Extract from Explanatory Memorandum on
the Draft Convention on Mutual Assistance in Criminal Matters
between the Member States of the EU: Consolidated Text submitted
by the Home Office 15 March 2000 6836/00 COPEN 18
SUBJECT MATTER
2. Document 6836/00 COPEN 18 is a new consolidated
text of the Draft European Union Mutual Legal Assistance Convention.
It is the text on which agreement will be sought at the Justice
and Home Affairs Council on 27 March.
APPLICATION TO
GIBRALTAR
16a. The Convention is expected to contain
a provision on territorial scope to be inserted in Article 23
which will enable the Convention to be extended to Gibraltar,
the Channel Islands and the Isle of Man once the 1959 Convention
has been extended to these territories. The exact wording of this
provision has yet to be finalised.
CONSULTATIONS WITH
OUTSIDE INTERESTS
17. Consultations on the content and detail
of the draft Convention have taken place with other Government
Departments, prosecuting authorities, public telecommunications
operators and enforcement agencies in the UK. The data protection
provisions have been submitted to the Data Protection Registrar
for her views, and this aspect is discussed further in relation
to Article 20a below.
POLICY IMPLICATIONS
18. The consolidated text of the draft Convention
contains a number of changes from texts previously submitted for
scrutiny. As explained in the introduction to document 6836/00
COPEN 18, these amendments derive from a number of sources. Some
amendments have been made as a result of the work of the Working
Group on Judicial Co-operation in Criminal Matters, some as a
direct result of the opinion of the European Parliament, some
from advice from the Council Legal Secretariat, and some from
the deliberations of the Article 36 Committee, Coreper, or JAI
Counsellors. Any changes from texts previously submitted to you
have been identified and clearly marked, although in many cases,
these are not changes of substance, but rather changes introduced
for the sake of clarity and consistency of drafting. A complete
list of minor textual changes is contained in the Annex to this
Explanatory Memorandum.
GENERALLY
19. Various titles in the Convention have
been modified, and individual Articles have had their headings
amended. None of this affects the substance of the Convention.
DRAFT COUNCIL
ACT
20. The draft Council Act which now establishes
the Convention contains text originally issued in 6297/00 COPEN
11. It is technical in nature, and contains specific references
to Norway and Iceland. Paragraph 2 states that certain articles
fall within the scope of the Association Agreement with Norway
and Iceland, and paragraph 3 lists those Articles.
21. Paragraph 4 states that Norway and Iceland
have been duly consulted concerning the relevant articles. Paragraph
5 states that Norway and Iceland will be told which measures are
Schengen relevant measures and that when these have been ratified
by Norway and Iceland those two states will be expected to make
the relevant declarations under Article 21 of the Convention.
(Article 21 governs competent authorities and other related issues).
22. The Draft Council Act does not pose
any problems for the Government.
RECITALS IN
THE DRAFT
CONVENTION
23. The recitals have been amended slightly
to take account of the opinion of the European Parliament, and
also discussions in Coreper on 17 and 24 December 1999. They are
not contentious.
ARTICLE 1
24. Apart from minor drafting changes for
the sake of clarity, the only amendment of substance to the text
of Article 1 is contained in the insertion of a new Article 1(c).
This provision makes it clear that the Convention is to supplement
inter alia the provisions on Mutual Legal Assistance contained
in the Schengen Implementing Convention and not repealed by Article
2(2). In fact this provision re-introduces text which had previously
been contained in Article 1, but had been removed from COPEN 60.
ARTICLE 2
25. Article 2 defines those provisions of
the Convention which are deemed to be building on the Schengen
acquis, and repeals the corresponding provisions in the
Schengen Implementing Convention. The repeal is a logical consequence
of the introduction of measures building on the original Schengen
acquis, and is restricted to those provisions which
replace similar provisions in Schengen. These relate to the extension
of Mutual Legal Assistance to administrative offences (Article
3 and Schengen 49(a)), the service of procedural documents by
post (Article 5 and Schengen 52), direct transmission of requests
(Article 6(1) and Schengen 53) and controlled deliveries (Article
12 and Schengen 73).
ARTICLE 3
26. This Article contains only minor drafting
amendments.
ARTICLE 4
27. Although there is new text in bold in
Article 4(1) the concept is identical with that previously contained
in the earlier Article 4(1). There is a new Article 4(2) which
contains the text previously contained in the second part of the
"old" Article 4(1), with an amendment (underlined text)
inserted as a result of the opinion of the European Parliament.
It is thought that these amendments improve the pre-existing text
without amending the effect.
ARTICLE 5
28. The minor amendments to this Article
are not contentious.
ARTICLE 6
29. In Article 6(1) the amendments in bold
were inserted as a result of the discussion in the Working Group.
They are designed to clarify the earlier text.
30. Article 6(3) contains the opt-out provisions
which have already been described to the Scrutiny Committees.
The effect of this Article has to be seen in the context of the
repeal of Article 53 of the Schengen Implementing Convention envisaged
by Article 2 above. Article 6(3) entitles the UK to declare that
incoming requests should be sent via its central authority, but
there is a restriction on this declaration so that the principle
of direct transmission envisaged in Article 6(1) should not be
so limited by the time that participation in the Schengen acquis
is effective for the UK. Thus, if the Schengen acquis is
put into effect for the UK before the Mutual Legal Assistance
Convention is ratified, the opt out provision in Article 6(3)
would be unlikely to become available for the UK, which would
be bound by the provisions of Article 6(1), ensuring that requests
should be made directly between judicial authorities.
31. Minor amendments to other parts of Article
6 clarify the text.
ARTICLE 7
32. The amendments to this Article seek
to clarify the text.
ARTICLE 8
33. The substantial amendment to Article
8(3) clarifies a previously rather opaque text.
ARTICLE 9
34. The amendments to Article 9 are not
thought to be contentious.
ARTICLE 10
35. The amendments to Article 10, with the
exception of those to Article 10(5)(b) and (d) do not affect the
substance of the provision.
37. The amendments to Article 10(5)(b) and
(d) were proposed by the European Parliament, and allow for the
greater protection of the person to be heard. In relation to Article
10(5)(b), the mandatory "shall" replaces the previous
"may". Statewatch had a concern in relation to the lack
of any provision allowing for legal representation for a potential
witness in these circumstances, and this amended provision goes
some way to addressing that concern.
38. In Article 10(5)(d) the services of
an interpreter can be called on additionally by the person to
be heard. This too was one of the concerns of Statewatch, and
the amendment addresses that concern.
ARTICLE 11
39. Amendments to this Article are not substantial
in nature.
ARTICLE 12
40. There are no amendments to this Article.
ARTICLE 13
41. There are several minor drafting amendments
to this Article. The more major amendments, however, are in respect
of a new Article 3a, which defines "seconded" team members,
and in Article 3(11) which reformulates the former text without
changing the substance. The definition of "seconded"
team members is acceptable and is a welcome addition to the text
of the draft Convention.
ARTICLE 14
42. The amendments to Article 14, 14a and
14b are all thought to clarify the text without amending its effect.
43. The Committees have previously questioned
whether Europol officers working in joint investigation teams
would have the immunities set out in the Europol Convention or
whether they would have the immunities of an ordinary member of
the public. In my reply to Lord Tordoff's letter of 20 January
I stated that I would keep the scrutiny committees informed of
any proposals that the Presidency had on the role that Europol
officers would play in joint investigation teams. There have been
no proposals from the Presidency on this issue. However it is
clear that, when exercising their official functions they would
enjoy "immunity from the legal process of any kind in respect
of words spoken or written, and acts performed by them."
What remains unclear is the extent to which the exercise of their
official functions would involve their being present in the United
Kingdom. It is currently envisaged, however, that where Europol
officers are to be involved in a joint investigation involving
the UK, their role would be the traditional one of analysis, and
would not therefore necessitate them being in the UK.
ARTICLE 15
44. There are no amendments to this text.
ARTICLE 16
45. One minor amendment appears in Article
16(7) as a result of the advice of the European Parliament. It
clarifies the text. Because of the difficulties surrounding the
establishment of the current text, there was a desire to alter
as little as possible in connection with the provisions of interception.
There are no other amendments to the text of this Article.
ARTICLE 17
46. There are no amendments to the text
of this Article.
ARTICLE 18
47. In relation to Article 18, there has
been considerable discussion since the JHA Council in December
1999. Document 6640/00 COPEN 15 (deposited for scrutiny on 9 March
2000, but not the subject of an Explanatory Memorandum) reports
the outcome of the discussion at the JHA Council on 2-3 December
about the interception provisions in the draft Convention, and
contains a proposed new text for Article 18(3). This was the subject
of discussion by JHA Counsellors on 10 March and the text of Article
18(3) contained in COPEN 18 is the result of those discussions.
48. Article 18(3) deals with the procedures
for notifying another Member State that a target of interception
has moved on to its territory. There are two outstanding issues.
First, the JHA Council did not reach agreement in December on
what should happen where the notified Member State has failed
to respond within the 96 hour deadline established by this article
(this is often described as whether silence should equal consent).
Secondly, some Member States have expressed concern that earlier
texts of Article 18(3) enabled the notified Member State only
to prohibit the use of intercept product as evidence in criminal
proceedings.
49. The text of Article 18(3) in COPEN 18
addresses these issues by:
(a) enabling the notified Member State to
have a short extension (up to 8 days, during which time the interception
continues) to carry out any internal consultation which may be
necessary to decide whether to allow the interception to continue;
and
(b) enabling the notified Member State to
prohibit the use of intercept product unless the intercepting
Member State needs to use the intercept product for the purpose
of preventing or interfering with the commission of serious dangerous
crime. This applies while the notified Member State is reaching
a decision on whether to continue the interception, and following
a decision to terminate the interception.
50. We are content with this approach, and
hope that it will enable the Council to reach political agreement
on the Convention at its meeting on 27 March. For consistency
with our domestic legislation, we would prefer the wording of
Article 18(3) to read "for the purpose of preventing the
commission of serious crime." But, if necessary, we are content
for the Explanatory Report on the Convention to explain what is
meant by "serious dangerous crime" (as suggested by
another Member State in a footnote to Article 18(3)).
ARTICLES 19 AND
20
51. There are no changes to these Articles.
ARTICLE 20A
52. This is a new Article incorporating
the text on data protection. The text contained in COPEN 18 is
a compromise text proposed as a result of the deliberations of
the Judicial Co-operation Working Group on 16-17 February and
the Article 36 Committee on 28-29 February. We have consulted
the Data Protection Registrar about all the draft texts as they
have emerged, and we have sought to answer the concerns she has
expressed in her letter of 6 March to the Legal Assistant to the
Select Committee on the European Union in the House of Lords.
53. The text of the Article is very little
changed from that in 6296/00 COPEN 10, which, as has been said,
was deposited for scrutiny on 25 February, but was not the subject
of a separate Explanatory Memorandum. An additional proposed text
was contained in Doc 6654/00 COPEN 16, issued on 3 March 2000,
and not deposited for scrutiny, since it was apparent by the time
it was received that it had been superseded by discussions in
the Article 36 Committee, and that a new consolidated text was
about to be issued. The current proposed text will again be discussed
at Coreper on 15 March, after this Explanatory Memorandum has
been prepared. A note of any changes agreed at that meeting will
be passed separately to the Clerk to the Scrutiny Committees.
54. Article 20a(1)(a) is unchanged from
the text in COPEN 10.
55. Article 20a(1)(b) is unchanged save
for the deletion of the word "legal". This does not
cause the United Kingdom any problems as all judicial proceedings
in this country are also legal proceedings.
56. In Article 20a(1)(c) there remains a
suggestion that the word "immediate" be deleted. The
United Kingdom is not inclined to support this change, in its
opinion permission can be sought if a threat is not immediate.
57. Article 20a(1)(d) is unchanged from
earlier drafts.
58. The text of paragraph 2 in 6296/00 COPEN
10 included, in brackets, specific reference to those Articles
which enabled a Member State's own law enforcement officials to
obtain evidence as a result of the application of the draft Mutual
Assistance Convention. An example of this would be a controlled
delivery in which personal data could be obtained by officers
from one Member State participating in a controlled delivery in
another Member State. The new text deletes the reference to specific
articles, though the general concept will be explained in the
Explanatory Report to the Convention.
59. The Government would prefer specific
references, although it does not consider this to be an issue
which would justify holding up the Convention.
60. Article 20a(3) and (4) are unchanged,
apart from the removal of square brackets. Article 20a(5) and
(6) are also unchanged.
61. The proposal by the Luxembourg authorities
is an alternative to Article 20a(1). It is, I regret currently
only available in French. In essence it provides that personal
data communicated under the Convention may be used by the Member
State to which they have been transferred in accordance with 20(a)
and 20(b) of the text contained in COPEN 18. However, it then
adds that the Member State providing the data may state that the
use of the data or any part thereof, for a purpose for which it
could have refused to transmit the data, in accordance with the
draft Convention, or with the instruments listed in Article 1
of the Convention, is dependent on its prior consent. This provision,
which has so far not met with the agreement of other Member States,
is designed to cater for Luxembourg's special position since it
has so far failed to implement the 1978 Protocol to the 1959 Convention.
This Protocol extends the provision of the 1959 Convention to
fiscal matters, but, since Luxembourg has not yet implemented
this, it would be impossible for Luxembourg to sanction the use
of data for fiscal purposes. Luxembourg clearly has a major problem
with the further use of data for unspecified purposes, which might
extend to fiscal purposes, but other Member States are not in
favour of this restriction. The matter will be discussed again
at Coreper on 15 March.
62. The Data Protection Registrar has been
consulted about the proposed texts (to the extent that their content
was then known) and in her letter of 6 March to the Legal Assistant
to the Select Committee on the European Union, has made a number
of comments on the data protection provisions in the draft Convention.
The Scrutiny Committees will be anxious to know how the Government
reacts to the concerns expressed in that letter.
63. There are two main points made by the
Data Protection Registrar. In the first place, she is concerned
that there is insufficient purpose specification in the draft
text. She makes comparison with Article 102 of the Schengen Implementing
Convention. The Government does not believe that this is a truly
appropriate comparison. The data protection provisions of that
Convention refer to the Schengen Information System, which is
a specific database set up to store information held by Member
States. The draft Mutual Legal Assistance Convention does not
set up such a system. Information obtained as a result of a request
under the EU Mutual Legal Assistance Convention will not be of
the same systematic nature, nor will it necessarily be capable
of being automatically processed. The Government does not consider
it necessary to have the same restrictions on this information
as on information specifically sorted on specially set up databases.
64. The second point relates to the need
for a binding data protection provision. There has been discussion
in the Working Group as to whether there needs to direct reference
to Convention 108 (the 1981 Council of Europe Convention). However,
the view has ultimately been agreed on (as explained in footnote
4 to Article 20a) that the Explanatory Report to the Convention
will contain a definition of the term "personal data"
and the reference to the 1981 Convention. The 1981 Convention
now forms part of the European Union acquis, and all Member
States have now ratified it. For that reason, it is not thought
necessary to refer to it specifically, since it is now implemented
in all Member States, and, since it also part of the acquis,
all applicant states will have to ratify it as part of the accession
process.
65. The Government accepts that data protection
is an important issue. However there is now a significant prospect
that the Mutual Legal Assistance Convention could be agreed at
the 27 March Justice and Home Affairs Council. The Government
considers that the opportunity to reach agreement on a Convention
that has been under negotiation since the middle of 1996 should
not be missed, if this is at all possible. I therefore wish to
inform the Scrutiny Committees that, even if it has not proved
possible to complete the scrutiny procedure in respect of this
Article, the Government will, subject to any other interests,
consider giving agreement to the Convention at the Justice and
Home Affairs Council.
ARTICLE 21
66. Article 21 contains minor amendments.
ARTICLE 22
67. This Article contains no amendments.
ARTICLE 23
68. This Article contains amendments dealing
with when the Convention will come into effect. The amendments
are of a technical nature and are acceptable to the Government.
This Article will also include wording on extension to Gibraltar,
the Channel Islands and the Isle of Man (see paragraph 16a above).
ARTICLE 24
69. There are no amendments to this Article.
ARTICLE 24B
70. This Article has been proposed by the
Council Legal Secretariat and deals with the effect of this Convention
on Norway and Iceland. It has to be read with the former Article
24a (now Article 2) which lists the Articles deemed to be Schengen
building measures and which therefore apply to Norway and Iceland.
71. Article 24b(1) means that those measures
which build on the Schengen Implementing Convention will enter
into force for Norway and Iceland 90 days after they have ratified
the relevant parts of the Convention, in their mutual relations
with any Member States for whom the Convention is already in force.
72. Article 24b(2) states that the relevant
provisions of the Convention will also apply between Norway and
Iceland and any Member State that ratifies the Convention after
Norway and Iceland.
73. Article 24b(3) provides a restriction
relating to the Association Agreement between the EU and Norway
and Iceland.
74. Article 24b(4) is a fallback paragraph
providing the Schengen building provisions of the Convention will
in any event come into force for Norway and Iceland once the 15th
of the current 15 EU Members has ratified the Convention.
ARTICLE 25
75. There are no amendments to this Article.
DRAFT DECLARATIONS
76. Attached to the text of COPEN 18 is
the text of two draft declarations. The second of these was the
basis for the agreement on the scope of the interception articles
in December 1999.
EXPLANATORY REPORT
77. There is also attached to COPEN 18 an
explanatory report. This contains those matters which have already
been discussed and agreed on at the Working Group or elsewhere.
It is not however a final text.
FINANCIAL IMPLICATIONS
78. The proposed Articles are not expected
to have any significant financial implications for the UK.
Barbara RocheMinister
of StateHome Office
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