6 United Nations Convention against transnational
organised crime
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COM(03) 512
| Draft Council Decisions on the conclusion, on behalf of the European Community, of the United Nations Convention against transnational organised crime and its protocols against the smuggling of migrants and trafficking in persons.
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| Legal base | Articles 47, 55, 62(2)(a), 63(3)(b), 95, 135, 179 and 280 EC; consultation; QMV
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| Document originated | 22 August 2003
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| Deposited in Parliament | 4 September 2003
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| Department | Home Office |
| Basis of consideration | EM of 9 October 2003
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| Previous Committee Report | None; but see (21956) 14109/00 and (22647) —: HC 152-x (2001-02), paragraph 7 (12 December 2001)
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| To be discussed in Council | No date 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
6.1 The United Nations Convention on Transnational Organised Crime
(UNTOC) was adopted by the UN General Assembly in 2000, and has
been signed by over 100 States. The Convention provides for mutual
legal assistance, extradition, cooperation in law enforcement
and technical assistance and training in relation to transnational
organised crime. Two Protocols to the Convention deal with the
smuggling of migrants and trafficking in persons. A third Protocol
deals with the illicit manufacture of and traffic in firearms
and ammunition and was adopted by the UN in 2001. The UNTOC entered
into force in September 2003, following its ratification by 40
States.
6.2 The provisions of UNTOC allow for the participation
of regional economic integration organisations, such as the European
Community. UNTOC and its first two Protocols were signed by the
Commission on behalf of the European Community in December 2000.
This followed the adoption of Council Decision 2001/87/EC[9]
authorising the signing of these instruments on behalf of the
European Community, since they also related to matters such as
the internal market, measures to combat money-laundering, customs
cooperation and fraud affecting the financial interests of the
Community, which fell within Community competence.
The draft Council Decisions
6.3 The three draft Council Decisions relate to the
conclusion, on behalf of the European Community, of UNTOC and
the Protocols relating to the smuggling of migrants and the trafficking
of persons. No proposals have yet been made relating to the conclusion
of the Protocol concerning firearms and ammunition.
6.4 The first of the draft Council Decisions (2003/0195)
provides for the conclusion of UNTOC by the European Community
within the limits of its competence. The draft Decision contains
an annexe setting out a declaration of competence in relation
to the establishment of the internal market (which is described
as including measures to combat money laundering and to promote
equal access to public contracts and services markets), customs
cooperation and measures against fraud and other illegal activities
affecting the financial interests of the Community.
6.5 The second draft Council Decision (2003/0196)
provides for the conclusion, on behalf of the European Community,
of the Protocol against the Smuggling of Migrants. As with the
first draft Council Decision, an annex sets out the Community
competence being asserted, which is in this case the adoption
of measures relating to the crossing of external borders of Member
States, rules on visas and measures on immigration policy (see
Article 62(2)EC and Article 63(3)EC).
6.6 The third draft Council Decision (2003/0197)
provides for the conclusion, on behalf of the European Community,
of the Protocol to prevent trafficking in persons. An annex sets
out the same statement in relation to Community competence as
is made in respect of the Protocol against the Smuggling of Migrants.
The Government's view
6.7 In her Explanatory Memorandum of 9 October 2003,
the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) explains that the draft Council Decisions are
uncontroversial as they are based on previous acceptance by the
Council that certain provisions of these UN agreements relate
to matters, such as money laundering and frontier controls, which
fall within Community competence. The Minister explains that the
Council has already adopted Decisions in February and May 2000
which authorised the Commission to negotiate the relevant provisions
on behalf of the European Community and that subsequent Decisions
were adopted in December 2000.
6.8 In relation to the two Protocols, the Minister
points out that they contain provisions which fall within the
scope of Article 62(2) and 63(3)(b) EC, so that the UK will need
to consider whether to opt in. The Minister explains that the
Government is considering its position on this question and will
advise us of its decision.
6.9 The Minister also explains that the Commission
has not yet proposed the adoption of a Council Decision on the
approval of the Protocol concerning firearms and ammunition 'because
Community legislation is required'.
6.10 The Minister adds that the UNTOC entered into
force on 29 September 2003, that the UK is in the process of ratifying
it and that the Protocols relating to smuggling and trafficking
have not yet entered into force.
Conclusion
6.11 We agree with the Minister that the conclusion
of the UN Convention on Transnational Organised Crime is not controversial,
since it is consequent on earlier decisions by the Council relating
to the negotiation and signing of that Convention.
6.12 The question of the conclusion by the Community
of the Protocols is less straightforward, and we shall look forward
to an explanation by the Minister of the decision by the Government
on whether to opt into these measures.
6.13 We also invite the Minister to explain further
her remark that the Commission has not made proposals on the Protocol
concerning firearms and ammunition because 'Community legislation
is required'. We would be grateful if the Minister would explain
which parts of the Protocol relate to matters which are the concern
of the EC Treaty and would be appropriate for Community legislation.
6.14 We shall hold the document under scrutiny
pending the Minister's reply.
9 OJ No. L. 30 of 1.2.01, p. 44. Back
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