A PROVISIONAL JUDICIAL CO-OPERATION UNIT
(a)
(21451)
10354/00
—
|
Communication from the Portuguese, French, Swedish and Belgian Governments seeking the adoption by the Council of a Decision setting up a Provisional Judicial Co-operation Unit.
|
(b)
(21576)
11344/00
—
|
Draft Council Decision establishing a Provisional Judicial Co-operation Unit.
|
(c)
(21667)
11344/2/00
—
|
Draft Council Decision establishing a Provisional Judicial Co-operation Unit.
|
| Legal base:
| Articles 31, 34(1) and 34(2)(c) EU; consultation; unanimity
|
| Document originated:
| (a) 13 July 2000
(b) 18 September 2000
(c) 29 September 2000
|
| Deposited in Parliament:
| 21 July 2000 |
| Department:
| Home Office |
| Basis of consideration:
| (a) and (b) EM of 29 September 2000
(c) EM of 24 October 2000
|
| Previous Committee Report:
| None |
| To be discussed in Council:
| 30 November 2000 |
| Committee's assessment:
| Legally and politically important
|
| Committee's decision:
| (All) Not cleared; further information requested
|
Background
3.1 The decision to establish a European
judicial co-operation unit, Eurojust, was taken at the Tampere
European Council in October 1999. The European Council agreed
to put in place the necessary legislative instrument to enable
the unit to perform certain functions including facilitating the
coordination of national prosecuting authorities; supporting national
criminal investigations in cases of serious organised crime; and
co-operating with the European Judicial Network. Whilst the Tampere
European Council did not call for the establishment of a Provisional
Unit, the proposal received political endorsement at the July
2000 Justice and Home Affairs Council. The intention is that the
experience gained from the Provisional Unit will inform negotiations
for the establishment of the permanent Eurojust body.
The documents
3.2 The first document (21451) contains
the initial communication from the governments of France, Sweden,
Belgium and Portugal. The second (21576) takes account of minor
legal linguistic modifications, whereas the most recent version
of the document (21667) addresses the issues discussed at the
Justice and Home Affairs Council in September 2000. The following
comments apply equally to all three documents unless otherwise
stated.
3.3 The documents propose the establishment
of a provisional judicial co-operation unit as a forerunner organisation
to Eurojust. The provisional unit would therefore remain in existence
until Eurojust itself becomes operational. It is intended that
the experiences of the provisional unit should inform the negotiations
on Eurojust.
3.4 Article 1(1) of the draft decision requires
each Member States to assign a prosecutor, judge or police officer
of equivalent competence to the Provisional Judicial Co-operation
Unit to be located in Brussels.
3.5 The objectives of the provisional unit
are set out in Article 1(2). They include improving co-operation
between national authorities on investigations and prosecutions
in relation to serious crime, particularly when it is organised
and takes place in two or more Member States; and improving coordination
of investigations and prosecutions, taking into account any request
from a competent national authority or information from any competent
body as defined under the Treaties.
3.6 Article 1(3) provides that "within
the scope of each Member State's national legislation", the
members of the Provisional Unit are to "contribute to the
proper coordination and facilitation of judicial co-operation
... in actions relating to the investigation and prosecution of
serious crime".
3.7 It is further provided that the coordination
of investigations and prosecutions should "contribute to
the consideration of arrangements for the opening and development
of investigations and prosecutions". The unit should provide
support for the coordination and operation of investigative teams.
The Commission is to be fully associated with the work of the
Provisional Unit in accordance with Article 36(2) EU.
The Government's view
3.8 The Minister of State at the Home Office
(Mrs Barbara Roche) in her Explanatory Memorandum of 29 September
states:
"The proposal to establish a Provisional Judicial
Co-operation Unit to act in the interim period before Eurojust
is established has developed over a very short space of time,
as the first text was tabled only in July. Despite this, the Government
supports the proposal, as the experience gained from the Provisional
Unit should provide significant benefits during the negotiation
of the instrument establishing Eurojust itself. The idea of a
'provisional Eurojust' is quite close to the model used successfully
when Europol was being established.
"The Provisional Unit will only have a short
life span, ceasing to exist when Eurojust is established. The
Tampere deadline for the establishment of Eurojust is the end
of 2001. Its limited range of functions reflects the anticipated
life span of the Unit and its main activity is likely to be the
contribution it can make to the negotiations on Eurojust proper.
Viewed realistically, it is unlikely that the Unit will be able
to involve itself in co-ordinating many investigations or prosecutions.
One area in which it can be expected to make a significant contribution
is in establishing the relationships between Eurojust and other
related organisations such as Europol, the European Judicial Network
and the Commission, specifically OLAF, the Commission's anti-fraud
office.
"The text is currently silent on a number of
issues such as data protection, languages, and funding. The UK
Government raised the question of data protection but the consensus
view was that no specific provision was required because the national
members will only be acting within the limits of their respective
national powers. The issues of languages and funding are still
outstanding and will require further discussion.
"As document 11344/00 makes clear, three other
questions are also outstanding, and the JHA Council on 28th September
will consider the issues of competence, number of national members
and the role of the Commission. On the first, the Government's
view is that the Provisional Unit should have as wide a remit
as possible to its limited life span, in order to gain as wide
a range of experience as possible.
"On the question of the number of national members
per Member State, the Government would not support an overblown
staffing regime, but would have no difficulty with the idea that
Member States who require one because of their national arrangements
should be able to appoint an assistant to the national member.
The Government's position concerning the Commission is that while
it is right for it to be fully associated with the activities
of the Unit (as provided for in the general provision under Article
36(2) of the TEU), it would be wrong for it to have the same status
as a Member State, and certainly wrong for it to acquire powers
that it does not already have.
"It is important to note that the draft Council
Declaration makes clear that decisions concerning the Provisional
Unit are without prejudice to the outstanding negotiations on
Eurojust itself, particularly with regard to the location and
role of Eurojust."
Conclusion
3.9 The potential practical benefits
of the Provisional Judicial Co-operation Unit are that experience
gained will be used to inform and guide negotiations on Eurojust
itself. However, certain matters do give cause for concern in
spite of the expected short life-span of the Provisional Unit.
3.10 First, it is striking that there
are no provisions on the protection of data processed by the Provisional
Unit, and we ask if the Minister is satisfied that sufficient
safeguards are implied by the provision in the draft decision
that each member of the Unit may act only "within the scope
of each Member State's national legislation".
3.11 Secondly, it is not clear what is
meant by "co-operation ...with regard ....to prosecutions"
in Article 1(2)(a) of the draft decision. We would be grateful
if the Minister could confirm that this provision does not involve
any delegation to, or sharing with, the Unit or with other national
authorities of the discretions vested by law in the prosecuting
authorities of the United Kingdom.
3.12 Thirdly, we would be grateful if
the Minister could give the like confirmation in respect of the
provisions in Article 1(2)(b) relating to the "co-ordination
of investigations and prosecutions in the Member States".
3.13 Finally, we ask the Minister to
explain what is meant by "serious crime" in Article
1(2) and (3).
3.14 In the meantime we do not clear
the documents.
MUTUAL RECOGNITION OF EXPULSION DECISIONS
CONCERNING THIRD COUNTRY NATIONALS
(21465)
9896/00
—
| Draft Directive on mutual recognition of decisions concerning expulsion of third country nationals.
|
| Legal base:
| Article 63(3) EC; consultation; unanimity
|
| Document originated:
| 30 June 2000 |
| Forwarded to the Council:
| 30 June 2000 |
| Deposited in Parliament:
| 27 July 2000 |
| Department:
| Home Office |
| Basis of consideration:
| EM of 17 August 2000 |
| Previous Committee Report:
| None |
| To be discussed in Council:
| 30 November 2000 |
| Committee's assessment:
| Legally and politically important
|
| Committee's decision:
| Not cleared; further information requested
|
Background
4.1 With the entry into force of the Treaty
of Amsterdam, asylum and immigration matters come within Title
IV of the Treaty establishing the European Community. Article
63 (3)(b) EC requires the Council to adopt a number of measures
on immigration policy in the areas of illegal immigration and
illegal residence, including repatriation of illegal residents,
within five years after the entry into force of the Treaty of
Amsterdam . The measures must therefore be adopted by 1 May 2004.
The document
4.2 The draft Directive, proposed by France,
is a brief document of only seven Articles. Article 1 defines
the purpose of the Directive as permitting the enforcement of
an expulsion order issued by an administrative authority in one
Member State (the issuing State) against a third country national
present within the territory of another Member State (the enforcing
State). The third country national is then to be expelled in accordance
with the Directive, and subject to Article 4. Third county nationals
are defined in Article 2 as any person above the age of majority
who is not a national of any of the Member States of the European
Union.
4.3 The particular class of third country
national liable to expulsion as referred to in Article 1 is further
defined by Article 3. Article 3(a) refers to an expulsion order
based on a threat to public policy or public security or to national
security. In such a case the relevant third country national is
a person:
- who has been sentenced by the issuing State to
a non-suspended penalty involving deprivation of liberty of at
least one year; or
- in respect of whom there are serious grounds
for believing that he has committed serious criminal offences
or in respect of whom there is clear evidence of an intention
to commit such offences within the territory of a Member State.
4.4 In such a case the possession of a residence
permit by the third country national is not to prevent the enforcement
order being carried out. The enforcement order must be based on
a 'serious present threat' and must have been issued in accordance
with the European Convention on Human Rights.
4.5 Under Article 3(b) the relevant third
country national is one who has had imposed on him an expulsion
order based on failure to comply with national regulations on
entry or residence of aliens.
4.6 Under Article 4 the enforcing State,
if it has no information as to the continued enforceability of
the expulsion order, is to ascertain from the issuing State that
the enforcement order remains enforceable. The enforcing State
is first to consider the situation of the third country national
under 'the relevant international instruments' and under 'national
rules applicable'.
4.7 By virtue of Article 5 the third country
national must have a remedy against the decision taken by the
enforcing State. Where the remedy is not suspensive in its effect,
the order is to be carried out and the issuing State informed.
Where the remedy is suspensive in its effect, the order is not
to be carried out by the enforcing State until 'all available
remedies have been exhausted and the issuing State's order upheld'.
The enforcing State is to inform the issuing State of the enforcement
of the order.
4.8 Article 6 provides that personal data
is to be protected in accordance with national legislation adopted
pursuant to Council Directive 95/46/EC.
The Government's view
4.9 The Minister of State at the Home Office
(Mrs Barbara Roche) in her Explanatory Memorandum of 17 August
2000 states:
"The Government welcomes measures aimed at reducing
or eliminating the opportunities for people against whom enforcement
action is being taken in one Member State to attempt to exploit
legal safeguards in another Member State. A person subject to
a UK deportation order issued on the grounds covered by this proposal
would also be removable from other Member States on the basis
of the UK Order. Similarly, third country nationals in the UK
who were subject to an expulsion order imposed in another Member
State, would be removable from the UK. The Government will therefore
give careful consideration to this proposal in deciding whether
or not to exercise its opt-in."
Conclusion
4.10 It would be helpful to know if the
Government has decided to opt-in to the draft Directive or not.
4.11 The Government states in its Explanatory
Memorandum that regular consultations are held with non-governmental
organisations ( NGOs) on EU immigration and asylum issues. We
would be grateful for information on which NGOs have been consulted
in respect of this draft Directive and for a summary of their
views.
4.12 We note with concern the provisions
of Article 3. This appears to require enforcement in this country
of a decision taken by an administrative authority in another
Member State where that authority simply has 'serious grounds'
for belief that the person has committed serious criminal offences,
or where there is 'clear evidence of an intention to commit' such
offences. If there are such serious grounds for belief, it is
not obvious why that person should not first be prosecuted, so
that the grounds for belief can be tested judicially. Similarly,
in the case where there is 'clear evidence' of an intention to
commit serious offences, it is not obvious why that person should
not first be prosecuted in the issuing State for an attempted
crime or conspiracy to commit a crime. As it is, the directive
seems to require the enforcing State to endorse the subjective
judgement of the authority in the issuing State as to grounds
for belief and clearness of evidence. This is quite unlike measures
for the mutual recognition of judgments, where such matters will
have been tested by a court. We ask the Minister if she shares
these concerns and if she is satisfied that the enforcement of
an order based on the second paragraph of Article 3(a) would be
consistent with the European Convention on Human Rights, and Article
6 ECHR (right to a fair trial) in particular.
4.13 Under Article 4 the enforcing State
should first consider the 'situation of the person concerned under
the relevant international instruments and under national rules
applicable' before expelling the person. We would be grateful
to know which international instruments are regarded as relevant
and whether it is the case that an applicable national rule will
still be effective to prevent enforcement of the order, or whether
such rules will be displaced by the Directive .
4.14 We look forward to the Government's
replies to the above, and in the meantime we do not clear the
document.
HARMONISATION OF FINANCIAL PENALTIES IMPOSED
ON CARRIERS
(21517)
10186/00
—
| Initiative of the French Republic with a view to the adoption of a Council Directive concerning the harmonisation of financial penalties imposed on carriers transporting into the territory of the Member States third-country nationals not in possession of the documents necessary for admission.
|
| Legal base:
| Articles 61(a) and 63(3) (b) EC; consultation; unanimity
|
| Deposited in Parliament:
| 1 September 2000 |
| Department:
| Home Office |
| Basis of consideration:
| EM of 27 September 2000
|
| Previous Committee Report:
| None |
| To be discussed in Council:
| 30 November-1 December 2000
|
| Committee's assessment:
| Legally and politically important
|
| Committee's decision:
| Not cleared; further information requested
|
Background
5.1 The Conclusions of both the Tampere
and the Feira European Councils called for a range of legislative
and practical actions to tackle illegal immigration. This draft
measure is one of several brought forward by the French Presidency
in response.
The document
5.2 The proposal is that all Member States
should impose a minimum penalty of 2000 euros (approximately £1,200)
on air or sea carriers or those providing group coach travel for
each third-country national unable to produce the requisite travel
documents on arrival in a Member State. The penalty will not apply
if the third-country national is admitted to the State for asylum
purposes. The draft Directive also obliges carriers to "take
charge" — that is, remove, or bear the costs of removal
and/or detention (and possibly support) — of any third-country
national refused admission to the Member State of destination.
Member States may impose more stringent penalties if they wish.
The Government's view
5.3 The Minister of State at the Home Office
(Mrs Barbara Roche) says:
"The UK welcomes these proposals in principle
but has strong reservations about the details and will need to
explore the following issues in negotiation:
"— the need to incorporate defences
in the directive. UK legislation incorporates defences for the
carrier, e.g. no charge is payable in respect of anyone shown
to have produced the required documents on embarkation and where
the falsity of a passport, or the impersonation of the rightful
holder of a passport, is not reasonably apparent;
"— the need to ensure Article 1 of
the draft directive also applies to people transiting a Member
State, and that Direct Airside Transit Visas provisions are fully
covered;
"— reference to 'Member States should
not apply the penalty if the third-country national is admitted
to the territory for asylum purposes' presents difficulties for
the UK. This is not a requirement of UK law, it is only a concession.
Furthermore, the concession is clear that a charge may be waived,
or refunded, if an inadequately documented passenger is granted
full refugee status under the 1951 UN Convention and Protocol.
The carrier does not receive a refund for those granted exceptional
leave to enter for humanitarian reasons. The directive simply
states 'admitted for asylum', which would include asylum seekers
whose status is yet to be determined;
"— clarification on the meaning of
Article 3(3) [which requires a carrier to bear the cost on onward
transportation or otherwise 'take charge' of the third-country
national if he cannot immediately effect the transportation himself];
"— the current proposals for the carrier
to bear unlimited liability for detention and other support and
removal costs. Under the Immigration Act 1971 their liability
is limited to the first 14 days. To comply with the proposal,
as currently drafted, would require amendments to primary legislation;
"— the need to include trains in the
definition of 'carrier'."
5.4 The Minister tells us that she intends
to explore why Article 61 (and particularly Article 61(a) rather
than 61(b)) is cited as one of the legal bases of the draft measure.
She is also considering whether the Government needs to declare
its intention to opt in to the draft Directive (under its Title
IV Protocol) or whether its participation in Schengen Article
26 of which this is a development makes this unnecessary.
5.5 She also informs us that, although the
penalty of £2000 imposed by the UK is higher than the minimum
in the current proposal, further UK legislation would be needed
if the draft Directive were to be adopted in its present form.
Although the proposal would have no financial implications for
the Government, it would have a significant impact on carriers.
Conclusion
5.6 We are surprised to learn that the
Presidency hopes political agreement will be reached on this proposal
at the Justice and Home Affairs Council at the end of the month,
given the unsatisfactory nature of the document. We hope this
will not be another example of last-minute agreements being reached
without a revised text.
5.7 We agree with the Minister on the
points which need further exploration. In particular:
(1) while we welcome the principle of an
exception for those admitted for asylum purposes, we consider
that a better definition is needed, both to ensure that proper
protection is afforded to those with a genuine asylum claim and
to prevent abuse of the system;
(2) as drafted, the obligations imposed
on carriers are open-ended and unquantifiable; the lack of defences
is unacceptable.
5.8 We note that the Government is considering
whether or not it needs formally to opt in to the draft Directive
(under its Title IV Protocol), given that the measure builds on
the Schengen acquis. We ask to be informed of the outcome
of its consideration.
5.9 We shall keep the document under
scrutiny until we are confident that the problems have been satisfactorily
addressed.
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