Documents considered by the Committee on 3 July 2019 Contents

2EU participation in GRECO

Committee’s assessment

Legally and politically important

Committee’s decision

(a) Not cleared from scrutiny; further information requested; (b) Cleared from scrutiny

Document details

(a) Proposed Council Decision on the position to be taken, on behalf of the European Union, in the 83rd Plenary Meeting of the Group of States against Corruption (GRECO) as regards the participation of the European Union as observer in GRECO; (b) Commission Communication on Participation of the European Union in GRECO

Legal base

Article 83 TFEU in conjunction with Article 218(9) TFEU; QMV

Department

Ministry of Justice

Document Numbers

(a) (40688), 9850/19, COM(19) 273; (b) (34358), 15305/12, COM(12) 604

Summary and Committee’s conclusions

2.1GRECO is the Council of Europe’s anti-corruption organisation. It was established in 1999 to monitor contracting States’ compliance with anti-corruption standards set out in the Criminal Law Convention on Corruption and the Civil Law Convention on Corruption. GRECO has 49 members. These include all of the 28 EU Member States in their own right as well as the USA and ten observers.

2.2The EU does not currently participate in GRECO although this has been a priority for its cooperation with the Council of Europe for some time. It is one of the few bodies of the Council of Europe for which the EU has no dedicated legal framework for cooperation. Instead informal cooperation is based on a Memorandum of Understanding. The lack of observer or other status means that the EU cannot attend GRECO meetings and therefore opportunities for it to cooperate fully with other GRECO members on common rule of law and anti-corruption issues are limited.

2.3On 21 June the Government deposited with us a proposed Council Decision on the position to be taken by the EU in the 83rd meeting of GRECO concerning the EU’s participation in that body as an observer (document (a)). This is an unexpected development. The last time a prior Government wrote to our predecessors concerning the question of EU participation in GRECO was on 28 March 2014. As the “background” section to this Report (paragraphs 2.17–2.19 of this chapter) explains, previous Committees have held under scrutiny a Commission Communication (document (b)) since 2012. Little progress has been made since then in getting any agreement in principle from Member States to the proposal in that Communication for a staggered type of EU participation in GRECO.

2.4We understand from the Government that the Commission’s proposal was published on 6 June and adopted at Council on 18 June, to enable the EU to attend the GRECO plenary on 17–21 June meeting as an observer. The decision to grant the EU observer status can only be passed by the unanimous vote of GRECO members at that plenary meeting. If unanimity is not reached, then the matter may be referred to the Committee of Ministers for a decision by two thirds of its representatives. The substantive legal basis of the proposal is Article 83 TFEU. This concerns criminal justice cooperation in relation to serious crimes. Consequently, the UK’s Justice and Home Affairs opt-in (Protocol 21 to the EU Treaties) applies to the proposed Council Decision.

2.5On 25 June 2019, the Lord Chancellor and Secretary of State for Justice (Rt Hon. David Gauke MP) submitted a Written Ministerial Statement6 (WMS) to the House. This states that the Government is supportive of the EU gaining observer status in GRECO and attending the June meeting but has not opted in to the adoption and application of the proposed Council Decision.

2.6The Minister also explains that the UK did not have the normal three-month period under the JHA protocol to decide whether to opt into the proposal. It is therefore not bound by the proposal. The Minister concludes that in this case there are no practical consequences given that the proposal only concerns the EU’s status as an observer in this international body. The UK therefore tabled a minute statement in the Council expressing regret about not having had the full period of time to consider its opt-in decision, that Parliamentary scrutiny procedures had not been observed as a result and that this instance should not constitute a precedent for future similar decisions.

2.7The Minister’s Explanatory Memorandum (EM) of 26 June which followed his WMS, provides some supplementary background concerning the adoption of the proposal and the process in the GRECO plenary. But in terms of policy implications does not add to the Government’s view of the proposal as already set out in the WMS.

Our Conclusions

2.8We now clear the Commission Communication (document (b)) from scrutiny as it has been superseded by the proposed Council Decision (document (a)) and by the UK’s decision to leave the EU.

2.9We retain document (a) under scrutiny until we receive the Minister’s answers to the following questions concerning his department’s handling of the scrutiny of this document. In doing so, we acknowledge the efforts of his officials to contact our staff in advance of the receipt of his Explanatory Memorandum to provide some advance background to the document. However, this is no adequate substitute for the Minister’s own accountability to this Committee.

Compliance with the Government’s Code of Practice on Parliamentary scrutiny of justice and home affairs opt-in decisions

2.10We understand from the Minister’s Written Ministerial Statement (WMS) that the UK decided not to opt into this proposal, even though it had not been afforded the full three-month opt-in period to make this decision.

2.11We are particularly disappointed that neither the Minister’s WMS nor his Explanatory Memorandum makes an explicit reference7 to the Government’s Code of Practice on scrutiny of EU justice and home affairs opt-in decisions which includes the following enhanced scrutiny commitments:

2.12We ask the Minister to:

Principle of sincere cooperation during the Article 50 extension period

2.13We would expect Parliament to be informed officially if the UK had in any way agreed to or refrained from contesting the non-observance of its Treaty right to have three-months to make an opt-in decision. Especially if any such approach was informed by the anticipation of the UK’s departure from the EU on 31 October 2019 (in default of the draft Withdrawal Agreement being ratified earlier, a further extension of the Article 50 TEU period or revocation of the UK’s Article 50 notification).

2.14We recall the conclusions to our Report of 8 May 2019 on another matter within the Minister’s remit (concerning the rule of law in Poland and Hungary) where we said in relation to the Government not participating in a particular initiative:

We ask the Minister to confirm whether this abstinence is a direct example of the UK acting as indicated in Recital 10 of the second European Council Decision of 11 April to extend the Article 50 process. In other words, although the UK retains its full membership rights during the extension, it is expected to exercise them in accordance with the principle of sincere cooperation given that it is a “withdrawing Member State”. This strikes us as a potentially important and serious area of discretion for the Government. We therefore request that as on this dossier, the Government is clear about when it is holding back from exercising its full membership rights under the EU Treaties because it judges it to be inappropriate to do so as an exiting Member State. To hold the Government to account for such discretionary self-denial of exercise of Treaty rights falls squarely within the remit of this Committee. We also note that such an approach would put the Government in contradiction with the standard paragraph in all of its Explanatory Memoranda, which states that “Until exit negotiations are concluded, the UK remains a full member of the EU and all the rights and obligations of EU membership remain in force. During this period, the Government will also continue to negotiate, implement and apply EU legislation”.

We remind the Minister that we have yet to have a response to this Report. We would be grateful if he could now respond to our concerns in this respect on both that document and the current document. If a policy of not exercising Treaty rights or not insisting on the observance of UK Treaty rights is beginning to be practised by the UK Government in certain circumstances, we request that the Government at least be transparent about it. Even in respect of proposals, such as the one under scrutiny, which we accept may only have a minimal practical effect for the UK.

Legal basis

2.15Following the Court of Justice’s judgment in the Germany v Council (C-399/12), it is our understanding that the proposed Council Decision to allow the EU to be an observer in GRECO must concern an act of that body “capable of decisively influencing the content of the legislation adopted by the EU legislature in the area” to fall within the scope of Article 218(9) TFEU. We therefore ask the Minister to confirm that he is satisfied that Article 218(9) TFEU is the correct procedural legal basis for this proposal and if so, why.

Outcome of the GRECO Plenary Meeting

2.16The Minister omits to update us on the outcome of the Greco Plenary meeting. We would be grateful if he could confirm whether GRECO members voted unanimously to approve the EU’s observer status or whether the matter has been referred to the Council of Ministers. As the UK is also a member of GRECO in its own right, we would be grateful if he could confirm whether the UK voted in favour of the EU’s observer status in this capacity. This is clearly not a question of our scrutiny reserve, but is information of interest to Parliament.

Full details of the documents

(a) Proposal for a Council Decision on the position to be taken, on behalf of the European Union, in the 83rd Plenary Meeting of the Group of States against Corruption (GRECO) as regards the participation of the European Union as observer in GRECO: (40688), 9850/19, COM(19) 273; (b) Commission Communication on Participation of the European Union in the Council of Europe Group of States against Corruption (GRECO): (34358), 15305/12, COM(12) 604.

Background

2.17In a Communication (document(b)) published in 2012 the Commission proposed to “step up” the EU’s informal cooperation with GRECO to a level of full participation (as opposed to full membership), with the possibility of progressing to a second stage of full membership within four years of initial participation.

2.18This approach was favoured by the Commission because “full membership” would require EU institutions themselves to be monitored and evaluated by GRECO. This would be problematic as that system was not designed for regional organisations. The “full participation” approach would mean that the EU would not be subject to evaluation processes, but still enjoy similar rights (with the exception of voting) to its Member States as members of GRECO, including involvement in their monitoring and evaluating them. In the absence of reciprocal accountability, the Government of the time could see no value to either the EU or UK of EU participation in GRECO. It also disputed the proposed Article 220 TFEU legal base for EU participation in GRECO, arguing that the proposed model of participation went beyond mere cooperation envisaged by Article 220 TFEU: Article 218 TFEU was the correct legal base.

2.19When our predecessors first considered the Communication, they asked the then Government to elaborate further on its concerns about the legal base for the proposed participation. They also questioned whether it was appropriate for the Commission to avoid accountability within GRECO at time of heightened public concern about fraudulent disbursement of EU funds. Then on 27 January 2013 the then Lord Chancellor (Rt Hon. Chris Grayling MP) reiterated the Government’s views about the legal base. He also said that the Government was supported by other Member States in arguing that only the Council could authorise the opening of negotiations. EU participation involved “policy-making” (the prerogative of the Council under Article 16 TEU) and the Government believed that authorisation should be achieved by way of Council conclusions. He added that the Government would continue to consider the proposals carefully to ensure proper division of competences and equal accountability of the EU and GRECO members. Our predecessors in response asked to be kept informed of developments. The last communication they received from the then Government was on 28 March 2014, when the Minister wrote to say that:

The most significant of these is the Commission’s indication that it proposes for the EU to apply for full membership of GRECO, operating on the basis on Article 220 of the Treaty of the functioning of the European Union. The Commission highlighted this aim at the January 2013 General Affairs and Evaluation Committee (GENVAL) meeting, the June 2013 GRECO plenary, and again in the EU anti-corruption report published in February.

The Commission, in cooperation with other EU institutions, is currently conducting an assessment of the legal and practical implications of full EU membership of GRECO. We understand that the assessment should conclude this year, and the Commission will thereafter inform Member States of the outcome. We will need to consider the EU’s application once submitted before offering a Government opinion.”

2.20The Minister undertook to keep the Committee informed of any further developments. Our predecessors anticipated hearing again from the Government once the outcome of the Commission’s assessment was known. There have been no Ministerial updates since that time.

Previous Committee Reports

(a) None; (b) Thirty-second Report HC 86–xxxii (2012–13), chapter 6 (13 February 2013); Twenty-second Report HC 86–xxii (2012–13), chapter 11 (5 December 2012).


6 HCWS1653, 25 June 2019.

7 The Minister simply mentions in passing in his WMS that “the Council Decision had not gone through Parliamentary scrutiny processes and that the procedure should not constitute a precedent for similar decisions”.




Published: 9 July 2019