Select Committee on European Scrutiny First Report









Draft Protocol established by the Council in accordance with Article 34
of the Treaty on European Union to the Convention on mutual
assistance in criminal matters between the Member States of the
European Union.

Draft Protocol to the 2000 Convention on mutual assistance in criminal
matters between the Member States of the European Union.

Draft Protocol to the Convention on mutual assistance in criminal
matters between the Member States of the European Union.

Draft Protocol to the Convention on mutual assistance in criminal
matters between the Member States of the European Union: Article 2
— double criminality requirement.

Draft Protocol to the Convention on mutual assistance in criminal
matters between the Member States of the European Union.

Draft Protocol to the Convention on mutual assistance in criminal
matters between the Member States of the European Union.

Draft Protocol to the Convention on mutual assistance in criminal
matters between the Member States of the European Union.

Legal base: Article 34 (2) (d) EU; consultation; unanimity
Deposited in Parliament: (a) 27 February 2001
(b) 3 April 2001
(c) 17 April 2001
(d) 20 April 2001
(e) 30 April 2001
(f) and (g) 20 June 2001
Department: Home Office
Basis of consideration: (a) Minister's letter of 10 May 2001
(b) — (e) EM of 11 May 2001
(f) and (g) EM of 2 July 2001
Previous Committee Report: (a) HC 28-ix (2000-01), paragraph 4 (21 March 2001)
(b) — (g) None
Discussed in Council: 28-29 May 2001
Committee's assessment: Politically important
Committee's decision: (All) Cleared


47.1  The draft Protocol supplements the provisions of the 2000 Convention on Mutual Assistance, in particular by measures intended to combat financial crime. The aim is to limit the grounds (principally those in the 1959 Council of Europe Convention on mutual assistance in criminal matters) on which one Member State can refuse a request from another for assistance.

47.2  The previous Committee did not clear the proposal when it was last considered (in March). In the Committee's view, there were too many uncertainties about the provisions concerning the removal, or dilution of the dual criminality[75] principle in relation to search and seizure requests (then Article 2), and the provisions concerning requests for information on bank accounts and banking transactions (then Articles 5 and 5a).

47.3  Since then, several new documents have been deposited. The latest, document (g), is the consolidated version of the text which secured provisional agreement at the JHA Council on 28-29 May. (The UK maintained its scrutiny reserve.)

The documents

47.4  The new texts, documents (b) — (g), reflect the difficult progress of negotiations on the key provisions about which the previous Committee had expressed concern. Our report concentrates on document (g) as it is the latest consolidated version of the text following provisional agreement at the JHA Council.

Document (g) and the Government's view

47.5  In his full and helpful Explanatory Memorandum, the Parliamentary Under-Secretary for anti-drugs co-ordination and organised crime (Mr Bob Ainsworth) explains that the Articles in the draft Protocol have been re-numbered and, in some cases, re-ordered. We focus below on the most significant provisions.

47.6  In relation to the previous Article 2, the Minister tells us:

    "It proved impossible to secure agreement to the removal of the requirement for dual criminality for requests for search and seizure and consequently Article 2 as previously set [out] in document [d] was deleted. A draft Council Declaration has been proposed (pages 1 and 2 of document [g]) requiring the Council to review the question of refusals of mutual assistance, based in particular on the dual criminality requirement, two years after the entry into force of the Protocol. The Government is disappointed with the decision to delete Article 2, but welcomes the commitment to review the question again within a relatively short time-scale, and would support the proposed Declaration."

47.7  The Minister then tells us about the new Article 1 (old Article 5) , now titled Request for information on bank accounts. He says:

    "Although the overall intention behind the Article remains the same as outlined previously, both the title and the text of the Article have been softened slightly to require requested states to provide information on bank accounts rather than lists of bank accounts in response to a request. The scope of application set out in paragraph 3 has been restricted from the previous text, which only required an offence attracting a maximum of at least two years imprisonment in the requesting state. This has been replaced with an offence attracting at least four years imprisonment in the requesting state and at least two years imprisonment in the requested state; or one of the crimes listed in Article 2 or the Annex to the Europol Convention; or an offence against the EC's financial interests.

    "Paragraph 4 of Article 1 has been amended by the introduction of a proportionality test .... through the addition of the word "substantial" and by a requirement on the requested state to sharpen the focus of the request ....('to the extent available, which banks may be involved'). Paragraph 6 has been added to the Article to allow for the Council to extend the scope of application of the Article in the future, in the light of the experience of its operation.

    "The Government supports the changes to Article 1, while noting that the addition of paragraph 6 is essentially superfluous. The Government believes the changes address most of the earlier difficulties outlined in paragraphs 18 to 20 of the Home Office Explanatory Memorandum of 11 May 2001. Although the Government would have preferred non-mandatory language in paragraph 1, there was no significant support for reformulating the text in this way. Although an even tighter restriction on the scope of application would have been desirable, the present text is an acceptable compromise. The addition of a proportionality test has preserved an essential element of domestic judicial oversight when requests made under Article 1 are received and considered.

    "Implementation of Article 1 will require new legislation, over and above the existing relevant provisions of the Terrorism Act 2000 and that already planned in the Proceeds of Crime Bill. The Government is currently considering how the obligation set up by Article 1 would be given effect."

47.8  In relation to Requests for information on banking transactions (now Article 2), the Minister tells us that the text has not been changed. The UK did not find support for its view that the Article should be amended or deleted, since the process already happens and runs relatively smoothly.

47.9  The new Article 3 has the title Requests for monitoring of banking transactions. The Minister explains that the requirement is for Member States to establish the ability to monitor a specified account or accounts. The decision about whether such monitoring takes place or not rests with the competent authorities of the requested State, with due regard for its national law. The Government supports the changes, although it will need to consider how the Article should be implemented. Similarly, the Government supports the text of the new Article 4, Confidentiality (which requires Member States to ensure that banks do not "tip off " those concerned about investigations) but is considering whether further legislation to implement it may be required.

47.10  The new Article 10 (previously Article 8) is concerned with the refusal of requests for assistance. The Minister tells us:

    "The scope of this Article has been widened from earlier versions, which only dealt with assistance being refused on essential interests grounds. The Article now covers essential interests and dual criminality refusals in all cases, as well as refusals arising from the requested state's application of its domestic search and seizure conditions in application made under Article 1 and 2 of the draft Protocol. In each case, if the refusal is maintained, the requested state has an obligation to report the refusal, including the reasons for the refusal, to the Council. The Council will consider the refusal as part of its evaluation of how mutual assistance is functioning, such consideration being without prejudice to the procedure set out in Article 35.7 of the TEU, which allows the ECJ jurisdiction to rule on disputes concerning the interpretation or application of conventions if Council has failed to resolve the dispute within 6 months.

    "A new paragraph 2 has been added to the Article to provide for the involvement of Eurojust, once it has been established, to try to assist in developing practical solutions in problem cases coming within the scope of paragraph 1 of the Article.

    "The widening of the scope of Article 10.1 is in part a reaction to the failure to secure agreement to Article 2 in the earlier versions of the draft Protocol .... and is acceptable because it will keep the question of dual criminality on the Council agenda. Involving Eurojust could also be welcomed as a practical way of resolving difficulties in mutual legal assistance, although close attention will be necessary to ensure that it concentrates on cases that come within its final remit."

47.11  The Minister tells us that the revised proposal will shortly be sent to the European Parliament for a further opinion, which will need to be considered before the Protocol can be adopted.


47.12  We are not happy to learn that the latest version of this proposal secured "provisional agreement" at the May Justice and Home Affairs Council. This confusing term appears to have allowed Ministers to consider that they were maintaining the scrutiny reserve, while signalling agreement to the text. It does not help that paragraph 2 of the introduction to document (g) states that the Council reached political agreement (our italics) on the revised text, subject to the parliamentary scrutiny reservations. It is unclear to us what account, if any, the Government would have been able to take of any serious concerns we might have raised at this stage. We are taking this matter up in the wider context of the outcome of the May Justice and Home Affairs Council.

47.13  Turning to the revised proposal itself, we note that the process of making progress by deleting controversial Articles (to which the previous Committee drew attention) has continued, with the abandonment of the attempt to abrogate the dual criminality principle. We also note that the controversial Articles about bank accounts and transactions have been considerably diluted. Since our key concerns have been resolved, we are now content to clear all the documents.

75  The principle that an offence must be criminal in both Member States involved in e.g. mutual assistance. Back

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Prepared 30 July 2001