JOINT COMMITTEE ON EUROPEAN AFFAIRS (Sub-Committee on European Scrutiny) debate -
Thursday, 16 Jan 2003

Vol. 1 No. 6

EU Documents.

Chairman

We will examine documents 1.1 to 1.7. Document 1.1 concerns European Commission document 482 on coal statistics and is largely a technical proposal relating to the collection of coal statistics which would have lapsed following the expiration of the European Coal and Steel Treaty in July 2002. A similar measure regarding steel statistics was discussed at the last meeting and it is proposed that no further scrutiny is necessary. Is that agreed? Agreed.

It is proposed to take documents 1.2 to 1.5 together. They concern European Commission documents 665, 674, 676 and 678 regarding the export of steel products to the Community from applicant countries: the Republic of Slovakia, Poland, the Czech Republic and Romania. They are technical measures extending the double checking system and allowing for the importation of steel products into the Community by certain applicant countries up to the date of their accession. It is proposed that no further scrutiny is necessary on these proposals. Is that agreed? Agreed.

It is proposed to take documents 1.6 and 1.7 together. Document 1.6 concerns European Commission document 720 regarding safety rules and standards for passenger ships. Document 1.7 concerns European Commission document 721 regarding specific stability requirements for roll-on and roll-off ferries. These proposals seek to enhance the existing regulations which currently apply to northern European Union countries and extend them to all ferries and passenger ships in the Community. For those countries which have applied for a lead-in time, mainly southern countries I understand, non-compliant ships will not be allowed to operate in Irish waters. The regulations regarding passenger ships will apply to ships operating in domestic waters. This is to ensure the lead-in time for southern countries does not at the same time lead to non-compliant ferries operating in Irish waters. Is it agreed that we should not refer to either of these documents? Agreed.

Document 1.8 is European Commission document 641 regarding statistics on income and living. This proposal replaces the European household panel survey, colloquially known as the Living in Ireland survey, with a newer model entitled, Statistics on Income and Living Conditions, SILC. This proposal provides for comparative statistics on income distribution and social exclusion at EU level. The range of data has been refined and updated. It is proposed that no further scrutiny is necessary on this proposal. Is that agreed? Agreed.

Document 1.9 is European Commission document 679 regarding the Schengen visa list. This is a technical regulation amending the Schengen visa list to which Ireland is not a party. It adds East Timor and Ecuador to the list of countries whose nationals require a visa for the Schengen area. It also brings into effect an agreement with Switzerland, giving its nationals the same rights as European economic area nationals with regard to entry and residence in the Schengen area. It is proposed that no further examination is necessary. While I do not oppose this, I want to make one observation that may be of interest to our Polish visitors. Because we are part of the common travel area with Britain, we are not a party to the Schengen Agreement. I was involved in the negotiations that left us with the option to opt in at some time in the future. However, we simply cannot do so at present because it would mean border checks between Dundalk and Newry which would not be on.

The Joint Committee on European Affairs recently considered the situation where Russia is negotiating access to Kaliningrad through Lithuania on a lesser document than a passport when the latter country joins the European Union and the Schengen area. In other words, there would be some sort of special travel document. When our Polish colleagues and others join the European Union and it becomes a Union of 25 members, 23 countries in the Union will be party to Schengen while two will not be. A situation will arise where people from Norway and Switzerland, for example, will have access to the Schengen area without a passport, while we will continue to show a passport.

The Minister for Transport has indicated that since we all must carry our driving licence, he is considering bringing out a credit card size one. If he does that, I would like us to explore the possibility of it being accepted as an EU travel document for Irish citizens so that they would not have to carry their passport. For as long as we must show our passport in the European Union, we are not citizens of the Union. The difficulty is ours and not the European Union's. If it can come to an accommodation with those Russians living in Kaliningrad and with Norway and Switzerland, it might be possible to raise this issue, particularly in light of the new convention. I propose to write to the Minister for Transport to ask him to explore with his colleague, the Minister for Justice, Equality and Law Reform, whether it is possible to kill two birds with the one stone. Is it agreed that we do not need to refer this further? Agreed.

I refer to item 1.10, Commission document 664, re third country aircraft. This proposal ensures that non-EU aircraft using Community airports comply with internationally agreed safety measures laid down by the International Civil Aviation Authority. Such a proposal is welcome, so it is not proposed that further scrutiny take place at this time. Is that agreed? Agreed.

I refer to item 1.11, Commission document 668, re taxation of electricity and gas. This proposal has arisen in response to an evolving market. Electricity and gas are commodities often consumed, especially in the case of gas in Ireland, away from where they are produced. Physical flows do not coincide with the contractual supply between buyer and seller. This proposal simplifies matters by ensuring that the end user, not the supplier, producer or shipping agent, pays the tax. In the case of electricity, which has not arisen in Ireland, the generator-trader will be required to register for tax. It is proposed that no further scrutiny is necessary.

Deputy Mulcahy

Are the ESB and Bord Gáis aware of this? Should they be made aware of it if they are not?

Chairman

They are aware of it. Is that agreed? Agreed.

I refer to item 1.12, re control of exports of dual use items and technology. I understand dual use items refers to industrial and military items. This proposal updates the list of dual use technology goods which are the subject of export control. It conforms with international obligations and commitments of member states. It is proposed that no further scrutiny is necessary. Is that agreed? Agreed.

I refer to item 1.13, re compensation for airline passengers. It was proposed that we might not recommend this proposal but we have received a submission since and I propose to deal with it at the end. In fact, we might recommend that this proposal be examined. Deputy Carey indicated that he wished to raise this matter.

I refer to item 114, Commission document 623, re common rules for allocation of slots at airports. This is a technical regulation which clarifies the legal definition of airline slots and new airlines. It sets out the procedures for the allocation of slots at airports and establishes the procedures to be adopted at congested or co-ordinated airports. I understand Ryanair, which has been consulted about this, has no real objections. I understand others were also consulted. There is a concern that airports may want to have themselves designated as co-ordinated in order to apply the procedures which may lead to increased costs. I am advised, nonetheless, that no further scrutiny is necessary at present.

Deputy Carey

At the risk of being flippant, customers of airlines might have been interested in this in that they are constantly discommoded by slots being changed but that has nothing to do with the directive.

Chairman

It is a real issue.

I refer to item 1.15, Commission document 595, re reducing sulphur content of marine fuel. This is a welcome environmental initiative that proposes to reduce the sulphur content of heavy marine fuels which are being increasingly used due to new engine and oil heating technologies. I understand that if sulphur content were to be maintained at current levels, ship emissions of sulphur dioxide by 2010 would be equivalent to over 75% of land based emissions. I also note that Dublin ranks ninth worst out of 50 of the largest ports for sulphur dioxide emissions. Some of the NGOs had asked for a reduction to 0.5% but this brings it down to 1.5%. It is proposed that no further scrutiny is necessary. Is that agreed? Agreed.

I refer to item 1.16, Commission document 662, re food additives. This technical proposal removes some food additives no longer used by industry and provides for new uses of existing authorised additives and for a new glazing agent for use in confectionery and dried fruit. It is proposed that no further scrutiny is necessary. Is that agreed? Agreed.

I refer to item 1.17, Commission document 540, re control of major accident hazards involving dangerous substances. Following two incidents at a fireworks plant in the Netherlands in 2000 and at a chemical plant in Toulouse in 2001, it is proposed to improve and widen the scope of the 1996 directive, the Seveso directive, which controls major accident hazards involving dangerous substances. It proposes to reduce the thresholds for substances classified as dangerous to the environment and widens the scope of the directive in respect of extractives, fertilisers and explosive industries. It is proposed that no further scrutiny is necessary. Is that agreed? Agreed.

It is proposed that items 1.1 to 1.12 and 1.14 to 1.17, inclusive, do not merit detailed scrutiny. Is that agreed? Agreed.

The third item on the agenda is the group of proposals which it is proposed to refer to sectoral committees for further scrutiny. I will come back to item 1.13 as part of this. The first item is item 2.1, Commission document 562, re compensation to victims of violent crimes. This is a complex proposal which raises significant issues regarding the level of compensation to be paid to crime victims, sexual offences committed by someone with whom the victim was living and extending the time limit after which claims may be made. I am advised that Irish awards tend to be larger than those in other EU member states and are based on a best estimate of future financial needs rather than a fixed amount for a particular crime or injury. This proposal from the Commission would appear to move away from this established principle. This is a long and interesting document and I propose we refer it to the Joint Committee on Justice, Equality, Defence and Women's Rights for detailed consideration, although we may wish to have a preliminary discussion here.

Deputy Mulcahy

I have not studied this in great detail but prima facie, it seems to fall into the category of a proposal from the European Commission which is perhaps outside the competence of the treaties. It is allegedly based on Article 308 of the treaties. There is a major question as to whether this breaches the principle of subsidiarity. It would be one thing for the EU to say there should be compensation for the victims of crime but it is another for it to set a minimum amount for such compensation. That could have the effect of directly interfering unnecessarily in different cultures and ways of compensating people and so on. I am anxious that not only should the proposal be sent to the Department of Justice, Equality and Law Reform, but a recognised expert should outline whether it is in breach of the principle of subsidiarity and whether it is consistent with the proper ambit of the treaties on which the Union is founded.

Deputy Carey

This proposal goes to the heart of the debate on the future of Europe. The working party on freedom, security and justice, on which I was the Irish representative, produced a report prior to Christmas which addressed the argument regarding the harmonisation and mutual recognition of laws and so on and there was a discussion at the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights on Tuesday between the Minister and Deputy John Bruton on that issue. Because of the far reaching implications of the proposed directive, it would be appropriate to refer it to the committee with a strong proposal from us. It is not for us to tell the committee members how to conduct their business but this merits the most detailed examination.

Senator Lydon

I agree with Deputy Carey that this highlights what might happen if there is no scrutiny. I do not like to see such proposals slipping through. It is an important issue, apart from the fact that our compensation culture may be different. That is not the point. This proposal interferes with established practice and I would not like to see it going out the window without a detailed discussion by the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights and further discussion by this committee.

Chairman

When I first read the briefing document, for "statutory footing" I read reduced payments because payments here are higher than elsewhere in the EU. Page 5 states:

The objective of this proposal is to ensure that all EU citizens and all legal residents in the EU can receive adequate compensation for the losses they have suffered in case they fall victim to a crime within the EU. The proposal will contribute to reaching the objective of the Union and of the Community to establish an area of freedom, security and justice for all, as well as the objective of ensuring free movement of persons within the EU. The proposal also forms part of the response of the EU to the events of 11 September 2001 by ensuring victims of terrorism are ensured of adequate compensation regardless of where within the EU such acts may take place.

The method of voting is by unanimity and it will take approximately a year to consider. That is a relatively short period but it is still long enough. There is a strong view that the proposal should be considered in greater detail by the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights and it will be referred for detailed consideration.

Deputy Mulcahy

I fully agree with previous speakers. We all talk about the principle of subsidiarity but if it is to have meaning going forward, we must be able to say whether proposed changes observe the principle. When the proposal returns to the committee, I would like us to be provided with expert advice.

Chairman

It will not necessarily come back to us but we could ask the relevant principal officer for a note on whether this proposal falls within the competence of Article 308 of the treaty and the subsidiarity principle.

Deputy Mulcahy

The EU principle could be that people should be compensated but the amount involved should be decided by individual member states so as not to breach the principle of subsidiarity. I would like an opinion on that.

Chairman

I will seek advice but, in the meantime, it will be referred to the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights. Is that agreed? Agreed.

No. 2.2 is Commission document 701, draft directive on working conditions for temporary workers. The directive seeks to offer temporary or agency workers from their first day at a company the same rights and benefits as the permanent workers alongside whom they work. An employer would be obliged to offer an agency worker the same pay and benefits as a highly skilled worker on maternity leave, for example, and I am advised it could potentially lead to a situation where, for maternity leave, employers may not choose to hire cover for the period. It is suggested this could distort the labour supply. There has been no consensus on the cost implications of this directive both for individual companies and states. I propose, therefore, that the committee should refer this proposal to the Oireachtas Joint Committee on Enterprise and Small Business for its detailed consideration. Is that agreed? Agreed.

No. 2.3 is Commission document 683, classification of civil subsonic aircraft for the purpose of calculating noise charges. I am advised this is a straightforward proposal that seeks to harmonise the manner by which noise charges are levied on airports near which there is dense development. Currently, there is no uniform structure in place at the limited number of airports where charges apply. However, having regard to the rapid expansion of Dublin Airport in terms of the proposed new terminal and increasing housing densities, the directive merits further consideration and I propose, therefore, that we should refer it to the Oireachtas Joint Committee on Transport for further scrutiny. ls that agreed? Agreed.

No. 2.4 is Commission document 684, control of salmonella and other food-borne zoonotic agents. Zoonosis and zoonotic agents are diseases transmissible between animals and humans. This directive proposes to put in place additional monitoring controls on poultry flocks for such agents, which are not particularly prevalent in Ireland due to climatic and other environmental matters. While any measure to improve the quality control of the food chain is to be welcomed, a balance needs to be struck. This directive could potentially raise the number of poultry flocks "taken out" in the future. The relative underdevelopment of the egg pasteurising industry means there are limited opportunities to minimise the cost implications of taking out poultry flocks. I propose that we should refer this proposal to the Oireachtas Joint Committee on Agriculture and Food for further scrutiny.

Deputy Mulcahy

Does this proposal mean that anyone keeping chickens would have to conduct scientific studies to establish the presence of salmonella? What does the proposal mean as I do not understand it?

Clerk to the Committee

The proposal is that a list of zoonotic agents would be drawn up and that the person who would test the flock would look out for these in it. If they came up, the flock would be slaughtered.

There are variations in climate, environment and agricultural practices throughout the European Union that mean that some agents multiply more quickly in some countries than in others. Therefore, an agent on this list may be a problem in country A but may not be a problem in country X. If it came up in a flock where it would not be a problem due to climatic reasons, the flock would still be slaughtered even though the probability of it multiplying in that climate would be quite low.

Deputy Mulcahy

Is there an obligation for any farmer keeping chickens to have these tests carried out?

Clerk to the Committee

No. As I understand it, they are carried out on a random basis. Only one flock was destroyed last year, but if this list were drawn up on a wide basis, that could multiply by several times, even though these agents may not be a problem here, rather in another country.

Deputy Mulcahy

It should be referred and there could well be a subsidiarity issue. Trying to apply a general rule to every country will give rise to difficulties. Surely a better way to proceed is to state an objective and leave it to individual countries to implement a regime whereby that objective can be achieved.

Chairman

We must presume that, if the Department is in negotiations on this, it falls within the rules of the Union and that is why it has been referred to us for consideration. The Joint Committee on Agriculture and Food, many of the members of which come from rural backgrounds, will deal with this in some detail. We will refer it to that committee.

I want to return to item 1.13. Deputy Carey raised this and I also wish to raise it. This concerns Commission document 717 regarding compensation for airline passengers. The proposal, which I understand has political agreement, establishes common rules on compensation and assistance to air passengers who are double booked or who suffer long delays. It will not apply where difficulties arise due to factors outside an airline's control, for example, industrial action or bad weather. A number of airlines have reservations about this proposal.

The earlier proposal had been that we note this. However, we received a communication from a group of airlines, including, Buzz, Go, Easyjet, Virgin Express and Ryanair, entitled, "Comments from the low fare sector regarding the proposal on compensation and assistance in the event of denied boarding and cancellation or long delay of flights". They use the reference 784. We are using 717. I do not know what is the difference, but I presume everyone is referring to this document.

In summary they say that their airlines, which collectively represent more than 90% of the European low fare market, have demonstrated the benefits of EU-driven liberalisation of air transport by rationalising services, decreasing costs and fares and opening up the possibility of air transport to consumers who formerly could not afford to travel by air. They believe that all passengers deserve to be protected from denied boarding and commercially motivated cancellations or delays, so compensation and assistance should be legally mandated.

The group says that passenger freedom to choose low or high fares depends crucially on competition between airlines on services provided. Cancellations or delays that occur for reasons beyond an airline's control should not be included. For these reasons, the groups says, the impact of the current proposal, even as amended by the European Parliament, would be to increase costs significantly for the low fares sector and its highly price-sensitive passengers in a way that is discriminatory and unwarranted given the stated objectives of the proposal and the existing alternatives.

The group believes that, in cases of cancellations and delays caused by factors beyond the immediate control of an airline, classifications of which are readily available using IATA codes, provision of passenger information is the key. The final point is that the proposal discriminates between air transport and other modes of transport. That is a summary of the concerns that have been expressed.

Deputy Carey

I took the trouble to read through the submission and I take on board most of the concerns. While everyone supports liberalisation and competition, I want to be satisfied that the consumer is protected in any variation implied by this directive.

Anecdotal evidence suggests that all airlines - some of them low cost concerns - occasionally afford their customers less than adequate consumer protection. I would like to see this issue referred to the Joint Committee on Transport to give an opportunity to the airlines representatives to make their case.

Deputy Mulcahy

I agree with Deputy Carey. We must distinguish between a problem that is an airline's fault and one that is not. I hope no airline - including low cost concerns - suggests that, when a problem occurs for which it is at fault, passengers should not be adequately compensated. We have heard of many people whose flights have been cancelled being left at airports. No airline can get away with that nor should they be allowed to do so.

We should refer this to the Joint Committee on Transport, conscious of the concerns of the low cost airline sector. That said, we should not deviate from the principle that consumers must be protected by all airlines.

Chairman

If we had not heard from this group we would have noted this proposal. The fact that it has contacted us means that this will be examined in detail. This is one of the benefits of the scrutiny committee. I hope that, as time goes by and people become accustomed to the work of the committee, the public and non-governmental organisations - and not just companies or social partners - contact members of the committee to have their views considered. That is what is involved in closing the democratic deficit.

Deputy F. O’Malley

It was recommended that no further action be taken on an earlier item, but it occurs to me that, in light of the shipping disaster that took place off the Spanish coast, such an item might need further scrutiny. I am unfamiliar with procedures in this regard. I would have thought we should have referred this item, but perhaps not if our advice is that we do not need to examine it.

I agree with the Chairman that, if a member of the public highlights an issue, it can set off something in a legislator's mind. In that context, how knowledgeable is the public of these scrutiny documents?

In light of the shipping issue, we need to be much more careful about safety standards in European waters. The directive governing this area may have been produced at a time when standards were perhaps not as high. We should all be more diligent in terms of considering what is allowed into European and global waters from an environmental and safety point of view.

Chairman

The staff of the committee endeavour to consult people. However, they do not have endless resources. I gave a draft of a letter to the Clerk to the main committee today, which I hope to raise with it tomorrow, that might be used as a letter to various organisations and bodies - or even as an advertisement - in order to try to inform as many people as possible that the scrutiny process is under way.

My other suggestion is that we might hold meetings of the committee throughout the regions and invite the social partners and members of the public to attend in order that we could begin to talk to them about the scrutiny process. We will discuss at the meeting of the main committee tomorrow how to inform people that this process is under way. The fact that the committee is now meeting in public - all our future meetings will be held in public - means that journalists and other members of the media will pick up on matters raised with it.

This issue must be addressed. It has previously been dealt with in a minimalist way because we lack the necessary resources. Many people would be more clued into it than others. We hope to inform people, which is important. We will refer that issue to the Joint Committee on Transport for more detailed consideration.

It is proposed that items 2.1 to 2.4, inclusive, and item 1.13 regarding compensation for airline passengers merit further scrutiny and will be referred to the appropriate sectoral committee for detailed consideration. Is that agreed? Agreed.

On item 4 - proposals adopted prior to scrutiny - we were told these items would disappear. I hope that proves to be the case. We are supposed to take items 3.1 to 3.6, that is, Commission document 618 regarding remuneration and pensions of officials and other servants of the European Communities, Commission document 646 regarding tariff duties on certain industrial, agricultural and fishery products, Commission document 686 and 698 which involve anti-dumping measures, Commission document 682 regarding financing by the guarantee section of the European Agricultural Guidance and Guarantee Fund and Commission document 640 regarding guide prices and Community producer prices for certain fishery products.

These are all technical trade proposals which have been adopted prior to today's meeting. Such proposals pass quickly through the Union's decision-making structures. It is proposed to note these items. We need an explanation as to why this happens. We should be getting to the stage where we can see all of this material in advance. Perhaps our concerns will be communicated to the Department.

Deputy Mulcahy

I do not understand why this matter did not come before us.

Chairman

The only explanation is that these matters are agreed very quickly. They usually are of a non-contentious and urgent nature. The problem with that is that it provides an out clause and allows the powers that be to say that anything is urgent and non-contentious. For example, looking at the remuneration and pensions of officials and other servants of the European Union might be a matter on which a national committee should focus at some point.

Deputy Carey

At the risk of repeating myself, I have been concerned for some time that there appears to be a range of documents coming to us in respect of which agreement has already been reached. Some Departments seem to be less able than others to cope with the new scrutiny requirements. I would be extremely unhappy if the practice continued whereby Departments define what is a quickly decided regulation. It is for the Oireachtas and the public to decide whether these decisions should be ratified quickly. The only exception I would make would be documents that arrived prior to the establishment of the new scrutiny process when things had gone beyond the point of our having any impact.

Chairman

I agree. We should write to the Secretary General or the co-ordinator in each Department stating that if any documents have already been agreed, the committee should be sent an explanation as to why it was not first brought to its attention.

Deputy Mulcahy

If it happens again, we should write to the relevant Department asking for a specific explanation as to why a particular proposal did not come before the committee.

Chairman

We may go through one or two documents in some detail to see if there is any reason they were not brought to the committee's attention. We should do so to indicate we will not abandon the scrutiny process.

Deputy F. O’Malley

Is there a danger this will happen again?

Deputy Carey

It is almost inevitable that it will. We need to ensure the net closes inexorably.

Chairman

Some documents might deal with the same regulations while taking into account inflation or something of a similar technical nature. Nevertheless, we should have an explanation. We will note them, but we will write to each co-ordinator outlining what we require.

Item 5 - documents for consideration - is to be deferred to the next meeting. Council document 14363/02 involves a Council regulation which refers to a proposal from the Netherlands to amend the regulation on the jurisdiction and recognition and enforcement of judgments in civil and commercial matters. The Dutch authorities wish to amend this regulation to deal with an anomaly in their labour law. It is proposed to defer consideration of this legal proposal to the next meeting in order for information to be gathered. When inquiries were made, the Department was not specific or fully clear on this matter. We will, therefore, defer our consideration of the document until our next meeting when, hopefully, the position will have been clarified.

Deputy Carey

This document might tie in with the other document we referred to the sectoral committee on the rights of agency and contract workers.

Chairman

That may be the case. However, we cannot consider it until we have a clear picture of what is involved. We will ask for clarification to be provided at our next meeting.

Deputy Mulcahy

Will there be any chance of it going through at European level in that timeframe? As someone who practices in that area of law——

Clerk to the Committee

To the best of my knowledge this document will not go through within the next year or two. It is also being delayed in other countries.

Chairman

We will have it placed on the agenda for the next meeting or a future meeting.