1 Prevention and Settlement
of Conflicts of Jurisdiction in Criminal Proceedings
| (a)
(30410)
5208/09
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(b)
(30502)
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—
(c)
(30687)
8338/09
—
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Draft Council Framework Decision on Prevention and Settlement of Conflicts of Jurisdiction in Criminal Proceedings.
Draft Council Framework Decision on Prevention and Settlement of Conflicts of Jurisdiction in Criminal Proceedings
Draft Council Framework Decision on Prevention and Settlement of Conflicts of exercise of Jurisdiction in Criminal Proceedings — General Approach
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| Legal base | Articles 31(1)(c) and 34(2)(b) EU; unanimity, consultation
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| Department | Justice
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| Basis of consideration | Minister's letters of 30 March, 30 April and 14 May 2009
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| Previous Committee Report | (a) HC 19-x (2008-09), chapter 2 (11 March 2009); (a) and (b) HC 19-xii (2008-09), chapter 7 (25 March 2009); (c) None
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| To be discussed in Council | June
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| Committee's assessment | Legally and politically important
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| Committee's decision | (a) and (b) Cleared; (c) For debate in European Committee B
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Previous Consideration
1.1 We last considered this draft Framework Decision at our meeting
on 25 March 2009. We noted that the proposal for a Framework Decision
on Prevention and Settlement of Conflicts of Jurisdiction in Criminal
Proceedings had been substantially revised and met many of the
Committee's concerns. We had a few outstanding reservations: namely
that the reference to the principle of ne bis in idem (double
jeopardy) in Article 1(2)(a) be better defined and the recitals
on Member State discretion not to surrender or exercise jurisdiction
and on defendants' rights under national law be repeated in the
operative part of the text. For this reason, we continued to hold
the proposal under scrutiny. We did, however, agree to the Minister
voting in favour of a General Approach on the text at the JHA
Council on 6 April, in accordance with paragraph (3)(b) of the
Scrutiny Resolution.
The Minister's letters of 30 March and 30 April 2009
1.2 On 30 March the Parliamentary Under-Secretary of State at
the Ministry of Justice (Lord Bach) wrote to thank the Committee
for agreeing to the adoption of a General Approach on the text.
He also agreed that the wording we had proposed for the definition
of ne bis in idem in Article 1 would add clarity and that
his officials would endeavour to have it incorporated into the
text before the General Approach was adopted.
1.3 With regards to recital 7, which clarifies that
Member States are not obliged to surrender jurisdiction, the Minister
commented as follows. "The operative text concerns the taking
of measures (direct consultations) with a view to reaching consensus.
Except in so far as it directs Member States to Eurojust where
it is competent to act, the operative text of the instrument is
otherwise silent as to what should happen in the event consensus
is not reached. The recital simply clarifies within that context
that the measure is not to oblige a Member State to surrender
or exercise jurisdiction. In addition, this Framework Decision
is not meant to deal with surrender of jurisdiction; it is about
cooperation between competent authorities. For this reason too
our view is that a provision on such an obligation (even a negative
one) is better place in a recital."
1.4 With regards to the recital on defendants' rights
(in draft form and unnumbered at that stage) the Minister commented
that "the principal difficulty is that this is not a Framework
Decision regarding the rights of defendants and so it does not
sit well to include wording on this in the operative part of the
text. We therefore believe that it would be better to focus on
refining the wording of the recital further, so that it is focussed
on defining better the parameters of the operative text".
1.5 On 30 April the Minister wrote again to inform
us that a General Approach to the text (document (c)) had been
agreed in the JHA Council on 6 April, enclosing a copy. He commented
that "the text has not changed much since the last draft
you saw". He did not elucidate any changes, although there
were some.
1.6 We responded by letter dated 29 April to the
Minister's reluctance to repeat two - in our view key - recitals
in the operative part of the text. We stated that the principles
contained in both recitals contain important safeguards. They
are directly relevant to a Member State's right not to surrender
or exercise jurisdiction or an individual's right to make representations
about where he or she will be tried before national courts. As
such, they are germane to the operation of the procedures set
out in the Framework Decision and may well be relied upon by a
Member State or individual. We commented further that it was our
understanding that for a right within an EC/EU legal instrument
to be actionable it should be reflected in an operative paragraph
of the text, and not in the recital alone. Bearing in mind the
jurisdiction of the ECJ to "give preliminary rulings on the
validity and interpretation" of Framework Decisions under
Article 35 of the EU Treaty, we asked the Minister to confirm
his agreement with our understanding, which would make the repetition
of these two recitals in the operative text necessary should a
Member State or individual wish to rely on them. We also told
the Minister that his views on this would be useful for future
scrutiny of EU documents being handled by his Department.
The Minister's letter of 14 May 2009
1.7 The Minister replied to our letter on 14 May
in the following terms:
"The first point to make is that, with respect,
we think the better interpretation is that the recitals in this
instrument do not create a right or rights. As we have previously
explained, we are of the view that recitals are there only to
provide context and as an aid to interpretation. We therefore
prefer the view that the two recitals you refer to are not capable
of constituting 'important safeguards'. Where the normative provisions
of the instrument are silent, national law applies, including
any relevant safeguards it provides.
"To take the example of the recital explaining
the position regarding individual's rights, this measure is aimed
at facilitating co-operation between competent authorities and
simply does not afford, create or take away any existing procedural
rights for individuals. This is clear from the operative text.
In that respect we do not in fact consider that the instrument
needs to say anything about the question of individual rights
to argue they should be prosecuted in their own or another jurisdiction.
The instrument would not be interpreted otherwise. But recitals,
in explaining the purpose behind an instrument, can still be a
useful tool and whilst strictly legally unnecessary in this instance,
we agreed that it was better for a recital to include some explanation
than for the measure to stay silent.
"Similar points apply to the recital on Member
State rights. The operative part of the text concerns direct consultations
with a view to reaching consensus and (except in relation to Eurojust
where it is competent to act) is silent on what happens if no
consensus is reached. Again the context of the instrument is important
— this is about seeking to achieve consensus only. It is
not about forcing options on Member States and it is proper in
that context for a recital to clarify that is not the purpose
of the instrument, when it might otherwise have dealt with such
matters. The operative text again is clear.
"You ask the department to confirm the Committee's
understanding that for a right to be actionable it should be reflected
in an operational paragraph of the text and not the recital alone.
As a matter of general EU law it is certainly correct that a recital
cannot give rise to an actionable right. In Case 215/88 Casa
Fleischhandels ([1989] ECR 2789), for example, considering
the interpretation of various Regulations, the Court of Justice
said, at paragraph 31, 'Whilst a recital in the preamble to a
regulation may cast light on the interpretation to be given to
a legal rule, it cannot itself constitute such a rule.' Also,
for the purposes of direct effect, an individual must be able
to point to a provision of Community law that is sufficiently
clear, precise and unconditional. Recitals will generally explain
the reasons for and context of the instrument and may also be
used to help interpretation (and see e.g. Case C-173/99 BECTU
[2001] ECR I-4881).
"That said, when discussing questions of rights
and direct effect it is necessary to distinguish between first
and third pillar measure. As you will know, the UK has not accepted
the jurisdiction of the ECJ under the third pillar. The position
on this would, of course, change after five years were the Lisbon
Treaty to come into force.
Our assessment
1.8 Document (c), the draft of the Framework Decision
as agreed by General Approach ("the General Approach text"),
discloses that the Minister's officials had been successful in
inserting into Article 1 the definition of ne bis in idem
as we had proposed. We are grateful for their efforts; this, in
our view, was an important clarification.
1.9 We also note that the "Criteria for reaching
consensus" on jurisdiction listed in Article 15 of the text
we scrutinised on 25 March 2009 (document (b)) have been removed.
New Article 11 is now entitled "Procedure of reaching consensus"
and states simply that when the authorities of the Member States
enter into direct consultations, they "shall consider the
facts and merits of the case and all the factors which they consider
to be relevant". Reference to fewer criteria is now found
in Recital 9. We welcome the increased flexibility in the General
Approach text on how jurisdiction should be determined.
1.10 We also note a new Recital 10 now refers to
the role of Eurojust, reminding Member States that the obligation
for competent authorities to enter into direct consultations "does
not exclude that such direct consultations be conducted with the
assistance of Eurojust". We welcome the greater prominence
in the General Approach text given to the role of Eurojust in
resolving conflicts of criminal jurisdiction - we had reported
on 11 March[1] that we
thought that Eurojust might have been able to resolve parallel
proceedings without the need for this Framework Directive. We
also note that referral of an unresolved dispute over jurisdiction
to Eurojust is discretionary in the revised text: Article 12 (2)
reads: "where it has not been possible to reach consensus
in accordance with Article 10, the matter shall, where appropriate,
be referred to Eurojust…". In document (b), pursuant
to Article 16(2), an unresolved dispute had to be referred to
Eurojust ("the matter shall be referred to Eurojust…").
The discretion in the General Approach text is now consistent
with Recital 11 which clarifies that "No Member State should
be obliged to waive or to exercise jurisdiction unless it wishes
to do so".
1.11 We are grateful to the Minister for his letters
of 30 March and 14 May explaining why, in his view, there was
no need for the recitals on defendants' rights and Member State
obligations to surrender jurisdiction to be repeated on the operative
part of the text. We are also grateful for his exposition of the
purpose of recitals in EC/EU legal instruments, which we would
summarise as being consistent with our own view, namely that they
are no more than an aid to interpreting the operational paragraphs
and do not create rights.
1.12 Having reviewed the General Approach text, we
agree with the Minister that there is no need for the recital
on Member States not to surrender jurisdiction to be repeated
in an Article. The operational part of the text does not place
a legal burden on a Member State to do so, recourse to Eurojust
is no longer obligatory, and so the recital alone suffices as
a guide to interpreting the extent of the legal obligations of
the Framework Decision.
1.13 On defence rights, however, we do not agree
with the Minister's contention in his letter of 14 May, echoing
comments in his letter of 30 March, that the Framework Decision
is "aimed at facilitating co-operation between competent
authorities and simply does not afford, create or take away any
existing procedural rights for individuals". To us it seems
plain that the obligation to consult between Member States conducting
parallel proceedings against the same defendant is with
a view to one Member State surrendering or exercising jurisdiction
over a defendant to avoid a parallel prosecution. This may well
affect the procedural rights of that defendant, and so we have
difficulty in drawing the distinction the Minister makes between
the obligation to cooperate and the intended result of that cooperation.
In our view, the Framework Decision could lead to a defendant
being tried in a different Member State to his home State and
would therefore greatly benefit from a reference to defence rights
in the operative part of the text as well as in Recital 17.
Conclusion
1.14 The Minister responded to our last Report
of 25 March by letter dated 30 March, in which he accepted our
concerns over the definition of ne bis in idem in Article
1 and explained why he did not agree that the two recitals over
which we had additional concerns should be incorporated in the
operative part of the text. We replied on 29 April stating again
why we thought the two recitals should be incorporated, and asking
for further clarification of the Minister's reasons. On 30 April
the Minister wrote to tell us that a General Approach to the text
had been agreed in the JHA Council on 6 April and enclosed a copy
of the text. On 14 May he wrote again, in response to our letter
of 29 April, explaining in greater detail why in his view neither
of the recitals should be incorporated into the operative text.
We thank the Minister for his letters.
1.15 The General Approach text discloses that
the Minister's officials had been successful in inserting into
Article 1 the definition of ne bis in idem that we had
proposed in our last Report. We are grateful for their efforts;
this, in our view, was an important clarification.
1.16 We agree with the Minister that it is now
no longer necessary for the recital on Member State obligations
(Recital 11) to be incorporated in the operative text of the Framework
Decision. But we disagree with him (for the reasons set out in
paragraph 13 above) that it is not necessary for the recital on
defence rights (Recital 17) to be incorporated. In our view, the
procedures set out in the Framework Decision could lead to a defendant
being tried in a different Member State to his home State. The
Framework Decision would therefore greatly benefit from
a reference in the operative part of the text to the need for
the defendant's rights to be safeguarded.
1.17 We consider that the omission of a reference
to defence rights in the context of this Framework Decision is
of sufficient importance to warrant a debate in European Committee
B on document (c), the General Approach text, and we call upon
the Government not to give its agreement to the final adoption
of this text before the debate. In so concluding, we clear documents
(a) and (b) from scrutiny.
1 See headnote above. Back
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