The European Journal

The Commission tries again to interfere with nuclear safety

The Commission has been trying to introduce Community legislation on nuclear safety but until now no legislation on this area has been adopted. In September 2004, the Commission tried to instigate a Community framework for nuclear safety but it has failed to get support of the EU Member States. In fact, nuclear safety is Member States responsability therefore the Commission has a very limited competence in this area.

On 26 November, the Commission strikes again and adopted a revised proposal for a Directive setting up a Community framework for nuclear safety intending to restart the process of establishing a common EU framework on nuclear safety. The proposal replaces and updates the one presented in September 2004.

According to the Commission “Continued use of nuclear energy therefore would contribute to the EU energy supply security as well as to the limitation of CO2 emissions, but it is also still confronted with a number of outstanding issues that need to be resolved.” The Commission has justified its renewed interest in nuclear safety because of the Member States grown interest in the construction of new plants.

The proposal is based on Article 31 of the Euratom Treaty. The Treaty provides that basic standards “for the protection of the health of workers and the general public against the dangers arising from ionizing radiations” shall be laid down in the Community and that the Commission shall worked them out “after it has obtained the opinion of a group of persons appointed by the Scientific and Technical Committee from among scientific experts, and in particular public health experts, in the Member States.”

The Commission has pointed out that all the EU Member States are Contracting Parties to the Convention on Nuclear Safety. Nevertheless, there are different procedures and practices on nuclear safety among the Member States. There are no common rules in the area of nuclear safety to be applied within the EU. According to the Commission, presently, standardisation of safety requirements between Member States is limited therefore convergence of rules at EU level is needed.

The draft directive is intending to establish an EU broad binding safety legislation for the operation of nuclear power plants. The draft directive provides for obligations and general principles for the safety of nuclear installations in the EU while enhancing the role of national regulatory bodies.

The Commission has stressed that when the European Atomic Energy Community joined the Convention on Nuclear Safety committed itself to observe an internationally recognised high level of nuclear safety. The Commission has said “In order for the Community to ensure that the principles of this Convention are given effect at Community level and that uniform safety standards as required by Article 2(b) of the Treaty are applied, the basic standards for radiation protection should be supplemented by common safety principles.”

Presently, the Convention on Nuclear Safety and the 2006 International Atomic Energy Agency Safety Fundamentals guidelines are voluntary. The draft directive incorporates the "obligations" of the Convention on Nuclear Safety and the International Atomic Energy Agency's Safety Fundamentals guidelines into EU legislation which would be the chief pillar of EU legislation and would be mandatory for all EU member states whereas presently they are voluntary. Under the Commission draft proposal all nuclear activity in the EU will be subject to common safety rules.

Although the Commission has stressed that “The approach of the current proposal allows Member States to fully exploit the subsidiarity principle as it creates a legislative framework for nuclear safety without being prescriptive as regards details.” In fact, the proposal undermines the principle of subsidiarity. The Commission proposal is not limited to “basic standards.” The Commission has recognised in the proposal “the principle of national responsibility for the safety of nuclear installations” however the draft directive would allow the Commission to interfere with national regulatory decisions on nuclear safety.

The draft directive promotes the Commission’s High Level Group on Nuclear Safety and Waste Management which will become the “focal point for cooperation between the regulatory bodies” responsible for the safety of nuclear installations in the Member States. The group is composed by Member State’s senior officials from national regulatory or nuclear safety authorities as well as Commission representatives and helps the Commission develop European rules on the safety of nuclear installations and safe management of spent fuel and radioactive waste.

According to the Commission the directive would cover “the full life-cycle of a nuclear installation from its design and location through the construction phase to the maintenance and decommissioning of a plant and the management of spent fuel and radioactive waste.”

The provision on responsibility for the safety of nuclear installations is based on one of the fundamental principles of nuclear safety incorporated in the CNS which is the principle of "the prime responsibility for the safety of nuclear installations, throughout their lifetime, rests with the holder of the license under the control of the regulatory body.” Under the draft directive, the safety measures and controls to be implemented in a nuclear installation must be decided solely by the regulatory body and realised by the licence holder.

The Commission has stressed that “the effective independence of the regulatory body” must be ensured. The draft proposal requires Member States to establish regulatory bodies as independent authorities which must be provided with adequate competence and financial and human resources in order to be able to carry out their duties. The UK, in 2004, has raised concerns over the requirement on Member States to ensure that financial resources are made available from regulatory bodies and operators to support the safety of nuclear installations throughout their life as this would not be consistent with the establishment in the UK of the Nuclear Development Agency, which is responsible for clean-up and decommissioning of public nuclear liabilities, but is not a regulatory body under the proposal.

The regulatory body will be assigned with the supervision and regulation of the safety of nuclear installations. Moreover, it will be responsible for granting licences and monitoring their application on siting, design, construction, commissioning, operation or decommissioning of nuclear installations. The regulatory body as well as the national regulatory structure would be subject to regular international peer reviews by the IAEA International Regulatory Review Service missions and they would have to prepare a self assessment every ten years.

The Commission has stressed that “The nuclear safety assessments, investigations, control and enforcement actions of the regulatory body must be carried out throughout the whole lifetime of installations, including during decommissioning.” In the event of serious safety rules breaches, the regulatory body will have the power to withdraw the operating licence and order the suspension of operations of any plant if it considers that safety is not fully assured.

According to the European Voice Andrej Striar, chairman of the European Nuclear Regulators' Group, has shown concerns about the Commission's proposals to harmonise standards. He said “Every big country has an established system. None of them is bad or better [than the others]. They are simply different.” According to Andrej Striar, it is difficult to find common standards that would please all Member States.

The draft directive must be adopted by the EU Member States with QMV required at the Council. The European Parliament has a consultative role. It remains to be seen if the Commission’s proposal wins the support of the EU Member States. It seems that this draft directive as the previous one continues to give the Commission scope to interfere with decisions taken by Member States, and duplicates work being carry out within the framework of the International Atomic Energy Agency.

The European Commission takes on role of Sinbad - it wants to control our seas

It should be recalled that in October 2007 the Commission adopted an Action Plan which puts forward the main actions that it will carry out until the end of its mandate to implement an Integrated Maritime Policy for the European Union. Some of the actions that the Commission wants to pursue will raise concerns over subsidiarity.

The Commission has said that it will take steps towards a European network for maritime surveillance and it will develop a roadmap to facilitate the development of maritime spatial planning by Member States. Obviously, the Commission has kept its promise.

The European Commission has recently published a report on maritime surveillance starting, in this way, the process that will lead to development of an integrated maritime surveillance system in the EU. The Commission has identified the current state of play of surveillance, monitoring, tracking, identification and reporting systems put in place by EU member states and EU agencies, as regards drugs, arms and human traffic, illegal fisheries, illegal migration, pollution and terrorism. The Commission has also identified the steps which must be taken and the challenges to be resolved in order to achieve an integrated maritime surveillance network for the EU.

The European Commission has concluded that “(…) there is already substantive sectoral cooperation taking place at Community and Member State level on matters relating to border control, maritime safety and security, fisheries.” However, according to the Commission further work must be carried out.

The Commission has already proposed that the European Border Surveillance System (EUROSUR) should be built as a "system of existing systems" in three phases. The first phase would entail interlinking national infrastructures in a communication network for border control authorities. The second would involve the creation of a “pre-frontier intelligence picture.” Whereas these two phases would deal with the surveillance of land and maritime borders the third phase would create a “common information sharing environment for the EU maritime domain.”

The Commission services are working towards identifying which EU Legislation needs to be revise in order to ensure progress towards a common information sharing environment for the EU maritime domain and also to make sure that any new legislative proposals would contain provisions to allow data to be exchanged within an integrated system.

Obviously, the Commission project of interlinking maritime surveillance systems entails several legal issues related to the exchange of information collected for different aims and from different sources. The Commission does not know yet how personal data would be processed in an integrated maritime surveillance network.

The Commission plans for an Integrated Maritime Policy would entail the EU coordination of the Member States existing structures for the purpose of developing an integrated maritime surveillance network. The European Commission has called on the Member States to assess the extent to which their internal administrative cooperation across sectors is appropriate for promoting an integrated maritime surveillance network. The European Commission has urged all Member States to cooperate in order to move towards greater integration on a cross-sectoral level of exchange of surveillance data.

The Commission will fund two pilot projects to assess how member states can improve crosssectoral exchange of surveillance data and carry out joint activities. The 2008 Commission Legislative and Work Programme allocated €3.7 million to a surveillance pilot project in the Western Mediterranean and its Atlantic Approaches. The geographical scope of the project would be the whole Mediterranean basin. Moreover, the 2009 preliminary draft budget allocate €1.9 million for surveillance actions to be implemented by a pilot project in a sea basin other than the Mediterranean. Such project would involve border control, customs, fisheries control, prevention and suppression of criminal activities, maritime safety, marine pollution response, maritime security of ships and ports activities and would be carried out by authorities of at least three coastal Member States. The Commission is planning to by the end of 2008 to publish calls for proposals for projects to benefit from grants for the purposes of setting up cross-border and cross-sector surveillance actions in the Mediterranean and in other sea basins.

There are already several surveillance initiatives at EU level such as the Vessel Monitoring System (VMS) for fisheries control, SafeSeaNet system to combat maritime pollution, the border management operations set up as part of Frontex. There are also integrated surveillance initiatives at regional and national level. There is no need for further integration on maritime surveillance. The Commission wants to set up integrating surveillance systems at EU level which will affect national security, maritime security and safety, border control and law enforcement.

On 25 November the Commission adopted a Communication “Roadmap for Maritime Spatial Planning: Achieving Common Principles in the EU.” The Commission presented a roadmap on Maritime Spatial Planning (MSP) in order facilitate the development of spatial planning for both marine and coastal spaces and help coastal areas to prepare for climate change impacts. The Commission has pointed out that the fast growth in maritime activities such as maritime transport, port development, aquaculture, offshore drilling, tourism, offshore renewable energy, blue biotech and underwater technologies, is putting more pressure on already limited marine space.

The maritime spatial planning is a new instrument to address the challenges emerging from the growth in competing uses of the sea and it has been considered an important instrument for the EU’s Integrated Maritime Policy (IMP). It is a new process which several Member States are now developing in order to manage their maritime activities. The Commission is endeavouring to facilitate the development of MSP by Member States and promote its implementation at national and EU level. Implementation of MSP is the responsibility of the Member States however the European Commission wants to develop a common approach to maritime spatial planning which forms part of the Integrated Maritime Policy for the EU.

The Commission with this Communication is taking the first steps towards a common approach on MSP. According to the Commission “Action at European level can provide significant added value in facing common challenges such as climate change, the global competitiveness of the EU's maritime economy, cross-border issues and the management of maritime activities in line with ecosystem requirements.” The Commission has briefly explained the current maritime spatial planning practices in EU Member States and in third countries, delineates the instruments which impact upon it and puts forward key principles supporting it.

The Commission is seeking to promote a broad debate on how a common approach to maritime spatial planning can be achieved in the EU. The Commission wants to put forward an EU strategy as well as legislation clarifying which rules should apply to seaside tourism, maritime transport, ports development, offshore drilling and the development of offshore renewable energy sources.

Member States have been taking different approaches to maritime spatial planning. The UK has prepared a Marine Bill which sets up a maritime planning system for all UK waters which provide for a new administrative structure (the Marine Management Organisation) to simplify permit and licensing procedures. Portugal adopted in 2006 the National Strategy for the Seas aiming at integrating sectoral policies and to define principles for MSP and Integrated Coastal Zone Management (ICZM). Several Member States have developed integrated maritime management plans providing guidance for decisions relating to the concerned marine area. Spain has developed integrated plans to manage its costal zones.

The Commission has based its road map for maritime spatial planning on the experiences of some Member States as well as on existing legal EU instruments which have an impact on maritime spatial planning such as the Marine Strategy Framework Directive, the Water Framework Directive, the Habitats Directive and the Birds Directive (NATURA 2000), the Common Fisheries Policy (CFP), the recommendation on the management of coastal areas and the communication on the development of offshore wind energy. The Commission has identified key principles both from ongoing practice and existing regulations to promote the debate on the development of MSP in the EU. The Commission has therefore defined several common principles to be implemented by Member States.

The Commission has suggested planning the maritime space according to the region, the type of activities and their impact on the environment. According to the Commission “MSP simplifies decision making and speeds up licensing and permit procedures (…).” The Commission believes that the implementation of MSP must be carried out with coordination among Member States. The Commission believes that the MSP must be legally binding if it is to be effective. The Commission has insisted on the need to develop cross-border cooperation, consultation and control procedures in the planning process. Moreover, the Commission wants to ensure terrestrial spatial planning are coordinated with MSP. The Commission has pointed out that “MSP has to be based on sound information and scientific knowledge. Planning needs to evolve with knowledge (adaptive management).” Hence, the Commission has already carried out scientific and data gathering tools that will assist MSP in this process such as a European Marine Observation and Data Network, an integrated database for maritime socio-economic statistics, the European Atlas of the Seas and the Global Monitoring for Environment and Security (Kopernikus).

The Commission is planning to organise in 2009 several workshops to discuss the principles suggested in this Communication and to launch pilot projects aimed at developing cross-border cooperation aspects of MSP. The Commission will also draft a progress report based on the results of the workshops and, at that time, will put forward legislative proposals.

The CAP "Health Check" – An opportunity to reform the CAP was missed

Last May the European Commission proposed the so called CAP “health check” which is a mid-term review before the 2013 planned reform. The CAP has been trough different reforms but it continues to be one of the most expensive EU common policies, it imposes substantial costs on developing countries as well on EU consumers and taxpayers. It should be recalled that CAP cost 55 billion euros in 2007.

The EU Member States do not have the same vision on how CAP should be reformed. France has been defending the principle of direct aid granted to farmers. France and Germany are totally against the idea of cutting farm subsidies. The UK and the Netherlands do not want to keep the market regulation instruments, as defended by France and supported by Italy and Spain. France and Germany have been arguing that CAP is needed to keep food price stability in the EU as well as to protect farmers through the import tariff system. The UK government as well as Sweden, Denmark, the Netherlands and the Czech Republic, proposed to abolish tariffs and all other measures that keep EU agricultural prices above world market levels and to end the direct payments that farmers receive irrespective of their production. In fact, Mr. Darling has called for a "phasing out all elements of the CAP that are designed to keep EU prices above world market levels (such measures cost EU consumers 43 billion in 2006), an end to direct payments for EU farmers (which cost EU taxpayers 34 billion in 2006).”

According to OECD 2007 reports phasing out policies that distort markets could save EU consumers €37 billion annually as well as it could reduce EU agricultural spending by 80%, or €42 billion. Moreover, according to the Irish Times, Dalia Grybauskaite, EU Budget Commissioner, has said "In reality our CAP today is a more protectionist policy than a market-oriented policy and, because of this, we pay, all of us, all consumers, two to three times more for food than we would pay without this policy.”

The Agriculture Council has been discussing the proposed measures since June. Since then EU Agriculture Commissioner Mariann Fischer Boel, French Agriculture Minister Michel Barnier have been carried out series of trilateral meetings with each agricultural minister in order to find compromise solutions on the Common Agricultural Policy “health check.” Although there were conflicting national interests the French presidency was able to force a compromise deal.

On 20 November, the Council reached by a qualified majority vote a political agreement on the CAP ‘health-check'. In fact, France supported by Germany and Italy have agreed to water down the Commission’s proposals. They were the big winners whereas the UK was not able to fully endorse to the final agreement. It should be recalled that Tony Blair gave up £7bn of the UK rebate in return for reform of the CAP and there is no serious reform on the way.

An opportunity to reform the CAP was missed. In fact, it seems that the agreement on the CAP “health check” will lead to further complexity and to distortions of competition.

The Commission has pointed out that in order to strengthen the EU efforts in the field of climate change, renewable energy, water management and biodiversity additional funding is needed. The Commission believes that “the best way of meeting them is through Rural Development policy.” Modulation provides a mean to ensure the transfer of subsidy funds from Pillar 1 of the CAP (guarantee expenditure and single farm payments) to Pillar 2 (rural development and agri-environmental schemes). One of the key elements of the proposals is to further enhance the amount of funding for Rural Development under the 2nd pillar of the CAP, rather than the 1st Pillar. The Commission has therefore proposed to increase the transfer of direct payments to the Rural Development budget. Some Member States are concerned that the rural development support will be at expenses of market supports and subsidies. Presently, all direct aid payments of more than €5,000 are reduced by 5% and the money is transferred into the Rural Development budget. The European Commission has proposed that 8% of all EU farm payments to be devoted to rural development. However, France, Italy and Germany, could not agree therefore the percentage was reduced to a compromise figure of 5%. Hence, all farms receiving €5,000 must transfer 5% of EU aid into rural development projects by 2012, in addition to the 5% that is already compulsory. The present 5% modulation rate will be increase by 7% in 2009, 8% by 2010, 9% by 2011 and 10% by 2012. Therefore, under the agreement reached by the EU agricultural ministers aid for rural development will rise to 10% of the farm subsidies and not the 13% that the European Commission has proposed.

The UK is the only EU Member State which already applies a voluntary modulation system. The UK is allowed to modulate direct payments to farmers at a rate over and above that of the compulsory EU-wide modulation scheme and the money collected is spent on rural development initiatives. The rate of voluntary modulation was set at 12% for 2007, rising to 13% for 2008, and 14% for the years 2009-2012. Whereas presently English farmers pay 19% the farmers from other Member States pay 5% and from 2012 English farmers will continue to pay 19% while others will pay 10%. Any increase in EU modulation must be offset by corresponding cut in national voluntary modulation in the UK. The UK already has the highest modulation in the EU therefore it was expected that more compulsory modulation would be agreed to bring other Member States in line. Nevertheless, under the agreement reached by the Member States solely five percent will move from direct payment to rural development.

The Commission wanted to make further cuts for bigger farms. The Commission has proposed for amounts between €100 000 and €200 000 a further 3% would be modulated (from 2010), a further 6% should be applied for amounts between €200 000 and €300 000, and amounts above €300 000 would face an additional 9% of modulation. The EU Member States agreed on a progressive modulation of 4 % to be added from 2009 onwards, for amounts above EUR 300 000. Hence, farmers who receive more than €300,000 a year will see 4% of their subsidies transferred into the rural development budget by 2012.

English farmers will not pay additional modulation as they will pay 19% which is more than the EU modulation of 14% for big farmers.

The Commission has identified 4 “new challenges” that should be addressed under Rural Development using the new funds from further modulation which are mitigating climate change, renewable energies, water management and halting the loss of biodiversity. In addition to the new challenges identified in the Commission proposal, the Agricultural Council has agreed that the funding obtained in this way may also be used by Member States to reinforce programmes in the fields of innovation and the adaptation of the milk sector.

The Commission has proposed to further decoupling meaning reducing the link between how much farmers produce and how much financial support they receive from the CAP. Whereas the UK favour direct aid to be completely decoupled from production several EU Member States such as France, Germany and Romania, are not convinced by the Commission proposals on decoupling as they believe it will not promote production. Therefore some payments will continue to be linked to production.

The remaining coupled payments will now be decoupled and moved into the Single Payment Scheme, with the exception of suckler cow, goat and sheep premia, where Member States may maintain current levels of coupled support. From January 2010 aid for arable crops, durum wheat, olive oil and hops will be decoupled. From 2012 it will take place the decoupling of aid for beef and veal, rice, nuts, seed, protein plants, starch potato cultivation, the processing of dried fodder, potato starch, hemp and flax.

Presently, Member States may retain by sector 10 percent of their national budget ceilings for direct payments for use for environmental measures or improving the quality and marketing of products in a given sector. The EU Member States have agreed to turn this possibility more flexible. Member States will have greater flexibility in deciding which fragile agricultural sectors should receive special aid as well as in how they should spread their direct payments to farmers. This would lead to backdoor subsidies.

The EU Member States will be able to use up to 10 % of their national ceilings to grant support to farmers for certain types of agriculture which are significant in terms of the protection or improvement of the environment, to improve the quality of agricultural products or their marketing however the money will no longer have to be used in the same sector. The Member States will no longer have to spend the money in the same sector as it may be also used to help farmers producing milk, beef, goat and sheep meat and rice in disadvantaged regions or vulnerable types of farming. It may also be used to support risk management measures. The Commission has also proposed, after being pressured by France, that these funds might be used as a contribution to crop insurance premiums and mutual funds for animal disease compensation.

Under the so called Article 68 new arrangements Member States would be allowed to spend whole of the 10% of the national ceiling on measures with additional agri-environmental benefits. Animal welfare is a new area which can be dealt under Article 68 measures. Moreover, coupled payments under Article 68 will amount to 3.5% of the national Single Payment Scheme ceiling. Measures aiming at helping dairy, beef or sheep farmers in economically or environmentally vulnerable areas, or economically vulnerable types of farming and crop insurance premiums or mutual funds for animal and plant diseases are limited to 3.5% of SPS payments. Hence, Member States may until 2014 grant state aids to the dairy sector, subject to the 3.5% of the ceiling. Member States are allowed to fund measures under article 68 from 2009 if they have funds in their national reserve.

Jim Begg, Dairy UK Director-General, has said “We are also concerned that the measures under article 68 will allow Member States to effectively re-introduce coupled support for the dairy sector which could distort the competitive environment.” According to the National Farmers Union (NFU) such measures are bureaucratic and entail “taking off some and giving back to others.”

Under the agreement, Member States which apply the Single Payment Scheme will be allowed either to use currently unused money from their national envelope funds to finance measures under Article 68 or to use for Rural Development measures. Hillary Been has said "I share the disappointment of the UK dairy sector at the competitive distortions resulting from today's deal. And given the large amount of money already being spent on farm payments, I could not support the use of unspent funds which should come back to member states."

One of the most controversial issues was the phasing out of milk quotas before they are totally scrapped in 2015. The French Agriculture Minister Michel Barnier has said before the agreement was reached that he would "not allow the milk quotas to be scrapped without accompanying measures, precautions being taken.” The Council has agreed an increase of 1 % for the milk quotas per year in 2009, 2010, 2011, 2012, and for the marketing year 2013/2014, to prepare for their expired in 2015. Italy was granted a special derogation therefore it will be allowed for a single quota increase of 5% in 2009. Germany as well as France would be allowed to spend a higher proportion of rural development funds on their dairy farmers.

The Commission has also proposed to replace the present intervention systems under which farmers are able to sell stock into EU reserves if they cannot get a decent price for their produce on the market into a “genuine safety net.” The UK has been demanding the end of all market instruments whereas France does not want to give up market interventions. France has won significant concessions, in particular retaining the intervention system for bread-making wheat as well as for durum wheat and rice.

Intervention will be abolished for pig meat and set at zero for barley and sorghum. Intervention for durum wheat, rice will be maintained as a market management instrument but with the thresholds set at zero. However, intervention for bread-making wheat will take place during the intervention period 1 November to 31 May at the level of the intervention price 101,31 per tonne, for a maximum quantity of 3 million tonnes, and purchase by tender beyond that. In the milk sector, intervention will be maintained with the maximum quantities being set at 30 000 tonnes for butter and 109 000 tonnes for skimmed milk powder.

The Commission proposals are expected to be formally adopted by the Council by the end of the year and coming into force in 2009.

According to Hilary Benn “This is a mixed result. On the big items of reform this is a step forward, but I regret what has been conceded in order to secure a deal which will lead to some new distortions in the short term.” However, according to Neil Parish "Britain sent five ministers to this meeting, yet when the crucial negotiations were ongoing earlier this year, not a single British minister was present. Britain has been the empty chair in the room when it came to farm reform, and part of the blame for the timidity of the Health Check falls to our government.”

The "wonderful world" of the so called European Security and Defence Policy

 It is well known that the French Presidency main priority regarding defence is strengthening EU’s military capabilities. Last July the European Defence Agency adopted the first capability development plan which defines the European Security and Defence Policy (ESDP) future military needs and priorities.

On 10 November, the EU Defence Ministers meeting in the Steering Board of the European Defence Agency approved the launch of ten initiatives aiming at reinforcing the EU’s military capabilities as regards security and defence in the aviation, maritime, space and industrial fields. German Defence Minister, Franz-Josef Jung, has said to Europolitics, “(…) These are the projects that are taking ‘Europe of defence’ forward. European military capability must evolve. That is what Europe needs.” The External Relations Council endorsed the Defence Ministers' Military Capabilities Development Commitments and called for work to continue with a view to a capabilities development declaration by the European Council.

The EU Defence Ministers decided to establish a European Air Transport Fleet (EATF). Twelve Member States, Belgium, Czech Republic, France, Germany, Greece, Italy, Luxembourg, Netherlands, Portugal, Romania, Slovakia and Spain, signed a Declaration of Intent on participation in the initiative. It is well known that the EU the humanitarian and military missions have been facing logistical problems. The signatory Member States have stressed that the EU will be more involved in military and civilian operations, and “that there is a clear lack of European military airlift capabilities to perform these missions.” The main aim is to reduce European air transport shortfalls by pooling aircraft such as the new Airbus A400M. The EU Member States’ participation to EATF can take different forms such as making available military transport aircraft; purchasing, providing or exchanging flying hours; or providing and benefiting from shared and/or pooled support functions (training, maintenance). The UK has not decided yet if it would participate.

Four Member States, Belgium, Germany, France and Luxembourg have signed a Declaration of intent to establish a future A400M multinational unit with the purpose of developing European airlift capabilities in support of national and multinational needs.

The EDA has also made a commitment to improve Europe's maritime surveillance capability, in particular through the future surveillance Unmanned Air Vehicles (UAV) project and the networking of European military maritime surveillance systems. Seven Member States, Finland, France, Germany, Poland, Portugal, Spain and Sweden have agreed to start working on the development of an unmanned aerial system, which will be able to take off and land on a ship’s deck.

France also wanted to set up a fleet of military transport aircraft. The French defence minister, Herve Morin, has said that France also wants to create “a joint European air fleet, like for the C17” (…) As for air and sea, why not have an aircraft carrier permanently stationed at sea which remains under the operational authority of the owner state but which is at the disposal at EU level?” Nine Member States, Belgium, Germany, Spain, France, Greece, Italy, the Netherlands, Portugal and the UK signed a Declaration of Intent to launch the European Carrier Group Interoperability Initiative (ECGI) which will promote the interoperability of European navies and their carrier air groups.

The defence ministers also launched projects to enhance military space observation means. One of the initiative’s aims is to increase the military information sources of the EU Satellite Centre in Torrejon (Spain) with the availability of images from the Helios (France), SAR Lupe (Germany) and Cosmo-Skymed (Italy) systems. Another initiative is aiming at developing the space capability of member states, around the MUSIS project. Five Member States Belgium, France, Germany, Greece, Spain signed a Letter of Intent to launch a cooperation programme to put in place a Multinational Space-based Imaging System for surveillance, reconnaissance and observation (MUSIS).

The EU defence ministers also endorsed a roadmap for the Helicopter Tactics Training Programme as part of the Agency’s general programme to improve availability of helicopters for ESDP operations. The ministers also decided to create a European Union-wide Forum for Military Airworthiness Authorities with aim to harmonise the different national military airworthiness regulations within the European Union.

France also wanted to promote joint European training courses as well as exchanges between national training bodies. In fact, France wants to harmonise education and training for military staff. France has stressed that it would be “a considerable strength” to have a “permanent European crisis management training centre” “to which France is willing to make a contribution.” The EU defence ministers officially approved, on 10 November, the European initiative for exchanges between young officers, inspired by the Erasmus programme. Hervé Morin has explained that the idea is to promote a “European awareness, so that alongside the citizenship proper to each member state, there exists a European citizenship, so that we can forge a European defence culture and, through common training, improve the interoperability of the armed forces intervening in the same theatre of operations.” This initiative will be implemented on a national and voluntary basis, with assistance from the European Security and Defence College. The Member States agreed on a number of measures for encouraging and facilitating exchanges between their national training colleges. The initiative includes the creation of an IT platform containing the initial officer training programmes to permit national training institutions to offer and request places for officer exchanges. Training models on international issues will be developed. In fact, a training module on the European Security and Defence Policy is already available.

According to Europolitics, Hervé Morin, has said, at the end of the External Relations Council meeting, that “Relaunching Europe of defence was one of the Presidency’s priorities. That mission has been accomplished.” The EU is duplicating the work of the United Nations and NATO. There are no troops for all the NATO, EU and UN missions. The majority of EU Member States are also NATO members therefore they have to make troops available for both organisations.

Lt. Gen. Karl Eikenberrry, the deputy chairman of the NATO military committee, has recently criticised the ESDP as regards equipment, operations and political commitment. He said “European forces tend to go it alone. There is duplication, as well as quantitative and qualitative problems.” He stressed that though the ESDP has “carried out 20 operations” but “only five involved more than 100 troops.”

On 10 November the General Affairs and External Relations Council, sitting in its defence ministers’ formation also adopted a joint action establishing the first European Union’s naval military operation. The operation - EU NAVFOR Somalia/operation "Atalanta" - come in support of Resolutions 1814 (2008), 1816 (2008) and 1838 (2008) of the United Nations Security Council. Its mandate includes providing protection to the ships of the World Food Programme, to protect cargo ships sailing in the zones in which it is deployed, to monitor the zones off the coast of Somalia, including its territorial waters, posing risks to maritime activity.

The operation will take the necessary measures, “including the use of force, to dissuade, prevent and intervene in order to put a stop to acts of piracy or armed robbery.” The legal aspects of the joint action have raised particular difficulties. It is the first EU naval operation and will also take place in an international zone covered by specific legislation. The purpose is to arrest, to transfer and judge certain individuals who have committed acts in breach of international law, but which have no ties with the EU.

The UN resolutions require all States and regional organizations to notify in advance to the “Secretary-General, and at the request of the TFG, to take action to protect shipping involved with the transportation and delivery of humanitarian aid to Somalia and United Nations-authorized activities (…).” On 30 October the EU sent a letter to the Somali transitional government “making an offer of collaboration, which contains proposals as to the exercise of jurisdiction against persons apprehended in the territorial waters of Somalia.” The decision to launch the operation could not be formally adopted until the TFG has transmitted to the European Union a copy of the notification submitted to the UN.

According to the Joint Action document, pirates apprehended in “the territorial waters of Somalia or in the open sea,” would be transferred to the member state or third country’s authorities whose flag was flying on the ship which undertook the arrest or if they do not wish to use its jurisdiction, to a member state or a third country which would like to exercise it. Prisoners would be transferred to a state which has the legal capacity to try them. However, it seems that just the Netherlands, Sweden, Finland and France have such provisions in their law. The operation is planned to last for one year.

The Operational Headquarters are located at Northwood and this will be the first time that it will be active at the European level. Rear admiral Phillip Jones is the EU Operation Commander. The Political and Security Committee, under the responsibility of the Council, will exercise the political control and strategic direction of the EU military operation. Britain has not been keen in fully participating in European military missions but those days are over as the UK government now prefers to give primacy to the EU rather to NATO.

According to Geoffrey van Orden, MEP, "It is a pity that the British government has agreed to an EU naval operation at the same time that NATO will be engaged in the same waters. (…)” He added "(…) Clearly NATO is best able to mount such an operation on behalf of the UN. We also need clarity about dealing with arrested pirates so that international law can be applied robustly. The EU has no useful military role to play in this, their involvement will just add confusion and complicate matters(…).”

The European Commission’s proposed Directive on Consumer Rights may weaken Consumer Protection in the UK

Presently, EU rules on consumer protection come from four EU Directives - Unfair contract terms, Sales and Guarantees, Distance Selling, and Doorstep Selling. According to the Commission these Directives provide only minimum standards for the protection of consumers. But they give Member States discretion to establish more strict standards if they so desire. Hence, some Member States have set their own higher standards.

Last October, the Commission proposed a draft directive on consumer rights which revises and merges the four Directives abovementioned into a single instrument. The draft directive concerns contracts for sales of goods and services from business-to-consumer and applies to both domestic and cross-border contracts. The Commission wants to harmonise consumer rights as regards information about the goods, rights in the event of late delivery or non-delivery, cooling-off periods, returns, refunds, repair terms and guarantees.

The Commission has moved away from the minimum harmonisation approach to a full harmonisation approach under which Member States would be prohibited from keeping or introducing provisions in their national law which differ from the proposed Directive, whether those provisions provide for more or less stringent consumer protection requirements. Consequently, if the directive is adopted the UK would have to repeal any existing legislation which exceeds or provides less protection than the level of consumer protection provided by the Directive. In fact, the UK is concerned that some of its existing consumer protection measures go beyond the proposed directive terms therefore the UK would have to reduce consumer’s protection.

The Minister for Trade and Consumer Affairs at the Department for Business, Enterprise and Regulatory Reform, Mr. Gareth Thomas, told to the European Scrutiny Committee that the Government is concerned about “full harmonization, the restricted scope of the provisions on sales contracts, the proposed loss of the consumer’s “right to reject” faulty goods and distance and off-premises contracts.”

The Commission wants to harmonise the rules on information to be provided before conclusion of the contract. Traders would be required to provide the consumer with a clear set of information requirements, such as the main characteristics of the product, the arrangements for payment, delivery and duration of the contract, so the consumer can make an informed choice.

The European Commission wants to boost cross-border shopping online therefore the contract terms will apply to both high street purchases and those made online.

The Draft directive also includes provisions on distance and off-premises contracts. It provides for specific information requirements that the trader must give the consumer both before the conclusion of a distance contract and in the contract itself. The Commission proposal also regulates the right of withdrawal for distance and off-premises contract, including via the web. The Commission proposal sets an EU wide cooling off period of 14 days, rather than the present seven, when consumers can change their mind. It also introduces a standard withdrawal form.

Under the Commission proposal the rules on off-premises sales would apply to all contracts, despite of their value. However, there is, presently, under UK law, a threshold of £35 below which the rules do not apply. Gareth Thomas has said that it’s the Government view that “(…) imposing information requirements on traders and introducing a right of withdrawal for off-premises contacts worth less than £35 would place a disproportionate burden on traders.” Moreover, he said “(…) there was little evidence of consumer detriment relating to these low value contracts and therefore no justification for removing the threshold.”

The Commission proposal also provides for consumer rights specific to contracts of sale. It provides for provisions on passing of risk, lack of conformity, general contractual remedies and general right to damages and duty to notify defects. The Commission has kept the principle that the trader is liable to the consumer for a period of two years if the goods are not in conformity with the contract.

Under the draft directive the trader is required to deliver the good to the consumer on maximum of 30 days from signing the contract. The trader would bear the risk and cost of deterioration, loss of the good until the moment the consumer receives the good. The consumer will have a right to a refund no later than 7 days from the date of delivery in case of late or non delivery. The Commission has introduced a new rule whereby the risk of loss or damage of the goods is transferred to the consumer only when he or a third person designated by him other than the carrier acquires the material possession of the goods.

The proposal also provides for the same standard set of remedies available to all consumers who have bought a faulty product. Under the draft directive where goods do not conform, repair and replacement is the first option and the consumer would only be entitled to a refund in restricted circumstances. Hence, the trader may provide a remedy by repairing or replacing the product. Under certain circumstances such as if the trader refuses to remedy the lack of conformity or fails to do so in a reasonable time, the consumer would be entitled to have a reduction of the price or rescind the contract and claim damages. However, retaining the right to reject is essential for consumer confidence.

The UK would be required to repeal consumers’ existing right, in national law, to reject faulty goods. Consequently, consumers in the UK would no longer have a legal right to reject goods of unsatisfactory quality and being reimbursed. Furthermore, under the draft Directive the trader, not the consumer, would be entitled to decide whether non conforming goods should be repaired or replaced. The Minister has said that: “Our initial view is that this change will amount to a reduction in consumer protection for UK consumers which is unlikely to be acceptable.”

The draft proposal also contains provisions on unfair contract terms which have not been individually negotiated. They are terms drafted in advance by the trader and to which the consumer has agreed without the option of influencing them. The draft directive provides for a black and grey list of unfair terms. The 'black list' contains contract terms which in all circumstances are considered unfair whereas the “grey list” contains terms which are deemed unfair unless the trader proves otherwise to the satisfaction of the competent national authority. Such lists apply in all Member States and may only be amended by the Commission through the comitology procedure.

According to EurActiv, Nuria Rodriguez, a legal officer at European consumers' organisation BEUC, said that the "BEUC supported the principle of minimum harmonisation, but the directive harmonises everything to the maximum level while providing a low level of protection for the consumer.”

The Consumer Rights Directive must be approved by the European Parliament and EU Member States before coming into law. The Commission is expecting that the European Parliament as well as the Council will approve the draft Directive by March 2009. It remains to be seen what will come out from the negotiations but QMV is required at the Council therefore the UK would not be able to veto the proposal. The Government might not be able to build a blocking minority in order to prevent a reduction in consumer protection for UK consumers.

Member States would be required to transpose the Directive into domestic law within eighteen months of the measure coming into effect.

Funny shape fruit and vegetables – too little too late

It is well known that the EU regulates the size and shape of fruit and vegetables. On 12 November the EU Management Committee for Fruit and Vegetables voted on the Commission proposals to repeal specific marketing standards for 26 types of fruit and vegetables such as apricots, asparagus, avocadoes, beans, carrots, cauliflowers, cherries, cucumbers, garlic, headed cabbage, leeks, melons, onions, peas, plums.

However, the European Commission’s plan to scrap harmonisation rules that have prevented the so called misshapen fruit and vegetables being sold are too late as several small producers were already eliminated because they were not able to compete with the detailed and strict marketing standards.

For 10 types of fruit and vegetables such as apples, strawberries and tomatoes, marketing standards will be kept nevertheless shops would be allowed to sell products that don't respect the standards but they must be labelled to distinguish them from 'extra', 'class I' and 'class II' fruit. They must be labelled as “products intended for processing.” Therefore the Commission will introduce new regulations detailing how such products can be market.

Mariann Fischer Boel has said "consumers should be able to choose from the widest range of products possible. It makes no sense to throw perfectly good products away, just because they are the 'wrong' shape." However, the EU has been required this for the last 20 years.

According to Sainsbury this move might reduce prices by up to 40 percent as well as reducing produce wasted. Sue Henderson from Sainsbury has said 'We're not allowed to use up to 20 per cent of what's produced in this country and in the current crunch climate, we cannot continue to waste this much food before it even leaves the farms.”

It should be mentioned that several Member States such as France, Italy, Spain still believe that in scrapping the EU rules would prejudice the overall quality of EU fruit and vegetables.

The Commission still has to formally adopt the changes which will be implemented from 1 July 2009 therefore funny shape products cannot be legally sold before the summer.

The European Court of Auditors for the 14 year in a row has not signed the EU accounts

The European Court of Auditors has been issuing a negative assessment as it has never found that the EU funds were perfectly used in the Member States as regards all the EU’s areas of expenditure and 2007 was not an exception. The EU money had not been spent well and according to the rules. In 2007, the EU budget totalled 114 billion euro of payments.

The European Court of Auditors presented on 10 November its Annual Report for the 2007 financial year. Vitor Caldeira, president of the European Court of Auditors, said “Overall, the Court's audit opinion on the EU accounts is now unqualified while the opinion on underlying transactions remains broadly similar to that of last year.”

As regards the legality and regularity of the transactions underlying the accounts the Court also gave unqualified opinions for revenue, commitments and payments for economic and financial affairs and Administrative. According to the Court such transactions are free from material error and the supervisory and control systems are implemented adequately.

However, it could not provide a clean opinion for most spending areas. According to the Court payments for Agriculture and natural resources, cohesion, research, energy and transport, external aid, development and enlargement, and education and citizenship continue to be materially affected by errors and these areas supervisory and control systems are considered to be only partially effective.

The Court continues to find that payments made to final beneficiaries do not comply with the rules. According to the Court cohesion policies (€42 billion) continue to be the area most affected by errors. The Court pointed out that “at least 11 % of the total amount reimbursed should not have been reimbursed.” Vitor Caldeira has stressed that “In the cases audited by the Court this year the most frequent causes of incorrect expenditure reimbursements in the Structural Funds were inclusion of ineligible costs, over-declarations of money spent and serious failures to respect procurement rules.”

The Court estimated that the level of error in agriculture and natural resources is not considerably different from last year. According to the Court “In agriculture and natural resources (51 billion euro) the estimated overall error rate is still material. Rural development, with its often complex rules, accounts for a disproportionately large part of this error rate.” The Court has estimated the value of the error rate for European Agricultural Guarantee Fund (EAGF) expenditure to be “slightly below materiality” (2%).

For the other areas such as external aid, development and enlargement, research, energy and transport, education and citizenship the error rate was estimated between 2% and 5%. The Court has stressed “The estimated error rates in some spending, notably that previously covered under the headings "internal policies" and "external actions" have fallen - however not enough to affect the overall picture.”

The Court acknowledged the Commission’s efforts to address the existing weaknesses in supervision and control systems particularly in the area of monitoring and reporting but further progress is needed. The Commission, since 2000, has been working on a reform program to improve the management of the EU budget. It adopted an Action Plan to address the recommendations of the Court on how the Commission should improve its supervisory role of management and control systems in Member States for structural actions.

The Commission was expecting that its Action Plan would help it to reach its dream that before the end of its term the Court issue a positive Declaration of Assurance. The Statement of Assurance of the Court provides opinions on both the reliability of the accounts and on the regularity and legality of the underlying transactions. Although the overall accounts have been approved without qualification for the first time since present accounting rules were adopted the Court of Auditors could not issue a Statement of Assurance as the underlying payments in most spending areas have a too high level of error. Although the Commission has implemented several control measures the true is that the Court continues to find serious errors in several areas of the EU expenditure.

Moreover, the Court has called for simplification of the regulatory framework. According to Vitor Caldeira “Well designed rules and regulations which are clear to interpret and simple to apply decrease the risk of error, streamline the required controls and consequently also reduce their cost.”

Fishermen have been struggling with soaring fuel prices. Things might get worse as the Commission has proposed drastic cut in fishing quotas in 2009

The British fishing industry is falling apart. The catch restrictions have been leading to millions of tons of dead fish being thrown back into the sea. The measures for fishery resources management, the total allowable catch (TAC) and quota system are not operating effectively. It is clear that the Common Fisheries Policy does not work therefore it should be repatriated to Westminster.

On 10 November 2008 the European Commission presented its proposal on fishing possibilities and fishing effort for 2009 for the main stocks in the North-East Atlantic, including the North Sea. The Commission has pointed out that “Most stocks of fish continue to be overfished in 2008” therefore according to the Commission “in order to build a healthy industry for the future, we need to fish less in the short term.”

The Commission has stressed that the stocks of cod, haddock and whiting are overfished in the area west of Scotland therefore it called for a targeted ban on fishing of these species. The Commission has proposed 25% reductions in both quotas and fishing intensity on those stocks. The Commission also introduced a system of effort limitations for cod fisheries measured by kilowatt-day ceilings as a replacement of the 'days-at-sea' system applied in 2008. The Commission has also proposed a 25% reduction in herring quotas for the West Scotland stock and a zero TAC for spurdog and porbeagl deep-water sharks. The Commission proposed to introduce two protection zones in the area west of Scotland to protect blue ling spawning aggregations. The Commission also recommended that anchovy fishing in the Bay of Biscay to remain closed next year.

As Struan Stevenson MEP, Conservative fisheries spokesman said "For the past decade, the European Commission has resorted to tougher and tougher regulations and controls to save dwindling fish stocks (…)” which “(…) have served only to destroy thousands of jobs in the fishing industry, while fish stocks have continued to plummet.” Therefore, “It is time the commission realised that micro-managing a complex fisheries sector from behind a desk in Brussels is the problem, not the solution." Moreover, he said “This annual unedifying haggle over quota cuts must be brought to an end and replaced with a ban on discards and a policy based strictly on a limit to the number of days a fishing vessel can go to sea."

The Fisheries Council will discuss the Commission’s proposal on 17-19 December when it will agree on TACs for 2009.

The European Parliament’s Environment Committee voted to tighten the Commission’s proposal on pesticides ban

In 2006 the European Commission put forward a proposal for a Regulation concerning the placing of plant protection products on the market. Under the Draft Regulation active substances that can be used in the pesticide production would appear in a positive list drawn up at EU level while the others would be banned. The pesticides will be authorised by Member States taking into account that list.

The Commission has proposed to divide the EU into 3 geographic zones, a northern zone, a central zone and a southern zone. The draft proposal provides for a system of zonal authorization of plant protection products and for the compulsory mutual recognition of authorisations in Member States belonging to the same zone. Plant protection products authorised by one Member State will automatically be approved for use in the other Member States in that particular zone. In case of specific national environmental protection Member States will be allowed to refuse the mutual recognition of registration of certain pesticides or limit their application.

The draft proposal also provides for a comparative assessment of products intend to encourage the substitution of dangerous substances by safer alternatives. It also includes provisions on packaging, labelling and advertising of plant protection products and obligations to keep records and official controls.

The European Parliament voted at first reading on the proposal in October 2007 adopting 247 amendments. The main controversial issues have been the positive list of active substances banned from use in the production of pesticides and the compulsory mutual recognition of authorizations.

Last June the Agriculture Council reached a political agreement on the draft regulation and adopted its common position on 15 September. The agriculture council has backed the Commission proposal hence the regulation will "totally prohibit the marketing and use of substances proven to be carcinogenic, mutagenic and toxic for reproduction.” The compromise text allows a possible derogation to the prohibition. If there are no other available means to control a serious danger to plant health, it would be possible to approve hazardous substances for a maximum period of 5 years even if it does not satisfy the listed criteria. These substances would also be excluded from obligatory mutual recognition.

The political agreement was approved by 23 Member States whereas four Member States, Romania, Hungary, Britain and Ireland, has decided to abstain. Those Member States argued that the draft regulation is too restrictive on pesticide approval, specially taking into account the food crisis. They believe, therefore, at the moment, restrictions which would reduce crop yields, should not be introduced.

It should be noticed that Britain’s leading scientists are fully against such legislative proposal. According to Dr. Colin Ruscoe of the British Crop Production Council “There is no evidence of public health benefit to justify these proposals.” Moreover, the European Crop Protection Association (ECPA) Director General Friedhelm Schmider has said “Just because a product has hazardous properties does not mean it is dangerous. At a time when the global population is worried about high food prices, the current proposal will make it more difficult for European farmers to continue producing high quality food at affordable prices.”

Moreover, the regulation would harm developing countries as the EU is not considering the risks of not using pesticides. Professor Donald Roberts, a medical entomologist, said "It seems that EU regulators have no idea about the real risks to health and development to which most people in developing countries are exposed. They not only ignore real-world risks of chemical use but also ignore the risks of NOT using insecticides to protect crops and human health."

Nevertheless, on 5 November, the European Parliament's Environment Committee adopted Hiltrud Breyer’s report on the regulation on the authorisation of plant protection products by 39 votes to 20 with 6 abstentions. The Committee members confirmed the European Parliament first reading and backed the European Commission proposed ban on the use of pesticides.

The Committee has supported the Commission’s proposal of banning substances that are “genotoxic, carcinogenic, reprotoxic or endocrine-disrupting” but it has expanded the scope of substances banned from usage in the production of pesticides in the EU, adding neurotoxic and immunotoxic substances to the banned list. Whereas the Environment Committee has proposed the developmental neurotoxicity and immunotoxic effects as exclusion criteria the Council included it in the criteria for definition of candidates for substitution. Furthermore, if these hazardous substances are needed to combat cases of serious danger to plant health they may be approved for up to four years whereas the Council has proposed five years.

Farmers as well as chemical manufacturers will be required to replace plant protection products that are considered to be hazardous with safer alternatives. According to the draft proposal products containing certain hazardous substances ("candidates for substitution") will have to be replaced if there are safer alternatives. However, whereas the original proposal provided for a five years maximum replacement period the MEPs voted to cut this period to two years.

The Council backed the Commission proposal of dividing the EU into three zones for the purpose of licensing pesticide products, with Member States within each zone applying the principle of mutual recognition. The Committee has reaffirmed the European Parliament position and rejected such proposal. The Environment Committee has proposed a single EU zone asking, therefore, for more harmonisation for products authorisation. According to the MEPs within a single EU zone Member States would be allowed to ban pesticides on grounds of local environmental conditions.

According to Robert Sturdy, MEP, “This legislation threatens already hard pressed consumers who are now even more likely to see their monthly food bill go up. With the current worries over food prices and food security it seems absurd that MEPs are voting on these proposals without the benefit of an impact assessment to make a more informed decision."

It remains to be seen what will come out from the negotiations. It is very likely that the European parliament will seek to make the draft regulation even tighter taking into account its first reading vote. The European Parliament second reading is scheduled to take place in January and the legislation could enter into force in 2010.

If such legislation is adopted there will be a substantial reduction of pesticides available in the market, consequently crop protection will be reduced and there will be an increase on food prices and dependency on food imports. It is also believed that the new rules would lead to job losses in the farming sector. Taking into account the present food crisis, the timing could not have been worse.

The European Parliament’s Committee on Employment and Social Affairs said “No” to UK's opt-out of the Working Time Directive

The EU Ministers have been failing to reach an agreement on the working time directive and on the temporary agency workers for several years. The 1993 Working Time Directive provides that workers must not work more than an average of 48 hours a week although it allows for derogations. The UK has got an “opt-out” clause successfully negotiated by the Conservative government. Following a number of European Court of Justice Rulings the European Commission has decided to revise the text and in 2004 it put forward a proposal to amend the Directive.

The Working time directive should not be amended but abolished, rules on working time should be dealt at national and company level and not at EU level.

The Employment Council on 9 June 2008 has reached a political agreement on the Directive on working time and on the Directive regulating the working conditions of temporary agency workers. It was a second compromise proposal that made the deal possible which was reached in the early hours of the morning. Spain, Belgium, Hungary, Greece and Cyprus have issued a declaration opposing to the text of the directive and calling to the European Parliament to amend it.

The EU’s Member States have agreed to keep the UK's opt out from the 48 hours working week cap.

The Council formally adopted its common position on 15 September 2008. The European Commission has pointed out that the common position includes a number of aspects which differ from the Commission's amended proposal as well as it does not take on board several amendments proposed by Parliament. The European Parliament has delivered its first-reading opinion on the working time directive in May 2005 and voted to scrap the UK opt-out by 2012. Nevertheless, taking into account the need to clarify the legal situation the Commission has supported the overall agreement.

The Commission has proposed that active periods of on-call time (periods where workers were effectively carrying out their duties in response to a call) would always be considered as working time whereas inactive periods would not be considered as working time unless national law or collective agreements so provided. Nevertheless, inactive periods could never be counted as rest time. The Council’s common position introduced no change regarding 'active' on-call time but would allow 'inactive' periods to be considered either as working time or as rest time, according to national law or to collective agreements.

Obviously, the future of the 'opt-out' was the most controversial issue at the Council discussions during the first reading. Presently, the working time Directive limits working time to 48 hours per week on average, including any overtime. Nevertheless, under the 'opt-out' a worker may agree with the employer to work hours exceeding that limit. But, the Directive does not set any explicit working time limit. The Commission amended proposal has provided that the 'opt-out' would be repealed three years after the proposed Directive entered into force. According to the Council’s common position the standard maximum limit continues to be 48 working hours per week unless an individual worker chooses otherwise. There is a new protective limit for opted-out workers which would be 60 hours on average a week when calculated over a period of three months unless collective agreements provide otherwise or 65 hours if inactive periods of on-call time is considered as working time and if no collective agreements applied. The Commission has stressed that the Council’s common position introduced a new protective framework for the opt-out.

The Council’s common position also provides for exclusion of short-term workers from certain protective conditions. Hence, workers who are employed for not more than 10 weeks in a year by the same employer are excluded from two of the protective conditions for opted-out workers. Those workers may agree to opt-out during the first four weeks of employment and they may work hours which exceed the maximum limit for opted-out workers which is 60 hours per week or 65 hours per week, if inactive on-call time is counted as working time, unless a collective agreement or agreement of the social partners provides otherwise.

The Commission takes the view that supporting the common position is the best way of allowing the legislative procedure to continue.

The proposal must be adopted under the codecision procedure therefore the compromise reached by the Council must be negotiated with the European Parliament. The working time directive is presently under second reading revision in the European Parliament.

On 5 November, the European Parliament Committee on Employment and Social Affairs adopted Alejandro Cercas’s report with 35 votes for, 13 against and 2 abstentions. It is important to mention that Labour MEPs have voted against the deal agreed by Gordon Brown. The Committee has rejected the Council’s compromise as it failed to include any of the European Parliament’s amendments. Alejandro Cercas has criticized the Council's common position because it still contains opt-out provisions which allow the UK to go further than the agreed weekly 48-hour working cap. The MEPs have, therefore, reaffirmed their first reading vote by adopting an amendment which provides that the “opt-out” should come to an end three years after the amended directive enters force.

Whereas the Council common position provides that the inactive period of on-call time should not be considered as working time except national legislation or an agreement between the social partners provides for it, the Committee members believe that the full period of on-call time, inactive or not, should be considered as working time.

The Council’s common position has left to the Member States to decide the reasonable period within which compensatory rest periods should be granted. However, the European Parliament committee believes that such periods should be granted at the end of the working period according to the applicable legislation or a social partner’s agreement.

Philip Bushill-Matthews MEP, Conservative employment spokesman, said “(…) While anti-social working patterns should be discouraged, it is not the place of MEPs to tell people how long they are allowed to work. During a recession we should be encouraging hard work, not outlawing it; and enabling personal choice rather than restricting it.”

According to UEAPME, the European craft and SME employers’ organization the Committee vote is a “(…) short-sighted and irresponsible behaviour, which will plunge Europe back into legal uncertainty and damage both employers and employees if confirmed in December.”

The outcome of the votes at the Employment Committee has made clear that there would be tough negotiations ahead with the Council. The informal trialogues aiming at reaching a compromise before the European Parliament adopts its position are set to start. Such negotiations between the European Parliament’s rapporteur, the French presidency and the Commission will take place behind close doors.

The European Parliament will vote on the directive in a second reading on 17 December. The Employment Council will meet on 15-16 December. If an agreement is not reached the revision of the Working Time Directive will go through the conciliation procedure.

Gordon Brown has agreed to provide temporary workers with the same rights as permanent workers in exchange of the UK being allowed to keep the working time Directive opt-out from the 48 hours working week cap. However, he might end up with nothing.

It remains to be seen which compromises will come out from the second reading. According to Europolitics, Alejandro Cercas has said that he is willing to negotiate with the Council but he will not move from the “principles behind the text.” He said: “We can talk about the content of the report. But for us it will be impossible to discuss the principles behind the report.”

Gordon Brown might see the UK “opt-out” scraped at the table of negotiations and the UK will not be able to veto it. The UK might not be able to build a blocking minority and the proposal will reach the necessary qualified majority voting.