13 Disqualifications arising from criminal
convictions
| (27344)
7162/06 +ADD1
COM(06) 73
| Communication from the Commission to the Council and the European Parliament: Disqualifications arising from criminal convictions in the European Union
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| Legal base | — |
| Document originated | 21 February 2006
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| Deposited in Parliament | 15 March 2006
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| Department | Home Office |
| Basis of consideration | EM of 15 June 2006
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| Previous Committee Report | None; but see (26163) 14207/04: HC 38-ix (2004-05), para 5 (23 February 2005)
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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 | Cleared
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Background
13.1 A number of instruments adopted at EU level require provision
to be made for the disqualification of a person from particular
activities following his conviction of a criminal offence. Such
provision is made, for example, in Council Framework Decision
2004/68/JHA on combating the sexual exploitation of children and
on child pornography[38]
and under which Member States are required to ensure that a person
convicted of a relevant offence may be temporarily or permanently
prevented from being involved in activities related to the supervision
of children. An analogous provision for disqualification is made
in Council Framework Decision 2003/568/JHA on combating corruption
in the private sector.
13.2 The Hague Programme of 2004 and its related
action plan refer to improving the exchange of information from
national records of convictions and disqualifications, in particular
in relation to sex offenders. A proposal by Belgium for a Framework
Decision for the mutual recognition of prohibitions arising from
convictions for sexual offences against children, introduced in
January 2005, is still under consideration in the Council.[39]
A still earlier proposal by Denmark made in 2002 for a Council
Framework Decision on increasing co-operation between Member States
with regard to disqualifications, and relating to access to employment,
is also still under consideration by the Council. Apart from these
EU measures, disqualifications may be ordered at national level,
either as an automatic result of a conviction, or in the context
of criminal, civil, administrative or disciplinary proceedings.
The Commission's communication
13.3 The Commission's communication first reviews
the general characteristics of disqualifications in the Member
States. The Commission emphasises that its communication is concerned
only with disqualifications resulting from a criminal conviction
and notes that disqualification vary in their nature and scope.
It notes that whilst disqualification from driving a vehicle exists
in all the Member States, this is not the case with other forms
of disqualification, such as those imposed on legal persons, or
those which prohibit a person from living in a particular area,
or which deprive a person of his civil, civic or family rights.
13.4 The communication next refers to the measures
which have been adopted at EU or EC level in relation to disqualifications,
including Framework Decisions 2004/68/JHA and 2003/568/JHA and
Directive 2004/18/EC on public procurement (and which provides
for the exclusion of bidders, whether natural or legal persons,
who have been convicted of participating in a criminal organisation,
corruption, fraud to the detriment of EC financial interests,
or money laundering). The communication draws a parallel between
the public procurement provisions and the requirement for "good
repute" under EC measures relating to the financial sector,
noting that under Directive 2000/12/EC relating to the taking
up and pursuit of the business of credit institutions,[40]
authorisation depends on the person concerned in its management
being of sufficient repute. However, the Commission also observes
that interpretation of the concept of "good repute"
is left to the Member States and there is no systematic disqualification
by reason of a conviction for specific offences.
13.5 The communication next discusses the effects
which a disqualification measure order is likely to have in another
Member State. A series of Directives is referred to as providing
for partial mutual recognition of disqualifications, including
the Directives on the exercise of the right to vote and stand
for election at municipal[41]
and European elections[42]
(under which disqualifications from standing or voting are to
be recognised in other Member States), Council Directive 2001/40/EC
on the mutual recognition of expulsion decisions,[43]
and Directive 98/5/EC on the right of establishment for lawyers[44]
(under which the right of establishment is dependent on qualification
in the home state, with the result that a disqualification in
that state will necessarily have an effect in other Member States).
13.6 The communication also refers to the proposal
by Denmark for a Council Framework Decision on increasing co-operation
with regard to disqualifications, the 1998 EU Convention on Driving
Disqualifications,[45]
and a number of Council Resolutions on football-related violence.
The communication concludes that only a limited number of instruments
provide for disqualifications on a mandatory basis and the relevant
instruments do not provide for "genuine information exchange
systems giving the Member States a source of reliable and complete
information on disqualifications or convictions ordered in other
Member States".
13.7 The communication suggests that two different
approaches might be adopted. Under the first, an EU-wide disqualification
from exercising certain activities would follow from conviction
for certain offences. The Commission considers that such an approach
would require the activities and professions concerned to be defined,
together with a "minimum harmonisation" of the relevant
offences and of the duration of the period of disqualification,
but acknowledges that the adoption of this approach would entail
access to certain activities being regulated at European level
and would have to be justified under the principles of subsidiarity
and proportionality. The Commission adds that such a regulatory
approach might prove inappropriate for activities that are not
necessarily EU-wide.
13.8 Under the second approach, the effect of a national
disqualification might, under certain conditions, be extended
to the whole of the European Union. However, the Commission notes
that such an extension might be seen as a significant aggravation
of the sanction imposed and that it might be opposed by Member
States which do not impose disqualification in respect of offences
committed within its own territory. The Commission therefore considers
it reasonable to adopt a sectoral approach and to give priority
to the mutual recognition of disqualifications in those fields
where there is already a common basis between the Member States.
13.9 The communication suggests that the scope for
improving the exchange of information on disqualifications should
be assessed, with the aim of permitting a comprehensive exchange
of information to take place in relation to disqualifications
ordered by a court following a criminal conviction, or following
automatically from a conviction. As far as the mutual recognition
of disqualification is concerned, the Commission indicates that
it favours a sectoral approach in those areas where a common basis
exists between the Member States, such as disqualification from
driving or from working with children, and that this view is shared
by a majority of Member States.
The Government's view
13.10 In her Explanatory Memorandum of 15 June 2006
the Parliamentary Under-Secretary of State at the Home Office
(Joan Ryan) comments that the UK has a "very robust"
disqualifications procedure and that the Government supports any
measure which enhances the UK's ability and that of other Member
States to give effect to disqualifications. The Minister adds
that the Government therefore broadly welcomes the Commission's
communication, with its highlighting of the importance of improving
access to information on convictions in other Member States and
of the "sectoral" approach to the mutual recognition
of disqualifications.
13.11 The Minister notes that the communication is
"very interesting" for the UK, and that the Government
expects that, where appropriate, instruments will be drawn up
to provide for forms of mutual recognition of disqualifications
so that their effect can be EU-wide. The Minister adds that the
Government expects these to be dealt with under a "sectoral"
approach, and that any legislative proposals would be subject
to individual scrutiny.
Conclusion
13.12 We think the Commission is right to be cautious
about embarking on any general harmonisation of the law relating
to disqualifications in the EU and with its preference for the
"sectoral" approach, concentrating on those areas where
there is already a common basis between the Member States.
13.13 We therefore agree with the views expressed
by the Minister and we are content to clear the document.
38 OJ No. L 13, 20.1.2004, p.44. Back
39
The proposal is held under scrutiny - see headnote. Back
40
OJ No. L 126, 26.5.2000, p.1. Back
41
Council Directive 94/80/EC OJ No. L 368, 31.12.1994, p.38. Back
42
Council Directive 93/109/EC, OJ No. L 329, 30.12. 1993, p.34. Back
43
OJ No. L 149, 2.6.2001, p.34. Back
44
OJ No. L 77, 14.3.1998, p.36. Back
45
OJ No. C 216, 10.7.1998, p.17. Back
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