Documents considered by the Committee on 15 December 2010 - European Scrutiny Committee Contents

12 European Protection Order


Draft Directive on the European Protection Order
Legal baseArticle 82(1)(d) TFEU; QMV; co-decision
Basis of considerationMinisters' letters of 21 September 2010 and 15 November 2010
Previous Committee ReportsHC 428-i (2010-11), chapter 24 (8 September 2010)
To be discussed in CouncilNo date set
Committee's assessmentLegally important
Committee's decisionNot cleared; further information requested


12.1 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.

12.2 The Government opted into the proposal in March of this year.

Previous scrutiny

12.3 When we reported on this proposal on 8 September we concluded as follows:

    "We fully support the Government in the stance that it has taken on the scope of the legal base. As our predecessors said before us, we do not agree with the argument that Article 82 TFEU is an appropriate legal base because the purpose of protection orders, whether issued in criminal or civil proceedings, is ultimately to protect the victim from crime. We think "proceedings in criminal matters" in Article 82(1)(d) means exactly that, and cannot be interpreted to cover civil proceedings in which the protection of a victim from crime is the objective.

    "We are concerned by the Minister's reports that a general approach was pushed through the JHA Council on 4 June in the face of opposition from some Member States; and by the last Presidency's interpretation of Article 3(2) of the opt-in Protocol. We would be grateful to the Minister for clarification as soon as possible of whether the Council considers that a general approach on this proposal has been agreed. We would also be grateful for clarification of whether the Spanish Presidency's interpretation of Article 3(2) of the opt-in Protocol is shared by other Member States. The Minister's letter indicates that other Member States objected to the general approach, in which case Article 3(2), which can be applied only to the UK and/or Ireland, would appear to be inapplicable.

    "We thank the Minister for answering the questions posed by our predecessors. We think the latest draft of the Directive is an improvement in terms of clarity in how an EPO will operate, of the grounds on which an EPO can be refused, and of the safeguards provided to the person causing danger."

Minister's letter of 21 September

12.4 The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly) wrote to us on 21 September with further details of what transpired at the JHA Council in June. Although there was no shared view on the outcome of the June JHA Council, the Minister explains that the Belgian Presidency did not take forward negotiations with the European Parliament on the basis of any formal mandate or general approach from the Council on that date. Instead, it waited for the European Parliament LIBE (Civil Liberties Justice and Home Affairs) and FEMM (Women's Rights and Gender Equality) committees to have an orientation vote on their draft report and amendments on 29 September, which would then give the Rapporteurs a mandate to begin negotiations, on behalf of the European Parliament, with the Council.

12.5 As to whether the Spanish Presidency's attempt to invoke Article 3(2) of the opt-in Protocol interpretation was supported by other Member States, the Minister says that this is not the case: there have been no indications in either official or ministerial contact with other Member States that they interpret the Protocol in this way.

Minister's letter of 15 November

12.6 The Secretary of State for Justice (Mr Kenneth Clarke) wrote on 15 November to say that the vote in the LIBE and FEMM committees went ahead as foreseen and formal trilogue discussions between the European Parliament, Presidency and Commission began on 25 October. The final trilogue is expected to take place on 16 November ahead of a vote in the LIBE and FEMM committees at the end of November. The Minister informs us that the European Parliament has provisionally scheduled a vote to adopt its amendments to the EPO at its plenary session on 15 December.

12.7 There are five main areas where the European Parliament Rapporteurs believe amendment of the text is required, and which are the focus of the negotiations between the institutions:

—  Scope;

—  Information provided for victims related to the EPO procedure;

—  Ensuring speedy processing of EPOs and simplifying procedures;

—  Guaranteeing adequate protection to minors; and

—  Collecting basic statistical data which will be necessary to evaluate the efficiency of the EPO process.

The Minister deals with each of these in turn.


12.8 He reports that the Government's view on scope, that currently it is wider than that permitted by the criminal legal base, has not changed. The LIBE and FEMM committees, however, voted for amendments that run contrary to this position and maintain the broad scope of the Directive to include civil orders as well as criminal ones. As a consequence the Presidency, aware that this split the Council in June, has deferred discussion about scope until the end of the trilogue discussions.

12.9 The division in the JHA Council in June over the question of scope precipitated a discussion of the use of Article 3(2) of the UK's opt-in Protocol, the Minister says. Article 3(1) and (2) provide:

    "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."

The Minister says the Government believed it was premature to cite Article 3(2) in June as the Council was not being asked to adopt the Directive. It amounted to a threat to eject the UK from negotiations prematurely whilst it was still a willing participant in on-going discussions.

12.10 However, if the European Parliament adopts amendments in mid-December that are acceptable to a majority in the Council, and as a consequence of standing firm on the issue of scope, the UK finds itself the "swing" vote in a blocking minority, the Minister thinks "there will come a point when the UK's ejection can be considered legitimately". But the Government is clear that before Article 3(2) can 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 thinks that a "reasonable period" cannot simply refer to an amount of time passing, but must also refer to there being opportunities to resolve the issue.


12.11 The Minister explains that the European Parliament has proposed an amendment that would make Member States responsible for training, education and publicity campaigns about the EPO. Whilst the Government has no objection in principle to such campaigns it believes that they should be at the discretion of Member States rather than prescribed in a Directive.

12.12 In addition, he comments that there is already a provision in the Directive that a person who receives a domestic protection order will be told about the EPO and the basic conditions of making a request. This is important as it will directly target those potentially eligible for an EPO and will ensure they receive the information they require. The Government believes that anything beyond this should be left to Member States to decide.


12.13 The Minister says it is vital that procedures surrounding protection measures enable timely protection of vulnerable people. Proposals from the European Parliament suggest, however, that the issuing of an EPO should follow fast-track procedures at national level. The Government is of the view that the issuing of an EPO should not leapfrog or take precedence over domestic protection measures. Requests for protection orders in the UK, whether as the result of an EPO or not, need to be treated in a timely way, taking into account specific circumstances of the case including the urgency of the matter. The Government is therefore opposing the European Parliament's suggestion to fast-track EPO applications.


12.14 The European Parliament has suggested an amendment that ensures the execution of an EPO also covers the protected person's entire family. The Government is content that if a family member had a protection measure granted to him or her in national law, or was covered by the same domestic order as the protected person, then he or she should be entitled to apply for an EPO or be covered by the same EPO. The Minister believes this to be the objective of the amendment; the Government would therefore be able to accept it if amended.


12.15 The European Parliament has suggested an ambitious Article on data collection that goes beyond the scope of the Directive by including the collection of data on victims of terrorism and organised crime. The Government opposes data collection that would increase the bureaucratic burden on Member States and be disproportionate. It would be more sensible, the Minister thinks, to restrict data collection to the sort of information that would be easily obtainable from the EPO and that is relevant to the Directive and its scope.

12.16 Finally the Minister says that he will keep us informed of further developments in relation to this Directive.


12.17 We thank the Ministers for their letters. We applaud the Government's approach to the application of Article 3(2) of the opt-in Protocol — we were surprised that the previous Presidency sought to invoke it so prematurely but gratified that this endeavour seemingly attracted little support from other Member States. We also support the Government's stance on the circumstances in which Article 3(2) of the opt-in Protocol can be invoked at this stage, and on the additional amendments put forward by the two European Parliament committees.

12.18 We look forward to an update on the negotiations after the plenary session of the European Parliament on 15 December.

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