8 ACCESSION BY EUROPEAN COMMUNITY TO
PROTOCOLS SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST
TRANSNATIONAL ORGANISED CRIME
(26952)
13559/05
COM(05) 503
+ ADDS 1-2
| Amended draft Decision on the conclusion, on behalf of the European Community, of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention Against Transnational Organised Crime
Amended draft Decision on the conclusion, on behalf of the European Community, of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention Against Transnational Organised Crime
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| Legal base | Articles 62(2), 63(3), 66, 179, 181a and 300 EC; consultation; unanimity
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| Document originated | 17 October 2005
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| Deposited in Parliament |
27 October 2005 |
| Department | Home Office
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| Basis of consideration |
EM of 2 December 2005 |
| Previous Committee Report |
None; but see (24824) HC 42-i (2003-04), para 25 (3 December 2003), HC 63-xxxv (2002-03), para 6 (29 October 2003)
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| To be discussed in Council
| No date set |
| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared: further information requested
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Background
8.1 The United Nations Convention on Transnational Organised Crime
(UNTOC) was adopted by the UN General Assembly in 2000 and entered
into force in September 2003, following its ratification by 40
States. The Convention provides for mutual legal assistance, extradition,
cooperation in law enforcement and technical assistance in relation
to transnational organised crime. Two Protocols to the Convention
deal, respectively, with the smuggling of migrants and trafficking
in persons. As with the UNTOC Convention, the two Protocols are
open to accession by "regional economic integration organizations"
and any such organisation is required to declare the extent of
its competence when depositing its instrument of ratification,
acceptance or approval.
8.2 Council Decision 2001/87/EC[26]
authorised the Commission to sign the Convention and its two Protocols
on behalf of the European Community in as much as they related
to matters which fell within Community competence. The previous
Committee considered a proposal which would have authorised the
European Community to accede to the Convention and to the two
Protocols, and cleared this proposal from scrutiny on 3 December
2003. In the event, Council Decision 2004/579/EC[27]
authorised the European Community to accede only to the Convention,
since the Commission and the Council were still discussing the
extent of Community competence in relation to the two Protocols.
The draft Council Decisions
8.3 The draft Council Decisions are amended versions of those
considered by the previous Committee in 2003. The amended versions
now include a reference to Articles 66 (cooperation between Member
State administrations in areas covered by Title IV), and 179 and
181a EC (development cooperation) as additional legal bases.
8.4 As before, the operative part of both draft Decisions
consists of a provision (Article 1) approving the relevant Protocol
on behalf of the European Community and a provision (Article 2)
authorising the President of the Council to designate a person
to deposit an instrument of confirmation in order to bind the
Community. Both draft Decisions have annexed to them a declaration
concerning the competence of the European Community in relation
to the subject matter of the Protocol.
8.5 In relation to the Protocol on the smuggling
of migrants, the declaration states that, pursuant to the Protocol
on the position of the United Kingdom and Ireland annexed to the
Treaty on European Union, the United Kingdom and Ireland will
not be bound, as part of the European Community, by those provisions
of the UNTOC Protocol which fall within the scope of Part III
of Title IV of the EC Treaty. A similar statement is made in relation
to the position of Denmark.
8.6 The declaration recalls that the scope and exercise
of Community competence is subject to continuous development and
states the existing extent of Community competence in these terms:
"The Community points out that it has competence
with regard to crossing of external borders of the Member States,
regulating standards and procedures when carrying out checks on
persons at such borders and rules on visas for intended stays
of no more than three months. The Community is also competent
for measures on immigration policy regarding conditions of entry
and residence and measures to counter illegal immigration and
illegal residence, including repatriation of illegal residents.
Moreover, it can take measures to ensure cooperation between the
relevant departments of the administrations of the Member States,
as well as between those departments and the Commission, in the
aforementioned areas. Relevant Community legislation is comprised
in the Schengen acquis on external borders and on travel
and identity documents, as integrated into the framework of the
European Community, and its further development. Hence in these
fields it is for the Community to adopt the relevant rules and
regulations and, within its competence, to enter into external
undertaking with third States or competent international organisation.
"In addition, Community policy in the sphere
of development cooperation complements policies pursued by Member
States and includes provisions to prevent and combat smuggling
of migrants."
8.7 Similar statements are made on the position of
the United Kingdom and Ireland, and Denmark in the draft Decision
relating to the UNTOC Protocol on the trafficking of persons,
and a similar declaration of competence is made in relation to
the subject matter of the UNTOC Protocol. The declaration therefore
also includes a reference to Community policy on development cooperation
complementing policies pursued by Member States and including
provisions to prevent and combat trafficking in persons.
8.8 In its own Explanatory Memorandum, the Commission
states that the proposal falls under the exclusive competence
of the Community, so that the principle of subsidiarity does not
apply.
The Government's view
8.9 In his Explanatory Memorandum of 3 December 2005,
the Parliamentary Under-Secretary of State at the Home Office
(Mr Paul Goggins) explains that the United Kingdom will only participate
in these Council Decisions, and thus in the Protocols as part
of the Community, to the limited extent that the UK participates
in the internal Community legislation adopted under Title IV,
from which the Community's external competence is derived. The
Minister explains that the above will apply, in particular, to
the provisions of Article 11 of the UNTOC Protocols which correspond
to the immigration elements of the Schengen acquis (Articles
26 and 27 of the Schengen Implementing Convention) in which the
UK participates. The Minister points out that, in relation to
those aspects of the UNTOC Protocols other than those where the
UK participates as part of the Community, the UK will be bound
in its own right (i.e. by virtue of its own ratification of the
UNTOC Protocols).
8.10 The Minister notes that Articles 66, 179 and
181a EC have been added as legal bases for the conclusion of the
two Protocols and that the declaration on Community competence
has been amended. The Minister adds that the Commission has suggested
the addition of Articles 179 and 181a EC by reason of the adoption
of Regulation No 491/2004[28]
establishing a programme for financial and technical assistance
to third countries in the areas of migration and asylum. The Minister
comments that the competence in development cooperation "is
by definition parallel and does not give rise to exclusivity"
and explains that the Government doubts whether it is appropriate
to refer to these Articles and that it will be raising the issue
in negotiations.
8.11 On the declaration of competence, the Minister
notes the assertion by the Commission that the proposals are concerned
only with matters falling within the exclusive competence of the
Community, but comments that "to state in the declarations
that the Community has competence for the matters set out in paragraph
6[29] is misleading because
it implies that there is competence across the whole range of
issues covered in this paragraph rather than to the extent of
adopted internal rules". The Minister adds that the UK will
be proposing amendments to deal with this point, and notes that
the description of the extent to which Community competence relates
to the UK may also need to be clarified.
Conclusion
8.12 We thank the Minister for his helpful Explanatory
Memorandum.
8.13 Although the proposals will have little practical
effect in the United Kingdom, it is nevertheless important that
declarations of Community competence made to international organisations
are appropriately limited. We agree with the points made in this
regard by the Minister and shall look forward to a further account
of how these concerns have been addressed.
8.14 We shall hold the document under scrutiny
pending the Minister's reply.
26 OJ No L30 of 1.2.2001, p.44. Back
27
OJ No L 261 of 6.8.2004, p.69. Back
28
OJ No L 80 of 18.3.2004, p1. Back
29
i.e. crossing of external borders, visas for stays of no longer
than three months, conditions of entry and residence and measures
to counter illegal immigration and illegal residence. Back
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