Select Committee on European Communities Report



37.  COMMISSION COMMUNICATION OF AND PROPOSAL FOR A DECISION SETTING UP A CONSULTATION PROCEDURE CONCERNING EXTERNAL RELATIONS IN THE FIELD OF MARITIME TRANSPORT (6869/97 & 6869/97)

Letter from Glenda Jackson CBE MP, Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions, to Lord Tordoff, Chairman of the Committee

  The Report of the House of Commons Select Committee on European Legislation (Report No 3, session 1997-98) asked me for a reasoned legal opinion on various matters concerning the competence of the Community and the Member States in relation to external maritime relations, and for a statement of my intended actions in the light of that opinion. The Committee's request followed its consideration of the Explanatory Memorandum (6869/97 and 6869/97 COR 2) which I submitted on 23 May 1997, and a subsequent letter I sent on 17 July 1997 to the Chairman of Sub-Committee B of the House of Lords Select Committee on the European Communities in reply to his letter of 10 July 1997[21]. The Explanatory Memorandum and the letter concerned a Commission Communication giving an overview of the Commission's thinking on the maritime external relations of the Community, especially Annex II to the Communication, which is a "Proposal for a Council Decision setting up a consultation procedure on relations between Member States and third countries in shipping matters and on action relating to such matters in international organisations and an authorisation procedure for agreements concerning maritime transport."

  The reasoned legal opinion is enclosed. You will note that the views expressed therein endorse the concerns felt by the Commons Committee.

  There has been no discussion of the proposal since the meeting of the Transport Council in June last year, and we are not aware of any intention to give further Council consideration to it. There is, therefore, no reason for any action on this matter by Her Majesty's Government at present. In the event of discussion being reopened at any future point, the Government would expect to continue to oppose the proposal.

24 July 1998

Annex

LEGAL OPINION

  On 23 May 1997, the Parliamentary Under-Secretary of State at the Department of Transport submitted an Explanatory Memorandum on a Communication giving a general overview of the Commission's concept of the external action of the Community in the field of shipping. The Document included a proposed Council Decision setting up a consultation procedure on relations between Member States and third countries in shipping matters on action relating to such matters in international organisations and an authorisation procedure for agreements concerning maritime transport.

  In report no 3 of 1997-98, the House of Commons Select Committee on European Legislation requested a reasoned legal opinion on certain matters arising from questions posed to the Parliamentary Under-Secretary of State by Sub-Committee B of the House of Lords European Communities Committee on 10 July 1997.

  It may assist the Select Committee to know that the proposed Decision received no support in the Transport Council on 17-18 June 1997. It has not been discussed since and we are not aware of any support for taking it forward in the next year or more.

  In paragraph 8.9 of its report, the Select Committee sets out its understanding of the effect of article 5(2) of the proposed Decision, when read in the light of the Decision as a whole. This Department agrees with this analysis. In particular, the proposed Decision would confer on the Commission a power to adjudicate on the compatibility of the proposed bilateral agreement with the common transport policy or its objectives. In the event that the Commission raises any objection to the Member State entering the agreement, article 5(2) would impose a legal obligation on the Member State to re-negotiate the agreement on the basis of the Commission's views. If the Member State did not re-negotiate it would be prevented from entering the agreement. This legal obligation would be binding on the State unless or until the ECJ ruled to the contrary irrespective of whether the Commission's views on the compatibility of the agreement with the common transport policy or its objectives were justified. If the Member State wished to proceed to signing the agreement notwithstanding it had not re-negotiated it on the basis of the Commission's objections, it would need to bring an action before the European Court of Justice under article 173 EC to have the Commission "decision" annulled.

  In the Department's view this measure is beyond the vires of article 84(2) EC, or any other provision in the Treaty, in so far as it would empower the Commission to make a binding adjudication on the compatibility of the proposed bilateral agreements with the common transport policy. The Department believes such a provision to be outside the vires conferred on the Council by the Treaty for three reasons.

  Firstly, there is no legal base in the Treaty or in the Court's case law to enable the Council to confer such a power on the Commission. In particular, the Department does not believe that the legitimate Community interest in protecting the common transport policy can justify such a provision under article 84(2).

  Secondly, the effect of the provision would be to undermine the institutional balance established by the Treaty. In particular, whilst the Commission has a legitimate role in ensuring the common transport policy is not harmed by Member State action, it has no power to make determinative findings on the interpretation of EC law or the compatibility with it of bilateral agreements to be entered into by a Member State. This role is reserved to the Court by Article 164 EC. This is underlined by the provision made in Article 228(6) for questions on the compatibility with the Treaty of an agreement to be entered into by the Community to be determined by the Court.

  Thirdly, the proposed Decision contains no procedural safeguards for the position of the Member States in the event that they disagree with the Commission's objections. This is in stark contrast to other areas where the Treaty provides for a legally binding determination to be made, for example Articles 169 EC and 93 EC. The Department believes that to grant such powers to the Commission without accompanying procedural safeguards in favour of the Member States would be inadvisable from a practical and policy point of view.

  For these reasons the Department shares the Committee's concern that this aspect of the proposed Decision may be outside the powers of the Community, whether under Article 84(2) or otherwise.

  If the proposed Decision returns to the Transport Council, the Department would seek as a minimum to delete the power of the Commission to adjudicate on the compatibility of proposed agreements with the common transport policy.

  In paragraph 8.11 of its report, the Select Committee expressed concern about the combined effect of Articles 2(1)b and 6(2) of the proposed Decision. These deal with the question of representation of the Community and Member States' position in international organisations. The Department takes the view that there are two possible interpretations of Article 2(1)b: it can be interpreted either as a duty to consider whether to co-ordinate Member State action within an international organisation or as a duty to co-ordinate. Although the Department feels the first is the better interpretation, the provision is vulnerable to the second interpretation in the light of the wording of Article 6(2). As such, it is an undesirable attempt to crystallise the duty of co-operation, which the Commission might seek to import into other international organisations where there was shared competence between the Community and Member States. Moreover, the proposal does not provide any procedural safeguard for a Member State that disagrees with the second interpretation of Article 2(1)b which would enable it to assert its right to express its view in an international organisation. The Department notes that the trigger for the procedure cannot be controlled by the Member States and that it would therefore be unwise for the United Kingdom to agree to the procedure.

  Furthermore, reaching a common position in international fora does not seem an apt matter to be given over to "comitology" procedure. The use of such committees is generally effective when there are Council decisions or directives establishing a framework in which the committee is to operate. In the proposed decision the Committee would appear to have a free hand as to the content of the proposals it puts to the committee. The Department thus agrees with the Select Committee that the procedure carries a real risk of preventing a Member State from proceeding as it thinks fit in international fora in relation to a matter within its own competence.

  Finally, it is doubtful that Article 84(2) empowers the Community to legislate so as to compel its Member States to co-ordinate their positions in matters falling within their own competence and Member States would be ill-advised to agree to any mechanism which purports to do so.

  If the proposed Decision were to return to the Transport Council the Department would seek to delete the reference to such a committee procedure for reaching a common position.

  The Select Committee asked that the Department take account of the wider implications of the proposed Decision for other departments. The Department has consulted other departments and it is clear that the horizontal implications of the proposal are considerable as it could easily be adapted to other areas.

Department of the Environment, Transport and the Regions

July 1998


21   Printed in Correspondence with Ministers, 11th Report, Session 1997-98, pp 67 and 68. Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1999