36 Transfer to Interpol of data on stolen
and lost passports
| (a)
(25771)
10475/04
COM(04) 427
(b)
(26183)
15342/04
—
|
Draft Council Common Position on the transfer of certain data to Interpol
Exchange of data on lost and stolen passports with Interpol — draft Council Common Position on the exchange of certain data with Interpol
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| Legal base | Article 34(2) and 30(1)(b) EU; —; unanimity
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| Department | Home Office |
| Basis of consideration | (a) Minister's letter of 30 November 2004
(b) EM of 8 December 2004
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| Previous Committee Report | (a) HC 42-xxvii (2003-04), para 9 (14 July 2004), HC 42-xxxii (2003-04), para 18 (13 October 2004) and HC 42-xxxvii (2003-04), para 10 (17 November 2004)
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| To be discussed in Council | January 2005
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| Committee's assessment | Legally important
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| Committee's decision | (Both) Cleared
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Introduction
36.1 On 25/26 March 2004, 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. International exchanges of information about
stolen or lost documents can help prevent and detect terrorism
and other serious crimes.
Legal background
36.2 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. Neither Article makes
any reference to Interpol or to third countries outside the European
Union. Article 30(1)(b) provides that common action in the field
of police cooperation includes the exchange of relevant information,
"in particular through Europol", subject to appropriate
provisions on the protection of personal data.
36.3 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.
36.4 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).
Document (a)
36.5 In response to the European Council's Declaration
on Terrorism, the Commission presented document (a), 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 draft
provides for the data 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.
36.6 When we considered the document on 14 July,
we noted that the Government welcomed the proposal. We concluded
that, on its merits, the proposal appeared to be sensible. But,
in our view, it raised two points of legal importance.
36.7 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
was beyond the powers of Article 34(2).
36.8 Secondly, 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
took the view that this extends also to imposing obligations on
Member States to pass information to third countries or to international
organisations.
36.9 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 was within the
scope of Article 34(2) of the EU Treaty. The Minister said, however,
that the Council Legal Service had agreed to propose an additional
legal base. She added that:
"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."
36.10 On 13 October 2004, 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).
36.11 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
was outside the scope of Article 34(2). We asked for the Minister's
further comments on these points.
36.12 In her reply of 4 November 2004, the Minister
told us 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 said 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 [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."
36.13 When we considered document (a) again on 17
November 2004, it seemed to us that there might 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.
36.14 We noted that 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 seemed to
us that there was a reasonable presumption that the transfer to
Interpol and third countries of data about lost and stolen passports
was outside the scope of Article 34(2).
36.15 But the Minister had referred 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 argued,
therefore, that Title VI of the Treaty provided a sufficient legal
base for the proposal.
36.16 That view seemed to us debateable; it depended
crucially on the interpretation of the meaning of "matters
falling under this Title". We decided to reserve further
comment on the point pending receipt of the revised text of the
Common Position, which was expected to cite a second legal base,
and further information from the Minister about the progress of
the negotiations. Meanwhile, we kept document (a) under scrutiny.
36.17 The Minister wrote to us on 30 November 2004,
giving a progress report on the negotiations and telling us that
she would deposit the revised text of the proposal as soon as
she received it.
Document (b)
36.18 Document (b) is a revised text of the proposed
Common Position. It cites Article 30(1)(b) of the EU Treaty, in
addition to Article 34(2)(a), as the legal base for the proposal.
The main provisions of the revised text are as follows.
36.19 Article 1 contains definitions of terms used
in the Common Position. The definitions are the same as those
in document (a).
36.20 Article 2 of document (b) states that the purpose
of the Common Position is to prevent and combat terrorism and
serious crime by ensuring that Member States take the measures
necessary to improve cooperation between their competent law enforcement
authorities and between them and such authorities in third countries
by exchanging with Interpol data about lost or stolen passports.
There are two differences between this provision and Article 2
of document (a). First, the revised text refers to cooperation
between Member States competent law enforcement authorities, whereas
document (a) referred to cooperation between "police authorities".
Second, document (b) refers to "exchanging" data with
Interpol, whereas document (a) referred to "transfer"
of passport data to Interpol.
36.21 Article 3 of document (b) requires Member States'
competent law enforcement authorities to exchange data on lost
or stolen passports with Interpol. The authorities are required
to share the data only with other Interpol members which ensure
adequate protection of personal data. Member States are to have
discretion to restrict the sharing of the data to Interpol members
which commit themselves to a reciprocal exchange of information.
36.22 The only difference of substance between Article
3 of document (b) and Article 3 of document (a) is that the former
gives Member States discretion not to share data with Interpol
members which have not committed themselves to reciprocal exchanges
of data, whereas document (a) prohibited sharing data with them
without a commitment to reciprocity. Moreover, document (a) included
provision for a separate instrument setting out requirements for
reciprocity. Document (b) contains no provision for such an instrument.
The Government's view of document (b)
36.23 The Minister tells us that the Government fully
supports the proposal and is content with the amendments incorporated
in document (b). In particular, the Minister says that:
- The Government considers Article
30(1)(b) to be an acceptable legal base for a Common Position
requiring the exchange of information via Interpol on lost or
stolen passports.
- It is right to leave it to each Member State
to decide whether to share its passport data with Interpol members
who cannot or will not reciprocate. In the Government's view,
there is advantage in allowing third countries to see data on
stolen UK passports and, as a result, to catch terrorists and
criminals even if the third countries do not make their own data
available to the UK.
- The Government is content with the removal from
Article 3 of provision for a separate instrument on reciprocity.
Each Member State is best able to determine the nature of its
agreement with Interpol and there is no need for a multilateral
instrument.
36.24 Finally, the Minister tells us that the Justice
and Home Affairs Council reached agreement on a general approach
to the revised Common Position on 2 December.
Conclusion
36.25 It remains our view that, on merits,
this is a sensible and proportionate proposal.
36.26 All the Member States are members of Interpol.
It is open to them, without any action by the European Union,
to exchange data via Interpol about lost or stolen passports.
We understand, however, that not all Member States are, in fact,
exchanging the information at present and that this Common Position
is seen as a means to secure more exchanges. To the extent that,
as a result of the measure, the objective of establishing an
area of freedom, security and justice can be achieved more effectively,
the proposal appears to be consistent with the principle of subsidiarity.
36.27 For the reasons we have given previously,
we doubt the appropriateness of Article 34(2) of the EU Treaty
as the sole legal base for the Common Position. No new argument
has been advanced to allay those doubts.
36.28 But a second legal base — Article
30(1)(b), which provides for cooperation through the exchange
of relevant information between Member States — is now proposed.
On one view, the inclusion in that provision of the words "in
particular through Europol" creates the reasonable presumption
that exchanges via other organisations, such as Interpol, are
precluded. On another view, however, those words are illustrative
and not to be read restrictively. Moreover, Article 24(4) and
Article 38 of the EU Treaty apply, without limitation, the power
in Article 24(1) for the Council to make agreements with third
countries and international organisations on matters falling under
Title VI of the Treaty. It is arguable, therefore, that the intention
of the authors of the Treaty was that the power should be available
for the making of agreements for the exchange of relevant passport
data with third countries and international law enforcement organisations
other than Europol. But that argument depends on the interpretation
of the meaning of the words "matters falling under this
Title" in Article 38.
36.29 While we consider that there are reasonable
grounds to doubt that the Treaty provides an appropriate legal
base for the proposed Common Position, we recognise that the counter
arguments are not unreasonable. There is, in our view, scope for
a legitimate difference of opinion about the interpretation of
the Treaty on the matter, which could be resolved definitively
only by the European Court of Justice. We have concluded that
further scrutiny of the proposal would be unlikely to settle the
question. We have decided, therefore, that we should report the
issues to the House and clear document (b) from scrutiny. We also
clear document (a), which has been superseded by document (b).
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