APPENDIX 5
DRAFT CONVENTION ON MUTUAL ASSISTANCE
AND CO-OPERATION BETWEEN CUSTOMS ADMINISTRATIONS (NAPLES II)
EXPLANATORY NOTE ON WORK CARRIED OUT
UNDER TITLE VI (JUSTICE AND HOME AFFAIRS) OF THE TREATY ON EUROPEAN
UNION
SUBMITTED BY
HM CUSTOMS AND
EXCISE
This explanatory note and the attached document are being
made available to Parliament in line with the Government's commitment
to keep Parliament informed of work being carried out under Title
VI (the Justice and Home Affairs Pillar) of the Treaty of European
Union. The proposal under discussion would not lead to Community
legislation, does not form part of a communication from one Community
Institution to another and is outside the scope of the scrutiny
rules that apply to Community proposals.
Subject Matter
1. Attached to this note is the draft text of a Convention
on Mutual Assistance and Co-operation between customs Administrations
of the European Union (Naples II). Discussions on a new Convention
began in 1992. Early drafts of the Convention incorporated proposals
for a Customs Information System (CIS) which were subsequently
removed and progressed under a separate Convention. An explanatory
note in relation to the CIS Convention was submitted to Parliament
on the 8 March 1994, while the Convention itself was signed by
the Council at Cannes in June 1996. Following agreement on the
CIS Convention work resumed on the draft Naples II Convention.
2. The draft Naples II Convention will update and develop
the existing 1967 Naples Convention on Customs Co-operation and
is designed to improve Customs cross-border co-operation in the
fight against drugs trafficking and other customs offences. The
forms of co-operation proposed under the Convention are of considerable
operational value and the Convention will increase the pressure
on Member States to participate in such activities.
3. In the UK, the offences that the Convention will cover
are solely a matter for HM Customs and Excise. In some other Member
States, the powers of customs services are more limited and the
Convention will apply to law enforcement agencies other than Customs
in those Member States.
4. The Convention will provide for "administrative"
assistance between Customs authorities. For example, it sets out
procedures to be followed when one Member State requires information
from another Member State; it will provide for a Member State
to carry out surveillance or to make enquiries in its territory
on behalf of another Member State; and it will commit Member States
to offer spontaneous assistance when they come across information
which may be of use to other Member States in the day-to-day customs
co-operation in the EU.
5. The Convention will also provide for "special forms
of co-operation" between Customs authorities. Title IV of
Naples II will allow law enforcement officers from one Member
State to conduct certain activities on the territory of another
Member State. These special forms of co-operation include hot
pursuit, cross-border surveillance, covert investigations and
controlled deliveries. However, the Convention will allow those
Member States that wish to opt out of certain forms of co-operation.
6 Article 20 - hot pursuit - will authorise law enforcement
officers to cross borders without prior approval where the matter
is so urgent that officials of the Member State being entered
cannot be contacted before the border is crossed. When in hot
pursuit those law enforcement officers will be able to detain
suspects, conduct searches and carry their official firearms,
use of which would be permitted in self-defence. Member States
may opt out of this Article.
7. Article 21 - cross-border surveillance - will authorise
law enforcement officers to continue their surveillance of someone
suspected of committing customs offences after that person has
entered another Member State's territory. Such surveillance will
require the authorisation in advance of the Member States concerned
except in particularly urgent cases where obtaining permission
in advance is impractical. In the latter cases the Member State
concerned would be notified immediately after the border is crossed
and a request submitted at that point. Member States may opt out
of all or part of this Article.
8. Article 22 wil provide for controlled delivery. This technique
enables customs authorities to allow consignments of drugs and
other prohibited goods to pass through their controls and be kept
under surveillance until they reach their final destination. This
technique is valuable in cross-border investigations as it allows
investigators to discover more about the criminal organisations
involved in the operation, and is effective in disrupting criminal
gangs.
9. Article 23 will provide for covert investigations in the
territory of other Member States. Such investigations would only
ever take place with the approval of the host Member State, and
the host Member State would be able to set any conditions it wished.
10. Article 24 will allow groups of Member States that wish
to set up joint special investigation teams to carry out investigations
requiring simultaneous action in the Member States concerned and
to co-ordinate joint activities.
11. Article 25 sets out data protection arrangements in respect
of data transmitted both electronically and manually. This Article
covers the procedures to be followed in relation to data transmitted,
and the rights of individuals to know what data about them has
been transmitted and to have erroneous data amended or deleted.
12. The Convention will provide for a role for the European
Court of Justice (ECJ). The Article providing for this is not
yet set out in the draft text of Naples II. The Luxembourg Presidency
has suggested that the role for the ECJ should be along the lines
envisaged for new Third Pillar Conventions under the new Amsterdam
Treaty, namely jurisdiction for rulings on disputes between Member
States; on disputes between Member States and the Commission,
and optional preliminary reference jurisdiction.
Ministerial Responsibility
13. The Chancellor of the Exchequer.
Legal and Procedural Issues
14. An Order in Council will be needed to specify the Naples
II Convention as a "Community Treaty" under the European
Communities Act 1972. This will empower the Commissioners of HM
Customs and Excise to co-operate with other Member States by exchanging
information or otherwise. This process is straightforward, and
will not confer any new powers on HM Customs and Excise. The 1967
Naples Convention was specified as a Community Treaty in this
way.
15. As currently drafted, paragraph (e) of Article 25 on
manual data protection would require new legislation in the UK.
Policy implications
16. The Government is keen for Naples II to be agreed and
implemented. It provides for investigative practices which are
important tools in combating drug trafficking and other customs
offences. HM Customs & Excise are usually already able to
conduct cross-border investigation using the "special"
techniques provided for in Naples II by means of bilateral or
informal arrangements. The formalisation of these arrangements
in a Convention should help to ensure the continuation of such
arrangements and increase pressure for improved co-operation across
Europe.
17. The Government believes that most of the provisions of
the Convention relating to cross-border co-operation would be
of operational benefit. However, the Government does not see any
operational need for hot pursuit provisions in relation to the
UK. Given our geography, the circumstances in which smugglers
have the opportunity to turn tail and flee back across the border
are extremely rare. Pursuit into or out of UK territory is conceivable
only in the circumstances of non-passenger boats and aircraft
and on the Northern Ireland land boundary (where obvious special
security considerations apply in any case). In the air and maritime
scenarios (including the Channel Tunnel) it ought to be possible
for the relevant law enforcement services of the Member States
involved to be contacted in advance. The absence of such provisions
has not to date hindered our law enforcement work. If the UK were
to apply the hot pursuit provision it would need to enact new
primary legislation giving foreign law enforcement officials powers
to detain suspects, conduct searches and carry and use their official
firearms. The Government is against this. It would ultimately
serve no useful purpose. A provision has been negotiated allowing
Member States to declare that they will not be bound by this Article.
The Government intends, therefore, that the UK will not apply
Article 20 of the Convention relating to hot pursuit.
18. Likewise, because of our geographical separation the
Government does not see any operational necessity to provide for
cross-boarder surveillance without prior approval. It intends
that the UK should opt to be bound only by that part of Article
21 which allows cross-border surveillance with the prior approval
of the Member State in whose territory the surveillance will take
place. This means that the UK will retain the right to refuse
requests for surveillance; will be able to set strict conditions
before allowing surveillance within our territory; and HM Customs
and Excise will always be in a position to supervise any
surveillance activity by law enforcers from other Member States
in this country.
19. Article 25, paragraph (e) of the draft Convention covers
the rights of people to receive information on any electronic
or manual data concerning them which customs services have exchanged.
As currently drafted this would oblige Member States to enshrine
such rights in law in ways which would necessitate new legislation
in the UK before we could ratify the Convention. This would seriously
delay ratification of this important Convention. However, in recent
working group discussion, officials have negotiated an amendment
to the text allowing a combination of legal and administrative
provisions to apply. This would enable the Convention to be ratified
without new legislation in the UK. Provided this amendment is
reflected in the final version of the text, the Government can
accept the Data Protection provisions.
Financial Implication
20. The Convention has no financial implications.
Timing
21. The Report of the High Level Group on Organised Crime
which was endorsed by the Amsterdam Council recommended that the
Naples II Convention be agreed by the end of this year. The Luxembourg
Presidency are hoping to secure political agreement by the end
of this year. It is possible therefore that it may be submitted
to Council for agreement early in December.
22. If agreed, the Convention would be subject to national
ratification procedures in Member States and would enter into
force 90 days after the last Member State notified the Council
Secretariat of its adoption.
12 November 1997
Letter from Lord Tordoff, Chairman of the European
Communities Select Committee to Dawn Primarolo MP, Financial Secretary
to the Treasury
I refer to the above matter and to the Explanatory Note from
HM Customs and Excise dated 12 November 1997. The text of the
draft Convention has been sifted to Sub-Committee E (Law and Institutions)
for detailed consideration.
I note that your Explanatory Note suggests that political
agreement may be reached on this matter at the Justice and Home
Affairs Council in early December. The delay in depositing this
document for scrutiny is inexplicable considering that reference
was made to the on-going work on this measure in the Luxembourg
Presidency's Work Programme for the relevant Third Pillar Steering
Group which was sent to the Select Committee by the Home Office
on 24 July last. The Work Programme states: "The Presidency
will continue the work on the so-called Naples II Convention and
will attempt to reach agreement on the questions outstanding so
that the Convention can be signed before the end of the year thus
complying with the deadline set by the Amsterdam European Council"
This clearly indicates that a draft text of the Convention was
in circulation at that time and could have been deposited for
scrutiny.
I am dismayed at the manner in which your Department has
dealt with this proposal and its disregard for the Parliamentary
scrutiny process. It is unacceptable that a proposal of this magnitude
and significance is deposited in Parliament when it is practically
a fait accompli. The seriousness of the delay is compounded by
the fact that when your Department did finally submit an Explanatory
Note the text of the draft Convention was not submitted at the
same time and my officials had to contact your Department to ask
for a copy. Furthermore, when the text of the draft Convention
was finally provided the Council Secretariat's cover sheet indicated
that it dates from 9 October.
At its last meeting Sub-Committee E decided to conduct a
short enquiry into the draft Convention on Mutual Assistance in
Criminal Matters, the documents relating to which make several
explicit references to the Naples II Convention. The Sub-Committee
will wish to consider the interaction between the two Conventions
and will not be in a position to complete its work prior to the
next Justice and Home Affairs Council due to be held on 4-5 December
when it is expected that political agreement will be reached on
the text of the Naples II Convention. I expect, therefore, you
will withhold the Government's agreement on this proposal until
such time as Sub-Committee E has completed its current enquiry.
Prior to the summer recess Sub-Committee F (Social Affairs,
Education and Home Affairs) completed an enquiry into the existing
procedures for Parliamentary scrutiny of Third Pillar proposals.
The Sub-Committee made a number of detailed recommendations aimed
at ensuring that Parliament receives Third Pillar documents in
good time to allow the scrutiny committees to undertake detailed
examination of their provisions. I enclose a copy of the Sub-Committee's
Report for your consideration.
19 November 1997
Letter from Dawn Primarolo MP, Financial Secretary
to the Treasury to Lord Tordoff, Chairman of the European Communities
Select Committee
Thank you for your letter of 19 November about the Explanatory
Note on this Convention which I submitted on 12 November. I am
very sorry that my Department did not submit an Explanatory Note
on this Convention at a much earlier stage.
I agree that the delay in submitting an Explanatory Note
on this Convention was unacceptable and cannot be excused. I have
asked my officials to ensure that this does not happen again.
The Government inherited negotiations on this Convention in May
and since then has had to form a view on it. The speed at which
the Luxembourg Presidency has attempted to move negotiations forward
since late September has meant that they have been producing a
series of unofficial texts each of which has rapidly been superseded.
When it became apparent that a text had emerged which had a realistic
prospect of being negotiated to a conclusion the Explanatory Note
was submitted with the latest text at that stage.
In recent weeks the Presidency have conducted an intensive
round of negotiations at official level on the Convention. These
negotiations have concentrated on the outstanding reservations
which a number of Member States had with various aspects of the
Convention. The Presidency seem to have brokered solutions on
these outstanding points although formal texts have not always
been produced and often not in languages other than French. A
consolidated text reflecting these latest negotiations has only
been produced within the past couple of days and you may find
it helpful to have that together with a supplementary EN (attached).
It is possible that the Presidency may put this text to the Justice
and Home Affairs Council on 4-5 December. If this Council is invited
to consider this text it is my intention that the Government would
indicate that although it believes the text is in principle satisfactory
it remains subject to scrutiny consideration by Parliament.
As you have indicated in your letter, the Amsterdam European
Council earlier this year endorsed the report of the High Level
Group on Organised Crime which included a recommendation that
the text of this Convention be finalised by the end of this year.
The Luxembourg Presidency efforts have been geared to this end
and they recently announced their wish to have the Convention
agreed and signed on 18 December. In substance the Government
is extremely keen to see this measure, aimed against crime and
drugs, agreed as soon as possible. This is just the sort of area
of EU activity which the Government wishes to promote in order
to bring the EU closer to the people. I understand that in the
several other Member States which apply Parliamentary scrutiny
to third pillar documents the speed of the Presidency action has
required them to make extra efforts to clear their scrutiny processes
more quickly than would normally be the case. It is probable that
if the UK is unable to complete its scrutiny process before 18
December it alone will have to block signature of this Convention.
Such a block would be particularly unfortunate with our own Presidency
of the EU about to start. It may wrongly be thought that the UK
has deliberately obstructed agreement in order to claim credit
during its own Presidency and this may lead to a loss of goodwill
which would make our conduct of a successful Presidency more difficult.
I entirely accept that it was the failure of my Department
to submit an Explanatory Note at an early enough stage which has
given rise to this difficulty. However, given the adverse consequences
for the UK which I believe will follow if we are not able to agree
this Convention this year, I would be extremely grateful if you
could consider whether there is any way that your Committee could
expedite clearance before 18 December.
28 November 1997
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