10 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 4 November 2004
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| Previous Committee Report | HC 42-xxvii (2003-04), para 9 (14 July 2004) and HC 42-xxxii (2003-04), para 18 (13 October 2004)
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| To be discussed in Council | No date set
|
| Committee's assessment | Legally important
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| Committee's decision | Not cleared; further information awaited
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Introduction
10.1 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.
10.2 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.
Legal background
10.3 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 or to third countries outside the European
Union.
10.4 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.
10.5 Article 24(1) of the EU Treaty empowers the
Council to make agreements with third countries or international
organisations in the implementation of the provisions of the Treaty
on a common foreign and security policy. Articles 24(4) 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).
The Commission's proposal
10.6 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 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. The Government welcomes the proposal.
Previous scrutiny of the proposal
10.7 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 raised two points of legal importance.
10.8 First, Articles 29 and 30 of the EU Treaty make
provision for police cooperation between the Member States and
with Europol. They do not authorise cooperation with Interpol.
We asked the Minister, therefore, to comment on whether the proposal
is beyond the powers of Article 34(2).
10.9 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 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.
10.10 In her letter of 29 July, the Parliamentary
Under-Secretary of State at the Home Office (Caroline Flint) told
us that, in the Government's view, the proposal is within the
scope of Article 34(2) of the EU Treaty. She referred to a precedent
for a Common Position in which only Article 34(2) was cited as
the legal base. The Minister added, 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 [to]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."
10.11 We resumed scrutiny of the proposal in the
light of the Minister's letter. We remained doubtful, about the
use of Article 34(2) as any part of the legal base for the proposed
Common Position. It appeared to us that Article 34(2) needs to
be read with Articles 29 and 30. Since neither Article refers
to cooperation with Interpol, it was our view that there is a
presumption that such cooperation is outside the scope of Article
34(2).
10.12 Moreover, the Minister's letter spoke 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 appeared 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).
10.13 We asked for the Minister's further comments
on these points.
The Minister's letter of 4 November
10.14 The Minister's reply says that, where achievement
of the objective of Article 29 of the EU Treaty requires action
at the international level, provision for it is made in Articles
24 and 38. She adds that:
"In this case it is considered, as set out in
recital (2) [to] the Common Position, that the protection of the
Union against threats posed by international and organised crime
requires the exchange of information between Member States' law
enforcement authorities and between those authorities and international
partners. In these circumstances the Government considers that
Title VI of the EU Treaty provides a sufficient legal base both
for the internal and external measures that are required to put
this into effect. The requirement to promote cooperation through
Europol does not, in our opinion, imply that cooperation must
be promoted exclusively through Europol and we do not consider
that the absence of a reference to Interpol rules out the envisaged
action. We note, in particular, that Title VI, without referring
to any specific international organisations, expressly envisages
the use of international agreements between the EU and such organisations
where necessary for the purposes of implementing the Title.
"We have yet to receive a revised common position,
which sets out a second legal base for this proposal. We will
provide the Committee with an update on this point once we have
the revised text."
Conclusion
10.15 We are grateful to the Minister for her
thoughtful reply. It seems to us that there may be a conflict
between, on the one hand, the omission of any reference in Articles
29 and 30 of the EU Treaty to cooperation with third countries
or any international organisation other than Europol and, on the
other hand, the provision in Article 38 which applies the power
in Article 24 for the Council to conclude agreements with third
countries or international organisations.
10.16 It is a well established principle of interpretation
that if certain bodies are specified in a treaty text (in the
case of Article 29 of the EU Treaty, the Member States and Europol),
bodies which are not so specified are excluded from the scope
of the treaty. On that interpretation, it seems to us that there
is a reasonable presumption that the transfer to Interpol and
third countries of data about lost and stolen passports is outside
the scope of Article 34(2).
10.17 But the Minister refers to Article 38 of
the EU Treaty, which makes express provision for the conclusion
of agreements with international organisations and third countries
to "cover matters falling under this Title"; she argues,
therefore, that Title VI of the Treaty provides a sufficient legal
base for the proposal.
10.18 That view seems to us debateable; it depends
crucially on the interpretation of the meaning of "matters
falling under this Title". We shall, however, reserve further
comment on the point pending receipt of the revised text of the
Common Position, which is expected to cite a second legal base,
and further information from the Minister about the progress of
the negotiations. Meanwhile, we shall keep the document under
scrutiny.
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