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


31 EU participation in prevention of terrorism measures

Committee's assessment Legally and politically important
Committee's decisionCleared from scrutiny
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

DepartmentHome Office
Document Numbers(a) (36942), 9975/15 + ADD 1, COM(15) 292;

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

Summary and Committee's conclusions

31.1 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. The deadline for notifying the Government's opt-in decision is 17 September.

31.2 The Government questions whether the EU has exclusive competence in the areas covered by the Convention and Additional Protocol (meaning that the EU alone would have the power to sign both instruments to the exclusion of Member State participation). In his latest letter, the Minister for Security (Mr John Hayes) provides further information on the outcome of the Government's competence analysis, refutes the Commission's assertion of exclusive EU competence, and explains why the Government has decided against opting into either instrument.

31.3 We are grateful to the Minister for notifying us promptly of the Government's decision not to opt into these proposed Council Decisions. In light of that decision, we are content to clear the proposals from scrutiny.

31.4 In doing so, we make the following observation. We note that the EU Framework Decision on Terrorism, on which the Commission bases its claim for exclusive external competence, does not state, in terms, that it only establishes minimum standards. If the distinction between minimum standards and common rules is to remain a determining factor in the allocation of competences between the EU and Member States, then the Government should press for this distinction to be made clear in each new EU legislative instrument establishing internal rules.

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; (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

31.5 Our First and Third Reports, agreed on 21 July and 9 September and listed at the end of this chapter, provide a detailed overview of the proposed Council Decisions and the Government's position.

31.6 Out earlier Reports have explored the basis on which the Commission asserts that the EU has exclusive external competence in relation to the Convention and Additional Protocol. Article 3(2) of the Treaty on the Functioning of the European Union (TFEU) provides that such competence arises in cases where participation in an international agreement "may affect common rules or alter their scope".[ 180]

31.7 We reminded the Minister that the Commission had highlighted a number of EU instruments which might be affected by the Convention and Additional Protocol, notably the EU Framework Decision on Terrorism (adopted in 2002 and amended in 2008),[ 181] a Framework Decision on the exchange of information and intelligence between national law enforcement authorities (the so-called "Swedish initiative"),[ 182] the Prüm Decisions enhancing cross-border cooperation to combat terrorism and cross-border crime,[ 183] and a Council Decision on the exchange of information and cooperation concerning terrorist offences.[ 184] 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 is no longer bound by the Framework Decision on Terrorism or the Council Decision on information exchange.[ 185] We asked the Minister whether he considered that all of these instruments, not simply the Framework Decision on Terrorism, were based on minimum standards rather than common rules and could not, as such, give rise to exclusive external competence.

31.8 Whilst noting that the principal instrument relied on by the Commission — the Framework Decision on Terrorism — no longer applies to the UK, following the Government's decision in 2014 to opt out of a number of EU police and criminal justice measures, we found it troubling that the UK and the Commission were unable to agree whether its provisions establish minimum standards or common rules. We shared the Government's concern that the latest texts of the proposed Decisions include a recital stating that the Framework Decision on Terrorism establishes common rules on combating terrorism and that the Convention and Additional Protocol might affect these common rules or alter their scope. As the distinction between common rules and minimum standards is clearly of some importance in determining the extent of EU competence, we asked the Minister whether other Member States agreed with the UK's analysis that the Framework Decision established minimum standards, not common rules, and how minimum standards could be distinguished from common rules.

The Minister's letter of 17 September 2015

31.9 The Minister confirms that the Government has decided not to opt into the proposed Council Decisions, setting out the Government's position in the following terms:

    "I do not agree with the European Commission's assertion of exclusive EU competence. Competence should therefore be exercised by Member States. The Commission has failed to demonstrate that action at EU level on signature of either instrument is required or could implement the Additional Protocol or Convention more effectively than Member States acting alone.

    "Security is a matter for national governments and national parliaments. Whilst co-operation across borders is important — indeed, often necessary — it is for the UK to judge what is best done in our national interest. Not opting in to these proposals will ensure that the UK cannot be caught by any exercise of EU competence in this area, in line with the previous Government's decision not to opt back in to the EU Framework Decision 2002/475/JHA on combatting terrorism, as amended, under the Protocol 36 decision.[ 186]

    "While we consider there to be value in signing the Additional Protocol, I remain of the view that this is a matter for Member States. The UK will take a decision on signature of the Additional Protocol, once it is opened formally for signature."

31.10 The Minister does not consider that any of the EU measures identified by the Commission as being relevant to the Convention and Additional Protocol (see paragraph 8 above) give rise to exclusive external competence, adding:

    "Provision for the exchange of information in relation to terrorism matters is far from harmonised nor largely covered by EU law. There are no common rules in this field which could be affected or altered in their scope.

    "This approach is underlined by the fact that the most recent draft Decisions state that the Republic of Ireland is automatically bound as it takes part in the Framework Decision on Combating Terrorism (2002/475/JHA). This helps to clarify that the exclusive EU external competence argued for by the Commission and agreed by the Council is derived solely from 2002/475/JHA, not from the other measures referred to in the Commission's explanatory memorandum. The Irish recital suggests that if exclusive EU external competence to sign the Convention and Additional Protocol was derived from measures that the UK takes part in, there would have been arguments that the UK should also be automatically bound. No such arguments were made by the Council, suggesting they accept there is no exclusive EU external competence arising from the other measures."

31.11 Whilst the Government considers that the Framework Decision on Terrorism contains minimum standards rather than common rules, other Member States appear to take a different view:

    "During negotiations on these Council Decisions, some Member States took the view that there was shared competence in relation to EU legislation in this area, including references to minimum standards rather than common rules. However, most Member States are less focused on the definition between exclusive EU competence and shared competence, and more focused on ensuring the EU does not act in areas of Member State competence. Whilst the Government's position is that the Member States rather than the EU should act where competence is shared, other Member States are generally content for the EU to act where competence is shared. Therefore, the addition to the text of the limitation on the exercise of EU competence "as regards matters falling within the Union's competence" ameliorated the concerns of most Member States, and they were content to accept that there was at least some exclusive EU external competence arising from the Framework Decision 2002/475/JHA."

31.12 In terms of distinguishing between minimum standards and common rules, the Minister suggests:

    "[A]t its simplest, minimum standards set rules but allow Member States to go further, whereas common rules require all Member States to do something exactly the same way, without deviation."

31.13 He continues:

    "It is also important when deciding whether there is exclusive external competence to consider whether there would be an adverse impact on internal (common) rules from the relevant international agreement. This requires consideration of the extent that internal rules allow Member States to deviate, an assessment which has been noticeably lacking from the Commission's proposals in relation to signature of the Additional Protocol and Convention.

    "Exclusive competence (as set out in Article 3(2) TFEU) only arises if the proposed agreement could affect the EU's internal rules, or alter their scope. But if both the proposed agreement and the internal rules set minimum standards, then the agreement could not affect the internal rules. Regardless of which minimum standards are more stringent, Member States will always be able to comply with both. Since there is no possibility that the minimum standards in the international agreement could affect the minimum standards in EU law, Member States will be free to enter into the agreement on their own behalf. I believe that this is the case in relation to the Convention and Additional Protocol, and therefore the Government did not opt in."

31.14 The Minister expects the proposed Council Decisions to be adopted at the Environment Council on 18 September, thus enabling the Council of Europe to open the Additional Protocol for signature as soon as possible.

Previous Committee Reports

Third Report HC 342-iii (2015-16), chapter 27 (9 September 2015); First Report HC 342-i (2015-16), chapter 39 (21 July 2015).


180   Article 3(2) TFEU provides that the EU has exclusive competence for the conclusion of an international agreement "when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope". This Article is supplemented by a considerable body of case law. Back

181   Framework Decisions 2002/475/JHA and 2008/919/JHA. See p.4 of the Commission's explanatory memorandum accompanying document (b). Back

182   Framework Decision 2006/960/JHA. Back

183   Council Decisions 2008/615/JHA and 2008/616/JHA. Back

184   Council Decision 2005/671/JHA. Back

185   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

186   The "Protocol 36 decision" refers to the decision taken by the previous Government in 2014 to opt out of a number of EU police and criminal justice measures adopted before the Lisbon Treaty took effect on 1 December 2009. Back


 
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Prepared 14 October 2015