14 Conditional access services
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18124/10
COM(10) 753
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(b)
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18126/10
COM(10) 755
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Draft Council Decision on the signing of the European Convention on the legal protection of services based on, or consisting of, conditional access
Draft Council Decision on the conclusion of the European Convention on the legal protection of services based on, or consisting of, conditional access
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| Legal base | (a) Articles 207(4) and 218(5) TFEU; QMV
(b) Articles 207(4) and 218(6)(a)(v) TFEU; QMV; EP consent
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| Document originated | (Both) 15 December 2010
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| Deposited in Parliament | (Both) 22 December 2010
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| Department | Culture, Media and Sport
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| Basis of consideration | Minister's letter of 7 December 2011
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| Previous Committee Reports | HC 428-xlii (2010-12), chapter 8 (23 November 2011); HC 428-xxx (2010-12), chapter 7 (22 June 2011); HC 428-xxiv (2010-12), chapter 2 (27 April 2011); HC 428-xvi (2010-11), chapter 5 (9 February 2011)
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| Committee's assessment | Legally important
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| Committee's decision | Cleared
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Background and previous scrutiny
14.1 Conditional access services are services offered by broadcasting
or internet service providers in return for payment, such as subscription
TV. An EU Directive, adopted in 1998, established an EU-wide legal
framework to ensure the economic viability of conditional access
services by prohibiting certain commercial activities designed
to gain unauthorised access. The content of the Directive is largely
reproduced in a 2001 Council of Europe Convention, but only nine
of the 47 countries belonging to the Council of Europe have ratified
it. The UK is bound by the EU Directive but has not signed or
ratified the Convention.
14.2 The Commission believes that EU ratification
of the Convention would encourage more (non-EU) members of the
Council of Europe to ratify it and so extend legal protection
of conditional access services beyond the borders of the EU. It
has therefore proposed two draft Council Decisions: the first
— document (a) — authorising the EU to sign the Convention
and the second — document (b) — authorising its approval
by the EU. The Government accepts that the EU has acquired exclusive
competence in relation to most of the provisions contained in
the Convention but maintains that two Articles (6 and 8), concerning
confiscation and mutual legal assistance, are areas of shared
competence and fall within the scope of the UK's Title V opt-in
Protocol.
14.3 The draft Decisions originally proposed by the
Commission only made provision for the EU to sign and conclude
the Convention and did not cite a Title V legal base. The Government
has therefore pursued a two-pronged strategy. Its priority has
been to secure an amendment to the draft Decisions in order to
include EU Member States as parties to the Convention, in addition
to the EU. This would mean that Member States would be bound in
their own right, rather than as a matter of EU law, by those Title
V elements falling within shared competence and the Government
would neither need, nor be able, to assert its opt-in.
14.4 As a fall-back, the Government also decided
(last March) to opt into the draft Decisions, even though they
did not cite a Title V legal base, on the grounds that the benefits
of EU accession to the Convention outweighed the risks associated
with accepting EU competence in the areas covered by Articles
6 and 8 of the Convention. If, as the Government hoped, the draft
Decisions were amended to include the Member States as parties,
then it said that the UK's Title V Protocol would not apply as
the EU would not be authorised to exercise any competence in the
JHA field.
14.5 The Minister for Culture, Communications and
Creative Industries (Mr Edward Vaizey) told us in November that
the draft Council Decisions had been revised to cite an internal
market legal base (Article 114 TFEU) and to include the Member
States, in addition to the EU, as parties to the Convention and
that these revised draft Decisions would be submitted for formal
adoption by the Council on 29 November. He said that the Government
wished to vote in favour and asked us to consider clearing the
draft Decisions from scrutiny. He made the following points:
- the Convention would be signed
and concluded as a "mixed", instead of an EU-only, agreement;
- the EU would,, however, exercise "extremely
limited" competence in relation to Article 8 of the Convention
(mutual legal assistance); and
- the revised draft Decisions would not require
a fresh opt-in decision to be taken by the UK, as the UK would
remain bound by its earlier opt-in decision (in March 2011) —
as a result, any obligations created under Article 8 of the Convention
would bind the UK as a matter of EU law.
14.6 Our response is set out in our Forty-seventh
Report.[106] We said
that we were not willing to clear the draft Council Decisions
from scrutiny for the following reasons:
- the Government has told us
that the creation of obligations in the JHA field can never be
regarded as ancillary and always justifies the citation of a Title
V legal base, yet the draft Council Decisions not only lack a
Title V legal base, there is also no recital to indicate that
the UK has in fact asserted its opt-in. We therefore could not
see why the Government, on grounds of policy and principle, intended
to vote in favour of their adoption;
- the Government has yet to provide a convincing
explanation of its reasons for opting into the draft Decisions,
given its concerns about EU competence creep. In particular, we
did not see why the policy benefits of acceding to the Convention
could not just as easily have been obtained by the UK deciding
to opt out of those elements of the draft Decisions which confer
competence on the EU in the justice and home affairs field, whilst
also ratifying the Convention as an independent party, thereby
assuming the obligation to implement them as a matter of international
(not EU) law; and
- we questioned the Government's reasons for accepting
that the UK remained bound by its earlier decision to opt into
the Commission's original proposals, rather than asserting the
need for a fresh opt-in decision once those proposals were revised.
14.7 We added that, if the Government were to vote
for the adoption of the draft Decisions at the Council on 29 November,
we would expect the Minister to inform us at the first opportunity
of his reasons for doing so.
The Minister's letter of 7 December 2011
14.8 The Minister tells us that the Council Decisions
were adopted on 29 November and that the Government decided to
override scrutiny. He continues:
"As set out in the Home Secretary and Justice
Secretary's joint letter of 3 November and the Minister for Europe's
letter of 10 November to you, the Government holds a different
view to the Committee on when the UK's opt-in applies. In our
view, a JHA obligation in a measure should never be regarded as
ancillary for the purpose of the predominant purpose test and
will always justify the citation of a JHA legal base. In such
circumstances we consider that the UK is not bound by a measure
which creates JHA obligations unless we have opted in pursuant
to the Protocol. We consider this is the case irrespective of
whether a JHA legal base has been cited. Furthermore, if we are
unsuccessful in arguing that a JHA legal base should be cited
in a Council Decision, we would nonetheless assert that the opt-in
applies where an international agreement creates obligations in
the JHA field, however minor, as they are in these Decisions.
"On this basis, and after careful consideration,
I took the decision to override scrutiny and enable the UK to
vote for the adoption of the Council Decision, which, in practice,
is agreed by common accord. A number of TV content providers have
stressed to us the importance of being able to extend the number
of countries which cooperate to enforce the legislation on conditional
access and thereby to limit piracy in the pay TV sector. The signing
of the Convention should support the growth of this important
part of the UK digital economy. My decision to override is consistent
with the Minister for Europe's decision that the Government should
override scrutiny where the Committee withholds clearance of a
proposal for a Council Decision on signature or conclusion of
an international agreement on the opt-in point alone.
"I appreciate your concerns about the Government's
opinion that the JHA opt-in Protocol is engaged by JHA content
rather than by the citation of a Title V legal base in a measure
and the lack of recital to indicate that the UK has asserted its
opt-in in this instance. As to the latter point, I can confirm
that the Government tabled a statement at the Council to record
its view that, even in the absence of the citation of a legal
base in TFEU Title V, the European Union's competence to enter
into the JHA obligations derives from TFEU Title V and accordingly
the United Kingdom will be bound by virtue of the fact that it
has exercised its opt-in under Protocol No 21 to the TEU. I have
attached the full text of the statement made to this letter."[107]
14.9 The Minister adds that the decision to override
scrutiny was not taken lightly and that the Government attaches
great importance to the scrutiny process.
Conclusion
14.10 We note the Minister's view that his decision
to override scrutiny is consistent with the policy set out in
the Minister for Europe's letter of 10 November 2011 in which
he told us that "given our continuing disagreement over the
circumstances in which the JHA opt-in applies to international
agreements, the Government is left with no option but to override
a scrutiny block imposed by your Committee on international agreements
where we assert that the JHA opt-in applies."
14.11 We wish to make clear that our decision
to withhold scrutiny in this case was not based solely on the
Government's belief that its opt-in applied notwithstanding the
absence of a Title V legal base. We also raised two broader concerns
which related to the consequences of asserting that the opt-in
applied. First, we questioned why, on grounds of policy and principle,
the Government would wish to vote for the adoption of EU measures
which create obligations in the JHA field but which fail to cite
a Title V legal base. Second, the Minister's letter emphasises
the importance which TV content providers attach to "being
able to extend the number of countries which cooperate to enforce
the legislation on conditional access and thereby to limit piracy
in the pay TV sector." As we have stated previously, we do
not see why the policy benefits of acceding to the Convention
could not just as easily have been obtained by the UK deciding
to opt out of those elements of the draft Decisions which confer
competence on the EU in the justice and home affairs field, whilst
also ratifying the Convention as an independent party, thereby
assuming the obligation to implement them as a matter of international
(not EU) law.
14.12 We have written to the Minister for Europe
making clear that we do not endorse the course of action the Government
has taken in stating that it intends to override scrutiny in circumstances
where the Committee questions the Government's assertion that
its opt-in applies.[108]
As, however, the Government has overridden scrutiny on these two
draft Council Decisions, we see little point in continuing to
retain them under scrutiny and so clear them.
Annex: Decisions on conditional access
DRAFT STATEMENT OF UK MINISTERS TO BE TABLED AT COUNCIL
ON 29 NOVEMBER 2011
"The United Kingdom Government fully supports
the principles underlying the Convention, and the Decisions authorising
the signature and conclusion of the Convention which will extend
formal cooperation on enforcement of conditional access provisions
between European countries to include those which have signed
the Council of Europe Convention as well as those which are Members
of the EU.
"The United Kingdom Government wishes, without
in any way diminishing that support, to record its view that,
even in the absence of the citation of a legal base in TFEU Title
V, the European Union's competence to enter into the JHA obligations
in Article 8 of the Convention which concern cooperation in investigations
and judicial proceedings (save insofar as those obligations relate
to Article 6 of the Convention and are being entered into by the
Member States) derives from TFEU Title V and accordingly the United
Kingdom will be bound by virtue of the fact that it has exercised
its opt-in under Protocol No 21 to the TEU."
106 See headnote. Back
107
The text of the Statement is reproduced as an Annex to this chapter.
Back
108
See letter from the Chairman of the European Scrutiny Committee
to the Minister for Europe (Mr David Lidington), 24 November 2011.
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