Documents considered by the Committee on 24 November - European Scrutiny Committee Contents

10 Sexual abuse and exploitation of children and child pornography



COM(10) 94

Draft Directive on combating the sexual abuse, sexual exploitation of children and child pornography, repealing Framework Decision 2004/68/JHA

Legal baseArticles 82(2) and 83(1) TFEU; QMV; co-decision
Basis of considerationMinister's letters of 10 November and 19 November 2010
Previous Committee ReportHC 428-i (2010-11), chapter 23 (8 September 2010); HC 428-v (2010-11), chapter 8 (27 October 2010)
To be discussed in CouncilJHA Council, 2-3 December
Committee's assessmentLegally important
Committee's decisionNot cleared; further information awaited

Previous scrutiny

10.1 We reported on this proposal on 8 September and 27 October.[25] 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:

—  we 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).[26] 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 as follows:

"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)[27]".

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,[28] 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.[29] 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 so.

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 can continue.

"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 flexibly.

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

26   [1993] ECR I-939, paragraphs 19 and 21. Back

27   [1988] ECR 4563, paragraphs 36 to 38. Back

28   [2004] ECR I-7789. Back

29   OJ No. C 73, 17.03.99, p. 1. Back

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