39 EU participation in prevention of
terrorism measures
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; further information requested
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| 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)
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| Legal base | (a) Articles 82, 83(1), 84, 87(2) and 218(5) TFEU; QMV (b) Articles 83(1) and 218(5) TFEU; QMV
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| Department
Document numbers
| Home Office
(a) (36942), 9975/15 + ADD 1, COM(15) 292
(b) (36941), 9969/15 + ADD 1, COM(15) 291
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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
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