7 Customs
| (30454)
17483/08
+ COR 1
—
| Initiative of the French Republic with a view to adopting a Council Decision concerning the convention on the use of information technology for customs purposes
|
| Legal base | Articles 30 (1) (a) and 34 (2) (c) EU; consultation; unanimity
|
| Department | Revenue and Customs
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| Basis of consideration | Minister's letter of 28 May 2009
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| Previous Committee Report | HC 19-xii (2008-09), chapter 4 (25 March 2009)
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| To be discussed in Council | Not known
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information awaited
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Background
7.1 The Customs Information System (CIS) Convention was signed
by Member States in 1995 to strengthen and improve customs cooperation
in the third pillar through the exchange of information for the
purpose of sighting and reporting discreet surveillance or specific
checks. An equivalent CIS for first pillar customs cooperation
was established by Council Regulation (EC) No. 515/97. In 2003
the Council adopted a Protocol to extend the scope of the Convention
to create a customs files identification database, FIDE. FIDE
enables Member States' competent authorities to enter and search
for current and completed investigations on individuals or businesses
to aid their own investigations.
7.2 In October 2008 it was agreed at official level
that the third pillar CIS should be amended to increase usage
by Member States (only a minority of Member States currently input
data with any regularity, reducing the benefits of the system)
and to ensure consistency with the first pillar CIS, which had
recently been amended by Regulation (EC) No 766/2008.[23]
7.3 This document is an Article 34 (2) EU French
initiative presenting a draft Council Decision, in place of the
Convention, to achieve greater usage of the third pillar CIS,
to align it with the revised first pillar CIS and, additionally,
to give Europol and Eurojust access to the third pillar CIS, with
Europol having also the right to input data. A Decision is suggested
as being speedier to implement than an amended Convention, which
would need to be ratified by Member States.
7.4 When we considered this document, in March 2009,
we learnt that the Government broadly supported the French initiative,
including granting access to Europol (which was in the original
draft of the CIS Convention, but which was later dropped). However
we learnt also of some reservations:
- the legal base cited in the
draft Decision covered operational cooperation between Member
States' competent authorities but not the collection, storage
and analysis of information;
- there were incorrect references in the draft
Decision — to Articles 36 and 223 EC rather than Articles
30 and 296 EC;
- the draft Decision alluded to Council of Europe
provisions on data protection, but took no account of the 2008
Data Protection Framework Decision (to be implemented by November
2010);[24]
- there was no reference in the draft Decision
to the data protection rules governing Europol and Eurojust;
- apparently the current Europol Decision does
not allow for the inputting of data by Europol and could not easily
be amended to do so, thus rendering that part of the present proposal
untenable; and
- under the Convention and the Protocol establishing
the FIDE database, both of which the UK ratified, the input of
data into FIDE is mandatory — this is out of alignment with
the first pillar version and in principle obliges Member States
to enter sensitive data on ongoing investigations.
7.5 We said that we understood the wish to increase
usage of the third pillar Customs Information System and to align
it with the revised first pillar system and we noted that the
Government broadly supported the French initiative. However, we
noted also the Government's reservations and asked, before considering
the draft Decision further, to hear about progress on addressing
these reservations in negotiations. Meanwhile the document remained
under scrutiny.
The Minister's letter
7.6 The Financial Secretary to the Treasury (Mr Stephen
Timms) writes now about developments during negotiations, saying
that:
- in relation to the legal base
covering operational cooperation between Member States' competent
authorities but not the collection, storage and analysis of information,
the Government asked it to be extended to include Article 30(1)
(b) EU and the point has been referred to the Council Legal Service;
- the incorrect reference to Articles 36 and 223
EC has been updated to Articles 30 and 296 EC of the consolidated
TEC;
- the data protection issues are still being negotiated;
- following an opinion of the Council Legal Service,
changes have been made so that the Data Protection Framework Decision
is fully reflected in the draft text,;
- the Joint Supervisory Authority and the European
Data Protection Supervisor have also provided opinions and a number
of suggestions have been made which will be discussed in the near
future;
- the Government is satisfied that the Decision
has been reflected in the draft text and welcomes the comments
from the Authority and Supervisor, though at the last negotiations
a few Member States questioned the need for the reference to the
Decision, as it is only due to be implemented by 27 November 2010;
- the Government believes that such a reference
is necessary as many Member States may implement the Decision
before that date;
- omission of a reference to the data protection
rules governing Europol and Eurojust has been rectified;
- Europol is not seeking inputting rights to the
CIS and both Europol and Eurojust will have read-only access;
- in relation to the draft text making the input
of data into the third pillar FIDE database mandatory, which is
out of alignment with the first pillar version and in principle
obliges Member States to enter sensitive data on ongoing investigations,
the Government has suggested that the mandatory element should
be changed to align with the first pillar;
- it has gained the support of most Member States
on this issue, but due to the unanimity decision-making arrangements
that exist in the third pillar, it is felt that a compromise text
that satisfies all Member States concerns is the only practical
way forward; and
- the Government is participating in a drafting
group to produce a compromise text and is hopeful that its concerns
will be addressed and the matter will be agreed soon.
7.7 The Minister also tells us that, in accordance
with legislative arrangements in the third pillar, the European
Parliament has been consulted and provided its opinion on the
original French initiative. The opinion:
- recommended the initiative
be rejected, and called on the French Government to withdraw it;
- said the initiative was being rushed through
by the Council before entry into force of the Lisbon Treaty, thereby
limiting the European Parliament's legislative influence; and
- said the European Parliament was not satisfied
that there were adequate data protection safeguards on the data
collected and stored on the system and believed that the European
Data Protection Supervisor should have been consulted at an earlier
date by Council.
The Minister continues that the Czech Presidency
has since met with the European Parliament Rapporteur who produced
the Opinion, assured him that measures have been taken to address
the data protection issues and explained that, far from being
a totally new initiative, the draft Decision actually amends and
replaces an existing Convention. As a result, the European Parliament
will be consulted on the revised text and will provide a modified
opinion in Autumn 2009.
7.8 Finally the Minister says that the Government
is confident that its concerns will be addressed, though negotiations
are likely to continue for the next few months.
Conclusion
7.9 We are grateful to the Minister for informing
us of where matters stand on this draft Decision and look forward
to hearing of further progress in due course. Meanwhile the document
remains under scrutiny.
23 (28210) 5048/07: see HC 41-viii (2006-07), chapter
3 (30 January 2007), HC 41-xxxiii (2006-07), chapter 6 (2 October
2007) and HC 16-vii (2007-08), chapter 16 (9 January 2008). Back
24
(29381) 16069/07: see HC 16-xiii (2007-08), chapter 17 (27 February
2008) and http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:350:0060:01:EN:HTML.
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