18 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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| Department | Home Office |
| Basis of consideration | Minister's letter of 29 March 2006
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| Previous Committee Report | HC 34-xiii (2005-06), para 8 (14 December 2006)
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| To be discussed in Council | Justice and Home Affairs Council 27-28 April 2006
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
18.1 The United Nations Convention on Transnational Organised
Crime (UNTOC) entered into force in September 2003, following
its ratification by 40 States. The Convention provides for mutual
legal assistance, extradition, co-operation 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 itself, 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.
18.2 Council Decision 2001/87/EC[55]
authorised the Commission to sign the Convention and its two Protocols
on behalf of the European Community to the extent that they concerned
matters which fell within Community competence. Council Decision
2004/579/EC[56] authorised
the European Community to accede only to the Convention, since
at that time the Commission and the Council were still discussing
the extent of Community competence in relation to the two Protocols.
18.3 We considered draft Council Decisions to allow
accession to the two Protocols on 14 December 2005. We noted the
Minister's explanation that the United Kingdom would only participate
in the Council Decisions to the limited extent that the UK participates
in the internal Community legislation adopted under Title IV of
the EC Treaty, from which the Community's external competence
is derived. In the Minister's view, this would 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 does participate.
18.4 The Minister drew our attention to the fact
that Articles 66, 179 and 181a EC had been added as legal bases
for the conclusion of the two Protocols, with a corresponding
amendment to the declaration on Community competence. The Minister
explained that the Commission had suggested the addition of Articles
179 and 181a EC by reason of the adoption of Regulation No 491/2004[57]
establishing a programme for financial and technical assistance
to third countries in the areas of migration and asylum, but we
agreed with the Minister that competence in development co-operation
was by definition parallel and was not exclusive.
18.5 We also agreed with the Minister that the statement
by the Commission in the declaration of competence that the Community
had competence for the matters set out in paragraph 6 (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) was misleading, because it
implied that there was competence across the whole range of issues
covered in that paragraph rather than conferring competence only
to the extent that the Community had adopted relevant internal
rules.
18.6 We considered it important that declarations
of Community competence made to international organisations should
be appropriately limited and we agreed with the points made by
the Minister in this regard. We held the document under scrutiny
pending a further account of how these concerns had been addressed.
The Minister's letter
18.7 In his letter of 29 March 2006 the Parliamentary
Under-Secretary at the Home Office (Paul Goggins) describes the
outcome of further negotiations on the Council Decisions and the
accompanying declarations of competence. The Minister reports
that a revised text has been issued which the Government believes
has adequately addressed its concerns.
18.8 The Minister explains that two separate Council
Decisions have now been proposed for each of the two Protocols,
one dealing with the matters covered by Title IV of the EC Treaty
and another for Articles 179 and 181 EC, and that each Council
Decision makes it clear that it is without prejudice to the UK's
position in relation to the matters covered by Title IV.
18.9 The Minister also explains that the declarations
of competence have been amended to make it clear that it is only
where the Community has adopted legislative measures in the areas
concerned that exclusive competence is claimed. The Minister states
that this amendment meets the Government's concern that the extent
of the Community's external competence should be properly reflected.
In relation to the Community's competence in respect of development
co-operation, the Minister explains that the Government's concerns
have been met by language at the end of each of the declarations
of competence which specifies that the Community's competence
is complementary to the policies pursued by the Member States.
18.10 The Minister also informs us that some Member
States have asked for the inclusion in the declarations of competence
of a list of measures adopted at Community level and from which
Community competence is to be inferred. The Minister explains
that the majority of Member States are opposed to such a list
on the grounds that it would be a difficult and cumbersome exercise
which would incur legal risks if the list were not precise and
complete. The Minister adds that the Government does not consider
that the adoption of the Decisions should be held up by negotiations
on such a list, and that there now appears to be a large consensus
on the draft Decisions.
Conclusion
18.11 We thank the Minister for his letter. We
believe that the revised texts address the two concerns we shared
with the Minister, namely that it should be made clear that exclusive
competence arises only to the extent that the Community has adopted
internal rules in the area covered by Title IV of the EC Treaty,
and that development co-operation is not an exclusive competence,
but is one which is shared with the Member States.
18.12 In the light of the Minister's explanations,
we are content to clear the document.
55 OJ No. L 30 of 1.2.2001, p.44. Back
56
OJ No. L 261 of 6.8.2004, p.69. Back
57
OJ No. L 80 of 18.3.2004, p1. Back
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