9 European Protection Order |
|Draft Directive on the European Protection Order
|Legal base||Article 82(1)(d) TFEU; QMV; co-decision
|Basis of consideration||Minister's letter of 11 January 2011
|Previous Committee Reports||HC 428-xi (2010-11), chapter 12 (15 December 2010); HC 428-i (2010-11), chapter 24 (8 September 2010)
|To be discussed in Council||No date set
|Committee's assessment||Legally important
9.1 The European Protection Order (EPO) is intended to assist
victims who have obtained a protection order in one Member State
and who subsequently move to another Member State. The victim
would apply (the EPO cannot be issued other than on the wishes
of the victim) for an EPO from the Member State which issued the
original protection order, and this EPO would then be transmitted
to and recognised by the executing Member State to which the victim
has moved. In the United Kingdom protection orders are often used
in domestic violence cases, although not exclusively so. Other
examples include non-molestation orders, occupation orders (regulating
who can occupy a property), restraining orders and injunctions.
9.2 The Government opted into the proposal in March
of this year. First reading negotiations with the European Parliament
(EP) began in October.
9.3 The proposed Directive has been held under scrutiny
since February last year. When the Committee last reported on
it on 15 December, it was to explain the European Parliament's
draft amendments to the proposal. The most concerning of these
was on the scope of the EPO. The relevant committees of the European
Parliament had voted for amendments that ran contrary to the UK
(and the previous Committee's) position that the legal base for
the proposal required that the EPO could only apply to criminal
proceedings. The EP committees thought it should have a broader
scope, to include civil protection orders as well as criminal
ones. As a consequence the Presidency, aware that this issue had
split the Council in the past, deferred discussion on it until
the end of the trilogue negotiations. In a letter of 15 November
2010, the Secretary of State for Justice (Mr Kenneth Clarke) explained
that if the UK was part of a blocking minority that objected to
the EP amendment, as the "swing" vote it could be excluded
from taking part in the Directive under Article 3(2) of the UK's
opt-in Protocol (No. 21). Paragraphs (1) and (2) of Article 3
of the Protocol provide that:
"1. The United Kingdom or Ireland may notify
the President of the Council in writing, within three months after
a proposal or initiative has been presented to the Council pursuant
to Title V of Part Three of the Treaty on the Functioning of the
European Union, that it wishes to take part in the adoption and
application of any such proposed measure, whereupon that State
shall be entitled to do so.
"2. If after a reasonable period of time a measure
referred to in paragraph 1 cannot be adopted with the United Kingdom
or Ireland taking part, the Council may adopt such measure in
accordance with Article 1 without the participation of the United
Kingdom or Ireland. In that case Article 2 applies."
9.4 However, in the Minister's opinion, before Article
3(2) could be legitimately invoked, "adoption" of the
text must be in prospect and the requirement that a "reasonable
period of time" has gone by must be satisfied; and he thought
that a "reasonable period" could not simply refer to
an amount of time passing, but must also refer to there being
opportunities in the Council working group to resolve the issue.
9.5 In addition, the EP committees had proposed amendments
that would have made Member States responsible for training, education
and publicity campaigns about the EPO; that the issuing of an
EPO should follow fast track procedures at national level; and
that data collection should include the collection of data on
victims of terrorism and organised crime, which goes beyond the
scope of the Directive. All of these the Minister said the Government
9.6 We agreed with the Minister's stance on Article
3 of the opt-in Protocol and asked to be kept informed of developments
once the EP had considered the proposal in plenary on 15 December.
Minister's letter of 11 January
9.7 The Minister says that when he last wrote on
15 November, there was the possibility that the Directive could
be adopted without the participation of the UK.
9.8 Since then, however, another Member State joined
the blocking minority. This led to the UK no longer having the
"swing" vote which meant that Article 3(2) of the opt-in
Protocol could not be brought into play. The Council was therefore
unable to reach a first reading deal with the EP.
9.9 However, at the plenary session, the EP adopted
its draft legislative resolution on the EPO. This, he says, shows
good progress on the issues of concern highlighted in his last
letter, excepting the fundamental issue of scope.
SCOPE (RECITAL 9 AND ARTICLE 1)
9.10 The scope of the instrument remains too wide
given the criminal legal base it has been brought under and is
the reason the blocking minority remains. The draft Directive
still applies to protection measures, "independently from
the nature, civil criminal or administrative" of the authority
that adopts them (Recital 9).
INFORMATION PROVIDED FOR VICTIMS RELATED TO THE EPO
PROCEDURE (RECITALS 30 AND 35 ARTICLE 6(5))
9.11 There has been a move away from the earlier
prescription by the EP that Member States should be responsible
for training, education and publicity campaigns about the EPO.
The new draft of Recitals 30 and 35 allows flexibility in the
way Member States decide to address these issues and the Government
is happy with the new text.
9.12 Article 6(5) allows the protected person to
be informed about the possibility of requesting an EPO "in
any appropriate way in accordance with procedures under its national
law". This provides sufficient flexibility for Member States
when executing this obligation.
ENSURING SPEEDY PROCESSING OF EPOS AND SIMPLIFYING
PROCEDURES (RECITAL 12 AND ARTICLE 15)
9.13 When the Minister last wrote he was concerned
that the EP's draft amendments suggested that the issuing of an
EPO should follow a fast track procedure, potentially taking precedence
over a domestic protection measure. The Government's concerns
have been listened to and the new text at Recital 12 and Article
15 takes a more balanced approach. It recognises the need for
expedience, given that it concerns the protection of the vulnerable,
but takes into consideration specific circumstances, so a protection
measure would not take priority merely because it was initiated
by an EPO.
GUARANTEEING ADEQUATE PROTECTION TO MINORS (RECITAL
9.14 Previous draft amendments from the EP suggested
that an EPO could cover family members, a suggestion the Government
said it could accept if it were made clear that the EPO could
only cover those protected by the original protection measure,
and could not be randomly extended to others. Again these concerns
have been listened to and Recital 11 clarifies the position.
COLLECTING BASIC STATISTICAL DATA WHICH WILL BE NECESSARY
TO EVALUATE THE EFFICIENCY OF THE EPO PROCESS (RECITAL 31 AND
9.15 Previous drafts proposed data collection measures
that were ambitious and went beyond the scope of the instrument.
This ambition has been modified in this draft and the proposals
are concerned with the communication of relevant data related
to the EPO such as the number requested, issued and/or recognised.
This is consistent with the suggestion in the Minister's last
letter to the Committee that data collection should be restricted
to data relevant to the draft Directive.
9.16 In terms of next steps, as there is no agreement
in the Council on the text further discussion in Council will
be necessary. But the Hungarian Presidency currently has no meetings
scheduled on the measure. At the EP debate, Commission Vice-President
Reding applauded the work of the co-rapporteurs on this proposal
and said that she would build on some of the EP proposals as part
of the future victim's package that the Commission intends to
adopt in May 2011. This package will include a proposal on civil
protection measures and, if necessary one on criminal protection
measures. She cautioned against adopting measures which were not
legally sound. The Government awaits these proposals and the Minister
undertakes to keep the Committee updated on developments.
9.17 We thank the Minister for his letter. We
note that a blocking minority has formed around the issue of legal
base, preventing a first reading deal from being reached. As we
have said in the past, we agree with those Member States, including
the UK, that think that the expression "proceedings in criminal
matters" in Article 82(1)(d) TFEU means exactly that, and
therefore prevents this proposal from applying to orders issued
in civil proceedings. We are pleased that the issue has not been
fudged and note that separate proposals applying to protection
orders issued respectively in criminal and in civil proceedings
may be adopted by the Commission.
9.18 We are content to clear the document from
scrutiny, as no action on it in the Council is foreseen. We would,
however, be grateful to be kept informed and expect a new or revised
proposal to be deposited in the normal course.