6. We have given further
consideration to the following on the basis of a Supplementary
Explanatory Memorandum. We maintain our opinion[15]
that it raises questions of legal and political importance, but
now make no recommendation for its further consideration:-
H M CUSTOMS AND EXCISE
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(15195)
5050/94
COM(94)34
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Draft Regulation on mutual assistance between the administrative authorities of Member States and co-operation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters, and repealing Regulation EEC 1468/81.
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Legal base:
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Articles 43 and 235; unanimity.
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Background
6.1 The purpose of this
proposal is to strengthen co-operation between Member States,
and between them and the Commission, in their efforts to combat
fraud by laying down rules to guarantee uniform and effective
working of administrative co-operation. The Exchequer Secretary
to the Treasury (Mr Oppenheim) has submitted a Supplementary Explanatory
Memorandum dated 6 March providing further information on a number
of issues which we raised when we last considered this proposal
in May 19941. The issues were concerned with:
-- the
legal base for the proposal; the Commission had proposed Article
100a but the Government considered that Article 235 would be more
appropriate;
-- the
question of the weight to be given to evidence from abroad, an
issue which we considered had wider implications than for this
draft Regulation alone; and
-- disagreement
about the extent of data protection provisions.
The legal base
6.2 On the legal base,
the Minister says in his Supplementary Explanatory Memorandum:
"In December
1994, the Council produced a 'policy stance', in which it considered
that it was not appropriate to apply the legal base proposed by
the Commission (Article 100a of the Treaty), which provides for
the co-decision procedure, but that Article 235 should be used
(as well as Article 43), which provides for the simple consultation
procedure. The Council consulted the European Parliament on the
change of legal base and [the] Parliament produced its report
in October 1996.
"The European
Parliament report concludes that the change of legal base is unjustified,
and it calls upon the Commission to follow up its declaration
in the Council minutes, in which it reserves its right to have
recourse to the appropriate legal channels. The Council legal
services continues to support the use of Article 100a, as does
the Belgian delegation. However, all the other Member States
share the view that Article 235 is more appropriate, and this
is also reflected in the text of the proposal (in document 5447/97)[16]."
The Government's views on
other outstanding issues
6.3 The Minister says
that the Government fully supports the proposal. He also says:
"The conclusions
of the report of the House of Commons Scrutiny Committee on the
Supplementary Explanatory Memorandum of May 1994 refer to the
following specific issues, which have [been] resolved to our satisfaction:
Amount of personal
information to be included in the Customs Information System (CIS):
"The Select
Committee noted in its conclusions on the Supplementary Explanatory
Memorandum of May 1994 that there was a consensus among the working
group on the items of data for the CIS. There is continued agreement
on this issue in the Council.
Weight to be given
to evidence obtained from abroad:
"The Select
Committee also noted that there was some disagreement between
the Member States on the weight to be given to evidence obtained
from abroad. The majority of the Member States rejected the Commission
compromise proposal to retain the last sentence of Article 12
- 'In such cases, they shall have no less value because of the
fact that they do not come from staff of the applicant authority'
- with a minutes statement to the effect that this Article does
not affect the discretionary powers of the national judicial authorities.
There are statements for entry in the Council minutes (in document
5442/97)[17]
from the Commission and the Belgian delegation regretting this
action.
Data Protection
"The Select
Committee also noted that on data protection, we would continue
to seek the deletion of Article 42 of the proposal on the extension
of data protection provisions to exchanges of manual data.
"The position
of the United Kingdom (and also Denmark, Ireland and Sweden) with
regard to the provisions of Article 42 has now been safeguarded
by the introduction of a new paragraph (2) to Article 53, which
states that Article 42 will not apply until Community rules exist
applicable to all data covered by the Regulation.
"The current
document 5447/97 also contains a number of technical changes to
take into account the provisions of Directive 95/46/EC, on the
protection of individuals with regard to the processing of personal
data and on the free movement of such data. We are satisfied
that the changes are fully consistent with our own Data Protection
Act 1984".
Conclusion
6.4 Whilst it is unsatisfactory
that there is still disagreement on the legal base for this proposal,
we are pleased to note that it is now to be considered with Article
235 as the proposed legal base. We also note that, although the
Minister's covering letter states that "the Council has now
reached a Common Position on this proposal", we understand
that this was subject to a Scrutiny reserve by the UK.
6.5 Given that we
last considered a version of this proposal almost three years
ago, it is unfortunate that we have only received the Minister's
SEM in time to consider it the day before the matter is to go
to the Council for a decision. However, as the points we raised
in 1994 have been answered, and as the Government did observe
its Scrutiny obligations by imposing a reserve on agreement to
the Common Position, we are clearing the document.
6.6 If there are developments
on the issue of the legal base, we ask the Minister to bring them
to our attention.
15 (15195) 5050/94; see HC 48-xix (1993-94), paragraph 1 (18 May 1994). Back
16 Not depositable; but we have the text. Back
17 Not depositable; but we have the text. Back
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