17 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 4 November 2009
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| Previous Committee Report
| HC 19-xii (2008-09), chapter 4 (25 March 2009) and HC 19-xix (2008-09), chapter 7 (10 June 2009)
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| To be discussed in Council
| Not known |
| Committee's assessment |
Politically important |
| Committee's decision |
Cleared |
Background
17.1 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.
17.2 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.[66]
17.3 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.
17.4 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 EU's
2008 Data Protection Framework Decision (to be implemented by
November 2010);[67]
- 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.
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.
17.5 When we considered the matter again, in June
2009, we heard 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 had asked for it to be extended to include Article
30(1) (b) EU and the point had been referred to the Council Legal
Service;
- the incorrect reference to Articles 36 and 223
EC had been updated to Articles 30 and 296 EC of the consolidated
EC Treaty;
- the data protection issues were still being negotiated;
- following an opinion of the Council Legal Service,
changes had been made so that the Data Protection Framework Decision
was fully reflected in the draft text;
- the Joint Supervisory Authority and the European
Data Protection Supervisor had also provided opinions and a number
of suggestions had been made which discussed be discussed in the
near future;
- the Government was satisfied that the Decision
had been reflected in the draft text and welcomed the comments
from the Authority and Supervisor, though at the last negotiations
a few Member States had questioned the need for the reference
to the Decision, as it was only due to be implemented by 27 November
2010;
- the Government believed that such a reference
was necessary as many Member States might implement the Decision
before that date;
- omission of a reference to the data protection
rules governing Europol and Eurojust had been rectified;
- Europol was not seeking inputting rights to the
CIS and both Europol and Eurojust would have read-only access;
- in relation to the draft text making the input
of data into the third pillar FIDE database mandatory, which was
out of alignment with the first pillar version and in principle
obliged Member States to enter sensitive data on ongoing investigations,
the Government had suggested that the mandatory element should
be changed to align with the first pillar;
- it had 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 was felt that a compromise
text that satisfies all Member States concerns was the only practical
way forward; and
- the Government was participating in a drafting
group to produce a compromise text and was hopeful that its concerns
would be addressed and the matter would be agreed soon.
We also heard that, in accordance with legislative
arrangements in the third pillar, the European Parliament had
been consulted and had 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 Czech Presidency had since met with the European
Parliament Rapporteur who produced the Opinion, had assured him
that measures had been taken to address the data protection issues
and explained that, far from being a totally new initiative, the
draft Decision actually amended and replaced an existing Convention.
As a result, the European Parliament would be consulted on the
revised text and would provide a modified opinion in Autumn 2009.
We asked to hear of further progress in due course.
Meanwhile the document remained under scrutiny.[68]
The Minister's letter
17.6 The Financial Secretary to the Treasury (Mr
Stephen Timms) writes now to tell us of further developments in
the preparation of this draft Decision. He says that the outstanding
concerns previously detailed to us have now been addressed. He
explains that:
- in relation to the Government
suggestion that the legal base should be extended to include Article
30(1) (b) EU, the Council Legal Service researched the proposal
but felt that there was no need to extend the legal base as Article
30 (1) (a) EU was flexible enough to fully cover the Council Decision.
In consultation with lawyers the Government agreed to drop this
proposal;
- in relation to the Government
concern that in the draft text the input of data into the third
pillar database was mandatory, it gained support in the negotiations
from most of the Member States, but due to unanimity decision
making arrangements in the third pillar it was necessary to secure
a compromise to move the negotiations forward. The Government
participated in a drafting group to prepare a compromise text
which addresses its concerns and the text has been agreed by all
Member States;
- the outstanding issues regarding data protection
had been addressed with the Data Protection Framework Decision
being fully reflected in the text. A subsequent issue arose regarding
the data protection supervision of the CIS. The Council Legal
Service suggested changing the supervisory body from the Joint
Supervisory Authority to the European Data Protection Supervisor,
as the Supervisor supervises the first pillar CIS and it is the
only body which has the authority to supervise the Commission
(which manages the CIS);
- a number of Member States, including the UK,
opposed this proposal as it would not ensure sufficient supervision
over the whole of the system as the Supervisor has no jurisdiction
under the third pillar, unlike the Authority; and
- a compromise was suggested, which the Government
supports, whereby both the Authority and the Supervisor would
supervise the CIS. This has been approved by all but one Member
State, but it is likely that it will agree shortly.
17.7 The Minister also tells us about the European
Parliament's revised draft opinion, which has just been released.
Recalling that the European Parliament had previously been concerned
about the CIS Council Decision, believing that there were not
adequate data protection safeguards and holding that the initiative
was being 'rushed through' before the entry into force of the
Lisbon Treaty, therefore limiting its legislative influence, that
the Czech Presidency subsequently had met with the Rapporteur
and assured him that measures had been taken to address the data
protection issues and that, as a result the Rapporteur agreed
to produce a modified opinion, the Minister says that:
- the European Parliament's draft
opinion highlights concerns that it still has with the document;
- as negotiations continued during the formulation
of the European Parliament opinion most of these concerns have
already been addressed;
- for example, clear reasoning is included in the
text about the need to update the CIS and to grant access to Europol
and Eurojust;
- the European Parliament has highlighted the need
to make the CIS compatible with other information systems and
to ensure appropriate data access controls. These are quite technical
aspects and the Government considers that it is not appropriate
to go into this detail within the legal text;
- the European Parliament is concerned with the
limitation of purpose for the data collected. The Government considers
this is adequately covered in the text as it stands, as well as
through the Data Protection Framework Decision;
- within its opinion the European Parliament has
provided a list of proposed amendments to the draft Decision —
again most of these have already been included in the document;
and
- the remaining European Parliament proposals are
very minor, for example asking for a list of Member States' competent
authorities to be published and requesting the European Parliament
be given a copy of any future reports or evaluations of the CIS.
The Government can agree to these requests.
17.8 The Minister concludes that as all of its issues
have been resolved and most of the European Parliament's concerns
have already been addressed in the text, the Government feels
that it can fully agree to the revised text of the draft Decision.
He continues that if the document is cleared from scrutiny that
will ensure that the Decision is agreed before the possible entry
into force of the Lisbon Treaty and that if it is not agreed in
time this could see the re-opening of negotiations, which under
QMV could see the Government lose some of the compromises it has
secured.
Conclusion
17.9 We are grateful to the Minister for this
account of developments on this draft Decision and note the improvements
secured in the negotiations. We have no further questions to ask
and clear the document.
66 (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
67
(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.
Back
68
See headnote. Back
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