10 Sexual abuse and exploitation of children
and child pornography |
Draft Directive on combating the sexual abuse, sexual exploitation of children and child pornography, repealing Framework Decision 2004/68/JHA
|Legal base||Articles 82(2) and 83(1) TFEU; QMV; co-decision
|Basis of consideration||Minister's letters of 10 November and 19 November 2010
|Previous Committee Report||HC 428-i (2010-11), chapter 23 (8 September 2010); HC 428-v (2010-11), chapter 8 (27 October 2010)
|To be discussed in Council||JHA Council, 2-3 December
|Committee's assessment||Legally important
|Committee's decision||Not cleared; further information awaited
10.1 We reported on this proposal on 8 September and 27 October.
In so doing, we recognised the importance of having effective
legislation in place in the EU to ensure that those who commit
serious crimes against children can be prosecuted and punished
in every Member State. And we saw the deterrent effect this would
have. But we thought that, in laying down additional detailed
common rules on the prevention of these crimes and the protection
of their victims, the Commission had lost sight of the original
purpose of legislating in this field at the level of the EU, and
in so doing over-interpreted the EU's powers under Title V of
the new Treaty on the Functioning of the European union (TFEU)
"Area of Freedom, Security and Justice".
10.2 In the conclusion of our Report on 27 November:
asked for a copy of the impact assessment;
we cleared Articles 1-13 (except for
Article 10) from scrutiny (document b);
we noted that the Minister would raise
in negotiations a number of the concerns we had about citation
of the correct legal bases, the aim being to add Articles 82(1)
and 84 TFEU as legal bases. We were grateful for this: given that
a supranational source of binding criminal law and procedure is
such a sensitive area for the UK, as for any State, we thought
it important that the power conferred on the EU to pass such laws,
and the legislative procedure which the EU institutions have to
follow in passing such laws, was correctly cited;
we said that the legal base that is cited
would also determine whether the subsidiarity early warning mechanism
for national parliaments under Protocol 2 is applicable. However,
the Minister did not appear to agree, saying in his letter of
21 October that "it is not essential that all relevant legal
bases are cited in Directives, as long as the EU does in fact
have the requisite powers in the Treaty". We asked the Minister
to provide us with the necessary further support for this remark,
considering it highly significant; and
we noted that the Minister also said
that it was not necessary to cite the sub-paragraphs in Article
82(2) TFEU and that the ECJ did not require "each sub-section
of an article to be cited in legislation like this". We asked
for reference to the ECJ's judgments to which the Minister referred.
We also noted in passing that 82(2)(d) is a quasi-passerelle clause
and a non-legislative act, and asked the Minister whether, were
this to form the basis for EU action in the future, he thought
it would need to be cited in full as the legal base, rather than
simply Article 82 TFEU.
Minister's letter of 10 November 2010
10.3 In his letter, the Secretary of State for Justice
(Kenneth Clarke) says that it is not necessary for a subparagraph
of a Treaty Article to be individually cited to secure Parliament's
right to object.
10.4 On whether it is essential that all relevant
legal bases are cited in Directives as long as the EU has the
requisite powers in the Treaty, the Minister says as follows.
The case law of the ECJ requires that the appropriate legal base
should be cited for any EU measure; however, it is only the predominant
legal base that should be cited. Where a measure has a twofold
purpose but one is predominant and the other merely incidental,
the measure must have a single legal basis, corresponding to the
predominant purpose (see for example Case C-155/91 Commission
v Council). In
some cases, there may be more than one legal base cited but this
is only where there are two or more objectives being pursued,
neither of which is secondary to the other. The ECJ recently confirmed
this long-standing rule. In October 2009, the ECJ described its
position in paragraph 38 of Case C-370/07, Commission v Council
"It is clear from the ECJ's case-law that the
obligation to indicate the legal basis of a measure is related
to the duty to state reasons (see, inter alia, Case 45/86 Commission
v Council, paragraph 9, and Case 203/86 Spain v Council)".
In the latter case, the ECJ refused to strike down
legislation where Spain argued that it was deficient because insufficient
legal bases were cited. The ECJ also refuses to take decisions
about legal bases that are not necessary for the lawfulness of
a measure. For example, in Cases C-184/02 and C-223/02 Spain
and Finland v Parliament and Council,
the ECJ found that because one legal base was sufficient for the
measure in question, it was unnecessary for it to examine whether
other legal bases could also be invoked (see paragraph 42-44).
10.5 On whether it is necessary to cite sub-paragraphs
within Article 82 the Minister points to the two main reference
sources for drafters of EU law: the Joint Practical Guide of
the European Parliament, the Council and the Commission for persons
involved in the drafting of legislation within the Community institutions
(see chapter 9 in particular) and the Interinstitutional Agreement
of 22 December 1998 on common guidelines for the quality of drafting
of Community legislation.
Both require clarity and simplicity in drafting, and that the
legal basis be set out. Neither suggests that it should be cited
at sub subparagraph level. The examples they give are all of citing
legal bases at Article level. Chapter 9 of the Joint Practical
Guide gives the following example: "Having regard to the
Treaty establishing the European Community, and in particular
Article 37 thereof." In terms of ECJ case-law, the Minister
observes that none of the ECJ cases cited above discuss legal
base at the level of sub sub paragraphs. The strong implication
is that the ECJ does not ordinarily consider it necessary to do
10.6 However, the Minister says that the Government
does prefer the precise legal base to be cited because it shares
our concerns in this regard. Our negotiators support such precision
in negotiations, and often seek clarity on these matters. It is
also essential to cite a precise legal base where it makes a difference
to the procedure.
10.7 In relation to this Directive, the Government
does not think it is necessary to cite individually the legal
bases within Article 82(2)(a)-(c) because they all require the
same procedure. We think it is appropriate simply to cite Article
82(2). This is sufficient to make the Directive amenable to judicial
review in the ECJ, which is the ultimate purpose of citing a legal
base. But Article 82(2)(d), as you note, is different. It requires
unanimity rather than the qualified majority voting under the
ordinary legislative procedure.
10.8 In relation to our final query whether
Article 82(2)(d) would need to be cited in full as a legal base
if used to form the basis for EU action in the future
the Minister agrees with us that Article 82(2)(d) is a 'quasi-passerelle'
and would expect it to be expressly cited if the EU wished to
rely on it, because any negotiation would have to be agreed by
unanimity, not the usual qualified majority voting. It would be
very clear to all concerned if a proposal were based on this subparagraph.
Minister's letter of 19 November 2010
10.9 The Minister writes as follows:
"Further to my letter of 10 November, I am writing
to update you on the progress of this draft Directive ahead of
the JHA Council on 2/3 December. The Belgian Presidency aims to
seek General Approach at the Council, which would form the basis
for negotiations with the European Parliament in the New Year,
and I would be grateful if you would clear the proposal from scrutiny
and allow me to agree to the General Approach.
"After the informal agreement on Articles 1-13
(except 10) at the Justice and Home Affairs Council on 7-8 October
the discussions at official level working groups on this proposal
have focused on Articles 10 and 14-21. During recent discussions
the Presidency has made strenuous efforts to take account of concerns
expressed by the UK and other Member States about these Articles.
"I am pleased to say that there has been very
good progress in these discussions and all of the UK concerns,
as set out in my Explanatory Memorandum of 13 July 2010 July,
have been addressed.
"I understand that the Committee's last meeting
before the JHA Council will be on 24 November. This may mean that
the Committee will not be able to scrutinise the latest text of
the draft Directive that we are expecting before the Council.
However, whilst I am unable to provide an updated text at this
time, I hope that you will be able to clear the proposal from
scrutiny based upon the information I provide in this letter on
the changes which we expect to be reflected in the new document.
I will of course ensure that the final text is deposited as soon
as it is available.
"With regard to Article 10, concerning information
on disqualification from working with children, there have been
major changes. Subsections (3) and (4) were deleted, so there
is no duty to recognise other Member State's disqualification
decisions after failure to find a solution acceptable to a majority
of Member States. However, Article 10 still obliges all Member
States to set up disqualification regimes; we already have one
in the UK. It no longer requires disqualification information
to be put into the criminal record. The text permits Member States
flexibility in where they record this information, which we support:
we record this information separately. The Article also now requires
Member States to ensure that employers are entitled to be informed
about convictions for child sex offences as well as disqualifications.
The Government supports these changes.
"Articles 14 and 15, which sets out measures
that Member States should have in place to enable investigations
and prosecutions to take place and ensure that they are not inhibited
by confidentiality rules, remain substantially the same as in
the original proposal. Therefore, as I indicated in the Explanatory
Memorandum of 19 July, the Government is content with these Articles.
"Article 16 on jurisdiction, should reflect
the approach taken in the 2004 Framework Decision and Council
of Europe Convention on Combating the Sexual Exploitation of Children
(2007). It will require Member States to take extra-territorial
jurisdiction only where their nationals commit sexual offences
against children abroad. Member States can (as now) extend extraterritorial
jurisdiction to residents or cases where the victim is their national
should they wish to do so. The Government can support the text
of this Article, as it gives us the flexibility we wish to retain.
"In my Explanatory Memorandum dated 19 July
I expressed the view that UK was compliant with Article 17 which
contains provisions on assistance, support and protection measures
for children. We noted that further clarity was needed on Article
18 and its reference to 'long and short-term support' for victims.
The latest text has been amended to limit the victims' rights
to those listed in the Directive and without a reference to long-term
support. The Government can, therefore, support these Articles.
"Article 19 contains the most important rights
for children involved in the criminal justice system. They remain
unchanged from the original draft, and we remain content with
them. We have secured two amendments to reflect the fact that
in the common law system, victims are not party to proceedings
and therefore do not need legal representation or special representatives.
The Government is therefore content with this Article.
"Article 20 will be divided into two separate
Articles to cover preventative intervention and intervention available
in the course of or after criminal proceedings. During negotiations
it has been clarified that Member States have full flexibility
to decide what sort of intervention "programmes or measures"
are necessary, and when offenders or potential offenders may have
access to them. Member States will not be obliged to make these
measures or programmes available on request. The Government can
support this flexible approach.
"Article 21 on blocking and take down of websites
containing images of child sexual abuse will be amended to allow
for the various approaches taken by Member States towards this
policy. It permits non-legislative measures such the industry
self-regulation used in the UK. It will also reflect the technical
limits of blocking and take-down as set out in the Explanatory
Memorandum in July. The Government can now support this article.
"A full copy of the text to be considered at
JHA Council will be sent to you as soon as it is available along
with a further Explanatory Memorandum. In light of the assurances
which have been given by the Presidency and our success in negotiations,
I hope that you will agree to clear these remaining Articles from
scrutiny so that I can agree to the General Approach at the December
JHA Council and the good progress on this important Directive
"You have also asked for an Impact Assessment
for the Directive. We have only recently achieved significant
amendments and got the clarity we sought on Articles that carried
potential cost implications. We can now reflect these changes
in the Impact Assessment. I apologise for the delay in this being
completed and I will ensure that the Committee is sent a copy
of this before the Council meeting on 2-3 December. When negotiations
on the Directive are finalised, a revised IA will be produced."
10.10 We thank the Minister for his two letters.
We are particularly grateful for the thoroughness of the replies
in his letter of 10 November, which we are still considering.
10.11 We note from the letter of 19 November that
the negotiations have led to a marked improvement in the text
from the UK's perspective; we are glad to see that many of the
provisions which had caused us concern contain are either consistent
with common law practice or can now be implemented by Member States
10.12 We give our agreement to the Minister consenting
to a general approach on this proposal at the JHA Council under
paragraph (3)(b) of the Scrutiny Reserve Resolution, which enables
us to keep the proposal under scrutiny.
10.13 We therefore look forward to early deposit
of the latest version of the text, with any additional explanations
from the Minister that are required, after the JHA Council.
25 See headnote. Back
 ECR I-939, paragraphs 19 and 21. Back
 ECR 4563, paragraphs 36 to 38. Back
 ECR I-7789. Back
OJ No. C 73, 17.03.99, p. 1. Back