Legal base	Council Regulation: Article 308 EC; consultation; unanimity. Council Decision: Articles 30, 31 and 34(2)(c)EU; consultation; unanimity
Deposited in Parliament	(b) 3 November 2006
Department	Constitutional Affairs
Basis of consideration	(a)Minister's letter of 6 November 2006 (b) SEM of 6 November 2006
Previous Committee Report	(a) HC 34-xl (2005-06), para 1 (1 November 2006); HC 34-xxxi (2005-06), para 3 (14 June 2006): HC 34-v (2005-06), para 11 (12 October 2005) and see (26126) 14223/04: HC 38-i (2004-05), para 1 (1 December 2004) and HC 38-viii (2004-05), para 1 (10 February 2005) (b) None
To be discussed in Council	Justice and Home Affairs Council 4-5 December 2006
Committee's assessment	Legally and politically important
Committee's decision	For debate in European Standing Committee (decision reported 1 November 2006)

Background

2.1 We considered the draft Council Regulation and draft Council Decision most recently on 1 November when we recommended that they should be debated in European Standing Committee. We were grateful to the Minister for keeping us informed of progress of the negotiation of this important measure. We also firmly supported the Minister in her efforts to ensure that the risk of any duplication of the work of the Council of Europe was minimised, and agreed with the Government's opposition to giving the proposed Agency any role in relation to police and judicial cooperation in criminal matters under Title VI of the EU Treaty.

2.2 We welcomed the amendments which had been made, but remained concerned as to how Article 308 EC could properly be used to create a European Union body, particularly in circumstances where the Agency was not given any role under the EU Treaty.

The Minister's reply and supplementary explanatory memorandum

2.3 In her letter of 6 November the Parliamentary Under-Secretary of State at the Department for Constitutional Affairs (Baroness Ashton of Upholland) replies to our concern about the use of Article 308 of the EC Treaty to create a European Union body. The Minister has also deposited the latest formal version of the draft Regulation and Decision and covers these with a supplementary memorandum.

2.4 On the question of the use of Article 308 EC, the Minister replies that the Government takes the view that the Agency should not have a third pillar (i.e. EU Treaty) remit and that in these circumstances the Minister shares our concerns and would "expect that the proposed Regulation establishing the Agency should be amended to clarify that the new body will be a Community Agency, not a European Union body". The Minister adds that recital number 32, and Article 28 (which refer to the possibility of the Council adopting a Decision to empower the Agency to pursue its activities under Title VI) "would need to be removed or amended significantly".

2.5 The Minister also informs us that the discussions on the Agency's third pillar remit are still in progress and that the Council has not yet reached political agreement on the issue. The Minister explains that the latest draft of the proposal (document (b)) merely reflects this situation. However, the Minister also states that it is expected that the Finnish Presidency will submit the proposal to the Justice and Home Affairs Council of 4-5 December for political agreement (and possibly to COREPER on 22 November). The Minister explains that she does not believe that the Finnish Presidency's timescale will allow sufficient time to arrange a debate in European Standing Committee before 22 November and that "the Government will find itself in the position of having to override the scrutiny process either at the COREPER meeting of 22 November or at the JHA Council of 4-5 December in order to reach a political agreement".

2.6 The Minister's Supplementary Explanatory Memorandum relates to Council document 10755/06, which is the formally deposited version of the Presidency text which we considered on 1 November and recommended for debate.

Conclusion

2.7 We thank the Minister for her courtesy in informing us of the likely plans of the Finnish Presidency and the difficulties which these may cause. However, we still consider that, having regard to the importance of the proposal and the amendments which have been made, the matter should be debated.

2.8 We are grateful to the Minister for stating her views that if the Agency is to be established under Article 308 EC, it should be a Community body, not a European Union body. Indeed, we doubt if there is any power under Article 308 of the EC Treaty to create a European Union body.

2.9 The Minister has now deposited the latest formal version of the proposal and in our view, it is this version (10755/06) which should be debated, even though it appears to be identical to the Presidency text we considered on 1 November. Our report on the earlier version ((26699) 10774/05 + ADD 1) is relevant to that debate.