68. PROPOSED PROTOCOL TO THE CONVENTION
ON THE USE OF INFORMATION TECHNOLOGY FOR CUSTOMS PURPOSES AND
PROPOSAL ON THE DELIMITATION OF INFORMATION TO BE CAPTURED ON
Letter from Lord Tordoff, Chairman of
the Committee, to Dawn Primarolo MP, Financial Secretary to the
Sub-Committee E (Law and Institutions) considered
the draft Protocol and the proposal on delimitation of information
at its meeting on 18 November. The Committee has also seen a complete
set of amended guidelines on delimitation. The Committee is content
to clear both documents from scrutiny.
The Committee notes that the CIS Convention
is one of a number of Third Pillar Conventions establishing a
central database facility. The proposal on delimitation demonstrates
the difficulties inherent in distinguishing between information
related to Third Pillar matters and information related to areas
of Community competence. The Committee would be grateful for confirmation
that there will be no disparity in the level of data protection
under the laws applicable in the UK according to the particular
database on which the information is stored.
The Committee understands that the European
Parliament has expressed the view that a Protocol is not necessary
to enable Europol to have access to the Third Pillar CIS database,
on the grounds that Article 7(3) of the Convention does not apply
to internal EU bodies. The Committee is surprised by this assertion
and would like to have the Government's opinion.
On the general issue of data protection under
the Treaties, the Committee was interested to hear of the Italian
proposal, discussed at the May Justice and Home Affairs Council,
to harmonise data protection requirements for all Third Pillar
instruments. The Committee would like to know how the proposal
has been taken forward and what the current state of progress
19 November 1998
Letter from Dawn Primarolo MP, Financial
Secretary to the Treasury, to Lord Tordoff, Chairman of the Committee
Thank you for your letter of 19 November. I
was pleased to note that the European Communities Committee considered
both of the above documents at its meeting on 18 November and
cleared them from scrutiny.
You raise some general questions in relation
to the Third Pillar CIS database, data protection and access by
others organisations. The answers to these are set out below.
Your first question concerned the protection
of data to be stored on both the First and Third Pillar databases.
The Committee has asked for confirmation that there will be no
disparity in the level of data protection under the laws applicable
in the UK according to the particular database on which the information
is stored. I can confirm that the 1998 Data Protection Act, which
received Royal Assent earlier this year and will implement the
Data Protection Directive in the UK, will apply to activities
covered by both the First and Third Pillars.
Your second question concerned a report of the
European Parliament dated 29 October 1998 on the draft Protocol
to the CIS Convention. In their report the European Parliament
has proposed an amendment to the Protocol and to Article 7(1)
of the CIS Convention to provide direct access to the CIS database
by the European Police Office (Europol). Their explanation for
suggesting the amendment states that "since Europol is organised
as an internal Union body, it does not require the conclusion
of a separate protocol pursuant to the procedure set out in Article
7(3) of the Convention which is intended to apply to international
or regional organisations." You expressed surprise at the
assertion made by the European Parliament and asked for the Government's
You will be aware from the Explanatory Note
that the UK would have preferred the draft Protocol to have included
a provision extending access to the Third Pillar CIS database
to other organisations including Europol. In the event this was
omitted from the Protocol because it did not receive the support
of all Member States. However, it remains a priority for the UK.
That said, however, we do not agree with the view expressed by
the European Parliament. Article 7(1) of the CIS Convention states
that "access to the Third Pillar CIS database is reserved
exclusively for the national authorities designated by each Member
State. These national authorities shall be customs administrations,
but may also include other authorities competent, according to
the laws, regulations and procedures of the Member State in question,
to act in order to achieve the aim stated in Article 2(2)."
The Convention does not provide for direct access by any EU body
or institution. Customs view is that Europol is an international
or regional organisation within the terms of Article 7(3) of the
Convention and that in order for them to be granted direct access
a Protocol to the Convention would be necessary.
Your final point concerns the general issue
of data protection and the proposal made by Italy to the May Justice
and Home Affairs (JHA) Council, to harmonise data protection requirements
for all Third Pillar instruments. You enquire what the current
state of progress is with this proposal. This is strictly a matter
for my Home Office colleagues, but I am advised that the Italian
proposal was discussed at the May JHA Council and the Council
Legal Service (CLS) was asked to provide a report analysing the
position on data protection in respect of Third Pillar instruments.
The CLS report was recently considered by the K4 Committee and
at that meeting the Austrian Presidency referred the report to
the Horizontal Informatics Group. That Group has yet to meet to
discuss the report.
I am copying this to the Chairman and Clerk
of the European Legislation Committee.