17 Cooperation with the Russian Federation
on the trade in drug precursors
| (a)
(34642)
5654/13
COM(13) 4
(b)
(34643)
5656/13
COM(13) 3
|
Draft Council Decision on the conclusion of the Agreement between the European Union and the Russian Federation on drug precursors
Draft Council Decision on the signing, on behalf of the European Union, of the Agreement between the European Union and the Russian Federation on drug precursors
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| Legal base | (a) Articles 207(4) and 218(6)(a) TFEU; QMV; EP consent
(b) Articles 207(4) and 218(5) TFEU; QMV
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| Department | Home Office
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| Basis of consideration | Minister's letter of 11 April 2013
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| Previous Committee Report | HC 86-xxxii (2012-13), chapter 5 (13 February 2013)
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| Discussion in Council | No date set
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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
17.1 The United Nations Convention against the Illicit Traffic
in Narcotic Drugs and Psychotropic Substances, agreed in 1988,
establishes a framework for international cooperation to prevent
certain chemical substances, commonly used in a variety of industrial
processes to manufacture pharmaceuticals and household goods,
being "diverted" into illicit drug production. These
substances are often referred to as "drug precursors".
The Convention requires Contracting Parties (which include the
EU and all Member States as well as Russia) to implement a series
of measures to control the manufacture and distribution of drug
precursors, monitor international trade, report suspicious orders
and transactions, and ensure appropriate labelling and documentation.
17.2 The purpose of the draft Council Decisions
is to authorise the signature and conclusion of an Agreement between
the EU and the Russian Federation to strengthen cooperation in
preventing the diversion of drug precursors into illicit drug
production. Both draft Decisions cite Article 207(4) of the Treaty
on the Functioning of the European Union (TFEU) as their legal
base — a provision empowering the Council to conclude international
agreements in areas covered by the EU's common commercial policy.
Our Thirty-second Report of 13 February 2013 summarises the content
of the proposed Agreement and the Government's position.
17.3 The Minister of State for Crime Prevention
(Mr Jeremy Browne), told us that there was little direct trade
in drug precursors between the UK and the Russian Federation and
so the provisions of the Agreement requiring Member States to
exchange information would not entail extensive obligations for
the UK. He indicated, however, that the Government intended to
clarify with the Commission what personal data might be exchanged
under the agreement and expressed a more general concern about
the potential impact of the EU concluding agreements with third
countries which involve an element of data or information exchange.
He added that the Government was considering whether, notwithstanding
the absence of a Title V legal base, the draft Decisions were
subject to the UK's Title V opt-in.
17.4 We questioned the basis on which the Minister
considered that the UK's Title V opt-in might apply in this case,
since the Government had already accepted that changes proposed
recently to a 2005 Regulation establishing harmonised internal
rules on the trade in drug precursors between the EU and third
countries do fall entirely within the scope of the EU's
common commercial policy and, as a result, are not subject to
the UK's opt-in.[53]
We asked him to identify those provisions of the Agreement which
the Government believes impose obligations derived from Title
V of Part Three of the TFEU (on Justice and Home Affairs matters)
and to indicate which legal base or bases should be cited. We
also asked the Minister to elaborate on the Government's concerns
regarding the data or information exchange provisions contained
in the Agreement.
The Minister's letter of 11 April 2013
17.5 The Minister informs us that the Government
has concluded that the draft Council Decisions cite the correct
legal bases and are not subject to the UK's Title V opt-in for
the following reasons:
"The scope of the Agreement between the Parties
is to strengthen co-operation between them to prevent diversion
from the legitimate trade in precursors, and Article 1(2) mentions,
in particular, monitoring of trade and providing mutual assistance.
There are no express references for law enforcement agencies to
use information collected for law enforcement or other JHA purposes.
If we were to say that the opt-in applied to the type of information
exchange contemplated in this Agreement, on the basis that it
could potentially be used for law enforcement purposes,
the same could be said in respect of any information exchange
which is generally subject to criminal law measures in the Member
States."
17.6 The Minister refers specifically to Article
3(1) of the Agreement, which requires Member States' competent
authorities to exchange information where there are reasonable
grounds for believing that drugs precursors traded legitimately
may be diverted into illicit drug production, and says,
"[...] it is far from established from the text
of the provisions that the police would be caught within the types
of competent authorities to which Article 3 relates. This provision
concerns the competent authorities of the Parties (i.e. EU and
the Russian Federation) and passing on information about trade
monitoring, so it is not clear why the police forces of individual
Member States would be considered to be covered by this."
17.7 The Minister also alludes to Article 4 of
the Agreement which requires the Parties to provide mutual assistance
through the exchange of information referred to in Article 12(1)(a)
of the 1988 UN Convention concerning the exportation of drug precursors
in order to prevent their diversion into illicit drug production.
He continues:
"It is also
relevant that data sharing in this Agreement is constrained by
the EU's level of participation in the 1988 UN Convention. Currently
there is a strong argument that the reporting and monitoring obligations
undertaken by the EU in respect of its obligations under the 1988
Convention are limited to Article 12 of the Convention: there
is no suggestion that the monitoring and reporting extends to
law enforcement purposes. This also points away from any binding
legal content that may trigger the opt-in."
17.8 The Minister adds that the Government's
broader concerns regarding the inclusion in the Agreement of provisions
on the exchange of information have been allayed. The Commission
has confirmed that the only time personal data might be exchanged
is when the name or business address of a company trading in drug
precursor chemicals is also that of a natural person. He says
that the Irish Presidency will wish to establish a date for signature
of the Agreement once the UK has lifted its scrutiny reserve.
Conclusion
17.9 We thank the Minister for his letter
and note his conclusion that the draft Council Decisions fall
within the scope of the EU's common commercial policy and are
not subject to the UK's Title V opt-in. We are content to clear
them from scrutiny.
53 See (34288) 14394/12: HC 86-xviii (2012-13), chapter
5 (31 October 2012) and HC 86-xx (2012-13), chapter 25 (21 November
2012). Back
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