WRITTEN QUESTION E-2318/02

by Ole Krarup (GUE/NGL) to the Commission

(26 July 2002)

Subject: Framework decisions and freedom of choice

In the light of current proposals for framework decisions in particular the proposal for a framework decision on the European arrest warrant(1), and the proposal for a framework decision on combatting racism and xenophobia(2), I would be glad if the Commission could explain how it understands the specific conditions for the application of framework decisions.

This question relates in particular to the freedom of choice as regards methods, which is accorded to Member States by Article 34(2)(b) of the Treaty on European Union for Member States. On the one hand the Treaty on European Union states that the Member States have freedom of choice; on the other hand the two cases in point seem in the broad sense to rule out such freedom. What is the minimum level of freedom of choice which the Commission considers to be necessary in order for legislation to be issued in the form of a framework decision pursuant to Article 34(2)(b) (as opposed to a directive or regulation)? Has the Commission's Legal Service given an opinion on this matter? Please attach any such opinions to your answer.

(1) COM(2001) 522 OJ C 332 E, 27.11.2001, p. 305.

(2) COM(2001) 664 OJ C 75 E, 26.3.2002, p. 269.

Answer given by Mr Vitorino on behalf of the Commission

(31 October 2002)

Article 34(2)(b) of the Treaty on the European Union (TEU) refers to Framework Decisions as the instrument to be used for the purpose of approximation of the laws and regulations of the Member States in the areas referred to in Title VI of the TEU. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of the form and methods.

The Commission does not agree that the proposals mentioned in the question(1) exclude in a large way Member State competence, on the contrary: Framework Decisions oblige Member States to take the necessary national measures to meet the degree of approximation of laws and regulations as provided for by a specific instrument. Framework Decisions can in this sense be compared with Directives as set up by Article 249 TCE for areas falling under the EC Treaty. A Directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. However, unlike Directives, Framework Decisions cannot entail direct effect. A further important difference between these two legal instruments is that if Commission considers that a Member State has failed to fulfil an obligation imposed by a Framework Decision, it cannot start an infringement procedure under Article 226 EC Treaty, as is the case for Directives.

However, in case Member States disagree regarding the interpretation or the application of a Framework Decision, such a dispute could be brought before the Court of Justice under the conditions set out in Article 35(7) of the TUE.

As regard the Honourable Member's request to receive copy of the Legal Service's opinions on the subject, this will be dealt with in accordance with Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents(2).

(1) In the meantime, the Council adopted on 13 June 2002 the Framework Decision on the European arrest warrant and the surrender procedures between Member States OJ L 190, 18.7.2002.

(2) OJ L 145, 31.5.2001.