Documents considered by the Committee on 21 July 2015 - European Scrutiny Contents


39 EU participation in prevention of terrorism measures

Committee's assessment Legally and politically important
Committee's decisionNot cleared from scrutiny; further information requested
Document details(a) Proposal for a Council Decision on the signing, on behalf of the European Union, of the Council of Europe Convention on the Prevention of Terrorism (CETS No. 196); (b) Proposal for a Council Decision on the signing, on behalf of the European Union, of the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism (CETS No. 196)
Legal base(a) Articles 82, 83(1), 84, 87(2) and 218(5) TFEU; QMV (b) Articles 83(1) and 218(5) TFEU; QMV
Department

Document numbers

Home Office

(a) (36942), 9975/15 + ADD 1, COM(15) 292

(b) (36941), 9969/15 + ADD 1, COM(15) 291

Summary and Committee's conclusions

39.1 The purpose of these proposed Council Decisions is to authorise the EU to sign the Council of Europe Convention on the Prevention of Terrorism 2005 — document (a) — and a recently agreed Additional Protocol — document (b). Both proposals are subject to the UK's Title V (justice and home affairs) opt-in, meaning that the UK will only be bound by them if it decides to opt in.

39.2 The Minister for Security (Mr John Hayes) questions whether the Commission has established that the EU has exclusive competence in the areas covered by the Convention and Additional Protocol and explains that the Government is undertaking its own competence analysis. He indicates that the Government is "minded" not to opt into the proposed Council Decision authorising the EU to sign the Additional Protocol — document (b).

39.3 We understand that the basis for the Commission's claim to exclusive external competence is that participation in the Convention and Additional Protocol may affect common EU rules or alter their scope. We do not consider that the Commission has provided a sufficiently comprehensive and detailed analysis of the relationship between the Convention and Additional Protocol on the one hand, and existing EU rules on the other, to establish that the EU has exclusive external competence. Nor are we satisfied that there is sufficient certainty regarding "the foreseeable future development" of these rules to establish that the Convention and Additional Protocol would be capable of undermining the uniform and consistent application of EU rules and the proper functioning of the system which they establish.[ 309]

39.4 We note that the Government is undertaking its own competence analysis and ask the Minister to share the outcome with us. If this analysis were to reveal that there are areas in which the EU has exclusive external competence, we ask the Minister for an assurance that he will press for the proposed Council Decisions to be amended to make clear that the EU is only acting in respect of matters for which it has exclusive competence. We also ask him to explain how a finding that the EU has exclusive external competence for elements of the Convention and/or Additional Protocol would affect the UK's opt-in decision.

39.5 The Minister indicates that the Government is "minded" not to opt into the proposed Decision on signature of the Additional Protocol — document (b) — in order to ensure that the UK is not bound by EU competence, but provides no such indication of the Government's intentions in relation to the Convention — document (a). We note that one of the factors influencing the Government's opt-in decisions is the risk that UK participation in either or both proposed Decisions might undermine the UK's "block opt-out" of a range of EU police and criminal justice measures adopted before the Lisbon Treaty took effect on 1 December 2009, including some of the measures which provide the foundation for the Commission's claim to exclusive competence. We consider this to be a valid concern. It would appear perverse to opt out of measures establishing EU competence in the internal sphere, only to reinstate EU competence by opting into similar measures in the external sphere. We ask the Minister to ensure that the reasons for the Government's opt-in decisions in relation to both instruments are fully explained to Parliament.

39.6 In principle, we agree with the Minister that, in areas where competence is shared, Member States should act in their own right. We do not consider that the Commission has demonstrated how or why action by the EU in the areas covered by the Convention and Additional Protocol would produce clear "added value". We ask the Minister to report back to us on the progress made by the Government in limiting or eliminating EU involvement in both instruments.

39.7 Pending further information, the proposed Council Decisions remain under scrutiny.

Full details of the documents: (a) Proposal for a Council Decision on the signing, on behalf of the European Union, of the Council of Europe Convention on the Prevention of Terrorism (CETS No. 196): (36942), 9975/15 + ADD 1, COM(15) 292; and (b) Proposal for a Council Decision on the signing, on behalf of the European Union, of the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism (CETS No. 196): (36941), 9969/15 + ADD 1, COM(15) 291.

Background

39.8 On 16 June, the Security Minister wrote to advise us that the Government had decided not to opt into a Council Decision authorising the Commission to negotiate, on behalf of the EU, an Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism 2005 ("the Convention") and that the UK had participated in "fast track" negotiations on the Additional Protocol in its own right. The Minister accepted that the EU had shared competence for matters contained in the Additional Protocol, and that the Commission was entitled to seek Council approval authorising it to negotiate on behalf of the EU. The UK and a number of other Member States objected, however, to the Commission's assertion that the EU had exclusive competence, meaning that only the EU, not Member States, could take part in the negotiations. The Council nevertheless proceeded to adopt a Decision authorising the Commission to negotiate, without defining the areas in which the EU is (and is not) competent to act. The Minister expected the issue of competence to be addressed when the Commission proposed Council Decisions authorising signature of the Additional Protocol.[ 310]

39.9 In our reply to the Minister, we deprecated the haste with which the Decision authorising the Commission to negotiate on behalf of the EU was adopted by the Council, without resolving the existence or extent of EU competence in relation to counter-terrorism measures. In the circumstances, we agreed that it would have been inappropriate for the UK to opt into the Council Decision.

39.10 The Commission has now put forward proposals authorising the EU to sign both the Convention and the Additional Protocol. These Council of Europe instruments are intended to strengthen efforts at national and international level to prevent and combat terrorism and to address the phenomenon of foreign terrorist fighters. The Convention was adopted in the aftermath of the 9/11 terrorist attacks in the United States of America. State Parties to the Convention are required to establish as criminal offences action which may lead to the commission of a terrorist offence, such as public provocation or incitement of terrorism, recruitment for terrorism and the provision of training for terrorism. These offences must be accompanied by "effective, proportionate and dissuasive penalties" and implemented in a way which respects human rights obligations, in particular the right to freedom of expression, association and religion. There are specific provisions on protection, support and compensation for victims of terrorism. The Convention also includes rules on jurisdiction and on international cooperation in investigating and prosecuting terrorist offences.

39.11 Negotiations on an Additional Protocol to the Convention were concluded within the Council of Europe in April this year. The purpose of the Additional Protocol is to give effect to UN Security Council Resolution (UNSCR) 2178 (2014) which was adopted in September 2014 and seeks to strengthen the legal framework for preventing terrorism and tackling foreign terrorist fighters.[ 311] The Additional Protocol extends the categories of acts which are to be made serious criminal offences to include participation in an association or group for the purpose of terrorism, receiving training for terrorism, and travelling abroad (or funding or otherwise facilitating such travel) for the purpose of terrorism. State Parties are also required to designate an around-the-clock contact point to exchange information on foreign terrorist fighters.

39.12 There is a mixed picture on signature and ratification of the Convention by EU Member States (the Additional Protocol is not yet open for signature). One Member State has neither signed nor ratified the Convention. Six, including the UK, have so far signed, but not ratified, the Convention. The remaining 21 EU Member States have ratified it. Although the EU is entitled to become a Party to the Convention and Additional Protocol, it has not yet done so.[ 312]

39.13 Within the EU legal framework, a Framework Decision adopted in 2002, and amended in 2008, requires Member States to establish various acts as terrorist offences, including those set out in the Council of Europe Convention on the Prevention of Terrorism, and to ensure that they are punishable by "effective, proportionate and dissuasive penalties".[ 313] A statement agreed by EU Justice and Home Affairs Ministers in January 2015, following the Charlie Hebdo attacks in Paris, underlined the importance of the judicial aspect of combatting terrorism and the need to "consider further legislative developments with regard to the common understanding of criminal activities related to terrorism in light of UNSCR 2178 (2014)".[ 314]

39.14 The Convention takes account of existing EU rules covering areas also governed by the Convention by means of a "disconnection clause" which provides that EU rules prevail in relations between EU Member States.[ 315]

39.15 The UK no longer participates in the 2002 Framework Decision, as amended, following its decision to opt out en masse of a range of EU police and criminal justice measures agreed before the Lisbon Treaty entered into force on 1 December 2009. The UK's block opt-out took effect on 1 December 2014. In choosing to opt out of the Framework Decisions, the Government explained that they created "a useful standard for terrorist offences" and "a more hostile environment for terrorists" across Europe, but added that the offences concerned "could be achieved by Member States acting individually".[ 316]

The proposed Council Decisions

39.16 The first proposed Council Decision — document (a) — provides for the EU to sign the Convention, subject to a further Decision authorising the EU to conclude (ratify) the Convention. It cites four Articles in the Treaty on the Functioning of the European Union (TFEU) as the basis for the EU's competence to sign the Convention:

·  Article 82 TFEU sets out a number of areas in which the EU may adopt legislative measures to strengthen judicial cooperation in criminal matters, including resolving conflicts of jurisdiction, providing support for judicial training, and establishing minimum rules on the rights of victims of crime;

·  Article 83(1) TFEU provides for the adoption of minimum rules concerning the definition of criminal offences and sanctions in areas of "particularly serious crime with a cross-border dimension", including terrorism;

·  Article 84 TFEU authorises the EU to adopt measures to "promote and support the action of Member States in the field of crime prevention", but excludes any harmonisation of national laws; and

·  Article 87(2) TFEU provides for measures in the field of police cooperation, including training and the exchange of information to prevent, detect and investigate criminal offences.

39.17 The second proposed Council Decision — document (b) — provides for the EU to sign the Additional Protocol to the Convention, and is similarly subject to a further Decision authorising the EU to conclude (ratify) the Additional Protocol. It cites only Article 83(1) TFEU as the basis for the EU's competence to act.

39.18 The procedures for authorising the EU to sign the Convention and Additional Protocol are set out in Article 218(5) TFEU. Both proposed Decisions require approval by a qualified majority of the Council. Further Council Decisions (not yet published) ratifying the EU's participation in the Convention and Additional Protocol will, in addition, require the consent of the European Parliament.

39.19 In its explanatory memorandum accompanying the proposals, the Commission notes that "there is a large body of EU instruments governing the various areas covered by the Convention" and that the EU has competence to sign and become a Party to the Convention "to the extent that the Convention falls within Union competence".[ 317]

39.20 The Commission sets out the basis on which the EU has exclusive competence in relation to international agreements. Article 3(2) TFEU provides that such competence arises in cases where participation in an international agreement "may affect common rules or alter their scope". The Commission continues:

    "An international agreement may affect common rules or alter their scope where the area covered by the agreement overlaps with Union legislation or is covered to a large extent by Union law. Moreover, to assess whether an area is covered to a large extent by Union law account must be taken not only of Union law as it currently stands in the area concerned, but also of its future development, in so far as that is foreseeable" (our emphasis).[ 318]

39.21 The Commission notes that the EU has already adopted measures in areas covered by the Additional Protocol. It says that relevant criminal law provisions are contained in the EU Framework Decision on Terrorism, whilst recognising that the Additional Protocol would "widen the scope of the offences that must be criminalised".[ 319] Provisions on enhanced information exchange can be found in a variety of EU instruments, notably a Framework Decision on the exchange of information and intelligence between national law enforcement authorities (the so-called "Swedish initiative"), the Prüm Decisions enhancing cross-border cooperation to combat terrorism and cross-border crime, and a Council Decision on the exchange of information and cooperation concerning terrorist offences.[ 320] According to the Commission, these instruments regulate the exchange of information for the purpose of terrorist-related investigations and also establish national contact points. As a consequence, "the conclusion of the Additional Protocol may therefore affect common rules or alter their scope".[ 321]

39.22 The UK participates in the Swedish initiative, is currently undertaking a "business and implementation case" with a view to deciding whether to seek to opt into the Prüm Decisions, but does not take part in the Council Decision on information exchange.[ 322]

39.23 Turning to "the foreseeable future development" of EU law, the Commission notes that the Council has called for a possible revision of the Framework Decision on Terrorism in 2016 to take account of the provisions of UNSCR 2178 (2014) concerning foreign terrorist fighters. The Commission also intends to launch an impact assessment of the Framework Decision with a view to updating its provisions to reflect the outcome of negotiations on the Additional Protocol to the Convention.

39.24 The Commission recognises that both proposed Council Decisions will not apply to the UK unless the Government notifies its intention to opt in.

The Minister's Explanatory Memorandum of 29 June 2015

39.25 The Minister explains that the UK participated fully in the development of the Additional Protocol, which was adopted by the Council of Europe on 19 May, and has domestic legislation in place which is compliant with the requirements of both the Convention and the Additional Protocol.[ 323] He recalls that the UK objected to the Commission's assertion of exclusive external competence when it sought a mandate from the Council to negotiate the Additional Protocol earlier in the year. He continues:

    "The Government remains of the view that substantive criminal law, including in relation to CT [counter-terrorism] measures, is not harmonised at EU level, and therefore cannot be said to be largely covered by common rules. While there are existing EU minimum standards in this area, minimum standards are not common rules and are therefore incapable of generating exclusive external EU competence in accordance with Article 3(2) TFEU. We accept that there is shared competence in this area, and it is therefore for the Council to decide whether to authorise the Commission to negotiate, sign and conclude the Additional Protocol on behalf of the EU. In the case of the negotiating mandate, the Council agreed to authorise the Commission to negotiate to the extent that there was EU competence. As the UK did not opt in to this Decision, we had no vote."[ 324]

39.26 Turning to the Convention, the Minister notes that it covers a range of policy areas, as reflected in the legal bases cited in the proposed Council Decision. He adds:

    "The Government is undertaking a competence analysis of the Convention to decide whether there is any exclusive EU competence arising from it. We remain of the view that the main EU legislation in policy areas covered by the Convention is minimum standards in substantive criminal law (related to Counter-Terrorism), which give rise only to shared competence for Member States to exercise. In the event that we consider there to be any exclusive EU competence arising from EU legislation in the areas covered by the Convention, the Government would push for this Decision to cover only the areas of exclusive EU competence."[ 325]

39.27 The Minister considers that the proposed Council Decision relating to the Additional Protocol — document (b) — does not comply with the principle of subsidiarity. He explains:

    "As signature and ratification of the Additional Protocol is a matter of shared competence, for Union action to be justified it would be necessary for the Commission first, to demonstrate the proposed action cannot be sufficiently achieved by the Member States, either at a central level or at regional or local level; and secondly, to demonstrate that the proposed action could be better achieved at Union level. Neither of those criteria is satisfied."[ 326]

39.28 The Minister does not rule out the possibility that some exclusive EU competence may arise from common EU rules covering the same area as the Convention. This is significant as the principle of subsidiarity does not apply in areas where the EU has exclusive competence to act. If the Government does identify areas of exclusive EU competence, following its competence analysis of the Convention, then the Minister says he will push for the first Council Decision — document (a) — only to cover those areas, in accordance with the subsidiarity principle.

39.29 Both of the proposed Council Decisions are subject to the UK's Title V (justice and home affairs) opt-in. The deadline for the UK to notify its opt-in decisions is 17 September 2015. The Minister sets out the factors which the Government will consider in reaching a decision. They include:

·  the extent to which opting in would give the EU additional competence, in relation to the UK, in areas of EU law and policy by which the UK is no longer bound, following its decision to opt out en masse of a range of EU police and criminal justice measures adopted before the Lisbon Treaty entered into force on 1 December 2009. The UK's "block opt-out" of these measures took effect on 1 December 2014; and

·  the outcome of the Government's assessment of EU competence in areas covered by the Convention and Additional Protocol, particularly if this reveals that existing EU legislation provides the EU with exclusive external competence.

39.30 The Minister reiterates the Government's view that:

    "[…] in areas of shared competence it is Member States which should exercise competence externally, unless the Commission were to put forward a compelling reason for the EU to exercise competence. The Government sees no compelling reason for the EU to exercise shared competence in the Commission's Explanatory Memorandum."[ 327]

39.31 The Minister again recalls that the Government decided not to opt into the Council Decision authorising the Commission to negotiate the Additional Protocol on behalf of the EU so as to ensure that "the UK is not bound by EU competence" in the areas covered by the Additional Protocol. As the Government's assessment of the Additional Protocol has not changed since then, the Minister indicates that he is "minded" not to opt into the Decision on signature — document (b).

39.32 Finally, the Minister expects the Government to decide whether or not to sign the Additional Protocol and to ratify it along with the Convention "in due course".

Previous Committee Reports

None.


309   See para 33 of the judgment of the Court of Justice in Case C-66/13, Green Network. Back

310   See letter of 16 June 2015 from the Security Minister to the Chair of the European Scrutiny Committee.  Back

311   UNSCR 2178 (2014). Back

312   List of signatures and ratifications. Back

313   Framework Decision 2002/475/JHA and Framework Decision 2008/919/JHA. Back

314   See the Riga Joint Statement issued by EU Justice and Home Affairs Ministers. Back

315   See Article 26(3) of the Convention. Back

316   See p. 91 of Command Paper 8671, published in July 2013. Back

317   See p.2 of the Commission's explanatory memorandum accompanying document (a). Back

318   See p.4 of the Commission's explanatory memorandum accompanying document (b). The Commission relies on a Court of Justice ruling in Case C-66/13, Green Network. Back

319   See p.4 of the Commission's explanatory memorandum accompanying document (b). Back

320   See Framework Decision 2006/960/JHA; Council Decision 2008/615/JHA; Council Decision 2005/671/JHA. Back

321   See p.5 of the Commission's explanatory memorandum accompanying document (b). Back

322   See Command Paper 8897, published in July 2014. The Government has undertaken to present to Parliament in September 2015 the results of a business and implementation case on UK participation in Prüm. The final decision on UK participation will depend on the outcome of a vote to be held in Parliament before the end of 2015. Back

323   For example, the Terrorist Acts 2000 and 2006, the Serious Crime Act 2015 and the Counter-Terrorism and Security Act 2015. See paras 25 and 26 of the Minister's Explanatory Memorandum.  Back

324   See para 23 of the Minister's Explanatory Memorandum. Back

325   See para 24 of the Minister's Explanatory Memorandum. Back

326   See para 18 of the Minister's Explanatory Memorandum. Back

327   See para 21 of the Minister's Explanatory Memorandum. Back


 
previous page contents next page


© Parliamentary copyright 2015
Prepared 30 July 2015