Select Committee on European Scrutiny Eighth Report



Amended draft Framework Decision on the standing of victims in criminal proceedings.

Legal base: Articles 31 and 34(2) EU; consultation; unanimity
Department: Home Office
Basis of consideration: Minister's letter of 27 February 2001 and EM of 30 November 2000
Previous Committee Report: HC 28-i (2000-01), paragraph 2 (13 December 2000)
To be discussed in Council: 15 and 16 March 2001
Committee's assessment: Legally and politically important
Committee's decision: Cleared


  13.1  The Tampere European Council agreed that minimum standards should be established for the protection of victims of crime and national programmes set up for their assistance. We considered an earlier version of the proposal on 26 July 2000.[33]

  13.2  We considered the amended text of the draft Framework Decision on 13 December 2000. We noted that the Government supported the measure, as the amended text appeared to meet the Government's earlier concerns. However, we had serious questions about the proposed legal base. We noted that none of the areas listed in Article 31 EU covered the provisions in the Framework Decision, and we remained to be convinced that the list was not exhaustive. We also noted that the European Parliament's Legal Affairs Committee had raised a similar objection, and had suggested that the measure would be more appropriately presented as a Recommendation.

The Minister's letter of 27 February 2001

  13.3  The Minister of State at the Home Office (Mrs Barbara Roche) has replied to our concerns in the form of a letter addressed to the Chairman of the House of Lords Select Committee on the European Union, but copied to us.

  13.4  The Minister comments on the question of the legal base as follows:

    "As a matter of policy, we will consistently argue that the legal base for Third Pillar instruments must be found in Articles 30, 31, or 32 TEU.

    "Although we accept your point concerning the risks of a too-extensive interpretation of Title VI TEU, our view is that a legal base of Article 31 TEU is in fact defensible in the case of the present measure.

    "It is true that Article 29 alone, in so far as it merely sets out the objective of Title VI, cannot in itself be regarded as a sufficient legal base, and that Article 29 in any event makes it clear that the objective stated in its first paragraph is to be achieved by the means set out in the second paragraph. In particular, the objective may be achieved by preventing and combatting crime through 'closer cooperation between judicial and other competent authorities of the Member States in accordance with provisions of Articles 31(a) to (d)', and 'approximation, where necessary, of rules on criminal matters in the Member States, in accordance with the provisions of Article 31(e)'.

    "At first sight, that appears to suggest that, where Article 31 is relied upon, the competence of the Union is limited to the particular matters listed in points (a) to (e) of Article 31; and we accept that those matters do indeed provide the core examples of the kinds of action to be taken. However, Article 31 begins by stating that common action on judicial cooperation 'shall include' the matters mentioned in (a) to (e). If the English version of the Treaty is taken in isolation, the term 'include' might be considered to be ambiguous, it being unclear whether (a) to (e) comprises an exhaustive or illustrative list. However, that ambiguity is resolved by the French version of Article 31, which makes it clear that the list is indeed illustrative: 'L'action en commun dans le domaine de la coopération judiciaire en matière pénale vise entre autres à....'. Furthermore, it can be seen from Article 29 (third tiret) and Article 31(e) that the concept of 'judicial cooperation' under Article 31 extends to the approximation of 'rules on criminal matters', and not merely to procedural cooperation between authorities.

    "In our view, having regard to the Tampere conclusions, the Council is entitled to take the view that the combat of crime through the type of measures expressly listed in Article 31 should be supplemented, in this case, by measures which focus on the position of the victim of the crime. The measures proposed include both approximation of rules on criminal matters and elements of cooperation between authorities.

    "As I have said, the Government will continue to ensure that the correct legal base is cited for Third Pillar instruments. We will remain vigilant to ensure that the Treaty is not used for purposes for which it is not intended. We do not consider that this case undermines that approach in any way."


  13.5  It would have been courteous of the Minister to have replied to us direct.

  13.6  Nevertheless, we found her letter to be a helpful exposition of the arguments in favour of the use of Article 31 of the Treaty on the European Union as the legal base for this measure. We recognise the force of the argument that the French text of Article 31 shows the list of activities to be illustrative rather than exhaustive, and does not contain the apparent ambiguity of the English text.

  13.7  However, we remain doubtful as to whether Article 31 should be interpreted in this extensive way. As the Minister herself points out, the objective set out in the first paragraph of Article 29 is to be achieved by the means set out in the second paragraph, and this refers to the activities listed in Article 31(a) to (e). By necessary implication, this appears to rule out activities which are not so listed in Article 31(a) to (e). The Minister's argument would have been more convincing if Article 29 had simply referred to Article 31 at large, but it does not.

  13.8  We acknowledge the scope for argument on this issue either way. The measure is supported by the Government and other Member States and is evidently beneficial to the victims of crime, so that little purpose would be served by withholding clearance at this late stage. Therefore we clear the document. However, we trust that the Minister will take note of the doubts we have expressed, and will ensure that this case is not used as a precedent for an extensive interpretation of Article 31 in other cases.

33  HC 23-xxvi (1999-2000), paragraph 7. Back

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