. The UK science community is already very active in the Arctic and the Natural Environment Research Council has just announced a new Arctic Research Programme which will add significantly

to this. We feel that science is where the UK and EU, as non-Arctic States, can have the most influence and impact.

The second principle centres on the need for sustainability. The EU recognises the sovereign rights of Arctic States in this area but believes that active engagement with them is essential to help minimise environmental impacts. The Conclusions also encourage the greater use of Environmental Impact Assessments as tool in protecting the Arctic ecosystem.

Finally, in respect of governance, the EU wishes to strengthen international, regional and bilateral relationships, particularly with the Arctic Council and the Arctic States. The Conclusions recognise that the United Nations Convention on the Law of the Sea (UNCLOS) and International Maritime Organisation (IMO) are key to the effective management of the Arctic marine environment and regulation of shipping etc but also that the EU, and Member States, have legitimate interests.

In summary, these Conclusions usefully highlight the many and varied interests in the Arctic and should help to improve coordination within the EU where this is relevant and beneficial.

The Conclusions commit the Commission to presenting a report on progress by June 2011. The Government looks forward to reviewing their progress then.

IMPLICATIONS OF THE LISBON TREATY

Letter from Chris Bryant MP to the Chairman

The Lisbon Treaty provides new powers for national Parliaments to have a direct say in EU law-making. This is an important benefit of the Lisbon Treaty, as it allows for increased accountability and transparency of EU business. The Lisbon Treaty gives Parliament two new powers:

1. Challenging draft EU legislative proposals on subsidiarity grounds (sometimes known as the yellow/ orange card procedure);

2. Asking HMG to take cases to the European Court of Justice on behalf of

Parliament on subsidiarity grounds. During the passage of the EU (Amendment) Bill, the Government also offered two further new powers to Parliament:

3. Prior Parliamentary control of 'passerelles' (i.e. Treaty provisions which allow Member States to decide, by unanimity, to move a particular provision from decision making by unanimity to Qualified Majority Voting and/or to codecision with the European Parliament);

4. Enhancing scrutiny of the UK's decisions on whether or not to opt in to Justice and Home Affairs (JHA) legislation.

There will also be a need for some minor terminological changes to the Scrutiny Reserve resolution in both Houses as a result of the Treaty coming into force, e.g. ‘EC’ will become ‘EU’.

I anticipate that challenging draft EU legislative proposals on subsidiarity grounds and asking HMG to take cases to the European Court of Justice can be accommodated within existing procedures in the House of Commons, and require some adaptation of procedures in the House of Lords (where reports from the European Union Committee are usually taken note of by the House). The Government’s commitment on prior Parliamentary control of ‘passerelles’ can also be implemented within existing procedures in the House of Commons; the House of Lords would have to determine its own procedures and timing in this respect.

In the House of Lords, it may be necessary to adopt a new Scrutiny Reserve Resolution, or amend the current one, to reflect the Government’s commitments in the JHA area.

I outline in the attached Annex how I propose the main elements of the package of powers could work in practice. Of course the final decisions on how these powers will work are for the Houses respectively.

Before then, I hope the EU scrutiny committees in both Houses will consider these proposals and give their views, so both Houses can take a view informed by your expertise. I have discussed and agreed the proposals jointly with the Leaders and Business Managers of both Houses of Parliament.

These proposals are based on principles which I hope will find wide favour in both your Committees, namely:

that these new powers are essentially independent powers for each House to exercise;

that decisions on how these powers should be exercised are ultimately for each House as a whole to make;

respect for the prerogatives and procedures of each House;

building on the work of the Modernisation Committee report of 16 March 2005 and on the Lords EU Committee Report of 2005 (Strengthening national parliamentary scrutiny of the EU - the Constitution's subsidiarity early warning mechanism) which considered some of these issues in relation to related provisions of the defunct Constitutional Treaty.

The Government is keen to see these powers operational as soon as possible. I recognise that changes to Parliamentary procedures are unlikely to be fully in place by the time the Lisbon Treaty enters into force on 1 December. The Government will bring forward proposals to facilitate the necessary changes when Parliamentary time allows. However, the Government will be prepared to act on the basis that both Houses can exercise the new powers fully from entry into force of the Treaty, as we are already doing for scrutiny of JHA opt-ins.

I am happy to come and talk to Committees either formally or informally to discuss any of these proposals in more detail.

16 November 2009

Letter from the Chairman to Chris Bryant MP

You wrote to the Committee on 16 November with proposals on how you see the new powers for national parliaments being given effect by the House. I was surprised that your letter did not address any of the points contained in my letter to you on 22 October. In that letter I put forward the Committee’s proposals for redrafting the Committee’s standing order and the scrutiny reserve resolution, not only to take account of changes necessitated by the entry into force of the Lisbon Treaty but also to explore the potential for making them clearer, simpler and, where possible, tougher. I trust that a full response to these points will be sent shortly.

In the meantime you say that changes to parliamentary procedure are unlikely to be in place by the time the Lisbon Treaty enters into force. Nevertheless, the Government will act on the basis that the House can exercise the new powers fully from the entry into force of the Treaty on 1 December.

On the yellow/orange card (subsidiarity) procedure, the Government’s suggestions reflect the view taken by the Modernisation Committee in 2005 and endorsed by the European Scrutiny Committee in 2008. That is, the Committee will consider proposals in the usual way but where it has a serious concern about subsidiarity it will say so in its report chapter and append to it a “reasoned opinion” setting out its concern.

However, the Government is proposing that the ESC’s report and “reasoned opinion” be debated either in the European Committee or on the Floor. The Modernisation Committee said (and the ESC agreed) that there was a balance to be struck between maximising opportunity for debate in the House and ensuring that the necessary processes can be completed before the end of the (now)eight-week deadline specified in the Treaty.

The ESC’s proposal was therefore for the motion to approve the Committee’s reasoned opinion to be taken without debate but with the chairman of the European Scrutiny Committee (or another Committee member) being permitted a short speech to outline the reason for the opinion and with the Minister having the right of a short reply on behalf of the Government.

There is another point to make concerning the desirability of a debate. A subsidiarity concern is not the same as “politically important”. The House might find itself being required to debate a proposal which is minor and technical but which nevertheless gives rise to a serous concern over subsidiarity.

In your letter you say that there will also be a need for “some minor terminological changes” to the Scrutiny Reserve Resolution as a result of the Treaty coming into force. The ESC considers that the changes brought in by the Treaty go further than this. EU activity will be divided into legislative acts, which are defined, and (by inference) non-legislative acts, which are not. It is the second category that poses the problems for scrutiny. Many binding Union acts issuing particularly from one EU institution will fall under the second category, and it is for this reason that the revised Standing Order refers to “non-legislative acts”. Indeed, were it not to make this reference, the ESC would be left in a position where its scrutiny mandate under the Lisbon Treaty would be narrower than it is today. We will send you a list of examples of such non-legislative acts under cover of a further letter, and look forward to your response.

You mention in your letter that it may be necessary to adopt a new Scrutiny Reserve Resolution in the House of Lords, or amend the current one, to reflect the Government’s commitments on opt-ins in the JHA area. A separate Scrutiny Reserve Resolution of the House of Commons (rather than amending the current one) would also be required to give effect to the undertakings given by the Government. This is because the opt-in decision which falls for scrutiny is taken in Whitehall, rather than in the Council in Brussels.

Attached to my letter to you of 22 October was a draft Resolution proposing a scrutiny procedure for opt-in decisions. I look forward to your response to that. You will see that it applies to opt-in decisions taken by the Government both before and after the legislation has been adopted in Brussels. From a scrutiny perspective there can be no substantive difference between the two types of opt-in decision and so the undertaking to give eight weeks for parliamentary scrutiny should apply pre- and post-adoption.

25 November 2009

Letter from Chris Bryant MP, to the Chairman

Further to my appearance before both the Commons European Scrutiny Committee and the Lords European Union Committee to discuss the October European Council and the Treaty of Lisbon, I would like to provide a further update on the programme of work relating to the implementation of the Treaty ahead of entry into force on 1 December; and further information on the detail of the proposed Council and European Council Rules of Procedure, both of which are due to be tabled for adoption immediately following entry into force.

Lisbon Treaty implementation: programme of work

I attach the most recent update note from the Swedish Presidency on the Lisbon Treaty implementation programme of work. You will note in section 2 that a number of documents are scheduled for approval at the JHA Council on 1 December. The Presidency considers that the entry into force of the new treaty constitutes an exceptional circumstance, and I made clear in my letter of 21 October that this is an assessment with

which the Government agrees. However, I am determined to ensure that the Committee has as much of an opportunity as possible to consider the issues and give us any views, and to this end would be pleased to receive any thoughts in good time before 1 December. HM Treasury and Home Office colleagues will continue to provide updates to you as required on their dossiers.

The Draft Decision of the European Council on the exercise of the Presidency of the Council and the draft Council Decision on its implementation have both only recently been circulated to Member States, and a copy of these are attached for your information. These decisions are required largely to formalise some of the provisions in the Council’s Rules of Procedure; and otherwise reaffirm existing measures, such as the order in which Member States will undertake the function of Presidency of the Council. The Council Decision also incorporates the previously separate dossier on the chairmanship arrangements for Council preparatory bodies on external relations. The Government is supportive of these draft texts.

The Presidency has not yet tabled the draft Council Decisions related to conditions of employment of the President of the European Council, High Representative or Secretary-General of the Council; but we will endeavour to share these with the Committees as we have done with the texts attached.

As page 2 of the note also makes clear, the Commission intends to adopt a Commission Communication on how it intends to implement the provisions of Article 290 TFEU on the management of delegated acts, which apply from entry into force. Consultation on the future management of implementing acts is also likely to occur soon after entry into force ahead of a new regulation, a draft of which is expected early in 2010.

Rules of Procedure of the Council of Ministers of the EU

One of the documents due to be tabled for adoption on 1 December will be the draft Rules of Procedure for the Council of Ministers of the EU ( ‘the Council’), and I attach the latest version of the draft text. These internal rules of procedure require amendment in a number of areas to reflect changes in the operation of the Council brought about by the entry into force of the Treaty of Lisbon. The Government is broadly content with the draft text and will support its adoption at the JHA Council.

The Rules of Procedure govern how the various configurations of the Council operate in practice, including: notice periods and planning required before Council meetings; the agreement of Council meeting agenda; how meetings should be run; questions of transparency and openness, including opening up to the public the consideration and voting of legislative matters in the Council; voting arrangements and quorum; the status and operation of official-level working parties and committees; how legislative acts are processed prior to and following Council deliberations provisions on the Council Secretariat; and representation before the European Parliament. The main changes to the Rules proposed by the amendments in the draft Council Decision (otherwise referred to as ‘the draft text’) are summarised below.

The draft text makes explicit that the trio of Rotating Presidencies will collectively be responsible for the Presidency of the Council, with the exception of the new Foreign Affairs Council configuration, for a period of 18 months; though each Presidency would still in effect hold the Presidency of the Council for the usual six-monthly period unless alternative arrangements are agreed between the trio.

The draft text also sets out the responsibilities for the two new configurations which will replace the current General Affairs and External Relations Council (GAERC): the General Affairs Council (GAC) and Foreign Affairs Council (FAC). In particular, questions on enlargement and the (establishment of the) multi-annual financial framework will be dealt with by the GAC; trade and development policy will be dealt with by the FAC. However, footnote 9 of the draft text makes clear that when common commercial policy questions are to be tabled at the FAC, the High Representative will vacate the Chair and the member of the Council from the Rotating Presidency will chair those items of business.

The Government supports the proposed split of responsibilities between the new General Affairs and External Relations configurations, and in particular the proposal to carve out the chairmanship of common commercial policy within the FAC to the Rotating Presidency given the Government’s preference for common commercial policy to be kept separate from the future EEAS. In practice, as the two portions of the former GAERC configuration have been conducted separately, there should be no substantive difference. The Government is keen to ensure that the GAC continues to work effectively once split from the external relations portion of the GAERC configuration. A good way to achieve this

would be to preserve the previous practice of holding the general affairs and external relations portions of the GAERC on the same day, which would promote more regular attendance of Foreign Ministers at both the GAC and FAC in future.

The provisions in the current Rules of Procedure relating to the European Council are all to be re-produced in the new Rules of Procedure for the European Council. However, references are made in the draft text to the effective co-operation which will be required between the key actors, namely the President of the European Council, the Rotating Presidency and the President of the European Commission. The draft text will also need to be reviewed once further progress has been made in finalising the draft European Council Rules of Procedure, as indicated in article 2(3) on the draft text.

As the Rotating Presidency will continue to chair all of the sectoral Councils (except the FAC), it will be important that the GAC continues to exercise its overall co-ordination role of the other Council configurations; and co-operates effectively with the other key actors in the preparation of and follow-up to European Council meetings. Moreover, the Government is clear that the Rules of Procedure for the Council and the European Council should be consistent with the text of the Treaty of Lisbon, notably in respect of the role and the interaction of the President of the European Council with the relevant members of the Rotating Presidency, the High Representative, the President of the European Commission and the President of the European Parliament.

The draft text also provides for the temporary replacement of the High Representative by the relevant member of the Rotating Presidency more generally, for example in case of illness, in chairing the FAC; and by a member of the Rotating Presidency or a representative from the EEAS in representational duties before the European Parliament. The Government supports this approach.

Article 3(3) of the draft text details the provisions in respect of the eight-week period set out in the Protocol on the role of national Parliaments. The single change to these provisions concerns the Council’s ability to derogate from the eight-week period; the Council is currently required to agree unanimously to derogate from this, but the draft proposes that the Council would instead agree according to the voting basis for the act concerned – unanimity, qualified majority or simple majority depending on the relevant legal base. The Government has registered its reservations with the Presidency and other Member States on this move. However, given the lack of support from other Member States on this issue, we have had to reluctantly concede this point. The Government of course remains committed to the scrutiny process, and we fully expect the derogation to be used only in exceptional circumstances as set out in Article 4 of the Protocol.

The draft text also makes several administrative changes as a result of the entry into force of the Treaty, mainly in respect of changes to Treaty article references; and in respect of the change to the role of the Secretary-General of the Council (currently the Secretary-General is also the High Representative for Common Foreign and Security Policy; under the Treaty of Lisbon, the Secretary-General will be a separate post).

The Government notes that there are no proposals to amend the other Council configurations (Annex A), though the Government notes that further discussions may be required in future on where certain policy questions will be managed. The Government’s priority, however, continues to be to ensure the effective and coherent operation of Council business.

Rules of Procedure of the European Council

The establishment of the European Council as an institution under the Lisbon Treaty and the creation of the post of President of the European Council requires the drawing up of a set of Rules of Procedure for the European Council, which we expect to be tabled for adoption by the European Council either at the December European Council or by written procedure following agreement in Council. I shared the draft text with both Committees when I wrote to you in October, and we expect a new version to be issued following the informal European Council this week. I would like to take this opportunity to draw out what the Government considers the key points related to the draft text, though I should highlight that the discussion of the European Council Rules of Procedure is not yet as far advanced as those on the Council’s Rules of Procedure.

The Government has long since been clear that we believe that the President of the European Council should be a strong figure with a significant internal and external role and who can bring greater coherence and consistency to the EU’s actions than a President who changes every six months can. The Lisbon Treaty makes clear that the European Council President should chair the European Council and drive forward its work, the Government

firmly supports this. The European Council President will give Member States greater capacity to give direction and momentum to the EU’s agenda and represent around the world the priorities elected EU leaders agree. Externally, the Council President should ensure greater credibility at the very top level, working effectively with the High Representative to ensure that the EU can be a global actor and a leader on the world stage.

A key aspect of the future effectiveness of the European Council President will be the need to co-operate effectively with the Head of State or Government and Ministers of the Member State holding the Rotating Presidency; and the President of the European Commission. The Government supports the need for effective co-operation between these individuals in the successful leadership of the Council and European Council, and reference is made to this in the draft text.

Furthermore, we believe that the European Council President is mandated by the Treaty to chair and drive forward the work of the Council. To this end, the President should remain in the lead in drawing up and finalising the draft agenda, draft conclusions and any draft decisions of the European Council for presentation to the European Council. In accordance with the principle of effective co-operation, the General Affairs Council should also have an important role in reviewing and assisting in the finalisation of these draft documents. There remains a question of the extent to which the President of the European Council should participate in the discussions of the General Affairs Council, and the Government would advocate the President’s participation to ensure a coherent link between the work of the Council and the European Council. We continue to seek clarification on this point.

The draft text outlines a proposal that, for the first time, the Head of State or Government of the Rotating Presidency will present a review of the work of the Council to the European Council. The Government would support this move in principle, as an illustration of the vital

linkage between the Council and European Council. However, the question of whether this provision should be fixed for each European Council meeting remains open: the European Council should be free to shape its agenda to focus attention of leaders of the Member States on the key issues.

As with the Council Rules of Procedure, the European Council Rules of Procedure makes proposals on how the European Council should be represented before the European Parliament. The draft text makes clear that the President of the European Parliament should carry out these responsibilities, and that the Head of State or Government of the Rotating Presidency should present their Presidency’s priorities to the European Parliament at the start of the six-month mandate. The Government supports this, which illustrates the leadership role required of the European Council President, and the linage between the work of the European Council and the Council of Ministers under the leadership of the Rotating Presidency.

The Government is content on the whole with the current draft of the text, though we continue to discuss the key points set out above with the Swedish Presidency and other Member States, as we look to finalise the text for adoption soon after entry into force.

23 November 2009

Letter from Chris Bryant MP, to the Chairman

Further to my letter of 20 November, I am now able to share with you the draft texts confirming the names of those appointed to the posts of President of the European Council (Herman Van Rompuy); the High Representative (Baroness Catherine Ashton of Upholland); and the Secretary General of the Council (Pierre de Boissieu). In parallel, the Presidency has also circulated three short texts setting out the terms and conditions of the three posts. Please find these annexed to this letter.

The Government only received these texts from the Council Secretariat yesterday, and we are restating to the Presidency our concern that such texts need to be circulated in sufficient time to allow for them to be sent to and considered by you before their formal adoption, which in this case will be at the Justice and Home Affairs Council on 1 December. I apologise for the lack of time given to your Committee to consider these texts. However, please be assured that we continue to make clear to the Presidency that Member States and National Parliaments need to be given adequate time to consider all relevant Lisbon Treaty implementation proposals.

The Government is content with the substance of these procedural texts and we believe that the remuneration packages for the President of the European Council and the Secretary General of the Council are comparable with similar positions, for example the remuneration of the President of the European Council will be comparable to that of the President of the European Commission. It is proposed that the High Representative should receive a slightly higher salary compared to other Commission Vice-Presidents (130% of the salary awarded to a grade 16 EU official at level three of that particular salary scale; compared to 125% for other Vice-Presidents). We believe that this is justified given Baroness Ashton’s role as First Vice-President of the European Commission and her additional responsibilities as High Representative.

However, I would welcome any views you may have on these texts as soon as possible, to allow us to consider these before 1 December. More generally, I shall continue to keep your Committee appraised of any further developments surrounding implementation of Lisbon Treaty measures.

27 November 2009

FCO SCRUTINY COMMITTEE


The Committee has asked me to respond to your letter of 2 December 2009 in response to the concerns raised at the 28 October evidence session about a letter sent to the Committee by Ivan Lewis three months after it was signed and the concerns raised in my letter of 19 November about a scrutiny over-ride of the Council decision on the Agreement between the EU and Russia on the security of classified information.

With regard to what you call the FCO’s general level of service, you will, I am sure, acknowledge that the number of EMs is a simple function of the number of depositable documents that land on the FCO’s desk, and that at least some of the approximately ninety letters to which your refer, will have resulted from the failure to provide adequate information first time round and in response to scrutiny overrides.

That said, the Committee does of course accept that at least some of them will indeed have emanated from the evidence session in February with Caroline Flint, which Glenys Kinnock and then you have endeavoured also to implement assiduously. But the real difficulty comes not in “keeping Parliament as informed as is possible on EU issues” — which is what a lot of the letters seek to do — but making sure that what needs to be deposited is done so on the basis of a satisfactory EM and in good time. That has two aspects.

The first is procedural: you profess yourself “committed to getting this right”, and the Committee has no doubt about the commitment also of the FCO scrutiny coordination unit. They have simply got to up their game so that they return to the level of the first half of 2009. At first blush, the Committee is not sure, if internal procedures have been reviewed and guidance re-circulated to all Ministerial offices, what more you will have to say about a further such review when next you write to the Committee about what you intend to do to stop these types of mistakes from occurring again. But it looks forward to hearing again from you nonetheless.

The second is handling recesses and those weeks during sessions when there is no meeting. Hitherto, this has tended to be handled informally, by phone and email, between Committee officials and the scrutiny coordinator. It has normally worked well, but normally is not good enough; we need to do what we can to make it fireproof. What is needed, we suggest, is a more formal process: that we should henceforth formally notify the scrutiny coordinator of upcoming breaks in the scrutiny process (which are always known well in advance) and then require him or her to notify the Committee of what FCO documents might be affected, of what action can be taken to bring matters forward or postpone them and, where this cannot be done, an explanation of why. The Committee will thus be systematically forewarned.

9 December 2009

NUMBER OF MEPS IN THE 2009-14 EUROPEAN PARLIAMENT


ROMANIA AND BULGARIA AND THE COOPERATION AND VERFICIATION MECHANISM


I am keen to provide the Committee with regular updates on the progress of Bulgaria and Romania under the Cooperation and Verification Mechanism (CVM). Glenys Kinnock wrote on 1 July ahead of the 2009 summer reports. I would like to take this opportunity to update the Committee, ahead of the Commission’s interim reports, which we anticipate will be published in February.

Bulgaria

Following parliamentary elections on 5 July 2009 a new, single party government was appointed on 27 July. This government was elected on a mandate of change, with a strong focus on anti-corruption and reform of the judicial system. Initial indications are positive. The new government has given clear and consistent messages about the need to address the issues surrounding the CVM, and those messages are starting to be followed through with specific actions, giving grounds for cautious optimism. However, it is still too early to make an assessment of the extent of sustained and durable change on the ground.

Specific developments relating to the individual Commission benchmarks for Bulgaria are as follows:

Benchmark 1: Adopt constitutional amendments removing any ambiguity regarding the independence and accountability of the Judicial System.

On 19 November Boris Velchev, the Prosecutor General, suggested constitutional amendments so that the immunity of the Prosecutor General could be removed.

Benchmark 2: Ensure a more transparent and efficient judicial process by adopting and implementing a new Judicial System Act (JSA) and a new Civil Procedure Code (CPC). Report on the impact of these new laws and of the Penal and Administrative Procedure Codes, notably on the pre-trial phase.

In July a parliamentary committee to monitor the activities of State Agency for National Security (SANS) was established. It is headed by a representative of an opposition political party, not participating in the government.

In November the Ministry of Justice presented draft amendments to the Penal Code, Civil Procedure Code (CPC), Judicial System Act (JSA) and a draft Assets Forfeiture Law.

Benchmark 3: Continue the reform in the Judiciary in order to enhance professionalism, accountability and efficiency. Evaluate the impact of this reform and publish the results annually.

In June details were exposed of Members of the Supreme Judicial Council (SJC) having contact with a person of dubious reputation, implicating members of the SJC in the buying and selling of votes for the selection of administrative heads in the judiciary. Two SJC members resigned.

A new ordinance for appraisal of magistrates, judges, prosecutors, investigators, administrative heads and deputy administrative heads was published on the SJC website requesting suggestions and comments from representatives of the judiciary, parliamentarians, professional associations, NGOs and Media.

Benchmark 4: Conduct and report on professional, non-partisan investigations into allegations of high-level corruption. Report on internal inspections of public institutions and on the publication of assets of high-level state officials.

The joint Team for the Suppression of Offences against the EU Financial System in the Prosecution Office and the representatives of the European Anti Fraud Office (OLAF) are continuing to look into the misuse of EU funds. In the period July – September 167 pretrial proceedings have been lodged with the prosecution offices in the country for crimes related to misuse of funds and assets of the European Union. Decisions have been made on 27 pre-trial proceedings. 19 acts have been brought before the courts of justice.

Benchmark 5: Take further measures to prevent and fight corruption, in particular at the borders and within local government.

In September 2160 Customs Officers had their personal wealth investigated and 26 of these were selected for further investigation on behalf of the Revenue Agency. Property inspections were carried out on 43 Revenue Agency Officials. 19 of these officials occupy governing positions and 7 belong to middle range management.

In October all Customs Officers were required to undertake an exam as part of the reform of the agency.

Efforts are also underway to improve public procurement procedures, including legislative measures, in order to reduce opportunities for corruption.

Pre-trial proceedings were brought against high level officials, including the Mayor of Haskovo Municipality and the Chief Architect of Pomorie. Charges include fraud, damages and corruption.

Benchmark 6: Implement a strategy to fight organised crime, focusing on serious crime, money laundering as well as on the confiscation of the property of criminals. Report on new and ongoing investigations, indictments and sentences in these areas.

On 8 September an agreement was made between the Prosecutor’s Office, the Ministry of Interior and the State Agency for National Security to establish a permanent joint team to support investigations into organised crime and corruption cases. The Agreement contains

mechanisms to prevent the leak of information and provides security guarantees for the members of the teams. Four joint teams have been operating since 6 October.

In September a bill was passed through parliament to amend the laws on the Ministry of Interior and the State Agency for National Security. The changes are to prevent duplication of function and ensure an optimal legal environment for the consolidated results of their activities.

Romania

Following the collapse of the ruling coalition in October the interim government has been functioning with a reduced mandate. The first round of the Presidential elections took place on 22 November and as expected President Basescu gained the largest proportion of the vote with the Social Democrat Geoana coming a close second. They will progress to the second round on 6 December. The Liberal Crin Antonescu won approximately 20% of the vote and his floating voters will be crucial in this second round. He has pledged to support Geoana. The outcome of the Presidential elections will not necessarily affect Romania’s progress under the CVM although Geoana and the Social Democrat’s record in justice reform is poor. The Romanians have applied for a Twinning Light Project on improving the consistency of sentencing in corruption cases, for which HMG has submitted a bid.

Specific developments relating to the individual Commission benchmarks for Romania are as follows:

Benchmark 1: Ensure a more transparent and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of Magistracy. Report and monitor the impact of the new civil and penal procedural codes.

Impact assessments of the new codes should be finalised soon with assistance from the World Bank. Laura Kovesi, a reformer, was reconfirmed by President Basescu as the General Prosecutor.

Benchmark 2: Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken.

The EU Country Report of June 2009 praised the operations of the National Investigation Agency (ANI) but felt that tangible results still had to be seen. In September 2009 a confiscation of 500,000 euros came as a direct result of ANI’s work. In the autumn two disciplinary boards dismissed a mayor and a former county counsellor following ANI’s investigations. While these were not particularly high profile figures it shows that ANI’s effectiveness can now be demonstrated. Civil Society have criticised how long ANI’s investigations take and questioned their procedures.

Benchmark 3: Building on progress already made, continue to conduct professional, non-partisan investigations into allegations of high-level corruption.

The National Anti-Corruption Agency (DNA) continues to progress investigations into high profile cases but with few reaching a conclusion. This is mainly due to the familiar tactics of stalling progress by referring decisions to the Constitutional Court or contesting every element of the case. Reform of Criminal Procedure is much needed. While one case against Adrian Nastase, a high profile Social Democrat leader and former Prime Minister (2000 - 2004), remains blocked by Parliament, the other three cases continue and a new one was started accusing him of bribery in the course of an investigation into his wife.

One Deputy, Ion Dimitru, has been acquitted by the courts but the judgement has not been made public yet.

Both the former Youth and Sports Minister, Monica Iocab Ridzi and the Tourism Minister Elena Udrea have seen formal investigations commenced against them.

Benchmark 4: Take further measures to prevent and fight against corruption, in particular within the local government.

The Superior Council of Magistrates have set out an action plan detailing how they will meet the requirements of the CVM, mainly on technical issues.

A project jointly funded by the Dutch and UK governments looking at measures to counter corruption in the Health Service has begun, but progress has been affected by the political instability.

The President of the High Courts retired in September 2009. The Vice President is not seen by many as a reformer and pressure is on President Basescu to appoint someone open to reform.

Separate from the CVM process, the Commission also published reports in September on the status of implementation of EU funds in both Bulgaria and Romania. The Committee expressed interest in this issue following the 2008 funding reports, which highlighted concerns about misuse of EU funding in Bulgaria and steps taken by the Commission, including the freezing of some funds.

The latest funding report on Bulgaria notes that positive steps have been taken since some of the pre-accession funds were suspended by the Commission in July 2008. In relation to SAPARD, the agricultural fund, the report notes that Bulgaria has put in place an action plan, changed audit procedures and implemented additional ex-post checks. The action plan was certified by an independent audit report. In relation to ISPA, the pre-accession fund for infrastructure and cohesion, Bulgaria has implemented all recommendations in relation to the structure and financial management and control procedures at the National Road Infrastructure Fund (NRIF). It has also increased the monitoring of delayed projects. As a result, the Commission withdrew its suspension of funding for ISPA on 13 May 2009 and SAPARD on 9 September 2009. However, the suspension of PHARE funds still remains pending a detailed assessment of system weaknesses and a proposal for financial corrections by Bulgaria. There is a risk that some of the EU funds will not be fully accessed by their contracting deadlines, at which point they will become unavailable to Bulgaria.

The funding report on Romania is positive and shows that Romania has responded well to the concerns of the Commission. Romania has implemented legislation to improve the application of procurement rules in the use of structural and cohesion funds. Romania currently has no suspended EU funds. However because of a 1 year suspension of SAPARD funds there is a risk that these will not be fully accessed by the application deadline of 31 December 2009.

I hope you and the Committee will find this update helpful.

WESTERN EUROPEAN UNION

Letter from David Miliband to the Chairman

As you know, 1 have been considering the UK's membership of the Western European Union. Though the WEU has done valuable pork over the years, I do not believe that it is nova an effective organisation. It divides ten EU Member States from the other seventeen, and many of its functions have been transferred to the EU. Its mutual defence role has been overtaken given that all its full members are members of NATO.

I have met and discussed this with the British Parliamentary delegation to the WFU, who are proposing reform of the WEU. I do not believe that this is the answer; indeed,. it would be more difficult than starting afresh. Reform, including changes to the cost structure, would require a lengthy negotiating process, with no guarantee of success. There does not appear to be any appetite amongst the seventeen EU states who are not members to join.

A majority of Member States privately agree that the organisation should be closed. However, consensual negotiation, involving the parliaments of all ten WEU' members is likely to result in a lengthy, drawn out negotiation. I believe it would be better to take a more inclusive approach and start afresh by involving all 27 EU Member States in the debate on the future of cross-European parliamentary scrutiny.

I have therefore decided to that the UK should withdraw from the WEU in the coming days. I plan to announce this in the coming days. I strongly believe that the Common Foreign and Security Policy and the Common Security and Defence Policy (CSDP) must remain intergovernmental. I would like to see parliamentary scrutiny remain at the national level, informed by greater contacts between parliamentarians from other EU Member States and NATO allies.

We are working with our WEU partners to agree on next steps. Our intention is to engage them in a debate on the future of cross-European Parliamentary, scrutiny during the final twelve months of our membership of the WEU.

Our thinking will be set out in our Parliamentary, statement; that national parliaments should retain the key scrutiny role for CSDP; and that there is no reason for the European Parliament to expand its competence in the oversight of European defence issues. We will also seek to ensure that non-EU European NATO allies are fully consulted through this debate and that Parliamentarians from those countries will continue to have the opportunity to engage with their EU counterparts.

20 March 2010

Letter from the Chairman to David Miliband

The Committee has asked me to thank you for your letter of 21 March 2010, in which you explained why you have decided that the UK should withdraw from the WEU and how you now plan to take matters forward. However, you say that you would like to see parliamentary scrutiny of the CFSP/CSDP remain at the national level; that your thinking is that national parliaments should retain the key scrutiny role for CSDP; and that you intend to engage WEU partners in discussion on the future of cross-European parliamentary scrutiny of these policies.

The Committee would be grateful if you could explain further how you envisage parliamentary scrutiny of these issues taking place once the UK has withdrawn from the WEU. We recognise that this will be a matter for debate over the coming year, but no doubt your decision to withdraw was preceded by preliminary thinking on how the work of the parliamentary delegation to the WEU can be carried on in its absence.

We would also be very grateful if you could provide us with the negotiating history of Article 10 of the Protocol on the Role of National Parliaments in the EU, attached to the Lisbon Treaty. This Article concerns interparliamentary cooperation. We want to understand why reference to the Conference of European Affairs Committees (COSAC) was replaced by a “Conference of Parliamentary Committees for the Affairs of the Union”, and

the reasons for including, for the first time in the EU Treaties, a reference to these parliamentary committees “debating matters of common foreign and security policy, including common security and defence policy”.

Finally, we would be grateful if you could confirm whether there is a link between the UK’s withdrawal from the WEU (and we understand that others share your view that it is not “now an effective organisation”, which may precipitate its demise), and the reference to CFSP/CSDP being considered by national parliamentary committees as part of EU interparliamentary cooperation, as set out in Article 10 of the Protocol.

30 March 2010

DEPARTMENT OF HEALTH

Agency of the operational management of JHA Databases (30737: 11722/09)

Agency responsibilities for the management of SIS II and VIS (30738: 11726/09)

Letter from Meg Hillier to Lord Roper

Thank you for your letter of 29 October in which you ask the Government to address a number of issues arising from the proposed Regulation and Council Decision on the establishment of an EU IT Agency and from our previous correspondence with you on this matter. We apologise for the delay in responding to you.

As you identify, this proposal gives rise to quite complex legal issues for the UK. As such, we sought legal advice on our position vis-a-vis the opt-in before coming to a decision. I note your views on this, but the advice we received suggested that it should be possible to opt-in to a Regulation partially and that this was the appropriate step to take in these circumstances. As you have also identified, this was also the view of the Commission.

In our letter to the President of the Council of the European Union on the opt-in we stated that the UK wishes to take part in the adoption and application of this proposal. We did not seek in this letter to qualify the level of our participation in the instruments, but based on previous discussions with the Commission, our expectation is that this will apply only to the extent to which we participate in the various IT systems that the new Agency will be responsible for managing. We have still not received a response from the Presidency or Commission to this letter.

On the issue of voting rights for the Agency’s Management board, I do not share your view that most decisions being considered by the board will concern all the IT systems. The proposed Agency will take over the operational management of several large, but distinct, IT systems. I anticipate that, as such, most of the decisions the board is required to make will relate to each system as a distinct entity. Notwithstanding this, we are seeking amendments to the current text in the Regulation on voting rights to enable us to vote on issues relating to all current and future IT systems in which we participate, regardless of whether we opt-in to them pre or post adoption.

I note your point that the Commission should not attempt to pre-empt a UK opt-in decision. However, I think that in this instance the Commission was trying to establish that they believed, albeit mistakenly, that the UK could not opt-in to this measure, rather than anticipate what our decision would be.

I will, of course, keep you updated on relevant developments during the course of negotiations on this proposal.

28 November

DRAFT DIRECTIVE ON CROSS-BORDER HEALTHCARE (29786: 11307/08)

Letter from Gillian Merron to the Chairman

In your Committee’s report of the 24th of June, you asked to be kept informed about the progress of the Directive, in particular the consideration of:

the European Parliament’s proposal for a European Patients’ Ombudsman;

the cooperation and comitology provisions; and

whether organ transplantation and some types of healthcare provider should be excluded from the scope of the Directive.

In my letter of the 23rd July, I committed to providing a more detailed response once negotiations had progressed under the Swedish Presidency. I am now in a position to provide you with a further update on the issues raised in your report.

EU Patients Ombudsman

My officials have met with representatives from the national Health Services Ombudsman to make them aware of the Parliament’s proposed amendment and seek their views. Should this issue return to the table at second reading, we would continue to consult the Health Services Ombudsman to establish the UK position. In general, we remain concerned about how an EU Ombudsman would work with national bodies, and will seek to avoid duplication of roles that are clearly within Member State competence.

Cooperation and comitology provisions

As you are aware, we have been concerned about the extent of delegated legislation in Chapter 4. Let me reassure you that my officials have been pressing this point in negotiations, stressing that any comitology provisions should be proportionate and should not delegate additional powers to the Commission on matters of Member State competence. The majority of other Member States are in favour of, or at least accept, the comitology provisions on the proposal; many, however, share our concerns about proportionality and subsidiarity. I am optimistic that we are moving towards a text that looks to address these concerns.

Scope: organ transplantation and certain types of providers

The Department of Health has been very keen to gain a greater understanding of the issue of organ allocation, in particular in an EU context. Since my last letter, Elizabeth Buggins, on request of the Secretary of State, published a review into the allocation of organs to non UK EU residents. The report's main recommendations were as follows:

a ban of private clinical practice involving solid organs donated after death within the NHS

changes to Secretary of State’s Directions and commissioning contracts to ensure NHS donated organs are only used for patients receiving their clinical care within the NHS, backed up by robust governance arrangements

the implementation of a universal and equitable allocation process for donated livers

the development of DH guidance to transplant centres to provide clarification within a complex domestic and EU legal framework on the eligibility criteria for people from abroad, and

that the Government works with colleagues across the EU to help build capacity in developing transplant programmes in Member States or to build reciprocal agreements between neighbouring countries

The Department of Health will now be working to implement these recommendations.

A full copy of the Review can be found at:

http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuid ance/DH_103515

In relation to the cross-border Directive, you are aware that the Commission have been giving more thought to the issue. Commission officials have said that they do not consider it possible to exclude organ transplantation (i.e. the surgical procedure) from the scope of the directive, because it is a medical procedure that would be covered by the case law on patient mobility. However, aware of the sensitivities around how Member States allocate organs, and the concerns of the European Parliament, they have suggested that organ allocation might be excluded from scope of the Directive. The Commission have cited some rare instances where the allocation of an organ and the actual organ transplant could occur separately and in different Member States. For example, a patient could have a family member willing to donate a 'live' kidney. They could both request that the surgical procedure be performed in another Member State – i.e. they are 'supplying' their own organ.

As excluding organ transplantation would leave a ‘grey’ area (because the case law would still apply), I believe this could be a neat legal and practical solution that addresses Member States’ concerns about organ allocation. My officials

will be discussing the implications of this potential solution further with other Member States during ongoing negotiations.

On the issue of whether certain types of provider can be excluded from the scope of the Directive; again, this is an issue that has undergone significant debate in Council working groups. As you are aware, the Government believes that the scope of the Directive should be broad, so that it effectively codifies the existing body of case law on patient mobility, which is clear that cross-border patients can be treated by private providers, even if they may not do so at home (for example, the Watts case). The Presidency has made a strong case for adopting a text that reflects the existing case law on patient mobility. I am hopeful that any remaining concerns on this issue from a minority of Member States can be addressed in forthcoming working groups.

General update.

I would like to take this opportunity to update you more generally on the progress of the Directive.

Negotiations have been advancing well, and the Presidency appears confident that political agreement can be reached at EPSCO (Employment, Social Policy, Health and Consumer Affairs) Council meeting on 1st December. I am optimistic that a text can be agreed during this time that meets our key negotiating objectives. Negotiations are, by nature, unpredictable, but at this stage I am content that they remain on a satisfactory course.

I will, of course, provide a thorough update to your Committee if a first reading text is agreed.

http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuid

Letter from the Chairman to Gillian Merron

Thank you for your letter of 14 December 2009 about this draft Directive.

We are grateful to you for telling us about the EPSCO Council’s discussions of the draft on 1 December and the blockage of a political agreement on it by a minority of Member States. We are also grateful for your offer of further progress reports and look forward to receiving them.

6 January 2010

Information about Prescription-Only Medicines (30290: 17498/08) (30308: 17499/08)


17498/08 Proposal for a Regulation of the European Parliament and of the Council amending, as regards information to the general public on medicinal products subject to medical prescription, Regulation (EC) No 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

17499/08 Proposal for a Directive of the European Parliament and of the Council amending, as regards information to the general public on medicinal products subject to medical prescription, Directive 2001/83/EC on the Community code relating to medicinal products for human use

I am writing in response to your letter of 10 September about these proposals that you are keeping under scrutiny.

Consultation MLX 358 that ran from 21 May has now been assessed by MHRA officials. MHRA received 54 responses which have now been published on the MHRA website along with a summary and the Government response. I am enclosing a hard copy of these for you.

Overall, the majority of respondents agreed with the Commission's proposal and the Government position, which is for a self-regulatory approach, underpinned by national enforcement measures. The majority of respondents did not state a preference for information to be pre-vetted. There was no support for establishing a new European body to approve information prior to dissemination.

We therefore intend to continue our support for the proposal until the European Parliament has given a view. We now expect the First Reading to be in March or April next year.

18 November 2009

ORGAN DONATION AND TRANSPLANTATION


Following your letter of 3 June to my predecessor, Dawn Primarolo MP, I am writing to update you on the latest position. Since your letter, Health Working Group (HWG) has met on 23 June, 16 September, 21 October and 3 November. Negotiations on the first read-through of the Organ Directive's Articles have just concluded. The negotiations have gone well and the Government believes that most of the UK's concerns have, thus far, been taken on board by the Commission and other Member States. However, we await the revised text to determine whether this is the case and expect to receive this early in the New Year under the Spanish Presidency. We also await the views of the European Parliament as co-legislator on this proposal.

At Health Working Group on 16 September, the UK raised the concerns expressed by your committee as to whether Article 152(4)(a) and Article

152(5) of the EC Treaty provided a sufficient legal basis for Articles 2, 13 and 15(1) of the draft Organ Directive. In addition, the UK raised similar concerns in relation to Article 9. A number of other Member States agreed that this issue needed examination. I will provide an update to your Committee once the outcome is known.

We have also had bilateral discussions with both the Commission and the upcoming Spanish Presidency to make sure our concerns on the Directive are well understood. In particular we have discussed:

• Authorisation: The UK Government is keen to ensure that the regulatory burdens arising from this Directive are as light touch as possible. We are concerned that, as it stands, the Directive would require us to specifically authorise all hospitals engaged in organ donation and transplantation. We think this could be unnecessarily bureaucratic and will seek to make this more flexible.

Role of the Competent Authority - delegation of functions: Though the UK Government is content with the role given to Competent Authorities under Article 18, we wish to allow the Competent Authority to delegate a number of its functions to other organisations.

• Technical annex: The UK wishes to ensure that the Directive does not prevent Member States from maintaining more stringent protective measures in addition to the minimum standards set out in the annex.

The upcoming Spanish Presidency intends to publish the revised Directive text early in the New Year. As soon as possible after this, I will write back updating you on the latest position and whether our concerns have been sufficiently addressed in the revised text.

30 November 2009

17501/08 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

17502/08 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


I am writing further to my brief update in November 2009, to update you on progress in negotiations on these proposals, to provide you with the outcome of our public consultation last year and to ask you if the committee would consider clearing scrutiny on these proposals in view of the possibility that Member States may be asked to vote on them at June’s Council meeting.

I last formally updated you on progress on these negotiations in November 2009, and although my officials have been in contact with the Committee Clerks since then, negotiations continued under the Swedish Presidency to the end of 2009, and there were not any significant developments to report.

Negotiations are now being taken forward by the Spanish Presidency, who have scheduled an ambitious programme of working group meetings and are beginning to make real progress in finding consensus on the wording of key provisions in the Commission’s proposals. In particular we expect the Council to adopt wording that is acceptable to the UK on the structure of the new Pharmacovigilance Risk Assessment Committee (PRAC), on representation from each Member State and the need for explanations to be given if other committees are minded not to accept their expert advice. We also expect there to be clear provisions that require an independent audit of the functionality of the EU database (Eudravigilance) and its ability to send relevant adverse reaction reports immediately to the appropriate Member State before we accept that companies may submit information about adverse reactions to their medicines direct to the EU database.

Other important proposals which the UK supports such as streamlining procedures and reducing duplication of effort between Member States have been retained, with widespread support amongst the Member States, as have proposals for risk management plans to be developed for each new medicine coming to the market.

We have also seen the draft report from the European Parliament (EP), and although the EP vote will not be until later in the spring, we are encouraged to see that the report adopts a position that is very similar to that of the UK on the key provisions. In particular it supports the view that the PRAC should include representation from each Member State.

The public consultation on these proposals took place between 8 June and 31 August 2009. MHRA received 19 responses to the consultation, and the vast majority of these offered support for our proposed negotiating position. A summary of responses is attached at Annex A for your information. You will note a reference to intensive monitoring markings in the summary of responses (paragraphs 10-13) – although the UK maintains support for this provision, and it is also supported by the EP draft report, the majority of Member States have not warmed to the proposal, and it may not, therefore, survive in the final text.

In summary, the Government’s position on these proposals is shared by a majority of Member States, and the Council working group is beginning to coalesce around the proposals as they are currently drafted. Although it remains unclear at present whether the Spanish Presidency can achieve sufficient agreement amongst all the Member States to allow them to include these proposals on the agenda for June’s Health Council for agreement, if they do manage to do so it would able most uncomfortable for the UK, as a strong supporter of these proposals, if we were not to be in a position to vote on the issue. We will continue to negotiate on all of the above areas to reach an acceptable outcome for the UK.

I hope that the above report will help you to lift this item from scrutiny. Please feel free to contact me if you have any further concerns and I will update you accordingly.

18 March 2010


Thank you for your letter of 18 March about the negotiations on these proposals and the responses to the Government’s consultation paper.

It appears from your letter that some encouraging progress has been made and that the Council is likely to reach agreement on some substantial amendments. We should be grateful, therefore, if you would deposit the revised texts well before the meeting of the Health Council in June. Meanwhile, we shall keep the original drafts of the amending Directive and Regulation under scrutiny.

24 March 2010

17504/08 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


I am writing further to my brief update in November 2009, to update you on progress in negotiations on these proposals and to ask you if the committee would consider clearing scrutiny on these proposals in view of the possibility that Member States may be asked to vote on them at June’s Council meeting.

I first notified you of the Commission’s proposed anti-counterfeiting measures in January 2009, setting out the key elements of the proposals and the proposed UK negotiating position on them. I last formally updated you on progress on these negotiations in November 2009, and although my officials have been in contact with the Committee Clerks since then, negotiations continued under the Swedish Presidency to the end of 2009, and there were not any significant developments to report.

Negotiations are now being taken forward by the Spanish Presidency, who have scheduled an ambitious programme of working group meetings and are beginning to make real progress in finding consensus on the wording of key provisions in the Commission’s proposals. The current position on the key elements in these proposals is as follows:

Wholesale distribution

The Commission wants to ensure that all parties involved in the distribution of medicines comply with the wholesale distribution requirements set out in Directive 2001/83/EC. This includes requirements to verify compliance with good distribution practice of the distributor supplying the product and to verify the manufacturer if importer holds a manufacturing authorisation. Under current arrangements, not all parties are required to comply with EU requirements. If, however, a medicine is to be exported to a 3rd country (outside the EU) there is no requirement for such products to have a licence or for an exporter to purchase or supply only holders of a distribution authorisation with the medicine.

These provisions are supported by the Government, and have been broadly agreed during Council negotiations. The European Parliament’s draft report also supports these measures.

Safety features

Safety features include measures to identify individual packs, a tamperproof seal and covert or forensic measures. The Commission proposlas had restricted this provision to prescription medicines, with a risk assessment to be undertaken that would allow certain prescription medicines to be excluded from the requirement.

Whilst we do not want safety features to be affixed to all licensed medicines (this would be disproportionate and not in line with Better Regulation principles), we do want the option in the legislation to extend the requirement for safety features beyond prescription-only medicines when there is a risk of them being counterfeited. The agreed UK position has therefore been to seek to ensure that the scope of this provision will allow safety features to be affixed to certain non-prescription drugs on a risk basis. For example, the weight-loss drug Alli (Orlistat) is supplied without prescription in the UK, and has now been counterfeited in the United States. Alli has been targeted by counterfeiters because it sells in high volumes and at a high price.

Support is growing amongst the Member States for an overall risk based approach to the application of safety features which, because it will include the cost of medicines as one element of the criteria for assessing risk, will ensure that most prescription medicines will be protected by the proposed safety features. Those likely to be excluded are lower-priced generic copies, which we have also argued should be exempted. We are therefore confident that the agreed position on this provision will meet UK requirements. The detail of the technology to be adopted for the safety features to apply in the EU will be set out in later EU legislation.

Wholesale dealers & good distribution practice

The Commission wants to ensure that wholesale dealers purchasing medicines from other wholesale dealers are required to verify that the supplying dealer is compliant with EU good distribution practices. Where the product is obtained from a manufacturer or importer, the wholesale dealer must verify that they hold an extant manufacturing authorisation. This will ensure reliability of business partners and compliance with good distribution practices throughout the supply chain.

These provisions are supported by the Government, and have been broadly accepted in Council negotiations. The European Parliament’s draft report also supports these measures.

Active pharmaceutical ingredient & excipients

The Commission’s proposals aim to strengthen requirements for imports of Active Pharmaceutical Ingredients (APIs) from countries outside the EU if it cannot be established that the regulatory framework in the respective 3rd country ensures a sufficient level of protection of human health for products exported to the EU (for example by regular audits of manufacturers of APIs). APIs are starting materials for medicines and are often manufactured outside the EU – in places such as China and India – and there is currently no formal mechanism for ensuring that they are manufactured in accordance with EU good manufacturing standards.

These provisions are supported by the Government, and have been broadly accepted in Council negotiations. The Parliament rapporteur’s draft report also supports these measures.

During negotiations proposals have also been brought forward for the introduction of a level of control over certain categories of excipients (products with no pharmaceutical effects that are added to medicines; for example to stabilise the formulation). There have been significant occurrences where poor quality or contaminated excipients have posed a risk to public health, and we agree that all components of a medicine should be subject to an appropriate level of regulation. We have agreed that this represents an important

addition to the Commission’s proposals and the inclusion of excipients in the anti counterfeiting proposals is also supported in the European Parliament’s draft report.

Inspections

The proposals strengthen rules for inspections, including increased transparency of inspection results through publication in the EU database managed by the European Medicines Agency (EMEA). This will ensure that cases of non-compliance as well as compliance with EU standards of good manufacturing compliance and good distribution practice are entered into the EU database. The Commission will also list the 3rd countries (ie outside the EU) that have implemented EU-level standards of good manufacturing practice.

These provisions are supported by the Government. However, there is continued uncertainty about how the Commission should confirm compliance by 3rd countries with appropriate standards of manufacturing practice. We believe that this must include more than a “paper exercise” and will be pressing for wording that will achieve our aim. There is growing support among other Member States for this view. The European Parliament’s draft report supports the measures as drafted by the Commission.

Medicines in customs free zones

The Commission has made proposals to develop detailed requirements to clarify the rules applying to medicines held in customs-free zones. There is currently legal uncertainty about the powers of entry and inspection in customs zones. Whilst final provisions and the detail are to be set out in separate texts, the Commission’s proposals will confer the power to the Commission to do this and these will now need to reflect changes in procedures introduced in the Lisbon Treaty, and on which the Council is currently working. There is strong support for greater clarity about powers that regulators have to operate within customs-free zones.

In summary, the Government is confident that it will reach its key negotiating objectives on measures to strengthen the supply chain. Member State opinions in the Council working group are beginning to coalesce around the proposed amended texts. Although it remains unclear at present whether the Spanish Presidency can achieve sufficient agreement amongst all the Member States to allow them to include these proposals on the agenda for June’s Health Council for agreement, if they do manage to do so it would able most uncomfortable for the UK, as a strong supporter of these proposals, if we were not to be in a position to vote on the issue.

I hope, therefore, that the above report will help you to lift this item from scrutiny. Please feel free to contact me if you have any further concerns and I will update you accordingly.

18 March 2010


Thank you for your letter of 18 March about this draft Directive.

We are grateful to you for giving us such a full explanation of the progress the negotiations have made in the Council working group. It appears that the text is likely to be amended to incorporate some changes of substance. We should be grateful, therefore, if you would deposit the revised text and provide an Explanatory Memorandum on it well before the amended draft is put to the Council for agreement. Meanwhile, the Commission’s draft remains under scrutiny.

24 March 2010

17498/08 PROPOSAL FOR A REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL AMENDING, AS REGARDS

INFORMATION TO THE GENERAL PUBLIC ON MEDICINAL

PRODUCTS SUBJECT TO MEDICAL PRESCRIPTION, REGULATION (EC) NO 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

17499/08 PROPOSAL FOR A DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL AMENDING, AS REGARDS

INFORMATION TO THE GENERAL PUBLIC ON MEDICINAL PRODUCTS SUBJECT TO MEDICAL PRESCRIPTION, DIRECTIVE

2001/83/EC ON THE COMMUNITY CODE RELATING TO MEDICINAL PRODUCTS FOR HUMAN USE


I am writing to update you progress of the proposals above, which remain under the scrutiny of the Committee.

There have been no developments since I wrote to you in November 2009 as the proposals have not been discussed in Council Working Group or by the European Parliament. I will write to you again when the First Reading has taken place.

22 March 2010


Thank you for your letter of 22 March about these proposals.

We note that there has been no discussion of the proposals in the Council working group or the European Parliament since you last wrote to us in November. We should be grateful if you would keep us informed about any developments. Meanwhile, the draft Directive and Regulation remain under scrutiny.

24 March 2010


SPANISH PRESIDENCY PRIORITIES FOR HEALTH OVER THE COMING MONTHS

I am writing to give you an overview of the programme of events that are planned during the coming months and to update you with the new Spanish Presidency’s priorities on Health. I hope this will assist you in planning the course of your scrutiny business.

The Spanish Presidency recently presented its programme on public health, pharmaceuticals and foodstuffs for the coming months.

During this Presidency, the Spanish priorities for Health will focus upon getting agreement on the Directive on Standards of Quality and Safety of Human Organs Intended for Transplantation, and advancing the pharmaceuticals package, including dossiers on Counterfeiting and Pharmacovigilance. The Spanish have also stated that Health Inequalities are a priority for them, and we anticipate the proposal of Council Conclusions in this area before the end of the Presidency, as well as Council Conclusions relating to the implementation of the Strategy for Europe on Nutrition, Overweight and Obesity Related Health Issues. Finally, the Spanish Presidency have indicated that they hope to progress proposals on the Directive on Patient Mobility and Cross-border healthcare.

You may also wish to note the following, which outlines the main programme of events in Health, taking place under the auspices of the Spanish Presidency:

18-19 Feb Expert conference on cardiovascular diseases

15-18 March Ministerial conference on eHealth

23-25 March High-level conference on organ donation and transplantation

12-13 April HIV-AIDS conference

19-20 April Conference on Mental Health and Older Persons

21 April Expert conference on health inequalities

22-23 April Informal Ministerial on health inequalities

3-4 June Expert conference on antimicrobial resistance and health care-

associated infections

8 June Health Council

10 February 2010


Thank you for your letter of 10 February about the Spanish Government’s priorities during its Presidency of the Council.

We were particularly interested to see that you expect the Presidency to propose Council Conclusions on health inequalities, nutrition and obesity. Conclusions sometimes have a decisive effect on the development of EU policy. We should be grateful, therefore, if you would tell us about the contents of the draft Conclusions and the Government’s views on them in good time for us to scrutinise what is proposed and respond to you before the Council adopts the Conclusions.

24 February 2010

HOME OFFICE

11453/06 COMMISSION WORKING DOCUMENT ON THE FEASIBILITY OF AN INDEX OF THIRD COUNTRY NATIONALS

CONVICTED IN THE EUROPEAN UNION


Further to Phil Woolas’s letter of 1 June I am writing to update the Committee to developments on the Commission’s work on the feasibility of an index of third country nationals convicted in the European Union.

The UNISYS study mentioned in Phil Woolas’s letter is now well underway, with visits having been made to 24 Member States, including the United Kingdom. The Commission hosted a meeting of national experts on 16 November in Brussels and another meeting is scheduled for January 2010.

The Committee will be aware that we have previously supported a fingerprint based solution. This remains the case. From the UNISYS visit and the meeting we think there is a growing consensus that only fingerprints provide the certainty that a person being prosecuted is the same as one who has previously been convicted. This does not mean that any index will necessarily be fingerprint based, but many Member States acknowledge that there is a qualitative difference between identifying own nationals, for whom good systems exist based around national identity registers, and identifying non-nationals whose identity is not tied to a national identity register.

On the other hand we are aware that, for most EU countries fingerprints are collected by the police, and criminal records maintained by the Ministry of Justice. This is of course in contrast to the position in the UK. Also unlike in the UK, fingerprints are not available for all convictions in much of the rest of the EU.

It is still being considered whether an index would be centralised, in which each Member State uploads fingerprints to a central database, or whether the system would be decentralised with provisions allowing each Member State to access the criminal convictions held in another Member State. Several Member States are unlikely to accept a system that requires manual intervention to confirm any possible hit.

There is no formal legislative proposal from the Commission. We do not expect anything to be issued in the next six months but the draft five-year JHA work programme, the Stockholm Programme, includes an invitation for the Commission to propose a register of third –country nationals who have been convicted by the courts of the Member States. There remains a possibility that the UNISYS study will not recommend any kind of index.

I will keep the Scrutiny Committees informed of any further substantive developments in this area, including on the outcome of the feasibility study and any legislative proposal in due course.


Thank you for your letter of 10 December about these proposals. The Committee was grateful for the detail you provided on the UNISYS study.

When finalised this will be an important proposal, and we look forward to a further update in due course.

13 January 2010

Reply to Commission Green Paper on obtaining evidence in criminal matters from one Member State to another and securing its

admissibility

Letter from Lord West to the Chairman

In December the European Commission published a Green Paper on 'obtaining evidence in criminal matters from one Member State to another and securing its admissibility'. Home Office EM 17691/09 of 2 December 2009 was submitted in relation to this.

As the Committee has had sight of the Green Paper I thought that you would be interested to see the UK response. The complete response is attached to this letter.

I would first point out that the UK considers the gathering of evidence and its admissibility to be two distinct issues; we do not believe these should be combined in one instrument. The reply makes this position clear.

Although the full reply is attached I would also draw your attention to the principal points in the UK reply.

Gathering evidence

• That the UK would support a new instrument that brought coherence and added value to the MLA system amongst EU member States;

• That the UK feels any such instruments must be as wide ranging as possible; however, that not all forms of MLA are appropriate in a mutual recognition instrument;

• That there should not be a blanket `one size fits all' deadline for execution;

• There must be a national security ground for refusal in any instrument;

That dual criminality should be maintained , insofar as it is in the current European Evidence Warrant Framework Decision, for coercive measures; and

That defence rights must be respected.

Admissibility

• The specific questions in this section appear to relate to common standards for gathering evidence rather than rules on whether that evidence will be admissible. However, given the reference to admissibility in the question and the importance of the area we have considered both evidence gathering and admissibility in our response.

• The UK does not support the adoption of one set of standards for evidence-gathering cross border. Standards vary between Member States, and we want Member States to be free to use higher standards if they wish.

• We could consider minimum standards for gathering particular types of evidence. The UK would need to be convinced of the need for action in these areas, however, and we would have to give further thought to what types of evidence this might involve and what standards could apply. We would also want to avoid the minimum being the lowest common denominator.

• The UK sees potential benefits in adopting clear and common procedures for evidence-gathering between Member States e.g. having an audit trail for evidence gathered in another Member State.

• Regarding admissibility, we have explained that the fact that evidence has been gathered according to the rules will not automatically make it admissible. This will depend on national rules on admissibility.

• The UK does not support introducing EU rules on whether evidence is admitted or how it is evaluated. Rules on admissibility of evidence function as part of a legal system as a whole, and it would be very difficult to change them in isolation. Member States have very different legal systems and rules on admissibility. Each Member State is therefore in the best position to decide how to alter its rules on admissibility at national level (if it feel it is appropriate to do so) without disrupting other areas of its legal system.

At this stage I would also like to highlight to the Committee the strong possibility of a member State initiative, led by Belgium and known as the European Investigation Order, being brought forward in the coming months. I will of course keep the Committee updated with any future developments.

26 January 2010

Letter from the Lord West to the Chairman

Thank you for your letter of 26 January 2010 enclosing the Government’s response to the Commission’s Green Paper. This was very useful for the debate which took place in European Committee B yesterday.

Thank you also for alerting us to the likelihood of a Member State initiative on the European Investigation Order.

9 February 2010

DRAFT COUNCIL FRAMEWORK DECISION ON PREVENTING AND COMBATING TRAFFICKING IN HUMAN BEINGS AND

PROTECTING VICTIMS, REPEALING FRAMEWORK DECISION 2002/629/JHA

Letter from Alan Campbell to the Chairman

Thank you for your letter dated 11 November, and for your notification that you have formally cleared the Explanatory Memorandum of 14 October.

You have asked for a further progress report following JHA Council on 23 October, and before the Council considers the draft Framework Decision on 30 November.

As my previous letter detailed, the draft Framework Decision was discussed at JHA Council on 23 October. We were able to lift the UK’s remaining scrutiny reservation, on Article 8. The remaining outstanding issues that other Member States had were also resolved, without substantial change to the text of 12 October.

The Presidency had originally stated that the Framework Decision would be taken for agreement at JHA Council on 30 November. However, given that the Lisbon Treaty will now come into force on the 1 December, the Framework Decision is instead listed on the agenda as an ‘Instrument for a Council Framework Decision on preventing and combating trafficking in human beings, and protecting victims’. It will be discussed as an orientation debate on day two of the JHA Council (1 December), which will clarify the way forward for this proposal.

I will therefore provide you with a further update following JHA Council on 30 November, when the situation is clearer.

EUROPEAN PACT ON DRUG TRAFFICKING


The EU Presidency has proposed a European Pact to Combat Drug Trafficking. This Pact has been discussed at COSI and at an informal `Friends of the Presidency' working group, but has yet to be agreed. However, we are bringing this to the attention of the Committees now for their information, as we anticipate that the Presidency may push to get the Pact agreed by the Justice and Home Affairs Council on 23 April.

The Pact is designed to complement the EU Drugs Strategy and the EU Action Plan on Drugs 2009-2012. It aims to identify specific areas where Member States could cooperate operationally to benefit the fight against drugs trafficking. The Pact focuses on three priority thematic areas:

Disrupting cocaine routes. The Pact will support the work of the regional information exchange centres; making better use of Europol strategic analysis; and supporting capacity building in transit countries.

Disrupting heroin routes. The Pact will aim to strengthen the effectiveness of Member States Liaison Officer networks in the West Balkans; strengthen the coordination of technical cooperation activities in that region; and to make more effective use of Europol resources.

a Countering the proceeds of crime. The Pact will look to encourage relevant third countries to strengthen their approach to confiscating criminal assets.

We will forward on the final version of the document as soon as we are able.

6 April 2010


Thank you for your letter of 6 April. We are grateful to you for alerting us to the possibility that the Spanish Presidency may ask the JHA Council to endorse the Pact on Drug Trafficking at its meeting on 23 April. We are also grateful to you for offering to send us the text of the Pact when available. We shall, of course, need to know the Government’s views on the proposals.

7 April 2010

EU-PAKISTAN READMISSION AGREEMENT


On 17 July 2009, Phil Woolas wrote to inform you that the UK had notified the President of the Council of its intention to participate in the signature and adoption of a European Community Readmission Agreement with Pakistan (7510/09).

The Agreement was signed by the European Community and by the Government of Pakistan on 26 October 2009. Subject to acquiring the consent of the European Parliament in May, the Agreement is now expected to be presented to the JHA Council for adoption in May/June. I attach the final copy of the Council Decision to conclude which has not changed in substance from that which was cleared by the Commons European Scrutiny Committee on 3 April 2009 and the Lords European Union Committee on 23 April 2009. The only changes are procedural to reflect:

(i) a new (corresponding ) legal base in TFEU;

(ii) in a recital, Ireland’s non participation; and

(iii) in Article 2, the fact that references in the text of the Agreement to “EC” should be read as references to the “EU” following the entry into force of the Lisbon Treaty.

The underlying Readmission Agreement is identical to that which was attached to the Council Decision of March 2009. We have considered whether the entry into force of the Lisbon Treaty between signature and conclusion of this measure re-triggers the UK’s opt-in Protocol. However, we have concluded that this proposal is not a new proposal within the terms of that Protocol and that our original notification to the Presidency of 29 May 2009 stands. This is reflected in Recital 6 of the Council Decision.

This position reflects that we have taken in relation to other proposals presented before the Lisbon Treaty entered into force but which are concluded post Lisbon such as the EASO Regulation. We believe that such measures can be distinguished from those where the legal base disappeared and was replaced by one which changed the fundamental working methods for negotiating and adopting the initiative e.g. those Framework Decisions which were agreed by unanimity and consultation with the European Parliament under Title VI TEU and which must now be re-tabled as Directives subject to QMV and co-decision, and consequently the UK’s opt-in. The only procedural change introduced following the Lisbon Treaty in relation to the current proposal is the need to acquire the consent of the European Parliament, which will be voting in May.

I apologise that you were not informed sooner of progress on this dossier. I know my officials have already been in touch with the Clerk to your Committee about this oversight. As you are aware we have, since events early in the year put in place arrangements to improve our handling of scrutiny to reflect the enhanced arrangements for consideration of the application of the opt-in. We have rolled out a full programme of training amongst policy officials on handling scrutiny and opt-in arrangements post-Lisbon, and these processes will remain a key element of the EU training programme being delivered across the Home Office and UK Border Agency in 2010. I am confident that the arrangements we now have in place will ensure that documents are deposited on time and regular updates are provided.

6th April 2010


Thank you for your letter of 6 April.

We are grateful for your progress report on the adoption of the draft Decision to conclude this readmission agreement with Pakistan. We see nothing in the re-presented draft of the Decision to call into question the decision we reached a year ago to clear the proposal from scrutiny.

7 April 2010

EUROPEAN ASYLUM SUPPORT OFFICE AND THE EUROPEAN REFUGEE FUND


I am writing to let you know that the Council adopted its first reading position on the Regulation establishing a European Asylum Support Office at the Justice and Home Affairs Council on 25 February 2010. Following political agreement between Council and Parliament at the end of last year, we expect the Regulation to be formally adopted soon (at a forthcoming European Parliament Plenary session).

At the same meeting, the Council also adopted its first reading position on the Proposal for a Decision of the European Parliament and of the Council amending Decision No 573/2007/EC establishing the European Refugee Fund (ERF). The Council’s Statement of Reasons makes it clear that, if the text is transmitted to Parliament as the Council’s position at first reading, the Chair of the LIBE Committee will recommend that the Council’s position be accepted without amendments in Parliament’s second reading, thus paving the way for early establishment of the European Asylum Support Office.

I enclose a copy of the text of both instruments as finally agreed by the Council, together with the draft Statements of the Council’s Reasons for adopting each instrument.

In my letter of 23 November 2009 I informed the Committee that an “in principle” political agreement on the Regulation setting up the European Asylum Support Office had been reached between the Council and the European Parliament. That agreement met the UK’s aim of creating an Office that will promote practical cooperation but without taking on decision making functions in areas that are best left to Member States.

The Statement of the Council’s Reasons on the Asylum Support Office sets out the key amendments that were made to the Commission’s original proposal in the negotiations that led up to that political agreement. These include:

clarification of the role of the Asylum Support Teams that will assist countries facing particular pressures on their asylum systems;

confirmation that the transfer of people with international protection from one Member State to another will only happen on an agreed basis;

confirmation of the selection process for the Office’s Executive Director;

clarification that an Executive Committee for the Office will only be established if the Management Board considers it necessary;

Clarification of the role of Non-Governmental Organisations- particularly the UNHCR- in the role of the Office.

In addition, the Statement sets out the Council’s response to the amendments proposed to the instrument by the European Parliament.

It was agreed at the Justice and Home Affairs Council of 30 November that the seat of the Office would be in Malta, which, as I explained in my letter of 23 November, was the Government’s preferred option. At the same time as the Regulation was adopted, the Council also too a formal decision to award the Office to Malta, and I enclose a copy of that.

In my letter of 23 November, I indicated that we would be tabling a Minute Statement on the adoption of the Regulation by the Council, calling on the Budget Authority to ensure that the agency is funded with resources reallocated from other Community Projects. However, the Commission has since made it clear that the Office’s funding for the first two years of its life will come exclusively from resources reallocated from the European Refugee Fund by the Decision that was adopted at Council on 25 February and separately from the European Migration Network. We therefore did not think a Minute Statement upon adoption was necessary, though we will continue to work with like minded Member States to ensure budget discipline, particularly in the third and subsequent years of the Office’s existence.

Now that the instrument setting up the European Asylum Support Office has been adopted, the next steps in the Agency’s creation will be as follows:

The appointment of the Management Board. This will consist of one representative of each Member State (except Denmark), two representatives of the Commission and a nonvoting representative of the UNHCR. The intention is that Member States will be represented by senior officials in their asylum services. The Commission is currently asking Member States to nominate their representatives;

The appointment of the Executive Director. The vacancy notice for this post was published in the EU’s Official Journal on 26 February, with a closing date for applications of 9 April. The appointment will be made by the Management Board after the European Parliament has given its opinion on the candidate that it is proposed to select.

We expect the Office to be fully established in Malta early next year. In the interim period until then, it will be managed by the Commission.

2 March 2010

AMENDED 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 (RECAST VERSION) (DOCUMENT 13263/09)


I am writing to let you know that the Government has decided that the UK should opt-in to this Regulation. This is in order to secure continued access to EURODAC for immigration purposes, as it plays a vital role in combating abuse of the UK's asylum system.

However, you need to be aware that, following the entry into force of the Lisbon Treaty, both the Regulation and the Council Decision granting law enforcement access to EURODAC (Document 13322/09) will need to be re-presented by the Commission under a new legal base. We therefore expect the Commission to table a new consolidated legal instrument which covers the subject matter of both instruments some time early next year when a new Explanatory Memorandum will be provided. There will consequently be a new opt-in decision for the UK which will apply to both the immigration and law enforcement aspects.

We are still considering the points raised by your Committee in its report of 21 October 2009 about law enforcement access to EURODAC, and will respond to these within the agreed three month deadline.

15 December 2009


Thank you for your letter of 15 December about these proposals.

We note that the Government has decided to opt into the legislation and that the Commission will be proposing a new measure, incorporating the present drafts of the Regulation and Decision, citing the appropriate legal base in the TfEU. We look forward to reading your EM on it.

6 January 2010

CONCLUSIONS FOR THE NEXT JHA WORK PROGRAMME (STOCKHOLM PROGRAMME)

Letter from Meg Hillier to the Chairman and Lord Roper

Thank you for your letters of 10 December. I am writing to update you on the finalised Stockholm Programme that was agreed at the European Council on 10-11 December 2009 and to respond to your report “The Stockholm Programme: Home Affairs”. The Stockholm Programme is an excellent document for the UK and will enable us to build on the many successes of JHA collaboration.

Phil Woolas wrote to you on 22 October with an overview of the first draft of the Council Conclusions. This noted that we had been successful in arguing for various points not originally in the Commission’s Communication (document 11060/09) and I can confirm that we have safeguarded the issues set out in that letter in the Programme.

Intensive negotiations followed on from the publication of the first draft Council Conclusions with, at some points, a new text circulated by the Presidency every other day.

The final Stockholm Programme shows that our negotiations brought further successes – much of the document contains UK drafting and reflects our priorities, although naturally there were points on which we had to compromise in order to secure wider negotiating objectives. I have outlined at Annex A a list of where the final document differs from the original draft Council Conclusions sent through to you in October, including commenting on the text relating to the two points raised in your letter of 10 December, namely the regulation of financial markets and the European Public Prosecutor. The final Stockholm Programme is at Annex B (although at the time of writing we understand that the Swedish Presidency is planning on providing an index and therefore the pagination and presentation may yet alter).

Your letter of 10 December expressed regret that we had not offered a more detailed analysis of the text. I am sorry that we were unable to provide a more rigorous assessment of the revised programme in my letter of 24 November. We judged that the need to let you have a copy of the text given the speed of negotiations outweighed the delay that would have been required to have provided the more detailed analysis that is now attached. As already indicated, changes to the text were moving so fast that any analysis would have been out of date by the time the letter issued.

In your report you criticised the fact that the work of the High Level Advisory Group on the Future of European Home Affairs Policy was conducted without any sort of public consultation or involvement and that the report it produced in June 2008 received scarcely any publicity. The Group was an informal initiative taken forward by the then Germany Presidency on which the UK had observer status on behalf of all common law Member States. We did however seek to ensure that Parliament was aware of its work and Baroness Scotland sent Lord Grenfell a letter on 17 July 2008 enclosing the report and noting that the report would be only one of several influences for the Commission in drafting their initial Communication.

Your report also recommends early action on any proposals leading from the Programme coming from the Commission. The Government supports this recommendation. The next stage will be an Action Plan which the European Council on 10-11 December invited the Commission to present and which had a deadline for adoption by June 2010 at the latest. We shall keep you informed of the details as this process takes place.

Your report notes that the Committee may wish to debate the Programme. I should be delighted to appear before the Committee to discuss its merits with you. I await proposed timings for such a debate through the usual channels.

4 January 2009


Thank you for your letter of 4 January with which you enclosed the final text of the Stockholm Programme which was approved by the European Council on 19-11 December 2009.

We are grateful for your overview of the approved programme and for your helpful explanation of the main differences between the final text and the Swedish Presidency’s original draft of the Programme.

We look forward to considering the draft Action Plan and your EM on it.

6 January 2010

DRAFT INTERNAL SECURITY STRATEGY


I wrote to you on 4th January to provide you with an update on the alterations leading to the final version of the Stockholm Programme. In that note I informed you that there would be a Spanish initiative for an EU Internal Security Strategy (ISS). I have enclosed a copy of the draft text at Annex A for your information. This was the subject of a discussion at the Toledo Informal JHA Council on 20-21 January and we expect it to be formally agreed at either a JHA Council or European Council during the Spanish Presidency. We expect the Commission to bring forward a Communication to take forward the ISS later this year / early next year, which we will of course deposit for scrutiny.

The Internal Security Strategy was a Spanish priority as part of the discussions on the Stockholm Programme aiming to create a more strategic approach to the dynamic between EU police cooperation, criminal judicial cooperation and border management. Section 4.1 of the Stockholm Programme calls for the Commission to:

"define a comprehensive EU internal security strategy based, in particular, on the following principles:

- clarity on the division of tasks between the EU and the Member States, reflecting a shared vision of today's challenges,

- respect for fundamental rights, international protection and the rule of law,

- solidarity between Member States,

- reflection of a proactive and intelligence-led approach,

- the need for a horizontal and cross-cutting approach in order to be able to deal with complex crises or natural or man-made disasters,

- stringent cooperation between EU agencies, including further improving their information exchange,

- a focus on implementation and streamlining as well as the improvement of preventive action,

- the use of 'regional initiatives and regional cooperation,

- the aim of making citizens aware of the importance of the Union's work to protect them."

The ISS defines Internal Security as "protecting the people and values of freedom and democracy, so that everyone can enjoy their daily lives without fear. It also reflects Europe's shared vision of today's challenges and our combined resolve to address these threats, where appropriate, with policies that harness the added value of the EU."

The ISS is split into two sections -- a 2 page foreword and a 12 page substantive section. The foreword is intended to be a political statement to be used by the Presidency with the press and adopted by a European Council. The second substantive element of the ISS presents in general terms the threats/challenges; the values and principles which should underpin future work; and ideas for future action. The ISS does not recommend specific initiatives beyond basic next steps to use COSI (the new Committee on Internal Security) to drive forward this work and for the Commission to write a Communication.

The ISS also calls (although not in the "next steps" section) for "A strategy to prevent and tackle threats such as organised crime". This is a major point of importance for the Government where you may recall that one of our objectives during negotiations on the Stockholm Programme was to initiate work on an EU Organised Crime Strategy. Section 4.4.1 of the Stockholm Programme states: "The European Council therefore calls upon the Council and the Commission: to 'adopt an organised crime strategy, within the framework of the Internal Security Strategy". The UK intends to present ideas to the Commission and Council as to the content of such a strategy drawing on the UK's Organised Crime Strategy "Extending Our Reach" (http://www.homeoffice.gov.uk/documents/extending -ourreach/extending-our-reach-accessible2835.pdf?view= Binary).

Article 4(2) of the Treaty on the Functioning of the EU states that matters of national security are reserved solely to each Member State. We are confident that the ISS as drafted does not stray into matters of national security, and it is unlikely that any Member

http://www.homeoffice.gov.uk/documents/extending

State will propose anything that touches on national security, but should anything be proposed along these lines the Government will argue against its inclusion.

27 January 2010


Thank you for your letter of 27 January about the Spanish Presidency’s note on an EU Internal Security Strategy.

Clearly, the proposals for that Strategy and the Organised Crime Strategy will be very important. So we read you letter and the Presidency’s note with great interest. We should be grateful if you would continue to keep us informed of developments.

3 February 2010

PROGRESS ON HOME OFFICE DOSSIERS


I am writing to update your Committee on likely progress of current and forthcoming Home Office dossiers in the areas of Freedom Security and Justice. The Ministry of Justice have written separately on their dossiers.

There will be two JHA Council meetings taking place before the end of the Spanish Presidency, on April 22-23 and June 3-4. We will provide the usual report after each Council.

The EU Internal Security Strategy (ISS) is likely to be agreed at the Spring European Council on 25 and 26 March following agreement by JHA Ministers in February.

On organised crime and drug trafficking in West Africa, Latin America and the Caribbean, the Presidency will compile a matrix of existing initiatives and structures at EU, national and regional level.

The EU Pact on Drugs is designed to suggest potential avenues for operational cooperation between Member States, and EU institutions, in the fight against drug trafficking, particularly with regard to the cocaine route, heroin route and money laundering. As such, it complements the EU Drug Strategy and Action Plan on Drugs 2009-2012. The UK government is supportive of the principles of the Pact. I will forward a copy of the Pact as soon as possible.

A proposal for a new Directive on combating trafficking in human beings is expected at the end of March to replace the Framework Decision which was under negotiation when the Lisbon Treaty came into force. Agreement in principle was reached on the text of the Framework Decision on 1 December 2009 at the JHA Council. The Government is keen to ensure that this text is used in the replacement Directive.

We understand that the Commission is aiming to publish the proposal for an Action Plan to implement the Stockholm Programme in April with a view to its adoption by the June Council. I attended the EUC to give evidence on this on March 17.

On migration, Spain will undertake the first annual assessment of the European Pact on Immigration and Asylum which gained political agreement under the French Presidency. The Pact sets out the fundamental principles, priorities and aims of a common migration policy. Informed by reports from all Member States and other sources the Commission supported by Spain will compile an evaluation report on the Pact, which will be adopted following a discussion at the JHA Council in June. This will enable the European Council to monitor how far the EU and Member States have implemented their commitments in the Pact.

The Spanish will also progress work on a range of Commission proposals on the Common European Asylum System (CEAS). These include recasts of the Dublin Regulation, the Eurodac Regulation, and the revised Reception Conditions Directive as well as the Asylum Procedures Directive and Qualification Directive. We have not opted-in to the last three, but are committed to participating actively in the negotiations with a view to reconsidering the issue post-adoption if our concerns about them are met. The Presidency will aim to complete negotiations on the establishment of a voluntary EU resettlement scheme, and accompanying changes to the European Refugee Fund.

Earlier this month you received an EM on the Commission’s proposal to amend the Frontex Regulation. The Spanish will give this proposal a high priority as the JHA Council have said they are keen to seek agreement on the Commission’s proposal as a matter of urgency in order to reinforce the capabilities of the Frontex Agency.

You have recently received an update on the “protection of animals used in experiments” dossier. We expect the final text of the Directive to be agreed shortly and to be presented to an Agriculture Council for adoption between April and the end of the Spanish Presidency on 30 June.

The Spanish have given high priority to a new proposal for a Passenger Name Records Directive being issued by the Commission. However, the latest indication from the Commission is that a new proposal will not be published until June 2010, despite lobbying from the UK and other Member States for this to be brought forward.

A Belgian led Member State initiative, the European Investigation Order, was expected to be tabled before the end of March but has been delayed. There is current uncertainty as to progress as a final co-sponsor has yet to be found. The UK is supportive, in principle, of this initiative. There are, however, concerns over whether such an instrument will take sufficient account of the common law system and whether a ‘one size fits all’ approach to deadlines would be workable. I expect an opt-in decision might need to be taken in June.

The Commission is likely to propose a further longer-term Terrorist Finance Tracking Programme (SWIFT) Agreement to replace the measure defeated by the European Parliament on February 11. HM Treasury updated the Committees on 13 February on this. It is believed that the April JHA Council will be asked to agree the negotiating mandate with a view to conclusion of the agreement itself at the June JHA Council.

A number of outstanding European Free Trade Association agreements with the EU, concerning various aspects of Schengen acquis participation, were signed before the Lisbon Treaty came into effect, but these now require separate conclusion. The texts are in preparation and publication times are not yet known.

I will continue to ensure the Committees are updated with measures as they progress during recess and any period of prorogation.

25 March 2010


Thank you for your letter of 25 March. We are grateful to you for telling us about the business which is likely to be put the JHA Council in April and June and on which there will be Ministerial statements after the meetings.

30 March 2010

SPANISH PRESIDENCY PRORITIES FOR JHA ISSUES OVER THE NEXT SIX MONTHS


I am writing to give you an overview of the Spanish Presidency's priorities for JHA issues over the next six months in terms of those dossiers covered by the Home Office. I hope that this will assist in the planning of your scrutiny of dossiers heading to the JHA Council in this period. For information, the current timetable for consideration of dossiers at JHA Councils under the Spanish Presidency is:

- 20-22 January (informal Council, Toledo)

- 25-26 February (Brussels)

- 22-3 April (Luxembourg)

- 3-4 June (Luxembourg)

The Spanish will take over the rotating EU Presidency on 1 January 2010, against a changed JHA political context. On 1 December the Lisbon Treaty came into force bringing substantial changes to the police and criminal law arrangements. The ordinary legislative procedure will be Qualified Majority Voting (QMV) in the Council and co-decision with the European Parliament for former third pillar measures. There will be an extension of the UK's JHA opt-in to measures previously under this pillar. We will also now be working with two JHA Commissioners on JHA business - one covering Justice, Fundamental Rights and Citizenship and one covering Home Affairs. They will be responsible for driving forward delivery of the new JHA work programme, the Stockholm Programme, which was adopted at the European Council on 11 December.

As a result of the Lisbon Treaty coming into force, all JHA measures with a legal base in the Treaty on the European Union, i.e. police and judicial co-operation, which were not adopted by 30 November have now lapsed and will have to be replaced with new proposals. We would not expect that process to begin before the new Commission is in place unless there is a clear need in any specific case. The Commission will be presenting a detailed plan of action which is to be adopted by June 2010.

There are also eight EU Agreements with third countries, agreed under the TEU, for which Council Decisions to conclude are expected to be presented just before the end of this year. As With all legislative proposals presented pursuant to Title V of the Treaty on the Functioning of the European Union, the UK opt-in will need to be exercised in relation to such measures. These are:

- 2009 "SWIFT" "Agreement with US on the processing and transfer of Financial managing Data from the EU to the US for purposes of the Terrorist Finance Tracking Program

- 2009 Agreement with Japan on mutual legal assistance in criminal matters

- 2003 Agreement with the Republic of Iceland and Norway on the application of certain provisions of the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union and the 2001 Protocol thereto

- 2006 Agreement with the Republic of Iceland and Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway

- 2007 Agreement with the US on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the US Department of Homeland Security

- 2008 Agreement with Australia on the processing and transfer of EU-sourced passenger name record (PNR) data by air carriers to the Australian Customs Service.

- 2008 Protocol with the Swiss Confederation and Liechtenstein on the Accession of Liechtenstein to the Agreement between the EU, the European Community and the Swiss Confederation on the Swiss Confederations Association with the implementation, application and development of the Schengen acquis.

- 2009 Agreement with Iceland and Norway on the application of certain provisions of Council Decision 2008/6I5IJHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime and Council Decision 20081616/JHA on the implementation of Decision 2008/015/JHA on the stepping up of cross border cooperation, particularly in combating terrorism and cross-border crime, and the Annex thereto.

On the home affairs agenda, the top priority for the Spanish will be to seek agreement on an EU Internal Security Strategy (ISS) by March 2010. This is intended to explain to EU (and wider world) citizens the challenges that the EU faces on security and set out the principles for tackling them. The UK has been arguing for a text that is focused and accessible. The UK sees the development of an EU Organised Crime Strategy to establish priorities for EU work and bring together relevant action as a related priority. The draft text of the ISS will be presented at the informal JHA Council in January.

Spain is also seeking to strengthen the EU-US relationship on security-related issues including a proposal for a joint political (not operational) statement on the fight against terrorism to iron-out current differences in approach. The Spanish would like it to be agreed at the EU-US Troika Ministerial meeting in April and presented at the JHA Council the same month. This is part of a wider initiative to deepen transatlantic cooperation building on the recently adopted EU-US statement in October 2009 on "Enhancing transatlantic cooperation in the area of justice, freedom and security" which sets out a broad vision for co-operation. The UK supports this Declaration which widely reflects our own transatlantic JFA priorities and aids our own bilateral objectives.

In addition to their Internal Security Strategy, the Spanish are proposing a number of new initiatives. The Spanish want to develop police cooperation between EU Member States by agreeing Council Recommendations "setting out a simple way to establish joint police teams" for large events such as international sports fixtures or demonstrations. These recommendations would be based on Article 17 of the prune Council Decision. It is the UK's view that Article 17 already adequately allows for such teams to be created though this opportunity has not been exploited widely. The UK's view is that little benefit will be derived and establishing a harmonised and possibly over bureaucratic approach will simply discourage cooperation. Spain are also looking to negotiate Council Conclusions on a programme, originally suggested by the French during their Presidency, which would import the concept of the Erasmus student exchange scheme to the area of police training for middle to high-ranking police officers. The UK position is that a review should be undertaken to provide clarity on the terms of reference, costs and benefits of the proposal.

The Spanish will give high priority to any new proposal for a Passenger Name Records Directive issued by the Commission during their Presidency, though the Commission have not yet confirmed when such a proposal will be issued.

On organised crime and drug trafficking in West Africa, Latin America and the Caribbean, the Spanish Presidency will compile a matrix of existing initiatives and structures at EU, national and regional level. This will provide a clear overview of the existing work in this area and make recommendations to ensure more effective coordination of effort.

The Spanish are also seeking to raise awareness of gender-based violence through promoting best practice in the areas of risk analysis, prevention and protection. They will hold two seminars and present Conclusions to the JHA Council. This is a priority for the UK and we are fully supportive of this commitment.

Spain also intends to highlight work on victims' rights. They will bring forward a Member State initiative; the European Protection Order, which will be aimed at ensuring that victims, but primarily those of domestic violence benefit from

Protection wherever they are in Europe. The Government would support this in principle. A MoJ lead but the Home Office have a keen interest in this issue.

A Belgian led Member State initiative, the European Investigation Order, is also likely to be tabled under the Spanish Presidency. The Spanish are likely to co-sponsor this initiative. The instrument will be based on mutual recognition and aim to provide a coherent and comprehensive system for mutual legal assistance in criminal matters (MLA) amongst member States. The UK believes the current MLA system to be fragmented and lacking coherence and is supportive, in principle, of this development. We do, however, have concerns over whether such an instrument will take sufficient account of the common law system.

Spain has called on the Commission to bring forward a proposal for a Directive on combating trafficking in human beings as a matter of urgency to replace its proposal for a new Framework Decision which was not adopted prior to entry into force of the Lisbon Treaty. It would like to make progress on negotiations during its Presidency.

Spain will inherit a number of dossiers from he Swedish Presidency which will include the development of an Action Plan to implement the Stockholm Programme adopted under the Swedish Presidency in December. We expect this Plan to be adopted by the June Council.

On migration, Spain will undertake the first annual assessment of the European Pact on Immigration and Asylum which gained political agreement under the French Presidency. The Pact sets out the fundamental principles, priorities and aims of a common migration policy. Informed by reports from all Member States and other sources the Commission supported by Spain will compile an evaluation report on the Pact, which will be adopted following a discussion at the JHA Council in June 2010. This will enable the European Council to monitor how far the EU and Member States have implemented their commitments for the Pact.

Spain would like to make progress on managing the increasing number of Unaccompanied Minors arriving in Member States and are likely to focus on preventing minors travelling to the EU, protecting them while they are here and ensuring effective and safe methods of return. They have also expressed a wish to move forward on European legal migration initiatives now that the Lisbon Treaty has moved this area of work from unanimity to QMV and co-decision.

The Spanish will also progress Work on a range of Commission proposals on the Common European; Asylum System (CAS). These include recasts for the Dublin Regulation, to tackle asylum shopping by determining Member State responsibility for deciding an application for asylum - often the first Member State in which the asylum seeker entered the E U; the Eurodac Regulation, governing the operation of the fingerprint database supporting the Dublin Regulation; the revised Reception Conditions Directive (to which we have not opted-in, though we are committed to participating actively in the negotiations) and the Asylum Procedures and Qualifications Directives (which we are currently considering under the three- month opt-in process). The Eurodac Regulation is likely to be represented by the Commission so that it includes measures on law enforcement that were brought forward under the pre-Lisbon legal basis last September. We also expect to see formal adoption of the proposal to set up a European Asylum Support Office in Malta, political agreement on which was reached under the Swedish Presidency. Finally the

Presidency will aim to complete negotiations on the establishment of a voluntary EU resettlement scheme, and accompanying changes to the European Refugee Fund.

To strengthen Frontex the Commission, in light of its own evaluations and that by the Management Board carried out under Article 33 of the Frontex Regulation, has proposed to bring forward further legislation amending the Regulation by February 2010, Spain proposes this legislation should allow Frontex to acquire its own equipment where it is not made available through the Centralised Register of Available Equipment (CRATE). The UK is excluded from full participation in the Frontex Regulation on Schengen grounds however we participate in Frontex operations and other activities on a case by case basis in the role of advisers/observers. To maintain our current level of involvement in joint operations the UK is keen to ensure that any changes to extend the remit of Frontex enable UK staff to receive the same protection from civil and criminal liabilities as do "guest officers" from the Schengen States during Frontex operations.

The development of SIS II will reach a critical point early in the Spanish Presidency, as the first milestone test is scheduled to take place before the end of January. This will give Ministers greater clarity on the Commission-led project and enable a decision on the future development of the system. Negotiations on the proposed IT Agency which would manage SIS, VIS and the Eurodac systems will also continue under the Spanish Presidency, on the basis of a renewed post-Lisbon proposal from the Commission. The UK supports the need for an Agency.

The UK welcomes the Spanish Presidency's focus on counter-terrorism, which will centre on the prevention of radicalisation and explosives. Spain seeks to develop a standardised tool for the collection of data on violent radicalisation, and will propose Council Conclusions on two initiatives to encourage implementation and improve control in the area of explosives. The Commission will also propose a negotiating mandate for a longer-term Terrorist Finance Tracking Programme (SWIFT) Agreement. The EU-US Agreement which was recently signed should last a maximum of nine months, and the Commission has committed to present its mandate early in the New Year.

18 December 2009


Thank you for your letter of 18 December about the new Presidency’s priorities.

We are grateful to you for providing such a comprehensive account of the Spanish Presidency’s aims. As you say, they are ambitious. We look forward to considering the individual proposals when they are deposited and to receiving the Government’s views on them.

13 January 2010

PROPOSAL FOR AN INFORMATION MANAGEMENT STRATEGY FOR EU INTERNAL SECURITY (11312/3/09)


On 22 October 2009 Phil Woolas wrote to your Committee concerning the future five-year work programme in the field of Justice and Home Affairs (frequently referred to as the "Stockholm Programme"). As you are aware, section 4.2.2. (Managing the flow of information) of the programme calls for the Council to:

"implement an EU Information Management Strategy. Development must be coherent with the priorities set for the area of freedom, security and justice and the internal security strategy, supporting the business vision for law enforcement and judicial cooperation."

The EU Information Management Strategy was mentioned by Phil Woolas at a recent Lords European Union Committee hearing (14 October) and by Lord Bach before the Justice Select Committee (3 November). I would like to take this opportunity to provide further information on this strategy and to inform you of the progress of its negotiations, which are currently underway in the Council.

The strategy would create a coherent set of over-arching principles which should guide all future information exchange at both the national and cross-border level. It is founded upon an extended version of the principle of availability which is based on the following premise: a law enforcement officer in one Member State who needs information from another State in order to perform his duties should be able to obtain this information from the other State, and the law enforcement agency of that State should make the information available for the stated purpose.

Other important principles of the strategy include requirement (information exchange should be based on identifiable needs), rationalisation (existing instruments should be used before embarking on new initiatives),

interoperability and professionalisation (IT systems should be business-driven and cost effective).

The protection of personal data will remain a crucial aspect of all future information exchange. According to the strategy, data protection will be strengthened through better-targeted data collection, organisationally and technically comprehensive data security regimes, and the establishment of systematic evaluation and monitoring mechanisms.

The strategy does not, however, attempt to identify new potential information systems or areas where information exchange could be extended. It does not force Member States to alter their existing national systems and will remain an instrument to be used for guidance purposes. It has a long term focus and is not intended to be immutable. Instead, it shall be further developed and updated to reflect the JHA vision of the day (for example, as stated by the Stockholm Programme).

The current proposed strategy is split into the following focus areas:

1. Needs, requirements and added value are assessed as a precondition for development.

2. Development follows agreed law enforcement workflows and criminal intelligence models.

3. Development supports both data protection requirements and business operational needs.

4. Interoperability and co-ordination are ensured both within business processes and technical solutions.

5. Re-utilisation is the rule: do not re-invent the wheel.

6. Member States are involved from the very start of the process.

7. There is a clear responsibility for each part of the process, ensuring competence, quality and efficiency.

8. Multidisciplinary coordination is ensured within the JHA area.

The UK led the way in pressing for an information management strategy. As a result, the current version reflects to a considerable degree the Government's view on how future European information exchange should be managed. The Government agrees that Member States should have a greater involvement in the process, reutilisation should be encouraged to reduce costs and complexity, and greater attention should be paid to data

protection. The strategy should also ensure new systems are based on need and requirement.

Amongst the Member States at official level, there is broad agreement on the substance of the strategy. We are all of the opinion that European data-sharing systems need to meet defined needs and be supported by strong data protection. However, discussions continue on the scope of the Strategy and the extent to which the information management strategy will apply.

The Government is of the opinion that this strategy should be wide-ranging, extending beyond the sphere of pure policing and judicial cooperation. Interoperability and coordination of systems are key areas for the strategy, and it would therefore make little sense for it to apply to only a minimum number of systems and spheres. We have therefore argued for a wide remit, proposing that the strategy should be applied to not only police and judicial cooperation, but also border control (including immigration and customs). There is much support for this position from other Member States. Agreement, however, has not been reached due a small number of delegations arguing for a narrower scope. We expect this issue to go to senior officials and to Ministers at the November JHA Council for a decision and hope that the Presidency will be able to present the strategy in conclusions language at the JHA Council.

24 November 2009


Thank you for your letters of 24 November and 14 December about the draft the Directive.

We are grateful to you for explaining the background to the Strategy and the principles it is based on. If we have understood correctly, the Council Conclusions of 30 November allow the Strategy the wide scope for which the UK argued but give Member States discretion to apply the Strategy progressively, gradually widening the scope as best fits their circumstances. This appears to be a reasonable and practical compromise.

6 January 2010

PROTECTION OF ANIMALS USED FOR SCIENTIFIC PURPOSES


I am writing to update you on progress with the proposal for a new directive for the protection of animals used in scientific procedures published by the European Commission in November 2008.

Following recent progress in Council discussions, the Swedish Presidency may seek political agreement on an amended text at the December Agriculture Council. I am afraid I do not have a published document from the Presidency, but I attach the most recent text we have to hand.

In negotiating the proposal we have aimed to ensure that the revised directive makes proper provision for the welfare of experimental animals and at the same time avoids imposing disproportionate or unjustified regulatory burdens that could undermine the

success and sustainability of European research. We also identified the following specific areas of concern in the Commission’s proposal and subsequent European Parliament and Council texts:

the proposed restriction of non-human primate use to research into life-threatening or debilitating clinical conditions in human beings;

the provisions limiting the use of non-human primates to F2 or F2+ animals, i e, animals which are the offspring of captive-bred animals;

the proposed framework for the re-use of animals;

the inclusion of classes of invertebrates within the scope of the directive;

the lack of details of the severity classification system to be applied to procedures under the directive;

omissions and errors in the annexes on standards of care and accommodation (Annex IV) and humane methods of killing animals (Annex V) and timescales for implementation;

proposals to allow notification or ‘tacit approval’ of projects;

proposals relating to data sharing and national reference laboratories.

Substantial progress on these issues is reflected in the current text:

Article 8 now includes a definition of ‘debilitating clinical condition’ which encompasses almost all current uses of non-human primates allaying most of our earlier concerns that important areas of work might be prohibited; however, discussions continue with the European Parliament in connection with its amendment 57 - for which we have previously indicated our support - which would remove the terms life-threatening and debilitating; its adoption would remove concerns that decisions based on the Presidency’s definition could be open to legal challenge if there are disputes over its correct interpretation;

Article 10 includes a requirement for a feasibility study on the required move to the use of F2 and F2+ non-human primates; the study is to be published within five years of transposition of the directive;

the text also now requires the Commission to conduct a study to establish the feasibility of sourcing non-human primates exclusively from self-sustaining colonies: this study is to be published no later than ten years after transposition;

details of a severity classification system are now set out in a new Annex IX based on the work of an expert working group which met in July 2009; the text also sets an upper limit to severity;

the text now makes better provision for the responsible re-use of animals;

cephalopods are the only invertebrates remaining within scope, decapod crustaceans having now been dropped from the text;

Annexes IV and V have been been substantially amended (with detailed input from the UK) to correct the technical errors and omissions in the original text; and the deadline for implementation of care and accommodation standards has been set at January 2017;

Member States agree that all projects should be subject to ethical evaluation and prior authorisation and have not supported EP Amendment 167 which would allow projects involving mild and non-recovery procedures to be notified to the competent authority;

proposals for ‘tacit approval’ of projects have been dropped; instead the text would allow Member States to introduce ‘simplified administrative procedures’ for specified categories of projects containing procedures classified as ‘non-recovery’, ‘mild’ or ‘moderate’ and not using non-human primates. Member States will be required to ensure that a project evaluation is performed for projects covered by such procedures;

the requirement for data sharing has been removed from the text, but a requirement for mutual acceptance by Member States of data generated by procedures recognised by Community legislation has been retained;

the requirement for national reference laboratories has been dropped and instead a requirement is placed on the Commission to consult Member States in setting priorities for validation studies and the allocation of tasks to laboratories nominated by Member States;

the text now emphasises a risk-based approach to inspections; however, it seems likely that a minimum frequency will be set for user establishments - discussions continue on this point;

Article 53 now proposes review of the directive five years after transposition.

Trilogue discussions between the Presidency, the Commission and the European Parliament are underway and a First Reading agreement may be possible. However, should obstacles to such an agreement arise, the Swedish Presidency may seek political agreement on its amended text at the December Agriculture Council. In that case, on the basis of the progress outlined above, I intend that to support the Council text we anticipate will be presented to the Council.

TRANSFER OF PASSENGER NAME RECORDS CONCERNING FLIGHTS FROM THE EU TO AUSTRALIA (Document 31229)


I am writing in response to your scrutiny report of 3 February 2010, in which you requested an explanation for the delay in depositing the draft Council Decision on the conclusion of the EU-Australia Passenger Name Record (PNR) Agreement (Council No. 17686/09), and for the delay in depositing the accompanying Explanatory Memorandum (EM).

The delay was most regrettable and I would like to offer my deep apologies for this. I fully accept that this contravened the undertaking in Baroness Ashton’s statement on JHA opt-ins. The delay in depositing the draft Council Decision occurred because the document was published just prior to the Christmas period and officials consequently only became aware of it in the New Year. The accompanying EM was delayed as a result, for which I also offer apologies. This same situation arose with the proposal to conclude the EU-US PNR Agreement (Council No. 17697/09), the deposit of which was also delayed.

I assure you that we remain fully committed to the new procedures following the ratification of the Lisbon Treaty and that we take our responsibilities to the Scrutiny Committees very seriously. We will work closely with colleagues in the Cabinet Office and FCO in taking a very proactive approach in this area, to ensure that any such delays do not occur in the future.

As indicated in the EM, our deadline for opting in to this measure and the EU-US PNR Agreement is 17 March. We therefore have yet to finalise our decision on UK participation, although I am of the view that we will wish to opt-in to both Agreements. To that end, if the Committee does have any views on the UK’s participation in the substance of what is proposed we would factor that into our final deliberations.

9 February 2010



The Committee notes your apology and explanation for the delay in depositing the Decision to

conclude the above-mentioned agreement and the accompanying Explanatory Memorandum.

The eight-week period which the Committee has to scrutinise opt-in decisions is tight, so a

delay of four weeks in depositing an Explanatory Memorandum is unacceptable in any

circumstances, including over the Christmas period.

We very much hope that you succeed in ensuring that such delays will not occur in the future.

24 February 2010

TRANSFER OF PASSENGER NAME RECORDS CONCERNING FLIGHTS FROM THE EU TO THE US (DOCUMENT 31238)

I am writing in response to your letter of 3 March, in which you asked for a list of the exceptions to accessing PNR data held in the US that apply to EU passengers, and the reasons for which those exceptions can be invoked. The details are provided below. As stated in my letter of 23 February, these exemptions apply equally to US and EU citizens.

The exemptions under the Freedom of Information Act are listed at paragraph 552(b) as follows:

(b)

This section does not apply to matters that are—

(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;

(2) related solely to the internal personnel rules and practices of an agency;

(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;

(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

(9) geological and geophysical information and data, including maps, concerning wells.

Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.

(c) (1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) and—

(A) the investigation or proceeding involves a possible violation of criminal law; and

(B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.

(2) Whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the agency may treat the records as not subject to the requirements of this section unless the informant's status as an informant has been officially confirmed.

(3) Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1), the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.

(d) This section does not authorize the withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.

The exemptions under the Privacy Act 1974 are listed at paragraph 552a as follows:

(j) General exemptions

The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this title, to exempt any system of records within the agency from any part of this section except subsections (b), (c) (1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) if the system of records

is--

(1) maintained by the Central Intelligence Agency; or

(2) maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of (A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or (C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.

At the time rules are adopted under this subsection, the agency shall include in the statement required under section 553(c) of this title, the reasons why the system of records is to be exempted from a provision of this section.

(k) Specific exemptions

The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this title, to exempt any system of records within the agency from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of this section if the system of records

is--

(1) subject to the provisions of section 552(b)(1) of this title;

(2) investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) of this section: provided, however, that if any individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence;

(3) maintained in connection with providing protective services to the President of the United States or other individuals pursuant to section 3056 of Title 18;

(4) required by statute to be maintained and used solely as statistical records;

(5) investigatory material compiled solely for the purpose of determining suit ability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence;

(6) testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service the disclosure of which would compromise the objectivity or fairness of the testing or examination process; or

(7) evaluation material used to determine potential for promotion in the armed services, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence.

At the time rules are adopted under this subsection, the agency shall include in the statement required under section 553(c) of this title, the reasons why the system of records is to be exempted from a provision of this section.

Note also the exemption in paragraph 552a (d)(5) which states that:

"nothing in this section [of the Act] shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding."

19 March 2010

UK'S EXERCISE OF THE OPT-IN


I am writing to inform you that the UK has exercised its right to opt in to six dossiers.

The UK has informed the Council President of its decision to opt in to the three EU-third country judicial co-operation agreements. These are:

Proposal for a Council Decision on the conclusion of the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the. European Union and Iceland and Norway (17706/09)

Proposal for a Council Decision on the conclusion of the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the application of certain provisions of the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union and the 2001 Protocol thereto (17703/09), and

Proposal for a Council Decision on the conclusion of the Agreement between the European Union and Japan on the mutual legal assistance in criminal matters (17708/09)

The Committee will no doubt recall that they were favourable to the UK opting in to these Council Decisions. I trust therefore that they will welcome the UK's final decision to take part in these agreements.

The remaining dossiers in which the UK will participate are:

the EU-United States (17697/09) and EU-Australia Passenger Name Record (17686/09) Agreements, and

the extension of Prum arrangements to Norway and Iceland

(17709/09);

The letter concerning our intention to take part in the agreement with Iceland and Norway on cross border crime and terrorism (Prom agreement) also said that, as Gibraltar does not participate in the underlying measure and the negotiation and signing stage occurred before the entry into force of the Lisbon treaty, the UK notes that the conclusion of the agreement does not extend to Gibraltar.

24 March 2010


Thank you for your letter of 24 March which confirmed that the UK had opted into six international agreements in the field of Freedom, Security and Justice.

30 March 2010

USE OF PASSENGER NAME RECORDS (PNR) FOR LAW ENFORCEMENT PURPOSES (DOCUMENT 30735)


I am writing to update you on the progress of negotiations concerning the use of Passenger Name Records (PNR) for law enforcement purposes (Document 30735). In your scrutiny report of 28 October you cleared documents 30385 and 30651 but held document 30735, pending further information. In particular, you requested to be kept informed on the progress of negotiations relating to the legal base, 100% PNR data collection, the length of time PNR data is retained, and precautions against misuse of PNR data by third countries.

I can tell you that since the draft Framework Decision was published by the Czech Presidency on 29 June, there have been no further negotiations at working group level, following the Swedish Presidency’s decision not to hold discussions on PNR until the Treaty of Lisbon was enacted. According to a communication from the European Commission dated 2 December, documents formerly presented under Title VI of the Treaty on European Union and that from now on fall within the scope of the new Title V of the Treaty on the Functioning of the European Union, will be formally withdrawn and will, for the most part and as soon as possible, be replaced with new proposals that will take account of the new framework of the Treaty of Lisbon. This includes the PNR document.

As ever, I will endeavour to keep you informed of developments in negotiations as soon as the PNR document is re-tabled.

MINISTRY OF DEFENCE

Letter from Quentin Davies to the Chairman

At the debate on the European Defence Agency (EDA) on the 1 March 2010, I promised to write to the Committee Members to provide further information and clarification on a number of issues:

i) EDA involvement in veterans’ medical care

While the EDA is currently not involved in work into mental health and post traumatic stress disorder, the UK (and other Member States) have asked the EDA to be more aware of work in NATO and other International Organisations in order to identify areas where EDA work could add value. As such, we will explore whether there would be merit in the EDA acting in these fields. This may take a few months and I will write to you when we have a clearer view.

ii) EDA work to improve the availability of helicopters to Afghanistan

As part of the UK-France initiated Multinational Helicopter Initiative, involving the EU and NATO, the EDA has led on training pilots, with NATO leading on equipment upgrades. The EDA has organised a large scale training exercise in France, a further being scheduled in Spain later this year and is also delivering a second operational English course for aircrew. It is also designing tactics training courses. I cannot emphasise strongly enough the complementary nature of the two organisations' work in this area. This coordination is a compelling example of the benefits of synergy between the EU and NATO and is welcomed by both institutions.

iii) UK involvement in other EDA projects

I attach more information as an Annex on the UK’s involvement with the EDA projects referred to in the Scene Setter provided in the committee pack.

iv) The status of the Organisation for Joint Armament Cooperation (OCCAR)

In the debate I suggested, incorrectly, that OCCAR was a European procurement agency. OCCAR is a multilateral Treaty organisation made up of members from France, Italy, Germany, Spain, Belgium and the UK. Its mission is to facilitate and manage collaborative European armament Programmes and Technology Demonstrator Programmes, through their life cycle to the satisfaction of its customers.

v) Funding of the EDA

The EDA operates a January-December Financial Year (as opposed to an April to March one in the UK). For the current Financial Year - 2010 - the Agency’s total budget is €30.5m. The total budget comprises of a Functional Budget (infrastructure, staff and other running costs) of €22.1m and an Operational Budget (studies and project preparation costs) of €8.4m. National contributions to the Agency’s budget are shared across Member States according to Gross National Income. The percentage share (15.4 per cent for UK in 2010) represents the maximum funding contribution nations will be asked to make towards the Agency’s total budget.

The Operational Budget is used for feasibility studies and reports to shape and inform projects and programmes within the Agency’s Work Programme.

Category A projects or programmes are those in which it is presumed all 26 Member States will participate, although member states can opt out if they wish to do so. These are not funded through the EDA’s operational budget but from Member States national budgets into a separate project/programme specific fund.

Category B projects and programmes are funded from the national budgets of only those Member States who wish to participate in the project. Member States proposing such projects to the EDA for a wider participation are able to set the terms for the basis of any wider participation.

10th March 2010

Letter from the Chairman to Quentin Davies

The Committee has asked me to respond to your letter of 10 March 2010, in which you sent further information and clarification on a number of issues about which you say that, during the debate in the European Committee on 1 March, you promised to write to members of that Committee.

Given that our job is done once, in this case, the document has been recommended for debate, the Committee has (under cover of a copy of this letter) forwarded your letter and its annex to the chairs of the Defence and Foreign Affairs Committees, since it is they (rather than we) who are more likely to be able to take these matters forward.

17 March 2010

MINISTRY OF JUSTICE

CO-SPONSORSHIP BY THE UK OF MEMBER STATE INITIATIVES UNDER ARTICLE 76 TFEU

Letter from Lord Bach to the Chairman

In your letter of 9 December, and in a further letter of 13 January, both concerning the proposal on interpretation and translation, you asked for the Government’s view as to whether it has the power to co-sponsor a draft directive on interpretation and translation. You expressed doubts that this was possible, raising two issues. The first related to the eight-week period given to the Committee to express a view on the opt-in decision. The second concerned the operation of the Protocol relating to opting-in to measures in the field of freedom, security and justice.

These are important question with implications for any Member State initiatives brought forward under Article 76 TFEU, and I wanted to take time to consider my response.

I deal first with the question of the Government’s undertaking that the Scrutiny Committees will have eight weeks to express a view as to whether the UK should opt-in to any particular proposal. You are right to say that if the Government were to co-sponsor a proposal, it would be difficult to resile from what would appear a commitment to participate. You are also right to note that this is not binding. The Government attaches some weight to ensuring that even in these circumstances the correct procedures are followed. These include the three month period during which the opt-in decision falls to be made. We see no reason to make an exception to the undertakings under which the Committees would have an opportunity to express a view within 8 weeks of publication, which the Government would then take into account.

As to your second point, we are of the view that the opinion set out in your letter is, with respect, a mis-reading of Protocol 21 on the Position of the United Kingdom and Ireland in respect of the area of freedom, security and justice. You argue that Article 2 of the Protocol disapplies the articles in Title V of the Treaty itself unless the UK opts-in to a

particular measure and that, therefore the UK has no right to co-sponsor a measure under Article 76 TFEU.

In our view, Protocol 21 needs to be read in the context of its primary purpose, as set out in Article 1 of the Protocol, relating to measures made under the Treaty.

Article 1 sets out that, subject to the power to opt-in, the UK and Ireland do not take part in the “adoption … of a proposed measure.” It goes on to define what is meant by unanimity and a qualified majority in circumstances in which either the UK and/or Ireland are not taking part. It is clear that by “adoption” it means the decision by the Council formally to adopt a measure, not the negotiations that precede it.

Article 2 of the protocol makes clear that it only applies “in consequence of Article 1”. It follows that Article 2 only applies in relation to circumstances when the UK is not participating in the adoption of a measure (i.e. it has not opted in during the three-month period allowed for in Article 3), and its effect is to disapply the provisions of Title V insofar as they result from such non-participation. Article 2 cannot reasonably be read as disapplying provisions in Title V, such as Article 76 TFEU, more generally.

What is more, Article 2 only disapplies provisions which are “binding upon or applicable” in the UK: Article 76 TFEU is not binding upon or applicable in the UK – it merely sets out matters of EU procedure governing how the EU adopts certain acts.

Were we to read Article 2 more widely, in the way you appear to suggest, it would have much broader consequences – such as disapplying:

Article 68 TFEU (so the UK would be unable to participate in the elaboration of strategic guidelines for freedom, security and justice),

Article 69 TFEU (so that the UK Parliament was precluded from participating in ensuring that proposals comply with subsidiarity and proportionality as the time limit would likely expire before the UK exercised its opt-in),

Article 71 TFEU (so that the UK would not participate in the Committee on Internal Security, which has already been established by that provision with the UK participating),

Article 72 TFEU (so that the UK did not benefit from the protection of national powers afforded by that provision).

Article 73 TFEU (so that the UK could not participate in non-legislative co-operation) and

Article 88 TFEU (so that the UK did not benefit from the safeguards afforded to Member States directly by Article 88(3) TFEU, which limits the scope of Europol’s operations).

It is inconceivable that the Protocol could have been intended to have this effect.

For these reasons the Government considers that it has the power to co-sponsor a Member State initiative for a directive on interpretation in criminal matters, or in relation to any other matter falling within Article 76.

23 February 2010

Letter from the Chairman to Lord Bach

Thank you for your letter of 23 February. We were very grateful for your careful analysis of the opt-in Protocol and were persuaded that it (your analysis) should apply to the majority of provisions from Title V TFEU that do not involve the adoption of legislation, which you cite in page two of your letter.

However, we doubt whether the purposive interpretation you outline can be applied to Article 76 TFEU, which provides that legislation under Title V “shall be adopted” either by the Commission or on the initiative of a quarter of the Member States. It is difficult to discern the legislative intention behind the UK being given a right to initiate legislation when there is a default presumption in the opt-in Protocol that such legislation does not apply to the UK. Construed both reasonably and purposively, Article 76 TFEU must assume that the Member States which initiate the proposal will take part in its adoption – it would be inconceivable that the threshold for the initiation of legislation could include a Member State that may not take part in its adoption. And in our view Article 1 (and 2) of the opt-in Protocol — “the United Kingdom... shall not take part in the adoption...” — can be read consistently with this interpretation of Article 76 TFEU.

Whether the UK has the power to co-sponsor legislation in this field is legally and politically significant, and we intend to return to this correspondence after the election.

In your letter you also say that, if the Committee’s interpretation of the opt-in Protocol is right, the “UK Parliament will be precluded from participating in ensuring that proposals comply with subsidiarity and proportionality …” in accordance with Article 69 TFEU. We take this opportunity to clarify what may be a misunderstanding on your part. This Article does not place an obligation on Parliament — “ensure” is indicative (of a right). Nor can any provision of the EU Treaties be interpreted as placing an obligation on Parliament. This includes “applicable in the United Kingdom” in Article 2 of the opt-in Protocol. It was important to the Committee to have this clarified by the Government during negotiations on the Reform Treaty, and I refer you to our third Report of Session 2007-08, European Union Intergovernmental Conference: Follow Up, HC 16-iii, paras 9-16.

10 March 2010

COMPENSATION FOR VICTIMS OF CRIME


In your Committee’s 5th Report of 2009 - 2010, published on 15 January 2010, you retained the European Commission’s Report on the application of Council Directive 2004/80/EC on compensation to crime victims, under scrutiny. Your Report asks a number of questions about why the Government’s concerns about a study containing inaccuracies about the UK’s compliance with the Directive have not been addressed by the Commission.

The Committee asks why the Criminal Injuries Compensation Authority’s (CICA’s) comments about the study were not incorporated into the final version, when they were sent to the Commission over two months before the publication of the study and what follow-up the Government proposes to take with the relevant Directorate-General of the Commission to ensure that this will not happen again. I very much regret that the CICA’s comments were not incorporated into the final version of the study but, as I have previously explained, this was not for the want of trying on the part of the CICA. The final decision about what was included in the study was not within our control and therefore I am unable to answer this question except by way of seeking a further explanation from the Commission. To that end my officials contacted senior officials in the Civil Justice Unit at the Directorate General Justice, Freedom and Security, in early January and also asked again what the Commission proposed to do to ensure that this does not happen again.

I have not before responded to your report as I have been awaiting the Commission’s response. I have since heard that due to a reorganisation of responsibilities within the Commission this matter has been transferred to the Criminal Justice Unit and both units are liaising in providing answers to our questions. I did not want to delay my reply to you

any more and shall, of course, inform you of the Commission’s response when we receive it.

Finally, you ask why the UK competent authorities did not know that the study had been published on the European Judicial Network (EJN) website, until they were informed of the fact by the Commission, when those authorities participate in the EJN and no doubt access its website. It is true that the CICA have access to the EJN’s website and they could have checked it regularly to see whether the report had been published. However, they were advised by EJN contacts in February 2009 that the Commission was expecting to issue its report on the Directive in the spring. It was therefore reasonable for them to expect that they would be informed further of the date of publication, especially as they were still waiting for a response to the concerns that they had raised about the draft study.

Despite these problems I should reiterate that it is clear that the Matrix study was only part of the Commission’s preparatory work for its report. Whatever is said in the study, the Commission has not criticised the United Kingdom’s implementation of the Directive.

25 March 2010


Thank you for your letter of 25 March and for the information you provided on the reasons for the delay in responding to our Report of 15 January. Thank you also for your explanation of how CICA officials missed the publication of the Commission’s report on the EJN website, which is understandable in the circumstances.

We look forward to hearing from you again when you receive the Commission’s response. We remain concerned that this type of oversight by the Commission should not happen again.

7 April 2010

DRAFT COUNCIL FRAMEWORK DECISION ON COMBATING THE SEXUAL ABUSE, SEXUAL EXPLOITATION OF CHILDREN, AND CHILD PORNOGRAPHY, REPEALING FRAMEWORK DECISION

2004/68/JHA


I am writing to update the Committee on discussions on the proposed Framework Decision on combating the sexual abuse, sexual exploitation of children and child pornography, on which you had retained scrutiny.

I apologise for the delay in sending this letter but, as you may be aware, there have been a number of developments in respect of this Framework Decision and how it will be taken

forward under the new Lisbon Treaty procedures. I wanted to clarify these so that I could inform the Committee of the most up to date position.

Provisions on Victims - Articles 11, 12, 14 and 15

I am grateful to the Committee for their previous considerations on this Framework Decision, particularly their concerns about Articles 11, 12, 14 and 15 of the original proposal which contained provisions on investigative procedure and the needs of child victims. The Committee had expressed concerns that they could amount to a fettering of police and prosecutorial discretion in the investigation and prosecution of these crimes, and that they appeared overly-prescriptive and inconsistent with existing national provisions.

After I last wrote to the Committee, where I highlighted that many of the provisions tended to be consistent with UK law and practice, the Swedish Presidency subsequently decided to concentrate on the separate but related Framework Decision on Combating Trafficking in Human Beings and Protecting Victims. As part of this process the Presidency took the approach of seeking to agree the provisions on victims in that Framework Decision and then use those as a basis for revising the relevant Articles in the Sexual Exploitation Framework Decision.

Due to the focus on the Human Trafficking Framework Decision, discussions in the working group on the Sexual Exploitation Framework Decision were also slower and more limited than expected – concentrating mainly on those Articles which were related to the criminal law and offences. Whilst there was some discussion on the definitions used in the Framework Decision and the detail of the offences to be covered, a number of Member States also sought the reintroduction of the exemptions used in the 2004 Framework Decision and the 2007 Council of Europe Convention on the Protection of Children and against Sexual Exploitation and Sexual Abuse, to protect individuals above the age of consent involved in legal sexual activity. This was a concern I had also highlighted in my Explanatory Memorandum in April. Some discussions also took place on the levels of sentencing and the ‘blocking’ of websites showing images of child sexual abuse.

However, when it became clear that it was unlikely that agreement on this Framework Decision could be obtained before the JHA Council at the end of November and the Lisbon Treaty coming into effect on 1 December, the Presidency decided to put the negotiations on hold and produce a ‘State of Play’ report for the Council. The proposal has now ceased to exist as a draft Framework decision.

Our understanding now is that Commission are likely to retable this proposal under the new legal base of the Lisbon Treaty. However, we whilst we are still unclear about when exactly this will happen, although it will be sometime following the appointment of the new Commissioners, at the recent JHA Council meeting the Justice Secretary asked the Commission to consider the concerns raised by Member States before they retabled the document.


Thank you for your letter of 5 January.

The Committee was grateful to you for the detailed update on the status of this proposal.

We note that the Swedish Presidency prepared a “State-of-Play” report for the Council before the proposal was withdrawn, and that the Minister of Justice has recently asked the Commission to have this in mind when preparing a new proposal under the Treaty on the Functioning of the EU. We would be very grateful if you could provide the Committee with a copy of the Presidency’s report.

13 January 2010

DRAFT DIRECTIVE OF THE COUNCIL ON INTERPRETATION AND TRANSLATION IN CRIMINAL PROCEEDINGS


Thank you very much for your draft report of 20 January.

Whilst the Government strongly supports the proposed Directive, any opt-in decision will of course only be made after the 8 week period for Parliamentary consultation. However, the Government’s initial view is that it would be desirable to opt-in to this measure as the text is substantially the same as that of the draft Framework Decision, on which the Council reached a general approach at last October.

I agree with the Committee entirely that the standards should not be watered down and I do not see significant risk of that, given that the Council has already reached political agreement on these standards and the proposal is subject to the ordinary legislative procedure with the European Parliament, which is likely to take a similar view to yours.

The Scottish Government has been consulted and supports the Roadmap approach to procedural rights measures in the EU as the best way to proceed. The Scottish Government believes the Roadmap ought to ensure appropriate safeguards for suspects or accused persons, while at the same time respecting the diversity of legal systems across the EU. It is confident that Scotland is already well placed in terms of the framework of standards envisaged by the measure.

I can confirm that there have not yet been any negotiations at working group level on the draft Directive. As the proposal reflects the general approach reached on the Framework Decision, it will form the basis for negotiations with the European Parliament. The European Parliament has not yet started deliberations, but we understand that the Presidency hopes to reach agreement at First Reading. I will keep you updated about progress.

3 February 2010


DRAFT DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL ON THE EUROPEAN PROTECTION ORDER

Thank you very much for your draft report of 24 February.

I hope that you are able to consider this response at your next meeting on the 3 March.

You have asked for an indication of the general tenor of the responses we have received to the consultation we have been undertaking. Given the timescales involved before an opt-in decision is taken, my officials have met representatives from victims’ groups as well as practitioners and groups concerned with defendants and legal rights. Officials will be conducting further meetings with stakeholders in Scotland. All present at the meetings to date have expressed support for the objectives of the EPO. There was a general feeling that such an instrument could be very helpful in the protection of victims. Although there was some concern that the there was no statistical evidence available for the need to have an EPO, representatives from victims’ groups suggested that there is significant anecdotal evidence. We are continuing to amass this evidence.

These groups also stressed that, whatever form the EPO eventually takes, the mechanism must be simple for the protected person. In order to be effective, it should not be burdensome to administer or enforce the protection.

There was strong agreement from practitioners that once an EPO has been accepted, the executing state should have jurisdiction and undertake all subsequent action.

On the issue of legal base, the issues raised are not straightforward and are, as I explained in my last letter, being discussed at some length in the Council working group.

This department is content that the legal base in Article 82 TFEU is appropriate, because that Article permits the EU to legislate for judicial cooperation in “criminal matters”, and the purpose of protection orders, whether issued in UK criminal or civil proceedings, is ultimately to protect the victim from crime. We would want to ensure that the EPO Directive is focussed on this point.

If, however, the Council takes the view that the criminal judicial cooperation legal base is not sufficient to cover protection orders made in civil proceedings, the EPO Directive may go ahead as a much a narrower instrument, addressing only orders made in criminal proceedings, but one in which we expect we would still want to participate as a matter of policy.

The Government’s chief interest in the correct use of legal bases is in ensuring that the EU does not act outwith its competence. This does not arise in this case; the EU has the power to legislate for civil judicial cooperation under Article 81. The issue here is more one of citing the correct legal base (and with it, whether the Commission or the Member States have the power to propose legislation) rather than whether or not the EU has competence to act in this area.

Nor does this case raise an issue of conceding power to the EU to act by qualified majority voting rather than unanimity, as the procedure under Article 81 is the same as under Article 82 (except in relation to “family law,” and we do not think that protection orders are properly characterised as family law).

We are therefore of the view that the questions surrounding the legal base should not automatically determine whether the UK should opt-in.

The Government supports the principles underlying the EPO and hopes that the Committee is able to consider the views of the groups we have been talking to and look at the issues the EPO is attempting to address.

Provided we conclude, following the consultation, that the measure is broadly something that we wish to support as a matter of policy, we would be far better placed to take issue effectively with the legal base issues by participating in the proposed measure than by seeking to do so from the sidelines. Experience has shown that our voice is significantly weakened if our negotiating partners do not expect us to be bound by the measure.

2 March 2010


Thank you for your letter of 2 March, and for the information you provided on the preliminary response to the consultation process and the debate within the Council on legal base.

We consider it important that any proposal be founded on the correct legal base, irrespective of whether there is a risk of the Commission acting outside its competence under the EU Treaties. The distinction between “civil matters” and “criminal matters” in Articles 81 and 82 TFEU respectively should remain clear. So we do not share your view that Article 82 TFEU is appropriate because “the purpose of protection orders, whether issued in UK criminal or civil proceedings, is ultimately to protect the victim from crime”. In the UK protection orders fall under the civil jurisdiction and so any regulation by the EU in this field should have a legal base in Article 81 TFEU. We ask the Government to take this view into consideration when deciding whether to opt into this proposal. We also ask the Minister to provide us with an update on the negotiations on legal base before the Government takes its decision to opt in.

In light of the responses from the consultation process, we would also be grateful to know what evidence, statistical, anecdotal or otherwise, exists to support the need for this proposal.

10 March 2010

Letter from the Chairman to the Chairman


We were pleased to hear that the Government is likely to opt into this proposal as the text is substantially the same as that of the draft Framework Decision on which a general approach was previously agreed. As you know, we think the UK should opt in.

We were also pleased that you do not see a significant risk that the human rights standards in the proposal will be watered down, given that the Council has already reached political agreement on these standards and the proposal is subject to the ordinary legislative procedure with the European Parliament, which is likely to take a similar view to our own.

Thank you too for informing us of the Scottish Government’s view of the EU’s proposals for procedural rights, which are contained in the Roadmap adopted last year.

Lastly, we would be very grateful to you to be informed of significant changes in the proposal during the course of the ordinary legislative procedure.

9 February 2010

DRAFT FRAMEWORK DECISION OF THE COUNCIL ON INTERPRETATION AND TRANSLATION IN CRIMINAL

PROCEEDINGS


Thank you very much for your letter of 10 December. As you know, the Government’s view was that there was considerable merit in the proposal for a Framework Decision on

interpretation and translation in criminal proceedings, and I was disappointed that it was not possible to adopt it prior to the coming into force of the Lisbon Treaty. However, I am glad to tell you that the same text has been brought forward by a number of Member States as a Directive. This text has been deposited in Parliament, as has an Explanatory Memorandum.

I note your view that the UK cannot co-sponsor legislation. You will appreciate that this is a matter of great significance, and with consequences that go wider than this department. I am consulting with my colleagues in other departments and I will write to you setting out the Government’s position on this issue as soon as possible.


Thank you for your letter of 29 December.

The Committee looks forward to receiving the Government’s combined opinion on whether the United Kingdom has the power under Title V TFEU and the relevant opt-in Protocol to co-sponsor draft legislation.

The Committee will consider the replacement proposal for a Directive on interpretation and translation in criminal proceedings on the basis of Article 82(2)(b) TFEU at its meeting on 20 January.

13 January 2010

INITIATIVE FOR A DIRECTIVE ON INTERPRETATION AND TRANSLATION (2010/0801 (COD), PE-CONSI/10)


Thank you for the Committee's Report of 31 March. You are concerned that in the Explanatory Memorandum I was not explicit about why the Commission has tabled a competing proposal.

The Commission is not obliged to provide such an explanation; however, it appears that the Commission proposal is predominantly motivated by the desire to strengthen perceived weaknesses in the Member State proposal. The Commission believes that the Member State proposal contains limitations and that it does not ensure the highest possible standards for defendants. The Commission's primary concerns centre around:

a. The right to translation and interpretation between the client and lawyer;

b. Allowing for the possibility of an oral translation or summary rather than written translation of essential documents for the defendant;

c. The waiving of the right to translation without a requirement for legal advice.

As I outlined in previous correspondence, the Council is already considering. the draft amendments from the Rapporteur regarding the Member State propsal. All three of the issues above are being addressed. Having two parallel proposals on the same subject only serves to cause unnecessary confusion and delay in the adoption of crucial legislation is this area. I do not believe a competing proposal is the most appropriate method to bring

about such changes, particularly as it could further delay the adoption of any such measure.

I believe that the Council and Commission’s time is best spent working constructively with the European Parliament with a view to adopting the Member States' draft Directive as soon as possible in order to ensure that defendants' rights to interpretation and translation are safeguarded.

You also ask whether the Commission has the power to bring forward competing legislation under Article 76. Legally there is nothing preventing this (and in any case the legislator is the same) but, as my comments above indicate, we have not found this approach particularly helpful and hope that what we are faced with here is an exceptional situation. We will of course keep the Committee informed of developments regarding both proposals.

5 April 2010


Thank you for your letter of 5 April, and for sending it in time for our last meeting before Parliament dissolves.

We were very interested in your views on the propriety of the Commission’s actions in tabling a rival proposal to the Member State proposal on interpretation and translation rights, and also reassured by them.

We are surprised by the Commission’s actions, and, like you, hope they will not be repeated.

7 April 2010

PROGRESS OF DOSSIERS FOR JUSTICE ISSUES DURING THE

DISSOLUTION PERIOD


I wrote to you on 29 December 2009 about the Spanish Presidency’s priorities in the areas of justice which the Ministry of Justice leads on. I thought that it might be useful to write to you again in the run-up to the election period to update you on the current and forthcoming dossiers that are likely to progress over the next few months.

A European Commission proposal for a directive on the right to interpretation and translation in criminal proceedings, was released on 9 March. This is in addition to the existing Member State initiative on the same subject. It is highly unusual for there to be two parallel proposals on the same subject. The Government is considering both proposals.

We have already opted into the Member State Initiative on Interpretation and Translation and we are currently considering the European Parliament’s amendments. Your Committee has retained this proposal under scrutiny. I have written separately to you on the detail of these amendments and the Government’s position but we support the Member State initiative and look forward to working with the European Parliament on it.

http://ec.europa.eu/justice_home/news/intro/doc/com_2010_82_en.pdf�

http://ec.europa.eu/justice_home/news/intro/doc/com_2010_82_en.pdf�

Negotiations about the Directive on a European Protection Order are ongoing and the Presidency is hoping for agreement by the summer. This timetable may prove ambitious as the working groups are still considering such fundamental questions as legal base and the nature of the instrument. This initiative is still held under scrutiny by both Committees and I will ensure that you are kept updated as negotiations progress.

We expect that a draft proposal for a Directive on combating sexual abuse and exploitation of children and child pornography will be adopted by the end of March. This will replace the draft Framework Decision, which was under discussion before the entry into force of the Lisbon Treaty.

In the Stockholm Programme, the Commission were invited to propose a Recommendation for the negotiation of a data protection and, where necessary, data sharing agreements for law enforcement purposes with the United States of America, building on the work carried out by the EU-US High Level Contact Group on data protection. The Commission has held meetings with experts from the data protection and law enforcement communities as well as those from the private sector who might be affected by such an agreement. We expect the Commission to present a confidential draft negotiating mandate by the end of April/ early May, which will not be subject to Parliamentary scrutiny.

In the area of civil judicial co-operation, the Presidency are likely to seek agreement on a Council Decision on the conclusion by the EU of the Hague convention on the International Recovery of Child Support and Other Forms of Family Maintenance. This proposal has already cleared scrutiny in both Houses.

We also expect the Commission to publish two proposals on choice of law in divorce (Rome III). The UK did not opt in to the original proposal on this subject, which later failed to gain unanimous support in the Council. The Commission is expected to agree to a request from 10 Member States to take forward this work under the enhanced cooperation procedure provided under the Treaty. There is therefore likely to be a proposed Council Decision to authorise the use of enhanced cooperation as well as a proposed Regulation on the specifics of choice of law in divorce.

Negotiations on succession and wills are ongoing. You will recall that the UK did not opt in to this proposal. The Spanish Presidency is pressing hard for progress on this dossier. However, the complexity of the issues being discussed limits how fast the negotiations can progress. As you will recall, the UK’s greatest concern with this proposal was on the issue of “clawback”. Discussions will continue at official level but we would not expect any key decisions to arise during the dissolution period.

It is also expected that the Commission will present the draft Stockholm Programme (the next five year EU JHA programme) Action Plan before the end of the Spanish Presidency. This Action Plan is intended to translate the aims and priorities of the Stockholm Programme into concrete actions with a clear timetable for adoption and implementation. It is expected that it will be considered by the Council.

25 March 2010


Thank you for providing us with progress reports on dossiers which are likely to be considered in the Council during the dissolution. This was useful for the Committee.

30 March 2010

SPANISH PRESIDENCY PRIORITIES FOR JUSTICE ISSUES OVER THE NEXT SIX MONTHS

Letter from Willy Bach to the Chairman

I am writing to give you an overview of the Spanish Presidency’s priorities in the areas of justice which the Ministry of Justice leads on. I hope that this will help in the planning of scrutiny of dossiers that are likely to head to the Justice and Home Affairs (JHA) Council during this period. The Spanish Presidency is planning to host the following JHA Councils:

20 – 22 January (Informal Council) in Toledo, Spain

25 – 26 February in Brussels

22 – 23 April in Luxembourg

3 – 4 June in Luxembourg

The Spanish Government will take over the rotating European Union Presidency on 1 January 2010. As a result of the Lisbon Treaty coming into force on 1 December 2009, all JHA measures with a legal base in the Treaty on the European Union (police and judicial co-operation) which were not adopted by 30 November, have now lapsed and will have to be replaced with new proposals under a legal base in the Treaty on the Functioning of the European Union.

We know that the Spanish Presidency is keen to re-start negotiations on two proposed Framework Decisions that were not concluded prior to the entry into force of the Lisbon Treaty: a proposed Framework Decision on interpretation and translation in criminal proceedings; and a proposed Framework Decision on combating sexual abuse, sexual exploitation of children and child pornography. The ordinary legislative procedure for these re-tabled proposals will be by Qualified Majority Voting in the Council and co-decision with the European Parliament. The UK’s opt-in will apply to these measures.

The Framework Decision on the right to interpretation and to translation in criminal proceedings has already been brought forward as a Member State Initiative in the form of a Directive. The Spanish Presidency will want to make as much progress as possible on the negotiations about this proposal. This is the first proposed measure of the recently agreed roadmap to strengthen the procedural rights of suspected or accused persons in criminal proceedings. During the second half of their Presidency, we understand that the Spanish would like to begin negotiations on the second measure that is suggested in the roadmap regarding information on rights and about charges for detained persons.

The Commission has indicated that following the appointment of the new Commissioners, it will table a proposal for a Directive on combating sexual abuse, sexual exploitation of children and child pornography.

One of the Spanish Presidency’s top priorities will be to improve protection for victims. They hope to start negotiations on a Member State Initiative to create a European Protection Order (EPO). This proposal would aim to ensure that victims, who are the beneficiaries of protection orders against an offender, would be able to benefit from those protection orders, wherever they are in the EU. As more citizens move between Member States, the Government believes that the EPO could really help to ensure that victims in Europe are able to move from State to State with confidence that they will be protected. However, we will be keen to ensure that the proposal is workable and right for the victim.

We understand that the Commission is still keen to make progress in the area of Intellectual Property Rights, perhaps during the second half of the Spanish Presidency.

The main proposal under negotiation in the area of civil judicial co-operation is on Succession and Wills. While in principle the Government believes that efforts to simplify and clarify the rules which apply to international successions could produce huge benefits for UK citizens, your Committee will be aware that it has concluded that these potential benefits are outweighed by significant concerns about the Commission’s proposal. The Government has therefore decided that the best course of action is not to opt in. However we intend to participate in the negotiations with the hope of resolving the issues of concern to allow the UK to participate after adoption. This is just the start of negotiations but the Spanish Presidency will want to make as much progress as possible.

The Presidency hope that the technical problems with the e-justice portal will be resolved allowing it to be launched during their term.

The Spanish Presidency has also indicated it wishes to give priority to the Accession of the European Union to the ECHR. The negotiations this will require both within the Union itself, and between the Union and the Council of Europe, are likely to be complex and we do not at this stage think it likely documents which require Scrutiny will be produced during the Spanish Presidency. We will, however, notify the two Committees if this position changes.

It is expected that the Commission will publish an Action Plan to implement the Stockholm Programme on the next five-year work plan in Justice and Home Affairs. The Spanish Presidency would then seek to adopt it at the June Council.

29 December 2009

Letter from the Chairman to Willy Bach

Thank you for your letter of 29 December. The Committee looks forward to receiving the Government’s combined opinion on whether the United Kingdom has the power under Title V TFEU and the relevant opt-in Protocol to co-sponsor draft legislation.

The Committee will consider the replacement proposal for a Directive on interpretation and translation in criminal proceedings on the basis of Article 82(2)(b) TFEU at its meeting on 20 January.

13 January 2009

HOUSE OF COMMONS EUROPEAN SCRUTINY COMMITTEE THIRTIETH REPORT: TRANSFER OF PROCEEDINGS IN

CRIMINAL MATTERS


I am writing further to the Scrutiny Committee’s Thirtieth Report of the 21 October and the consideration of Transfer of Criminal Proceedings at that meeting. I apologise for the delay in replying to the Committee but, as I will set out, there have been a number of

developments and I wanted to ensure that I could appraise the Committee of the most up to date position.

I am grateful to the Committee for the time taken considering Transfer of Proceedings and the detail of the comments made.

Since I submitted the text to the Committee, there have been a number of developments. Due to the ratification of the Lisbon Treaty, and the imminent collapse of the Third Pillar under which this Framework Decision was being discussed, the Presidency no longer intends to seek political agreement on the Transfers of Proceedings Framework Decision at the Justice and Home Affairs Council (JHA) on the 30 November. Instead the discussion at the JHA Council is being billed as an “orientation debate”. It will discuss in general terms Transfer of Proceedings but the outcome of the meeting will not have any binding status. Transfer of Proceedings will then cease to exist as a draft Framework Decision as a general approach has not been agreed and the instrument is not at a stage where it can be adopted before the end of November.

It follows that there will be no further consideration of this proposal in the Council. If it is decided that a directive on Transfer of Proceedings is something the Commission or a group of Member States wish to continue to pursue, a new proposal will have to be tabled after the Lisbon Treaty comes into force. We have no indication of when, if at all, this may happen.

Draft Framework Decision of the Council on interpretation and translation in criminal proceedings


This letter is to update your committee on the latest developments affecting the future of the above proposal.

Despite four months of intense negotiations and a general approach reached on the main part of the text at the October JHA Council, it is now clear that Member States will not be in a position to adopt the Framework Decision before the entry into force of the Lisbon Treaty on 1 December. This is mainly because there will not be enough time to carry out the negotiations on the remaining parts of the text (the Preamble) and for the resulting text to be finalised by the Jurist-Linguists before then.

This means that, according to EU transitional policies surrounding the implementation of the new Treaty, the measure will have to be re-introduced under a new Treaty base as a Directive under Article 82(2)(b) of the Treaty on the Functioning of the European Union. This could either be brought forward by the Commission or as a Member States’ initiative (if seven co-sponsors can be identified).

On 18 November the Swedish Presidency asked the Council General Secretariat to explore, informally, whether Member States would be willing to present a Member States' initiative for such a Directive. The Council Secretariat indicated that such an initiative would be based on the text of the general approach, with only some minor changes being made to the text (e.g. replacing "Framework Decision" by "Directive", mentioning the new legal basis and inserting the names of the co-sponsors).

As you know, the Government is committed to driving up standards in the area of criminal procedural law and we believe that this Framework Decision and the accompanying resolution would add real value in this area to obligations arising under the ECHR. I also

believe that it would be a very positive gesture on our part if the UK were to support such a move. Member States have been asked to give an indication regarding likely positions by 27 November.

How likely it is that the proposal will be re-presented as a Member State initiative, as opposed to a Commission proposal, remains to be seen – as does the timetable for the introduction of such a measure. Moreover, were the UK to indicate its support for the proposal, this would not be a binding decision (not least because there may not be a sufficient number of Member States who are willing to co-sponsor). However, were the matter to proceed, any expression of support would be a strong indication that we intended, in due course, to opt-in to the new proposal – whether as a Member State or a Commission proposal. Given that the instrument has only just been negotiated, that the UK supported it and that the text cleared Parliamentary Scrutiny, I would hope that giving such an indication would not give rise to difficulty. It is, after all, different to a scenario where a decision to opt-in or co-sponsor needs to be made in relation to a new instrument.

I am very conscious of the little time available to form our preliminary position, but I would be grateful for your views, if possible before the above mentioned deadline.

DEPARTMENT FOR TRANSPORT

6257/09 (30514) DRAFT REGULATION AMENDING COUNCIL REGULATION (EC) NO 1321/2004 ON THE ESTABLISHMENT OF

STRUCTURES FOR THE MANAGEMENT OF THE EUROPEAN SATELLITE RADIO-NAVIGATION PROGRAMMES.

Letter from Paul Clark to the Chairman

I am writing to advise you on progress on the above Regulation and in particular the involvement of the European Parliament in the Administrative Board of the proposed Agency.

My letter of 4 March set out that the Spanish Presidency had proposed a compromise to the Parliament’s demands to have 3 full members of the Administrative Board each with a right to vote. This compromise involved new and enhanced requirements for the transfer and provision of information to the Parliament, which the Committee will recall raised some concerns since the proposal also applied to security related information.

At the Council working group meeting on 17 March, the Presidency informed Member States that informal discussions with the Parliament indicated that the offer of better access to information through the Administrative Board would not be an acceptable compromise. The Presidency therefore proposed a second compromise which would give the European Parliament one representative on the Board without voting rights. In an effort to ensure that the Parliament’s representative added value to the functioning of the Administrative Board, the Presidency proposed that the representative must have experience and expertise in the field of security of satellite navigation programmes. The proposed compromise went on to provide that as a result of this concession, the enhanced information exchange provisions would fall.

Some Member States have reluctantly concluded that the Presidency’s second compromise is the best that they can hope to secure. Parliament representation on the Administrative Boards of Community Agencies is not unprecedented – 7 of the 33 Community Agencies have Parliament representatives on their Boards (for example the European Environment

Agency), and in 6 of them, the representatives have voting rights. Given that such a move will not create a precedent and that in any event, establishing an alliance to form a blocking majority against the Presidency’s proposal now seems unlikely, I suspect more Member States will simply accept the Presidency’s proposal.

I have therefore instructed officials to work to ensure that the Presidency proposal is acceptable in case it is carried in Council working group. The proposed requirement for specialisation of the Parliament’s representative in the compromise is odd, since it does not reflect the governance arrangements that have been established (security issues will not be handled by the Administrative Board in order to ensure that information is handled appropriately). The Presidency’s compromise proposal conflicts with that arrangement and the UK will therefore seek to ensure that it is changed so that the Parliament’s representative adds value to the functioning of the Administrative Board by bringing, for example, expertise on the management of large Community Agencies.

I will of course continue to keep your Committee informed of further developments, and in particular on the outcome of discussions with the European Parliament.

30 March 2010

Letter from the Chairman to Paul Clark

The Committee has asked me to write to you about the information on the latest developments in relation to the Galileo programme in your letter of 30 March 2010. The Committee was grateful for your further account on these matters.

30 March 2010

EU-US STAGE 2 AVIATION AGREEMENT


I wrote to you on 3 December about the on-going negotiations on this agreement. I believe it would be timely to bring your Committee up to date on further recent developments.

As anticipated in that letter, the pace of the negotiations has intensified in the early part of this year. There have been two further rounds of discussions so far in 2010, the latest on 15-17 February, hosted by the Spanish Presidency in Madrid.

Following that meeting the Commission negotiators reported back to the EU Transport Council on 11 March. The Commission reported that considerable progress had been made towards agreement on further enhancing cooperation between the EU and the United States on a range of regulatory issues in the aviation field, notably in the areas of environment, security, competition and reciprocal recognition of certain decisions in order to reduce the regulatory burden on airlines. The UK Government agrees that substantial progress has been made in these areas, and in particular welcomes the new understandings reached on the environment which, upon final agreement, would cement

closer co-operation between the EU and US in tackling the global impacts of aviation. This would represent a significant step forward and reflects recent developments in the US position on this issue.

The Commission further reported that the negotiations had narrowed the areas of difference on a number of other outstanding matters such as the further expansion of traffic rights and access to third country markets, investment in third country airlines, relaxation of the restrictions on access by EU airlines to US Government traffic (the “Fly America” programme). The UK Government agrees that progress has been made in these areas which should enable them to form part of a final agreement

The Commission reported that three key items required further negotiation before a final package could be put to Ministers for consideration. The first concerns the relaxation of restrictions on foreign investment in airlines, which, as noted in my previous letter, is a priority issue for the UK, but which would require changes to current US domestic legislation before it could be achieved. The second concerns procedures for the introduction of noise controls at airports, which is a matter of particular concern to the US side. And the third concerns mechanisms for the further development of the agreement, including the possibility of granting additional rights in the future once relevant legislative reforms have been delivered on either side.

The Transport Council welcomed the Commission’s report and the progress made to date and asked the Commission to continue the negotiations. Discussions are set to resume later this month. If an acceptable outcome can be found on the remaining issues, the Commission negotiators are likely to bring the proposed agreement to the Transport Council in June for consideration by Ministers. They will also at that stage need to propose a draft Council Decision authorising signature of the agreement, which will of course be a depositable document.

22 March 2010


The Committee has asked me to thank you for the useful account of where matters stand on the negotiation of this agreement in your letter of 22 March 2010.

24 March 2010

14461/08(0061) - PROPOSAL FOR A DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE' COUNCIL AMENDING DIRECTIVE 20021151EC ON THE ORGANISATION OF THE WORKING TIME OF PERSONS PERFORMING MOBILE ROAD

ACTIVITIES


I am writing to update you and the members of your Committee concerning the progress of the above proposed amending Directive. I am afraid that, as you will see, negotiations have not yet reached a point where we can give your Committee a clear picture of the outcome.

Following my predecessor's letter of 11 March 2009, the Transport Council agreed a `Common Approach' on the proposal, which included an amendment that would allow Member States to have the flexibility to choose, when transposing any changes, whether to bring the self-employed in-scope of the Directive in their own territory. The UK was in support of this amendment.

Progress in the European Parliament was not straightforward. Following the rejection of the Commission's proposal by the lead European Parliamentary Committee (the Employment & Social Affairs Committee (EMPL)) on 2 March 2009, the European Parliament rejected the Commission's proposal at First Reading during its Plenary session in Strasbourg (in a narrow vote: 332 in favour of rejection and 302 against rejection). The proposal was not withdrawn by the Commission and it was referred back to the EMPL Committee.

On 29 September 2009, following the European elections the new EMPL Committee rejected (by one vote) a report that intended to subject selfemployed drivers to the same rules as employed drivers. This allowed a new report to be written and a new Rapporteur, Edit Bauer, was appointed. A new Rapporteur, Said El Khadraoui, was also appointed in the TRAN Committee who were scheduled to submit an opinion to the EMPL Committee.

The TRAN Rapporteur's draft opinion was released on 5 January 2010 and was considered on 26, January 2010. In the vote on 23 February 2010.the draft opinion was narrowly rejected. The TRAN Committee will not therefore provide an opinion to the EMPL Committee.

The draft EMPL Rapporteur's -report is currently under consideration by the EMPL Committee. With the exception of a reference to the consideration of extending the scope of the Directive to vehicles of less than 3.5 tonnes, the UK can fully support the Rapporteur's draft report. Amendments to this draft report, proposed by EMPL Committee members, are currently being reviewed by the UK Government. These include a number of amendments which the UK Government cannot support, as they would result in the inclusion of the genuine self-employed, the extension of the scope of the Directive to vehicles of less than 3.5 tonnes, and a redefinition of the 'night work' period which would make the legislation more restrictive. Further brief discussions took place at EMPL Committee on 17 March 2010, during which MEN acknowledged that it would be difficult to achieve.a compromise between the opposing views over inclusion or exclusion of the self-employed. The Committee's vote on the report will take place on 28 April, with a subsequent vote expected in Plenary in June 2010. Any political agreement will therefore be in June 2010 at the very earliest (the Transport Council is on 24 June 2010).

I will keep your Committee informed of the outcome of these discussions.

22 March 2010


The Committee has asked me to thank you for the account, in your letter of 22 March 2010, of where matters stand on the negotiation of this draft Directive.

30 March 2010

17564/08 (30313): PROPOSAL LAYING DOWN THE FRAMEWORK FOR THE DEPLOYMENT OF INTELLIGENT

TRANSPORT SYSTEMS IN THE FIELD OF ROAD TRANSPORT

Letter from Sadiq Khan to the Chairman

When I last wrote to your Committee about this dossier on 27 November 2009, the Swedish Presidency had been seeking to reach political agreement on this proposal at the Transport Council on 17 December. I am now writing to you to update your Committee on progress in negotiations.

Shortly after I wrote to you, agreement in principle was reached on the substance of the Directive within Council and, in parallel, with the European Parliament. I am pleased to report that this agreement substantively reflected the position I set out to you in my letter of 27 November. We were able to maintain the progress that had been made in restricting the scope of the Directive, including in not mandating deployment, though to accommodate the European Parliament, the Directive does make provision for the Commission to bring forward proposals for deployment once specifications have been adopted. These will be subject to separate negotiation when they emerge.

In spite of this progress, however, the Presidency was only able to give a progress update on the Directive at the Transport Council. The entry into force of the Treaty on the Functioning of the European Union (the Lisbon Treaty) on 1 December 2009 raised issues concerning the Comitology provisions within the Directive. The Directive initially provided for the specifications to be adopted in accordance with the Regulatory Procedure with Scrutiny, while other provisions would be subject to the Advisory Procedure. These procedures will change as a result of the Lisbon Treaty. The Council and European Parliament were unable to reach an agreed position on the replacement provisions in time for the Transport Council.

At the Transport Council, I took the opportunity to make a statement on the proposal. In this statement I set out the UK’s position that Intelligent Transport Systems have the potential to contribute to achieving transport objectives, if clearly targeted and supported by sound a business case. I also noted the UK’s intention to issue a declaration setting out our position that decisions on the deployment of ITS are a matter for Member States, in accordance with the principle of subsidiarity, and that nothing in this proposal prejudices that right. Several other Member States supported this statement.

Since the Transport Council, good progress has been made on the outstanding issues relating to the Lisbon Treaty, both within this dossier and in wider discussions between the Council and the European Parliament on the new provisions. Both institutions are close to agreement in principle, subject to some legal clarification. For those provisions in the ITS Directive subject to the Advisory procedure, the procedure will remain unchanged until replaced by the adoption of new provisions subject to the ordinary legislative procedure. For the adoption of specifications previously subject to the Regulatory Procedure with Scrutiny, the agreement makes provision for:

The delegation of powers to the Commission for a fixed period of 7 years;

For the Council or European Parliament to revoke the powers;

For the Council or European Parliament to object to the adoption of the specifications.

Given the ambiguities in the Directive around the scope of the specifications, a key issue for us in negotiations has been to ensure that there is full and effective consultation with Member States during the development of the specifications. I am clear that we will need to play a full part in future discussions over implementation of this Directive to ensure that it best meets the needs of the UK.

The Directive will now go forward to a European Council meeting and a plenary session of the European Parliament. Given the significant progress we have made in negotiations and looking ahead to engaging constructively in the development of specifications during the implementation phase, I intend to vote in favour of the proposal. I will of course continue to keep your Committee informed of any later developments.

22 March 2010

Letter from the Chairman to Sadiq Khan

The Committee has asked me to thank you for your letter of 22 March 2010 reporting developments in relation to the draft Directive on intelligent transport systems. The Committee was grateful for this information.

24 March 2010

9864/09 COM (2009)0217 (30645) PROPOSAL FOR A DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE EUROPEAN COUNCIL ON AVIATION SECURITY CHARGES


Further to my letter dated 7 December 2009 I promised to keep you informed on the progress of this Directive.

My previous letter advised your Committee that the Swedish Presidency hoped that it would be possible to reach agreement on a general approach at the Transport Council in December, and also noted our view that the proposal was not yet ready for this. In the event, the Swedish Presidency also concluded that a general approach was not yet possible, and the Directive was only the subject of a progress report at the Council.

Since the Spanish Presidency took over this dossier they have arranged just one further working group on this Directive. The outcome of that meeting was that another progress report is to be made at the Transport Council in March. There have been no substantive changes to the amendments previously agreed in the Council working group, in particular that the Directive should only apply to airports handling more than 5 million passengers per annum. The Presidency are now awaiting the outcome of the European Parliament’s first reading of the proposal before returning to it.

The European Parliament has just concluded the Committee stage of its consideration, and the TRAN Committee have voted on a series of amendments to the original Directive; in particular they favour applying the Directive to all commercial airports and to require Member States to pay for More Stringent Measures. The European Parliament’s Plenary first reading is currently scheduled for April.

My letter of 3 December gave an overview of the outcome of our public consultation on this proposal. On 26 January 2010 we issued a summary of responses and the Government response to our consultation on this Directive. I enclose a copy of this summary, which is also available on our website1. The responses show that airports are broadly supportive of the 5 million threshold and that airlines welcomed transparency on

1 http://www.dft.gov.uk/consultations/closed/aviation-security-charges/govresponse.pdf

http://www.dft.gov.uk/consultations/closed/aviation-security-charges/govresponse.pdf

charges. Most consultees also recognized the need for Member States to be able to introduce additional security measures in response to an immediate threat without first having to carry out an Impact Assessment. A majority of consultees were also concerned about the administrative burdens which could flow from this Directive.

Whilst we continue to consider that the proposed Directive will not have a significant effect on charges levied by UK airports, we do consider that there could be potential benefits for UK airlines operating out of other EU airports and consequently UK passengers. The proposal could bring greater visibility of charges, especially in countries which are less market based or have limited regulation, and it therefore may help to drive down costs. However, the impacts of the proposal remain far from clear, not least because the Commission’s own impact assessment is based on looking at a very small number of airports, in just one Member State. There would be costs for those airports which do not separately identify security costs, there would also be a cost in setting up consultative committees with airlines and a cost to Government in establishing or nominating an Independent Supervisory Authority to ensure the correct application of the measures in this proposed Directive.

Our principal security concern in the negotiations has been to ensure that Member States’ ability to swiftly put in place More Stringent Measures, if needed, should not be restricted; and this point has now been resolved in the current working text. However, we cannot support the amendment proposed by the European Parliament at its Committee stage, which requires Member States to pay for More Stringent Measures: we remain firmly behind the ‘user pays’ principle as it would be wrong to burden the general taxpayer with these costs.

There is still no consensus among Member States; many questions remain unresolved and will need to be followed up by the Presidency (including better alignment with the Airport Charges Directive). There is likely to be a further Council working Group after Easter which will need to consider the stance taken in the European Parliament TRAN Committee and the potential EP plenary vote at the end of April.

The Government’s view is that this proposal still requires significant further work, and that it is not ready for a general approach. We have made these points strongly to the Presidency so we are pleased that the item is only on the March Transport Council agenda for a further ‘progress report’. However, if in future the Council proceeds to discussion of a general approach, we propose to take the line that any agreement needs to ensure a genuine level playing field in all Member States; that the appeals mechanism should be aligned with that in the Airport Charges Directive, and that provisions on cost-relatedness should strike a fair balance between passengers and airport operators.

We will of course continue to provide you with updates on the development of this proposed Directive, including the outcome of the discussions at the Transport Council and the consideration by the European Parliament.

In terms of other EC aviation security legislation I would like to provide you with an update on two other matters. Firstly, the Detroit incident has naturally been a matter of concern and was recently discussed at an Informal meeting of EU Transport Ministers on 12 February 2010 in La Coruña, Spain. At this meeting the UK, along with most Member States, highlighted the need for a review and reinforcement of EC current baseline measures and the application of new technologies, including but not limited to Advanced Imaging Technology (AIT), subject to appropriate safeguards. The Presidency expressed satisfaction at the consensus reached at the Informal Council, which will be developed in a joint strategy within the framework of the European Union. The Commission are committed to reviewing current security requirements and considering any potential enhancements – proposals are likely in due course.

The other issue concerns the restrictions on carriage of liquids in hand luggage. I wrote to you on 4 November about the need to replace the current Commission Regulation, which set out temporary measures pending the development of an appropriate technology-based solution. As you will recall, after the liquids plot in 2006 EU-wide restrictions on the

carriage of liquids, aerosols and gels (LAGs) were mandated by Commission Regulation 820/2008 and a commitment was given to lift these restrictions if and when technology became available to detect liquids explosives. Technology is now sufficiently advanced for the EU to set a timetable for the removal of the current restrictions. That timetable and amendment to Commission Regulations is subject to the Regulatory Procedure with Scrutiny procedure, so after agreement in the aviation security regulatory committee it was passed to the European Parliament, who had until 2nd March to veto it (they have no power of amendment under RPWS) – and no veto occurred. We therefore shortly expect the Commission to publish the timetable as follows:

- By April 29th 2011 EC airports will have equipment in place to screen Liquids, Aerosols and Gels (LAGs) bought at a 3rd country airport or on a non-Community carrier and carried by passengers (arriving from outside the EU), through 'transfer' points. Such LAGs must be packed in a security tamper evident bag (STEB) which conforms to guidelines laid down by the International Civil Aviation Organisation. The same types of LAGS purchased within the EU and carried in a STEB are already exempt from screening.

- By April 29th 2013 all EC airports shall screen LAGs in accordance with detailed rules set out in implementing regulations. Once published, there could be some media interest once again in this subject.

4 March 2010

11294/09 (30714) Communication from the Commission – A sustainable future for transport: Towards an integrated,

technology-led and user friendly system.


I am writing to you to update your Committee on the developments that have occurred in the discussion of this document since my letter of 28 September.

Since my last letter I took part in a policy debate at the 9 October Transport Council where I emphasised, in particular, the importance of moving rapidly to a low carbon transport system whilst maintaining economic growth. I called for ambition and prioritisation in Commission thinking coupled with a clear need to deliver significant existing projects through to completion.

Following the Council discussion, the Swedish Presidency has focussed on using Working Group time to develop a set of Council Conclusions with a view to agreement at the 17 December Transport Council. In discussions at Working Group level, the UK has aimed to ensure that the Conclusions are as closely aligned as possible to the UK priorities outlined in my previous letter. The tone of the discussion has been positive and I am confident that the final version of the Conclusions, when they are available, will be satisfactory for the UK.

We have proposed that the Conclusions focus on sending the Commission a clear message from the Council about priorities for the White Paper that will follow towards the end of next year. We have argued that this message must make clear to the Commission that the White Paper should contain more ambitious thinking and a greater sense of prioritisation than was present in the Communication. This was one of the clear messages that we received from respondents to our own consultation process and is shared by many other Member States.

The UK has argued that the Conclusions should make that clear that the Council considers delivering a liberalised, integrated and decarbonised European transport system as central to the next White Paper. In this light, the UK has focused on securing a strong reference to

delivering a truly liberalised and competitive transport system. In addition we have sought to ensure that helpful language on decarbonisation and tackling climate change is sufficiently reflected in the text. We have also asked for a reference to ensuring that the Commission prioritises the delivery of significant EU projects. Whilst we believe the White Paper should be ambitious, this needs to be coupled with the successful delivery of existing significant projects like the Single European Sky Air Traffic Management and Research (SESAR) programme. At present it appears that we will be able to secure text in each of these areas.

The UK has also sought to remove any less helpful text as far as possible. In particular we have sought to limit the scope of text on internalisation of external costs which, in its original form, was unhelpfully close to mandating the Commission to bring forward possibly widespread pricing measures. In a similar vein, we have also sought to try and tie the reference in the Conclusions to deployment of traffic management tools and intelligent transport systems to ensuring that this is where these are the most effective solutions, and therefore not mandating the use of technology without having clearly defined goals.

On the basis of the changes we have secured, the tone so far and the importance of sending the Commission a strong and unified message from the Council, we are confident that we will wish to support the Conclusions at the December Transport Council.

6257/09 (30514) DRAFT REGULATION AMENDING COUNCIL REGULATION (EC) NO 1321/2004 ON THE ESTABLISHMENT OF

STRUCTURES FOR THE MANAGEMENT OF THE EUROPEAN SATELLITE RADIO-NAVIGATION PROGRAMMES.


I am writing to advise you on the progress on the above Regulation and to inform you of some success for UK and French cooperation.

You will recall from my letter of 3rd December that the Regulation was to be discussed at the December Transport Council and was also being considered by COREPER. This letter will update you on the outcomes of both those events and the Spanish Presidency’s work in seeking a final text. Discussions are also continuing with the European Parliament, who are currently scheduled to have their Plenary first reading in May.

Galileo Security Monitoring Centre

I am pleased to be able to tell you that the Commission told my officials on Friday 19th

February that our joint offer with the French to host the Galileo Security Monitoring Centre had been successful. The facility will be situated on two sites in France and the UK. The UK centre will be situated at NATS, Swanick, with the French site situated just outside Paris. The French facility will be the primary site, with the UK providing a back up site that will give identical functions and be able to take over seamlessly from the French site if a situation should require it. We, and the French government, believe that two centres geographically separated would better ensure a continuous service and be more secure, and the Commission seems to agree.

The detailed functions of the Centre will be the subject of further studies and discussions by Member State experts and the Commission over the coming months. However, in

general terms we expect it to cover: general system security monitoring, management of access to the Public Regulated Service, implementation of any instructions given in emergencies, and provision of ongoing security expertise.

Whilst it’s a small technical aspect of Galileo, it plays to our joint strengths in security.

Update on the Draft Regulation

At the December Council, the Swedish Presidency secured agreement on a General Approach on the proposal, whilst the Commission retained their scrutiny reservation; they argued for greater representation and a larger voting weight. COREPER and the Spanish Presidency have subsequently proposed a number of further amendments and these were discussed at the working group meeting on 17th February. The majority of the proposals were sensible editing that tightened up the Regulation and ensured that changes were cross referenced in both this and Regulation (EC) No. 683/2008. However, some of the proposals were in line with previous drafts that had already been rejected by the UK and other Member States.

Security Accreditation

You will recall that we fully accept and support the Commission’s aim of bringing the text of Regulation (EC) 1321/2004 (GSA Regulation) into line with the provisions of Regulation (EC) No. 683/2008 (Implementation of EGNOS and Galileo), given the substantial changes the latter made to the finance, governance and procurement procedures for the programme. From a legal perspective the inconsistencies between the two regulations have to be addressed as soon as possible and it is a key Government objective for an effective governance structure for the programme to be put in place.

Under this draft regulation, a new Security Accreditation Board would be set up. The text that had been agreed prior to the December Transport Council had, allowing for some minor edits, addressed all the concerns regarding the security accreditation of the UK Government. The European Parliament (EP) has now proposed a couple of amendments to the Articles dealing with Security Accreditation that are not acceptable to the UK.

Firstly, the EP proposed to remove the reference stating that the Security Accreditation Board for European GNSS systems must be an autonomous body that takes its decisions independently. The UK believes that the Board must be allowed to act independently of the other authorities involved in the governance of Galileo (i.e. the Commission, the Galileo Supervisory Authority (GSA), etc. It is ultimately responsible for security accreditation assurance on the Galileo system and must decide whether the risks associated with the system are acceptable. The Presidency and other Member States share our concerns and we will be robust in our opposition to the EP’s amendment.

The EP also proposed that the Security Accreditation Board should adopt opinions by a majority of three quarters of the members of the representatives of the Member States. All Member States had previously agreed that majority voting would be done in accordance with Article 205(2) of the Treaty, (i.e. QMV). The Presidency has proposed a compromise, acceptable to the UK, where this would be retained but text would be added to ensure that it was without prejudice to the Joint Action which provided that the security of the EU would not be prejudiced by the operations of Galileo.

The role of the GSA

Regulation 683/2008 confirmed that the Agency would be a body which would provide support to the Commission under the direction of Commission officials. Its role is to assist the Commission on any issue related to the execution of the Galileo programme, as required. However the body retained specific responsibility for the technical certification,

security accreditation, operation of the Galileo security centre and the market preparation and commercialisation of the Galileo system.

You will recall that the Commission’s original proposal would have eroded the independence of this body by having the weight of the Commission’s votes on the Administrative Board equal to that of all the Member States combined.

All Member States supported the need to safeguard the Commission’s position as programme manager and to ensure it has full control of the Galileo programme. The UK had been successful in proposing that the weight of the Commission’s vote on the Administrative Board should be limited to one vote for each of its five representatives. The Commission were prepared to accept this, in return for ‘outright veto’ on a number of ‘project manager’ roles. The EP has subsequently proposed that the Commission be given 40% of the vote. The UK will strongly oppose this amendment, as we believe that whilst the Commission would not have outright veto, it would be given too much control, and could allow decisions to be taken with only minority support from Member States. There is strong support amongst MS for the Commission to have five representatives and to retain veto rights on the appointment of, and the disciplinary authority, of the Executive Director. This is very close to the UK’s original proposal and we will push for this line to be taken.

The Commission and other Member States have accepted the UK’s contention that we need to safeguard the ability of the Agency to provide specialist and undistracted focus on the system and its commercialisation. In the negotiations the Commission has undertaken to address the role the Agency will play in the exploitation phase of the programme when it brings forth its mid term review of the Galileo programme and the governance structure. This is expected to be presented at the June Transport Council.

There has still been no discussion on the future location of the Agency as this has been a low priority. With the location of the Galileo Security Monitoring Centre now resolved it is possible that discussion will turn to this, but the Government believes that the priorities remain to progress the procurement of the system and ensure the majority of the industrial contracts are signed by the end of the year, if Galileo is to be operational by 2013. We will seek to ensure that these remain the focus at future official level meetings.

Involvement of the European Parliament

The EP continues to push to have three representatives to sit on the GSA Administrative Board as observers. The UK Government, the Commission and all other Member States are still unconvinced of the necessity of this.

Whilst it is accepted by all Member States that the EP needs to receive full, accurate and timely information on Galileo to fulfil its obligations as an arm of the EU’s budgetary authority, it already gets this via the Galileo Inter-institutional Monitoring Panel (GIP). Budgetary requirements and a report on the implementation of the programme are reported annually to the EP. Their argument is that the information that they receive from the GIP is insubstantial and that Regulation 683/2008 highlighted that close cooperation between Council, EP and the Commission would be useful. It was for this very reason that the GIP was created.

This matter was not resolved at Council, and remains an issue that officials, the Commission and the Presidency will need to come to an agreement on quickly during subsequent discussions with the EP. The UK will continue to support its European colleagues and the Commission in opposing EP representation.

The Parliament has proposed text that gives provision for the EP to see agendas, records of meetings and voting of both the Administrative Board and the Security Accreditation Board. As far as the Administrative Board is concerned, the UK is not in favour of the Parliament seeing records routinely. However, for the Security Accreditation Board the UK is strongly opposed to this. The Security Accreditation Board deals with detailed technical

matters which are dealt with on a strictly “need to know” basis as they are of importance to both national and EU security and also are the Intellectual Property of the EU or its contractors. It would be completely inappropriate for this information to be divulged. The Presidency have proposed a compromise text which would give limited access to relevant documents as appropriate, which the UK can accept.

Next steps

Some issues still remain to be addressed as I have set out above. These issues need to be resolved quickly to ensure that the Programme can progress to schedule. There is a general consensus amongst Member States, the Presidency and the Commission that these can be resolved with the EP, and UK officials will continue to work closely with European colleagues to ensure that this is the case, whilst defending UK interests robustly.

I will of course continue to keep your Committee informed of further developments, and in particular on the outcome of discussions with the EP.

4 March 2010


The Committee has asked me to write to you about the information on the latest developments in relation to the Galileo programme in your letter of 4 March 2010. The Committee was grateful for your very full account of these developments.

10 March 2010

PROPOSAL LAYING DOWN THE FRAMEWORK FOR THE DEPLOYMENT OF INTELLIGENT TRANSPORT SYSTEMS IN THE

FIELD OF ROAD TRANSPORT - 17564/08 (30313)


Your Committee last considered this proposal on 1 July when it recommended that the dossier should be debated in European Committee. That debate took place on 20 July. During the debate I outlined the Government’s cautious approach to the proposed legislation, but recognised that we would need to be prepared to be flexible should a consensus emerge in favour of the legislation. At the time of the debate, the Swedish Presidency were hoping that it would be possible to reach a political agreement of this dossier at the October Transport Council. I considered this timetable to be ambitious, and in the event the Presidency was not able to achieve its objective and the proposal was withdrawn from the Council agenda. There have been a number of working group discussions of the proposal in recent weeks and I am now writing to update you on progress and to alert you to the Presidency’s intentions to reach political agreement on the dossier at the Transport Council on 17 December. In parallel, the Presidency is seeking an early second reading deal with the European Parliament

From the debate and our earlier correspondence you will be aware that the Government believes Intelligent Transport Systems (ITS) technologies can make an important

contribution to achieving our transport objectives where they are well-targeted and there is a sound business case, and believes a co-ordinated approach to deployment across the EU will help deliver the full potential of these technologies. However, we have not been supportive of this particular legislation. This position was also supported in our consultations with ITS stakeholders. My officials continued to make this case during negotiations in July, but by September it had become apparent that a majority of Member States were in favour of the legislative approach.

Against this background, we have been working hard in negotiations to secure changes to the Directive which are more palatable to the UK, consistent with the principles I outlined to your Committee in debate. The key issues for us have been that:

decisions on the deployment of ITS applications and services should be for Member States;

the Directive should focus on the development of standards to allow ITS to be interoperable across borders;

the Directive should focus on a narrower set of priority actions and be confined to actions which required co-operation at European level;

I am pleased to say that we have made good progress in all areas of concern to the UK, and I am content that, provided there is no significant slippage in the gains we have secured, the Directive is now in a much better shape. Although the European Commission continues to maintain a general scrutiny reserve on the entire Directive, arguing that it is not ambitious enough, it is unlikely that this will be used to block the Directive in its current form, if political agreement is reached at the December Transport Council. Moreover, if agreement is not reached at the Transport Council, negotiations are likely to restart under the upcoming Spanish Presidency. The current Swedish Presidency has been largely sympathetic to the UK position. If negotiations are restarted under a Presidency with different priorities, this may put at risk the substantial gains we have achieved. While I would like to go further in proposing further amendments, at this stage of negotiations I will be concentrating on securing the progress we have made.

We have made particularly good progress on the issue of mandatory deployment. The latest working version of the draft Directive no longer contains provisions for the mandatory deployment of ITS systems. Decisions on deployment will remain the responsibility of Member States, in accordance with the principle of subsidiarity. Early indications are, however, that the European Parliament remains in favour of mandatory deployment, a position reflected in its proposed amendments to the Directive. The Presidency is entering into discussions with the Parliament with a view to reaching a compromise. I shall continue to resist strongly any compromise which takes decisions on deployment away from Member States, and will continue to seek support from other Member States for this position.

I have been concerned that the scope of the actions initially envisaged in the Directive was both wide and unclear. With the support of other Member States, we have made some progress in confining the scope of the Directive to actions for cross border interoperability. There is also now greater clarity on the scope of the actions and a clear hierarchy of priorities.

I am supportive of measures to facilitate the interoperability of applications and services across borders, but I was concerned that the original proposal went well beyond the standards necessary for this purpose, potentially dictating roles and responsibilities and taking little account of different requirements between Member States. The draft Directive now recognises the important role to be played by existing standards organisations. We will need to play a full part in future discussions over the implementation of this Directive to ensure that specifications do not go beyond those necessary to secure interoperability.

Given the nature of this framework Directive, the lack of precision on the range of possible actions, the uncertain scope of specifications and the fact that deployment decisions are out of scope, it is difficult to predict with any certainty at this stage what the impacts might be in the UK, both across the private and public sectors. The attached Impact Assessment seeks to give a broad indication of potential impacts, but I do not think there is sufficient evidence to support a clear conclusion. I am, however, pleased to say that as a result of strong lobbying, including from the UK, the Directive now includes an obligation for the Commission to undertake a full impact assessment prior to the adoption of any specifications.

Although there are still some details for Member States to resolve, there are no further Working Group meetings scheduled and we do not expect that there will be any further significant changes to the proposal between now and the Council. I will, of course, continue to keep your Committee informed of the progress of this proposal through the further stages of consideration by the European Parliament and the Council.

EU-US STAGE 2 AVIATION AGREEMENT


You may recall that the proposal for a Decision on the first stage of the air services negotiations with the United States of America was the subject of Explanatory Memorandum 8656/06 (Committee reference 27453) and debated in Standing Committee on 23 April 2007. The first round of stage two of the agreement took place in May 2008 with both sides making initial presentations on their ideas and objectives for stage 2. At that point it was not expected that much substantive progress would be achieved for some time after the US Presidential elections. It may be helpful if I let you have a short up-date on further developments since then.

The negotiations were effectively put into abeyance in the period around the US Presidential elections and the appointment of a new Administration. Since then there have been three further rounds of discussions, most recently in November 2009.

As you may be aware, Article 21 of the Stage 1 Agreement set out the starting point and a timetable for the negotiation of a second stage. We have now reached the point envisaged in that timetable where a review of progress is due to take place. To that end the Commission, who lead the negotiations on behalf of the EU and its member states, will be presenting a progress report to the Transport Council on 17 December, and seeking guidance on the next steps.

During the 5 rounds of discussions to date, both sides have tabled proposals for amending or supplementing the existing agreement. The proposals have covered all the areas mentioned in Article 21 (2) of the existing Agreement as priorities for the second stage, ie

further liberalisation of traffic rights;

additional foreign investment opportunities;

effect of environmental measures and infrastructure constraints on the exercise of traffic rights;

further access to Government-financed air transportation; and

provision of aircraft with crew.

Proposals have also been made in a number of other areas, including security, enhancing the future role of the Joint Committee set up under Article 18 of the Agreement, mutual recognition of certain regulatory determinations, and enhanced cooperation on addressing the environmental impacts of aviation.

At this stage no agreement has been reached on any of these items, though common understandings have been reached on some. It is also clear that many of the proposals advanced by the two sides would require amendments to existing legislation, either in the US (as regards some aspects of items a), b), d) and e) above) or in the EU (as regards some aspects of item c)). An important aspect of the discussions is therefore how an agreement can be framed, within the timetable envisaged for the negotiations, in anticipation of possible future legislative change, and without pre-empting the respective legislative procedures.

So far as the UK is concerned, having consulted stakeholders, we have sought to prioritise investment liberalisation as the most important area in which we would like to see progress made during these negotiations. We also see enhancement of cooperation between the EU and US on the environmental impacts of aviation as a potentially fruitful area for further action.

Discussions are likely to continue and intensify in early 2010, and the in-coming Spanish Presidency has indicated that this is likely to be one of its priorities in the transport area. The timetable set down envisages finalisation of an agreement within 12 months of the review (ie by November 2010), after which, if no agreement has been reached, the Parties have the option to suspend rights specified in the Stage 1 agreement. We do not expect that a depositable document will be issued for some time yet, but I would be happy to provide your Committee with a further update on discussions during the Spanish Presidency.

3 December 2009


The Committee has asked me to thank you for the useful account of where matters stand on the negotiation of this agreement in your letter of 3 December 2009. It would welcome a further report, as you suggest, during the Spanish Presidency.

9 December 2009


SPANISH PRESIDENCY 2010 – TRANSPORT COUNCIL BUSINESS

I am writing to update you and your Committee on the transport proposals that are likely to be progressed by the Spanish Presidency in the coming months.

The Presidency have a broad range of headline priorities – including consolidating Europe's social agenda, promoting a People's Europe, getting out of the economic crisis, energy security and the fight against climate change, and consolidating a safer Union for its citizens. In the field of transport, they plan to focus on three key areas:

• Sustainability: the role of transport as a strategic sector of the new productive model; promoting more efficient urban mobility; improving and enlarging transport networks; and increasing competitiveness.

• Innovation: start up the second stage of the Single European Sky; promote the EGNOS and Galileo satellite navigation systems, paying special attention to the mid-term revision of the programme; and concluding ITS.

• Safety: work to update European legislation in the investigation of air accidents; promote initiatives that will continue to improve road safety; and initiate a discussion regarding maritime safety in the Informal Council.

The Presidency has informed us of the following key transport events over the next 6 months:

• There will be two Transport Councils during the Spanish Presidency. The first one will be in Brussels on 11 March and the second will be in Luxembourg on 24 June.

• An Informal Ministerial Transport Council will be held in A Coruña on 12 February with a focus on urban mobility. A separate high level conference on maritime safety will also take place in the morning at A Coruña.

• Negotiations on the Second Stage of the EU-US Air Transport Agreement will take place in Madrid on the 15-16 February.

• A conference on the application of the Single European Sky 2 will take place in Madrid on 25-26 February. The topic will be: The new regulatory framework: Performance (objectives for improvement indicators, FABS), technological dimension, airport capacity, human factor, international dimension and defence.

• A high level conference will take place in Madrid in April on road safety and what private companies can do to encourage safer driving.

• A high level conference on TEN-T will take place in Zaragoza on 8-9 June to present the results of the guidelines revision process and analyse the present and future of the network.

Aviation

Further to Paul Clark’s letter to your Committee on 3 December, it has been established that the Presidency will host the next round of the second stage EU-US Air Transport Agreement negotiations on 15-16th February in Madrid. The Spanish view this is a key file and would like to see an agreement on stage 2 during their Presidency. As promised, we will provide your Committee with a further report on these discussions.

The proposed Regulation on air accident investigation (EM 15469/09, 31113) is the other Spanish Presidency priority dossier for aviation. Work commenced under the Swedish Presidency and the Spanish are very keen to secure a political agreement by the June Council.

The Presidency are aiming for the EU-Brazil safety agreement (EM 12580/09, 30849) to be signed with Brazil in the margins of the EU-Latin American Summit in Brazil.

There was a half day working group negotiation in January on the proposed directive on Aviation Security Charges (EM 9864/09, 30645). This dossier is not a priority for the Spanish, and they have decided to await the outcome of the deliberations in the European Parliament before returning to it. A separate letter will be sent to your Committee shortly to bring you up to date with the latest developments.

Horizontal

The Presidency aims to adopt Council Conclusions on the Action Plan on Urban Mobility (EM 14030/09, 30993) at the June Council, following a discussion at the Informal Council in February. In principle, the Government supports the Commission’s Action Plan which is broadly in line with our urban transport policies, but we maintain that the principle of subsidiarity must be respected.

The Presidency intends to finalise the work of the out-going Swedish Presidency on the Intelligent Transport Systems Directive (EM 17564/08, 30313) by including agreed Lisbon Treaty-related comitology provisions. It is hoped that a quick agreement on these provisions can be reached with the European Parliament as the Directive has otherwise been agreed in principle by both the Council and the European Parliament.

Following adoption of Presidency Conclusions on the Future of Transport (EM 11294/09, 30714) at the December Transport Council, the Commission have confirmed that the next White Paper is unlikely to be ready for publication until early 2011.

The Presidency will continue in a modest way to work on the Galileo amending regulation (EM 6257/09, 30514). However it is not clear if a first reading deal will be possible due to the EP’s desire to remove some of the detail on accreditation and the issues surrounding European Parliament representation and Commission voting rights. The European Parliament’s first reading is currently scheduled for April 2010. A discussion is planned at the June Council on a Regulation on user access to the Public Regulated Service

Land

The Presidency are aiming for a political agreement on the Transportable Pressure Equipment Directive (EM 13566/09, 30942) at the March Council. All technical issues have been resolved, although some questions remain open on delegated acts. The Presidency have entered into discussions with the European Parliament Rapporteur (Brian Simpson) with a view to achieving a quick first reading deal. The pressured timetable is due to updated international law and the need to align EU legislation.

The Presidency will pick up work on the proposed Council Decision on a Community position on the Interbus Agreement (EM 10584/04, 25762) with a view to adopting a Council Decision at the March Council. Although the Agreement dates from 2003, the rules of procedure for the joint committee still need to be adopted and the technical annexes amended to reflect recent EU regulations on technical standards.

The Presidency are aiming to finalise the work of the outgoing Swedish Presidency on the Rail Freight Regulation (EM 17324/08, 30304) by achieving a second reading deal with the European Parliament. The European Parliament second reading is currently scheduled for June 2010.

The Presidency will continue to put pressure on the Commission to achieve an agreement on the proposed Decision on Accession to COTIF, the Convention concerning International Carriage by Rail (EM 12802/09, 30883).

Although the Presidency had hoped to start work on the revision of the First Railway Package the Commission have confirmed that no proposal will be forthcoming until the second half of 2010.

The Presidency will try to work for agreement on the Road Transport Working Time Directive (EM 14461/08, 30061) if the European Parliament is ready. After the previous rejection of the proposal in the European Parliament, the proposal has been referred back to Committee, with adoption of new report at Committee level expected in February/March 2010, and consideration in Plenary currently scheduled for April/May. Any potential political agreement would be at the June Council.

At the June Council the Presidency hopes that it will be possible to adopt Council Conclusions on the Road Safety Action Plan for 2011 – 2020 which the Commission have said should be ready in April. We are keen to support measures that are effective in improving road safety in the EU and will consider the detailed proposals when they emerge.

The proposed Cross-border Enforcement Directive (EM 7984/08, 29587) has been stalled for some time due to the concerns that Member States, including the UK, had over the legal base. The Commission are expected to issue a new proposal now that the Lisbon Treaty is in force, but have confirmed that this will not be forthcoming until at least July 2010.

The Presidency are hoping to achieve a second reading deal on the Bus Passenger Rights Regulation (EM 16933/08, 30255), although they have noted that the European Parliament has opposed the Council on issues such as scope and liability. The European Parliament wishes to treat both the bus and maritime passenger rights Regulations as a package. Therefore the Presidency is waiting for the Common Position to be prepared on the buses Regulation before submitting both Regulations to the European Parliament. The Eurovignette Directive (EM 11857/08, 29851) is a low priority for the Spanish Presidency and is not expected to feature on a Council agenda, but they have indicated that it may receive some working group time during their term.

Shipping

The Presidency have indicated that the workload of the maritime working group will be very light.

The Presidency are hoping to achieve a second reading deal on the Maritime Passenger Rights Regulation (EM 11990/08, 30264). Therefore the Presidency is waiting for the Common Position to be prepared on the Buses Regulation before submitting both Regulations to the European Parliament. The Presidency are hoping for a first reading deal on the Port Formalities Directive (EM 5789/09, 30447). Given that both the European Parliament and Commission have stated

that they are keen for a quick agreement, we will continue to work to ensure outstanding UK concerns are reflected at Council.

Vehicle Emissions

The proposed Regulation on CO2 emissions targets for new light commercial vehicles (EM 15317/09, 31093) will be taken forward by the Spanish Presidency, with a scheduled policy debate at the Environment Council on 15 March and a possible political agreement at the 21 June Environment Council. The European Parliament has not yet scheduled an indicative date for its first reading of this proposal. The Presidency sees this dossier as a priority, although some unavoidable complexities in the subject matter mean that it may not be straightforward to complete.

The Commission will publish an electric vehicle development plan shortly, which is expected to be a priority document for the Spanish Presidency and may be the subject of Conclusions at the Competitiveness Council in May. The document is likely to concern vehicle and infrastructure standards which will ensure interoperability between Member States, and the Government is broadly supportive of the policy in line with our strategy for Ultra Low Carbon Vehicles. The detail of the document is not yet known however, and it has not yet been established whether the EU discussions will be best taken forward by the Department for Transport or the Department for Business, Innovation and Skills.

The Commission is expected to adopt a new framework regulation in April 2010 to simplify the type approval of motorcycles, tricycles and quadricycles. The proposals are intended to improve safety through various measures including the introduction of advanced braking systems, and improve environmental performance with tighter limits on the emission of pollutants.

In response to the current economic situation the Commission will issue a proposal for additional, temporary flexibilities on non-road mobile machinery emissions requirements. This will take the form of a revision of the Non-Road Mobile Machinery Directive 97/68/EC, and specifically a revision of the flexibility scheme introduced by 2004/26/EC. The proposal is expected to be issued in spring, and we expect that it will include the introduction of flexibility for some rail engines and the extension of existing flexibility arrangements for other applications to cover a larger number of engines (for a limited time period).

Later in the year we are expecting two further proposals, one setting energy efficiency requirements for car air conditioning systems and the other making further amendments to the NRMM Directive, extending the scope to larger and smaller engines and setting new emissions standards for constant speed (e.g. portable generator) engines, rail engines and inland shipping engines. However it is not expected that these will emerge until quite late in the year.

I hope that this general summary of our expectations is useful. Further information will, of course, be provided to you in the future on the progress of each of these dossiers, in line with the usual procedures for Parliamentary Scrutiny.

10 February 2010

Letter from the Chairman to Sadiq Khan

The Committee has asked me to thank you for your helpful letter of 10 February 2010 about the present Presidency’s plans for Transport Councils in the first half of this year. The Committee was grateful for this information.

24 February 2010

HM TREASURY

EM 16016/09 – COMMISSION WORKING DOCUMENT: CONSULTATION ON THE FUTURE "EU 2020" STRATEGY

Letter from Ian Pearson to the Chairman

Further to EM 16016/09 on the European Commission’s Working Document Consultation On The Future "EU 2020” Strategy, and my supplementary letter of 13 January, please find attached an HMG paper published today EU Compact for Jobs and Growth.

The paper sets out the need for strong, sustainable and balanced growth to continue to raise the prosperity and improve the standard of living of Europe’s citizens.

It outlines six areas where action is needed, with policy proposals in each area:

1. Fiscal policy that protects the recovery and supports sustainable growth.

2. Creating new jobs and equipping our workforce with skills for the new economy.

3. Growing the innovative industries of the future.

4. Supporting business to take advantage of the Single Market.

5. Opening up global markets to trade and investment.

6. And a robust and competitive financial services sector.

It also proposes a Compact between the President of the Commission and the President of the European Council that would serve as a framework for harnessing Europe’s policies, such as those set out in the paper and the Commission’s EU 2020 proposals, to deliver jobs and growth.

19 January

Letter from the Chairman to Ian Pearson

The Committee has asked me to thank you for your letter of 19 January 2010 with the Government’s paper, EU Compact for Jobs and Growth, which it has noted with interest. The Committee has asked me also to remind you of its wish to have the Commission’s final proposals on this matter for consideration by the Spring European Council debated before that meeting.

27 January 2010

Response to further questions from Commons European Scrutiny Committee concerning the proposals on European financial

regulation and supervision

Letter from Lord Myners to the Chairman

In a report dated 4 November, your Committee asked for further comment by the Government on a number of matters, in time for the debate on this topic scheduled for 1 December. I am writing in response to this request.

We are unclear as to the Minister’s assertion that “the Government has ensured a balanced representation of eurozone and non-eurozone representatives” on the European Systemic Risk Board’s Steering Committee. The wording of Article 11 of the draft Regulation does not suggest any such balance. If the Minister means a redraft of the provision does provide a balance, we should like sufficient detail to form a view.

There is broad consensus in Council that there should be an appropriate representation of non-eurozone Member States in the European Systemic Risk Board (ESRB). In particular, that there should be 5, rather than 3, additional members of the Steering Committee, and that 2 of these should be from non-eurozone central banks. The need to ensure an appropriate balance of eurozone and non-eurozone members was one of the key issues stressed by the Chancellor, Alistair Darling, during the discussion of these proposals at the ECOFIN meeting of 2 October. The Government is therefore confident that this position will be reflected in the Council’s discussions with the European Parliament as we go forward.

Similarly, we should like to know what the Minister means by “improved threshold limits” in relation to European Systemic Risk Board voting.

Again, this reflects a building consensus in Council that the voting mechanism for decisions taken by the ESRB’s General Board contained in the Commission’s draft regulation is not appropriate in all cases. Instead, there has been considerable support for voting by two-thirds majority, rather than simple majority, for adopting a recommendation and for agreeing to make a warning or recommendation public.

We note the Minister’s somewhat insouciant comment about the European Economic Area. We are, of course, very well aware that this sort of legislation applies automatically to the European Economic Area. However what we asked was whether members of the European Economic Area were content to be subjected to [these proposed] bodies on which they have no representation. We should be grateful for an answer to this point;

The Government has not consulted the three non-EU EEA Member States on these legislative proposals. The procedures in place under the EEA Agreement provide for input to draft legislation within the scope of the EEA agreement by experts from the three States concerned. The EEA Joint Committee (consisting of the EEA Member States and the Commission) decides on the extension of EU law to the non-EU EEA Member States.

Similarly, the Minister’s comment about access by the European Supervisory Authorities to information, including in supervisory colleges, does not appear to address the City of London Corporation’s query as to the appropriateness of representatives of the European Supervisory Authorities being on the colleges. We should be grateful for clarification of this point.

The Government believes that the new Authorities should have access to all the information necessary to perform their functions. This will require some participation of the European Banking Authority in supervisory colleges, but it will be for the supervisors themselves to reach a view on how best to involve them, in terms of efficiency and effectiveness.

Legal concerns that have become apparent on further examination of the proposals, particularly in relation to delegation of powers, to legal bases and to proportionality. In this connection we annex a Memorandum on the legal aspects of the drafts, and invite the Minister’s comments on it.

The Government is aware of the complex legal issues surrounding these proposals.

Regardless of the technicalities, the Government’s overriding objective here is that the new framework must be able to withstand legal challenge. We cannot have legal uncertainty and challenges before the Courts. That could undermine financial stability. That is why the Government is working closely with other Member States and Council Legal Service to ensure the bodies are on a sound legal footing.

Regarding the specific points raised in your Committee’s note, on the delegation of powers, the Commission is (as the note recognises) legally able under the Treaty to delegate powers to the new supervisory Authorities where the Commission has this power in the first place and where the decision making powers that are delegated do not involve wide discretion. In this context, the Government is therefore looking closely at areas where the supervisory Authorities appear to be able to exercise discretion, and where the Commission is playing a key role in the enforcement of EU law.

On the legal basis, the Government is satisfied that Article 95 of the EC Treaty is an appropriate legal base for the new European Supervisory Authorities. The work of these new bodies is aimed at harmonising regulation and supervisory practice across the EU, thereby enhancing the single market for financial services. The Government is also satisfied that Article 95 is an appropriate legal base for the ESRB since its tasks are closely

linked to and will complement the harmonisation of supervision across the EU. Issues on proportionality are being considered in the Government’s evaluation of the legal issues raised by the proposals.

I hope that this information is helpful and further clarifies my previous correspondence to your Committee.

30 November 2009

Letter from the Chairman to Lord Myners

The Committee has asked me to respond to your letter of 30 November 2009 answering points it raised on this draft legislation in its report of 4 November 2009. This letter was not received, electronically, in the Committee’s office until yesterday, 8 December 2009.

The letter supposedly provided information in time for the debate on the Floor of the House scheduled for 1 December 2009, as the Committee had requested. But even if it had been delivered promptly it would have been almost impossible to draw it to the attention of Members taking part in the debate.

The Committee is extremely disturbed at this failure to adequately prepare Members for the debate on the issues we had raised. So it would like from you an explanation of this failure and an assurance of remedial action.

9 December 2009

EM 12093/09: Draft Directive amending Directives 2006I48/EC and 20061491EC as regards capital requirements for the trading book

and for re-securitisations, and the supervisory review of remuneration policies

Letter from Paul Myners to the Chairman

In a report dated 25 November 2009, your Committee raised some questions with regards to aspects of the scrutiny process for this proposal. I would like to apologise for the confusion over my responses to you.

On 6 November I had written to the Committee to outline the latest position in the Council negotiations. In the process of drafting the letter it became clear that a final compromise text was imminent and so I waited to allow me to give your committee the fullest possible picture of the outcome of the negotiations. However this led to the text in the letter referring to the COREPER meeting of 4 November in the future tense, despite being dated shortly after the meeting had occurred. I regret any confusion this may have caused.

Subsequent to this I wrote on 17 November, to let you know that the Presidency had taken this to the 10 November ECOFIN to agree upon a general approach. As a result of not having received scrutiny clearance the UK maintained a scrutiny reserve, which was noted in the minutes.

Again I would like to apologise to you and your Committee for the manner in which this has been handled and I will endeavour to ensure that a prompt response on scrutiny issues is sent in the future.

17 December 2009

Letter from the Chairman to Paul Myners

The Committee has asked me to respond to your letters of 17 December 2009 about lapses in the Treasury handling of scrutiny issues relating to the Draft Directive amending the Capital Requirements Directive and the draft legislation on regulation and supervision of financial services.

The Committee has noted your explanations and accepts your apologies. However you will understand that it will be anxious to see your undertaking of remedial action to ensure a better Treasury performance for the future being properly implemented.

6 January 2010

DEPARTMENT FOR WORK AND PENSIONS

13981/08: 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

Letter from Angela Eagle to the Chairman

Thank you for your clearance of this proposal, on the basis of my letter of 27 October, that the latest Presidency text satisfied most of the Government’s earlier concerns, and that we would seek drafting amendments to recognise more clearly the UK’s approach and provide added assurance on maternity benefits.

The Swedish Presidency has made good progress on a number of our key concerns. However, I have to inform you that we were unable to secure the drafting amendments on maternity benefits at Council Working Parties on 3 and 16 November. As a result, we still have some concern that the text is overly prescriptive and fails to fully respect the principle of proportionate action. In particular, in meeting the primary objective of equality between men and women, it takes insufficient account of the detailed organisation of our national insurance and social protection schemes.

Our specific concern is over what we believe to be a very small number of assisting spouses who are not already formally employed in the family business, or elsewhere. We understand that Article 7 of the Directive, as currently drafted, would require us to pay a UK maternity allowance to these women, without their meeting the precise employment conditions that other recipients must meet. However, we also recognise that, in order to qualify as an assisting spouse under the Directive, these women are making a real contribution to the family business. For example, Article 1a requires that they “habitually, under the conditions laid down by national law, participate in the activities of the self-employed worker and perform the same tasks or ancillary tasks”. There is therefore an argument that this contribution should be better recognised. And legal advice is that the “national law” condition would not excuse inaction on our part simply because these women do not currently satisfy the letter of our employment conditions.

As mentioned in my October letter, the reason that there are so few uninsured assisting spouses in the UK is that our tax and national insurance legislation provides strong

incentives for family businesses to organise themselves so that the spouse is either an employee or business partner, and therefore insured. Where the business has sufficient profits to pay tax, the value of these incentives significantly outweighs any administrative cost to the business, and is well publicised. The value of these incentives is well known to tax advisers and is an important feature of their advice to family businesses. More detail is in the attached Annex.

We also think it significant that HMRC and DWP are unaware of any lobbying on behalf of uninsured assisting spouses. However, we have sought to test the adequacy of current UK tax and national insurance provision through an informal consultation of representative business groups, including the Federation of Small Businesses, the British Chambers of Commerce and the Institute for Family Business. The limited responses to date confirmed that there is no particular interest in this issue.

Precise data is very limited on the numbers of assisting spouses since these people are, by definition, not on our tax and national insurance records. Nevertheless, we currently estimate that up to 1600 uninsured assisting spouses could be pregnant in any one year, with potential maternity allowance costs of approximately £2 million annually. However, it is important to note that we believe that virtually all these women would qualify for maternity allowance, and the family business would save money, if they were to choose to organise their business to take advantage of the incentives that our tax and national insurance legislation provides.

During negotiations we have offered a range of drafting solutions: to better align the maternity allowance provision with the over-arching social protection provisions of Article 6, which recognises the range of member state provision and with which we remain content; and to improve the fit with current UK qualifying conditions for maternity benefit, by better linking them to employment, while recognising that by the Directive’s own definition the spouse must actively participate in the business. We have also worked with another large member state to lobby partners, the Presidency and Commission.

The proposal went to COREPER on 19 November. We were again seeking to improve the text, on the principle that it is disproportionately restrictive. However, as at Working party and an earlier COREPER, it seems likely that the Presidency will pursue its ambition to secure political agreement at the 30 November Employment and Social Policy Council, and that there will be a qualified majority to support the current text. In that event, I propose to defend our priority; the current drafting of Article 6, where we are content with the text negotiated by the Swedish Presidency, and to restate our concerns with Article 7.

21 November 2009

13981/08: 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


Thank you for your letter of 9 December in response to the post EPSCO Council statement, indicating that you were satisfied by our approach to this directive and abstention at Council.

I am writing to inform the Committee of the timetable of the next phase of negotiations on this directive and seek clearance of our negotiating position, in advance of the election period and interruption to the scrutiny process.

The directive was formally adopted at EPSCO Council on 8 March and is being transmitted to the European Parliament for Second Reading on 24 March. Discussions in the FEMM Committee are provisionally scheduled for April and the Committee and Plenary votes are scheduled for May. We anticipate that the directive will go to EPSCO Council 7-8 June for agreement.

The timetable is being pushed by the Spanish Presidency who would like to gain agreement on an equality file, and by the new Commission who are seeking progress on this issue.

The Council has already agreed to give assisting spouses access to maternity allowance. Our priority in future negotiations with the European Parliament is to maintain the current drafting of Article 7 (access to general social protection), and to resist the widening of preferential access to social security benefits for assisting spouses. We will lobby MEPs and Member States to not go beyond the significant concession already agreed on maternity allowance.

Attached is the final Council common position text, agreed at the March EPSCO, which is entirely as expected. We will share the EP’s forthcoming proposals and keep the Committee informed of progress.

16 March 2010

Letter from the Chairman to Angela Eagle

Thank you for your letter of 16 March about this draft Directive.

We are grateful to you for sending us the revised text which the Council adopted on 8 March and for telling us the Government’s negotiating position in the remaining stages of the consideration of the proposal.

24 March 2010

WORK AND PENSIONS PRIORITIES OF THE SPANISH PRESIDENCY

DWP PRIORITIES DURING THE SPANISH PRESIDENCY OF THE EU: JANUARY – JUNE 2010


Now that the Spanish Presidency of the EU is underway and it is clearer what business the Presidency is expecting to take forward, I would like to update you on my Department’s plans and priorities over the coming months. This letter sets out the key dossiers that will be progressed.

The main focus of the Presidency for our departmental business will be to reduce the effect of the financial crisis on labour markets and its negative social effects, giving special attention to the most vulnerable.

Their official Work Programme has now been published and can be found at:

http://www.eu2010.es/export/sites/presidencia/comun/descargas/unione uropea/Consejo_EPSCO_en.pdf

In the areas of employment and social policy, the Spanish Presidency’s overarching priority will be agreement on EU2020, the follow up to the Lisbon strategy. We expect proposals on this shortly from the new Comission, including on the Presidency themes of promoting quality jobs and combating youth unemployment. This will form the agenda of the Informal Meeting of Ministers of Employment and Social Security, which takes place in Barcelona on 28-29 January 2010. I will report to you more fully on the outcomes of the Informal after the event.

There are two Employment, Social Policy, Health and Consumer Affairs (EPSCO) Councils scheduled to take place during the Presidency. These will be held on 8-9 March in Brussels and 7-8 June in Luxembourg. Although the Presidency has issued provisional agendas for these meetings, the content is likely to change during the run up to each Council. Officials will provide your committee with annotated agendas and I will make the usual written statement in advance of, and report following, each Council meeting to set out the finalised outcomes that the Presidency will be aiming for, and how these fit with UK objectives.

Draft EPSCO Agenda – March 2010

The following items are provisionally listed for adoption/political agreement at the March Council:

Proposal for a Council Directive implementing the Framework Agreement on prevention from sharp injuries in the hospital and healthcare sector concluded by HOSPEEM and EPSU

Preparation of the Spring European Council

a) Joint Employment Report 2009/2010

b) Joint Report on Social Protection and Social Inclusion 2010

Possible additions for adoption/political agreement are the linked:

Proposal for a Decision of the European Parliament and of the Council establishing a European Microfinance Facility for Employment and Social Inclusion (Progress Microfinance Facility)

and

Proposal for a Decision of the European Parliament and of the Council amending Decision No 1672/2006/EC of the European Parliament and of the Council establishing a Community Programme for Employment and Social Solidarity.

Draft EPSCO Agenda – June 2010

The subjects provisionally listed for adoption/political agreement at the June Council, are the:

Proposal for a Council Decision on Guidelines for the Employment Policies of the Member States

Proposal for a Council Decision on the position to be taken by the Community within the Association Councils established by the Agreements with Algeria, Morocco, Tunisia, Croatia, the Former Yugoslav Republic of Macedonia and Israel with regard to the adoption of provisions on the co-ordination of social security systems.

http://www.eu2010.es/export/sites/presidencia/comun/descargas/unioneuropea/Consejo_EPSCO_en.pdf�

http://www.eu2010.es/export/sites/presidencia/comun/descargas/unioneuropea/Consejo_EPSCO_en.pdf�

Possible additions for adoption/political agreement are the:

Proposal for a Directive 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 Council Regulation extending the provisions of Regulation (EC) No 883/2004 and Regulation (EC) No […] to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality

Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation.

We also expect that Council Conclusions will be agreed in March on Gender-based violence, and that this will also be subject to a policy debate. In June, we expect that Council Conclusions will be agreed on;

Sustainability and adequacy of social security systems, pension schemes and inclusion

New Skills for New Jobs for a more competitive Europe

Active inclusion

Healthy and dignified ageing

Inclusion of Roma

European Disability Strategy.

We are broadly happy with the way the Spanish Presidency plan to take forward negotiations on these existing dossiers, and I look forward to continuing to work closely with your committee to achieve the necessary scrutiny clearance before any agreement at Council.

I hope you find this information helpful, and I will keep you informed of developments in preparation for the Councils in March and June.

Letter from the Chairman to Angela Eagle

Thank you for your letter of 25 January about the business the Spanish Presidency is expected to table at the EPSCO Council’s meetings in March and June. We are grateful to you for taking the trouble to set this out so clearly for us.

The legislative proposals will, of course, be deposited and come to us for scrutiny in the usual way. But the drafts of the Council Conclusions will not. Yet Conclusions can be vital in shaping important EU policies and so we believe that the Committee should have the opportunity to consider their likely contents before the Government enters a political commitment to them.

We should be grateful, therefore, if you would write to us before the EPSCO meetings to tell us the likely contents of the Conclusions and the Government’s views on them

3 February

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