Proposal for a COUNCIL DECISION amending Decision (2008/203/EC) of 28 February 2008 implementing Regulation (EC) No 168/2007 as regards the adoption  of a Multi-annual Framework  for the European Union Agency for Fundamental Rights for 2007-2012
Date: 2010-12-02
Institutions: European Commission
Subjects: EU competence, EU office or agency, application of EU law, fundamental rights, human rights, operation of the Institutions

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EUROPEAN COMMISSION 

Brussels, 2.12.2010 
COM(2010) 708 final 

2010/0347 (APP) 

Proposal for a 

COUNCIL DECISION 

amending Decision (2008/203/EC) of 28 February 2008 implementing Regulation (EC) 
No 168/2007 as regards the adoption  
of a Multi-annual Framework  
for the European Union Agency for Fundamental Rights for 2007-2012 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

Grounds for and objectives of the proposal 

On  15  February  2007,  the  Council  adopted  Regulation  (EC) No 168/2007 (the Regulation)1 
establishing  a  European  Union  Agency  for  Fundamental  Rights  (the  Agency).  The  Agency 
became operational on 1 March 2007. 

According to Article 5 of the Regulation, the thematic areas of activity of the Agency shall be 
determined  by  the  Council  through  a  Multi-annual  Framework.  The  Council  did  so  by 
adopting  Council  Decision  (2008/203/EC)  of  28  February  2008  implementing  Regulation 
(EC)  No  168/2007  as  regards  the  adoption  of  a  Multi-annual  Framework  for  the  European 
Union Agency for Fundamental Rights for 2007-2012 (the Multi-annual Framework)2. 

The  objective  of  this  proposal  is  to  amend  the  Multi-annual  Framework  for  the  Agency  in 
order to allow it to pursue its tasks in the areas of judicial cooperation in criminal matters and 
police cooperation 

1.2. 

General context 

On 30 June 2005, the Commission proposed3 to create a Fundamental Rights Agency. To this 
end, two instruments were proposed: (i) a Council Regulation "establishing a European Union 
Agency  for  Fundamental  Rights",  based  on  article  308  of  the  EC  Treaty,  and  (ii)  a  Council 
Decision  "empowering  the  European  Union  Agency  for  Fundamental  Rights  to  pursue  its 
activities in areas referred to in Title VI of the Treaty on European Union", based on Articles 
30, 31 and 34(2)(c) of the EU Treaty.  

However, negotiations in the Council allowed for the adoption (15 February 2007) only of the 
instrument  enabling  the  Agency  to  carry  out  its  task  within  the  competencies  of  the 
Community (Regulation (EC) No 168/2007). The Council decided not to adopt the instrument 
that would have allowed the Agency to pursue its activities in the areas falling under Title VI 
of the EU Treaty4. 

The Commission continues to consider that the Fundamental Rights Agency should be able to 
pursue  its  activities  (as  defined  by  the  Regulation),  in  the  areas  of  judicial  cooperation  in 
criminal  matters  and  police  cooperation.  The  legally  binding  nature  of  the  Charter  of 
Fundamental Rights and the suppression of the so-called "pillars" make a stronger case for the 
addition of these areas to the activities of the Agency.  

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OJ L 53, 22.2.2007, p.1. 
OJ L 63, 7.3.2008, p.14. 
COM (2005) 280 final. 
At the time, the Council made the following declaration: "The Council agrees to re-examine, before 31 
December  2009,  the  remit  of  the  Agency  for  Fundamental  Rights,  with  a  view  to  the  possibility  of 
extending  it  to  cover  the  areas  of  police  and  judicial  cooperation  in  criminal  matters.  The  Council 
invites the Commission to submit a proposal to this effect as appropriate." (Addendum to draft minutes 
of the 2781st meeting of the Council of the European Union (Justice and home affairs), held in Brussels 
on 15 February 2007. Document 6396/07 ADD 1, PV/CONS 7 JAI 80, of 27 February 2007). 

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Regulation  (EC)  No  168/2007  was  adopted  on  the  basis  of  Article  308  of  the  former  EC 
Treaty. Following the entry into force of the Lisbon Treaty, an amended version of this article 
has now become Article 352 of the Treaty on the Functioning of the European Union (TFEU).  

Matters previously included in Title VI of the EU Treaty (the former "third pillar") have now 
become chapters 4 ("Judicial cooperation in criminal matters") and 5 ("Police cooperation") of 
Title V ("Area of freedom, security and justice") of the TFUE. 

Article  352  of  the  TFEU  applies  to  all  matters  falling  under  the  scope  of  this  Treaty. 
Consequently, there is no need to amend Regulation (EC) No 168/2007 in order to extent its 
scope  to  matters  now  covered  by  Title  V  of  the  TFEU.  However,  the  current  Multi-annual 
Framework does not include judicial cooperation in criminal matters and police cooperation 
among  the  thematic  areas  in  which  the  Agency  can  pursue  its  activities.  Its  amendment  is 
therefore necessary in order to enable the Agency to carry out its task in these areas. 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

The Commission had launched a wide public consultation before putting forward its proposal 
for  the  creation  of  a  Fundamental  Rights  Agency.  Consulted  stakeholders  had  expressed  a 
strong wish for the areas of judicial cooperation in criminal matters and police cooperation to 
be included in the scope of the Agency's activities. The results of this consultation was part of 
the  impact  assessment5  accompanying  the  proposal,  which,  as  explained  above,  already 
accounted  for  the  inclusion  in  the  scope  of  the  Agency's  activities  of  matters  falling  under 
Title VI of the former EU Treaty.  

Ever  since,  stakeholders  have  continued  to  voice  their  wish  for  the  Agency  to  work  also  in 
those areas. 

3. 

LEGAL ASPECTS OF THE PROPOSAL 

3.1. 

Content of the proposed action 

The  proposed  amendment  adds  an  additional  item  to  the  list  of  thematic  areas  laid  down  in 
Article 2 of the Council Decision. 

3.2. 

Legal basis 

The Commission considers that Article 5(1) of Regulation 168/2007 is a secondary legal base 
within the meaning of the European Court of Justice's judgement in case C-133/066. The legal 
basis for the current proposal should therefore be the same as that of the Regulation, that is, 
current Article 352 of the TFUE. 

4. 

BUDGETARY IMPLICATION 

The  proposal  does  not  have  any  budgetary  implication.  It  will  enlarge  the  Multi-annual 
Framework  of  the  Agency  in  order  to  allow  work  in  the  area  of  police  and  judicial 

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See Report SEC(2005)849, 30.6.2005. 
C-133/06 Parliament v Council, judgment of 6 May 2008 

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cooperation in criminal matters within the projects for which the resources have already been 
earmarked by the budgetary authority.  

5. 

DETAILED EXPLANATION OF THE PROPOSAL 

The proposal adds the areas of judicial cooperation in criminal matters and police cooperation 
to the thematic areas of the current Multi-annual Framework. Pursuant to chapters 4 and 5 of 
Title  V  of  the  TFEU,  the  European  Union  can  adopt  a  variety  of  measures  in  these  areas, 
which in some cases raise delicate fundamental rights issues.  

By performing its activities in the areas of judicial cooperation in criminal matters and police 
cooperation, the Agency will contribute to the Union's goal of ensuring that the measures it 
adopts, as well as their implementation, comply with the Charter of Fundamental Rights. 

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2010/0347 (APP) 

Proposal for a 

COUNCIL DECISION 

amending Decision 2008/203/EC of 28 February 2008 implementing Regulation (EC) No 
168/2007 as regards the adoption  
of a Multi-annual Framework  
for the European Union Agency for Fundamental Rights for 2007-2012 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 352 thereof, 

Having regard to the proposal from the European Commission7, 

After transmission of the draft legislative act to the national Parliaments, 

Having regard to the consent of the European Parliament8, 

Acting in accordance with a special legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

In order for the Agency to carry out its tasks properly, the precise thematic areas of its 
activity  were  to  be  determined  by  a  Multi-annual  Framework  covering  five  years  as 
stipulated in Article 5 (2) of Regulation (EC) No 168/2007. 

The  first  Multi-annual  Framework  was  adopted  by  the  Council  in  its  Decision 
2008/203/EC  of  28  February  2008  implementing  Regulation  (EC)  No  168/2007  as 
regards the adoption of a Multi-annual Framework for the European Union Agency for 
Fundamental Rights for 2007-20129.  

The current Multi-annual Framework however does not include the thematic areas of 
judicial cooperation in criminal matters and police cooperation. 

At the moment of adoption of Regulation (EC) No 168/2007, the Council had agreed 
to  re-examine,  before  31  December  2009,  the  remit  of  the  Agency  for  Fundamental 
Rights with a view to the possibility of extending it to cover the areas of police and 
judicial  cooperation  in  criminal  matters,  and  invited  the  Commission  to  submit  a 
proposal to this effect as appropriate.  

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OJ C , , p. . 
OJ C , , p. . 
OJ L, 63, 7.3.2008, p. 14. 

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(5) 

Judicial  cooperation  in  criminal  matters  and  police  cooperation  are  regulated  in 
chapters  4  and  5,  respectively,  of  Title  V  of  the  Treaty  on  the  Functioning  of  the 
European Union. A modification of the Multi-annual Framework is necessary to allow 
the Fundamental Rights Agency to pursue its activities in these areas, 

HAS ADOPTED THIS DECISION:  

Article 1  

Decision 2008/203/EC is amended as follows: 

In Article 2, the following point is added: 

"(j) 

judicial cooperation in criminal matters and police cooperation." 

This Decision shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 2 

Article 3 

This Decision is addressed to the Member States. 

Done at Brussels, …. 2010 

For the Council 
The President 

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