Documents considered by the Committee on 9 March 2011, including the following recommendation for debate: Use of Passenger Name Records for law enforcement purposes - European Scrutiny Committee Contents

9 European Protection Order


Draft Directive on the European Protection Order

Legal baseArticle 82(1)(d) TFEU; QMV; co-decision
Basis of considerationMinister's letter of 11 January 2011
Previous Committee ReportsHC 428-xi (2010-11), chapter 12 (15 December 2010); HC 428-i (2010-11), chapter 24 (8 September 2010)
To be discussed in CouncilNo date set
Committee's assessmentLegally important
Committee's decisionCleared


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.

Previous scrutiny

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 would oppose.

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.


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).


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.


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.


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.


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.

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