18 Transfer to Interpol of data on stolen
and lost passports
| (25771)
10475/04
COM(04) 427
| Draft Council Common Position on the transfer of certain data to Interpol
|
| Legal base | Article 34(2) EU; —; unanimity
|
| Department | Home Office |
| Basis of consideration | Minister's letter of 29 July 2004
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| Previous Committee Report | HC 42-xxvii (2003-04), para 9 (14 July 2004)
|
| To be discussed in Council | No date set
|
| Committee's assessment | Legally important
|
| Committee's decision | Not cleared; further information requested
|
Background
18.1 On 25/26 March, the European Council made a Declaration on
Terrorism. Among other things, the Declaration instructed the
Council to take forward the creation, by the end of 2005, of an
integrated system for the exchange of information about stolen
and lost passports "having recourse to the SIS [Schengen
Information System] and the Interpol database".
18.2 Stolen and lost passports can be used by terrorists
and other criminals. International exchanges of information about
stolen or lost documents can help prevent and detect crime.
18.3 Articles 29 and 30 of the EU Treaty make provision
for closer cooperation between the police, customs and other competent
authorities of the Member States, and between them and Europol,
in order to prevent and combat terrorism and crime. They omit
any reference to Interpol.
18.4 Article 34(2) of the Treaty requires the Council
to "take measures and promote cooperation, using the appropriate
form and procedures as set out in this title, contributing to
the pursuit of the objectives of the Union". The adoption
of a common position to define the approach of the Union to a
particular matter is among the measures that may be taken by the
Council.
18.5 Article 24(1) of the EU Treaty empowers the
Council to make agreements with international organisations in
the implementation of the provisions of the Treaty on a common
foreign and security policy. Articles 24(2) and 38 provide that
the provisions of Article 24 also extend to matters falling under
Title VI of the Treaty (police and judicial cooperation in criminal
matters).
18.6 In response to the European Council's Declaration
on Terrorism, the Commission has presented a draft common position
requiring Member States to transfer to the Interpol database data
about stolen and lost passports at the same time as they enter
the information on their own and the SIS databases. The data are
to be shared with other countries which are members of Interpol
only if those countries have committed themselves both to reciprocal
transfers of passport data and to ensure adequate protection of
personal data.
18.7 The Government welcomes the proposal. At present,
passport data cannot be transferred direct from SIS to Interpol.
This is partly for technical reasons and partly because of the
data protection provisions of the SIS Convention.
18.8 When we considered the document on 14 July,
we concluded that, on its merits, the proposal appeared to be
sensible. But, in our view, it raises two points of legal importance.
18.9 First, Articles 29 and 30 of the EU Treaty make
provision for police cooperation between the Member States and
with Europol. It does not authorise cooperation with Interpol.
We asked the Minister, therefore, to comment on whether the proposal
is beyond the powers of Article 34(2).
18.10 Second, Article 34(2)(a) provides for the adoption
by the Council of common positions defining the approach of the
Union to a particular matter. We asked the Minister why the Government
takes the view that this extends also to imposing obligations
on Member States to pass information to third countries or to
international organisations.
The Minister's letter
18.11 The Parliamentary Under-Secretary of State
at the Home Office (Caroline Flint) tells us that, in the Government's
view, the proposal is within the scope of Article 34(2) of the
EU Treaty. She cites a precedent for a common position in which
only Article 34(2) was cited as the legal base: the common position
on negotiations in the Council of Europe on the draft European
Convention on action against trafficking in human beings. The
Minister adds, however, that:
"there would normally also be a second legal
base relating to the particular subject matter. The issue was
raised at the SIS/Sirene Working Group on 15 July 2004 and the
Council Legal Services have agreed to propose an additional legal
base, which we would check when it was put forward.
"It should be noted that this proposal does
not actually cover the terms of transfer between the EU and Interpol,
but only establishes the principle of transfer. A further 'appropriate
instrument' referred to in Article 3(1) of the Common Position
will deal with the processing of data between [the] Member States
and Interpol and this will need to refer to Articles 24 and 38
[of the EU Treaty] on agreements between Member States and international
organisations…..
"The Committee further asked why the Government
takes the view that Article 34(2) … extends to imposing obligations
on Member States to pass information to third countries or international
organisations. Again, the 'appropriate instrument' referred to
in Article 3(1) of the Common Position would lay down the detail
of data transfer to third countries. The Government shares the
Committee's concerns on the issue of reciprocity. Aside from the
obligation to pass information to third countries, it could be
difficult in the present climate of developing counter-terrorism
measures to refuse to share data with countries that cannot reciprocate.
The Government's objective is to ensure that this proposal does
not impede current procedures to exchange data with countries
that are not prepared to, or are unable to, add data to the Interpol
system themselves."
18.12 Finally, the Minister tells us that the Government
will be working closely with the Commission on the drafting of
the common position and "in advance of the second instrument".
She will keep us informed of progress and "submit any legal
instrument defining the operation of this proposal".
Conclusion
18.13 We are grateful to the Minister for her
helpful reply. We retain our doubts, however, about the use of
Article 34(2) as any part of the legal base for the proposed common
position. This is because the Article expressly refers to taking
measures and promoting cooperation "using the appropriate
form and procedures as set out in this title, contributing to
the pursuit of the objectives of the Union". It appears to
us, therefore, that Article 34(2) needs to be read with Articles
29 and 30. Article 29 refers to the Union's objective of providing
a high level of security in an area of freedom, security and justice
by developing common action among the Member States in the field
of police (and judicial) cooperation; and it specifies that the
objective is to be achieved by preventing and combating crime
through cooperation between the competent authorities of Member
States and Europol. Article 30 refers to types of police cooperation
between Member States and to action to promote cooperation through
Europol. Since neither Article refers to action through Interpol,
it is our view that there is a presumption that such action is
outside the scope of Article 34(2).
18.14 Moreover, the Minister's letter speaks of
the need for the "appropriate instrument" mentioned
in Article 3(1) of the draft common position to refer to Articles
24 and 38 of the EU Treaty on the making of agreements with international
organisations. But both those Articles of the Treaty specifically
refer to matters falling under Title VI. It appears to us, therefore,
that an agreement with Interpol would be outside the scope of
Article 24 for the same reason that the proposed common position
is outside the scope of Article 34(2).
18.15 We should be grateful for the Minister's
further comments on these points. Both for that reason and because
an additional legal base may be proposed and negotiations on the
proposed common position are still continuing, we shall retain
the document under scrutiny.
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