Documents considered by the Committee on 14th October 2015 - European Scrutiny Contents


13 Customs: illicit trade in tobacco products

Committee's assessment Legally important
Committee's decisionNot cleared from scrutiny; further information requested
Document details(a) Proposal for a Council Decision on the conclusion of the Protocol to eliminate illicit trade in tobacco products to the World Health Organisation's Framework Convention on Tobacco Control for provisions relating to matters falling under Title V (the Title V Decision);

(b) Proposal for a Council Decision on the conclusion of the Protocol to eliminate illicit trade in tobacco products to the World Health Organisation's Framework Convention on Tobacco Control for provisions relating to matters not falling under Title V (the non-Title V decision)

Legal base (a) Articles 82(1), 83, 87 and 218(6)(a) TFEU; EP consent; QMV; (b) Articles 33, 113, 114, 207, 218(6)(a) and 218(8) TFEU; EP consent; unanimity
DepartmentHM Revenue and Customs
Document Numbers (a) (36831), 8563/15 + ADDs 1-2, COM(15) 193;

(b) (36832), 8565/15 + ADDs 1-2, COM(15) 194

Summary and Committee's conclusions

13.1 The Framework Convention on Tobacco Control (FCTC) was adopted in 2003 by the WHO with the aim of reducing tobacco-related deaths and diseases around the world. The EU acceded to the FCTC in June 2004. The parties to the Convention established an Intergovernmental Negotiating Body to draft a protocol to eliminate illicit trade in tobacco products. The Protocol was adopted in November 2012 and contains provisions on the control of the supply chain of tobacco products and of equipment for the manufacture of those products. Our predecessor Committee scrutinised the Council Decisions on the signing of the Protocol by the EU. The Government opted out of the Title V aspects at that stage, while retaining the right to opt in when the substantive measures required to conclude and implement the Protocol were finalised at EU level. The UK and the EU signed the Protocol on December 2013,[ 93] but have not yet ratified it.[ 94] The current documents, once signed, would bring the Protocol into force at EU level.

13.2 Since document (a), the Title V Decision, cites a JHA legal base and contains provisions of a binding JHA nature, the UK's opt-in applies. The Government told us last time that the UK had to notify its opt-in decision to the EU institutions by 6 August. Reminding us that the Government takes opt-in decisions on a case-by-case basis, it noted that because the UK is bound by the entirety of the Protocol in any event, a decision not to opt into the Title V Decision would mean that the UK would simply enact relevant JHA provisions as a separate party rather than on an EU-wide basis.

13.3 The Exchequer Secretary to the Treasury (Damian Hinds) now responds to the questions set out in our Report of 21 July and informs us that the Government has decided not to opt into the Title V Decision.

Previous scrutiny

13.4 When we reported on the documents on 21 July, we recognised the importance of the Protocol in targeting the illicit trade in tobacco products. We noted the 6 August deadline for the UK to notify its opt-in decision. We requested the Minister to reply to the following questions:

i)  Should the Government come to view that there are any provisions in document (b), the Non-Title V Decision, which have JHA content, whether those provisions could be migrated to document (a) or whether instead the Government would assert the opt-in in relation to document (b), in the absence of a Title V legal base, in accordance with the previous Government's opt-in policy; and

ii)  What factors would the Government consider in making the decision on the opt-in.

13.5 We also asked whether the Minister intended that the EU should only act in those areas in the Decisions in respect of which it has exclusive competence; and, if so, how that was made clear by the texts of the Decisions or the accompanying Declaration of Competences.

13.6 We thank the Minister for his prompt response to the questions set out in our Report of 21 July. We note the Government's decision not to opt into the Title V Decision. We ask the Minister, in due course, to send us a copy of the Written Ministerial Statement, notifying Parliament of this decision. We note that, regardless of the opt-in decision, the UK will be bound in its own right in respect of JHA provisions in the Protocol.

13.7 However, we are not comforted by the Minister's assurance that "as long as the JHA decision is drafted in such a way that it purports to cover all the JHA provisions, without specifying particular article numbers, we see no need to assert the opt-in in relation to the non JHA Decision". We note, instead, that the Commission Explanatory Memorandum to the Title V Decision, which in any challenge before the Court of Justice could be used by the Court to interpret the Decision, contradicts what the Minister says about provisions of the Protocol having some JHA content (Article 9, 14, 15, 16, 21, 23, 24, and 26-31). It states that only Articles 7, 14 and 27 of the Protocol fall into this category. We ask the Minister to reconcile these two statements.

13.8 We note, for example, in respect of the Strategic Partnership Agreement between the EU and Canada (see our Report of 9 September)[ 95] the Government's established policy that the EU should act only where it has exclusive competence, leaving the Member States to act where competence is shared. We ask the Minister how this policy is implemented, in the light of his statement that he does not believe there is any exclusive EU competence in respect of JHA measures in the Protocol.

13.9 We welcome the Declaration of Competence. However, we fail to see how the Minister's statement "the Member States shall exercise their competence to the extent that the Union has not exercised its competence" assists transparency, when there is nothing in the text indicating where the EU has already exercised its competence. We ask the Minister to explain this.

13.10 Pending the Minister's response, we retain the documents under scrutiny.

Full details of the documents: (a) Proposal for a Council Decision on the conclusion of the Protocol to eliminate illicit trade in tobacco products to the World Health Organisation's Framework Convention on Tobacco Control for provisions relating to matters not falling under Title V (the Title V Decision): (36831), 8563/15 + ADDs 1-2, COM(15) 193; (b) Proposal for a Council Decision on the conclusion of the Protocol to eliminate illicit trade in tobacco products to the World Health Organisation's Framework Convention on Tobacco Control for provisions relating to matters not falling under Title V (the non-Title V decision): (36832), 8565/15 + ADDs 1-2, COM(15) 194.

The Minister's letter of 1 September 2015[ 96]

13.11 The Minister responds to the conclusions in our Report of 21 July. He says:

    "I welcome the Committee's support for the Framework Convention on Tobacco Control Protocol.

    "In respect of the draft decisions, the Committee will have noted that there is no split of articles specified in the decisions themselves. Accordingly, it is not possible to migrate articles from one to the other as no such split exists.

    "In written comments to the Commission on the draft decisions, the Government has already put on record the articles which we believe to have some JHA content: 9, 14, 15, 16, 21, 23, 24, and 26-31. We will not be opting in to the JHA decision which will, therefore, mean that the UK will not be bound by any of the JHA aspects of those articles as part of the EU. As long as the JHA decision is drafted in such a way that it purports to cover all the JHA provisions, without specifying particular article numbers, we see no need to assert the opt in in relation to the non- JHA decision.

    "Turning to your point regarding exercise of competence, I do not believe that there is any exclusive EU competence in respect of JHA measures in the Protocol, and have put this view on record. The Declaration of Competences Annex (document COM(2015) 194 final), paragraph 3 (page 3) states that:

    'The Member States shall exercise their competence to the extent that the Union has not exercised its competence.'

    "I believe that the combination of this statement and our position that there is no exclusive EU competence should meet the Committee's concerns in this area."

Previous Committee Reports

First Report HC 342-i (2015-16), chapter 30 (21 July 2015).


93   The Protocol is a mixed agreement, where the Member States and the EU both exercise competences. Back

94   The status of ratification by parties to the Protocol is set out here. Back

95   Third Report, HC 342-iii (2015-16), chapter 20 (9 September 2015). Back

96   http://europeanmemoranda.cabinetoffice.gov.uk/files/2015/09/DOC020915-02092015192759.pdf. Back


 
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Prepared 14 October 2015