5. COMPENSATION TO VICTIMS OF CRIME
(23911)
13349/02
COM(02) 562
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Draft Directive on compensation to crime victims.
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| Legal base: | Article 308EC; consultation; unanimity
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| Department: | Home Office
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| Basis of consideration: | Minister's letters of 17 January 2003
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| Previous Committee Report: | HC 63-vi (2002-03), paragraph 5 (8 January 2003)
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| To be discussed in Council: | Date not set
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| Committee's assessment: | Legally and politically important
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| Committee's decision: | Not cleared; further information requested
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Background
5.1 When we considered this document a month ago, we
noted that our sister Committee in the House of Lords shared the
concern of the Parliamentary Under-Secretary of State at the Home
Office (Mr Bob Ainsworth) about the proposed legal base, and had
written to him at length on the matter. We decided to keep the
document under scrutiny until we saw the Minister's response to
our sister Committee. We also raised a question about the scope
of the provisions.
The Minister's letters
5.2 The Minister has now responded to both Committees.
He tells us that his response to our sister Committee makes it
clear that the Government has continuing reservations about the
use of Article 308EC as a base for this measure, and will be pursuing
the matter at the next Council Working Group in February.
5.3 In his letter to our sister Committee, the Minister
sets out what he calls "some initial comments" on the
legal base. He says:
"Article 2 of the Treaty on the European Union (TEU) sets
out the maintenance and development of the Union as an area of
freedom, security and justice as an objective of the Union. The
competence to adopt measures to achieve that objective is divided
between the First and Third Pillars... Article 61 of the Treaty
Establishing the European Community (TEC) seems to have been drafted
on the basis of this division of competence.
"Given this division of competence between the First and
Third Pillars, the establishment of an area of freedom, security
and justice cannot straightforwardly be treated as an objective
of the Community within the meaning of Article 308 EC. As you
say, this objective is not cited in the opening articles of TEC
and it is unclear how far Article 308 can be used for its attainment.
"The Commission does not, in fact, rely only on the claim
that the proposal contributes to the establishment of an area
of freedom, security and justice. In ...its Explanatory Memorandum
it also claims that the improvement of compensation to the victims
of crime will contribute to the free movement of persons, a First
Pillar objective. The Memorandum cites the Cowan case (ECJ Case
186/87)[10] to support
this link between the free movement of persons and state compensation
to crime victims.
"I share your view, however, that the paragraphs in the Explanatory
Memorandum on the legal base for the proposal are rather woolly
and leave a number of questions unanswered. I agree, in particular,
that we need to consider the relation between Article 308 and
Title IV TEC in this context."
5.4 We also asked whether the Minister was content that
compensation should be payable to victims of "intentional
crime against the victim's life, health or personal integrity",
especially since the phrase was defined in the Explanatory Memorandum
as covering racist and xenophobic crimes, where no acts of violence
might have been committed. We asked how this equated with current
UK practice.
5.5 In response, the Minister tells us that the Government
is concerned that the provisions in the draft Directive go well
beyond the scope of the current UK compensation schemes, and could
admit classes of claimant which are currently excluded from the
UK compensation schemes. It intends to pursue this issue further
in the Council Working Group.
5.6 The Minister undertakes to write to us again, once
there is meaningful progress to report on both these issues.
Conclusion
5.7 We thank the Minister for his response. We note
his continuing concern about the use of Article 308EC as the legal
base for the draft Directive.
5.8 It is encouraging to learn that the Government
shares our concerns about the scope of the provisions in Article
2. That was not made clear in the Minister's original Explanatory
Memorandum.
5.9 We welcome the Minister's undertaking to write
to us again, once there is meaningful progress to report on both
these issues. Meanwhile, we will keep the document under scrutiny.
10 [1989]
ECR 195. Back
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