Examination of Witness (Questions 1066
WEDNESDAY 7 JUNE 2000
1066. Thank you very much indeed for finding
the time to come and hopefully answer our questions this morning.
We are sure it will be interesting but we hope also it will be
mutually beneficial for all of us. I do not know if you want to
say anything initially or shall we go straight into questions?
(Ms Rouchaud) No, I have nothing to say
in opening except that we are happy to be here and to have the
opportunity to answer your questions and give you information
about our activities. We welcome your questions and we will try
to do our best to give accurate answers.
1067. The background to our being here is we
are conducting an inquiry primarily which is about the way in
which policy has developed on e-commerce in Brussels and on co-ordination
but, of necessity, the subject is such, e-commerce that we have
gone into a whole variety of other areas, as you will note from
some of the questions we have to sent to you. Some are quite a
little bit away from structural issues. If I may, could I open
up with question number one and I will link with it also question
number four. We are going to see OECD, incidentally. This evening,
we are going on to Paris and we will be seeing OECD in the morning.
OECD is the main forum for States to discuss the problem of cybercrime.
At the G8 Industry Conference on Cybercrime on 15 May the French
Prime Minister called for the early adoption of the Council of
Europe Convention on Cybercrime. Is there not a danger of crossing
wires? What will be in the Communication on Cybercrime which is
in the Commission's work programme for 2000?
(Ms Rouchaud) I think that is more a question for
(Mr Jones) Perhaps I could just introduce myself first
of all. I am Chris Jones and I work in the Judicial Co-operation
Unit in DG Justice and Home Affairs. I am actually on secondment
to the European Commission, I used to work in the Home Office
until a few months ago. Some of these issues, particularly on
United Kingdom legislation, I am reasonably familiar with from
my previous job in the Home Office.
1068. You might be able to answer some of the
criticisms from some of my colleagues on the current legislation
that is going through.
(Mr Jones) To take your first question, you asked
whether it is correct that we should be looking for early adoption
of the Council of Europe Convention on Cybercrime when OECD is
the main forum for cybercrime. I think in fact most Member States,
and I think the Commission shares this view, believe that the
Council of Europe Convention is the main international convention
under negotiation at the moment on cybercrime. It involves all
the European Member States; the United States and Canada are also
involved. It is fairly well progressed and the aim is to complete
the Convention by the end of this year. It covers a range of issues,
including substantive criminal law, issues such as offences for
hacking, denial of service, as well as more general issues about
mutual assistance on cybercrime matters. The Council of Europe
Convention is going to be quite a wide ranging convention. They
have a broad remit. We are aware of the work going on in the OECD
and we do not see any conflict with the work going on in the OECD
because of the range of States which are represented and heavily
involved in the Council of Europe negotiations. We would hope
that there will be consistency between the Council of Europe work
and the OECD work. Then you asked what will be in the Communication
on Cybercrime which as you quite rightly say is on the work programme
for this year. That Communication is still being finalised so
I cannot really say exactly what is going to be in it but we have
been through a period of informal consultation in the Commission
with industry, with data protection authorities and with Member
States and law enforcement authorities to try to get the best
feel possible for where some of these solutions might lie in what
is a fairly sensitive area.
1069. Could you give us the heads?
(Mr Jones) Certainly. I think the Communication will
recognise that the Council of Europe Convention is an important
international Convention and obviously the Commission does not
want to cross wires, as you say, with what is going on there.
Certainly the Commission will be considering bringing forward
legislative proposals. There are already proposals in the Justice
and Home Affairs work programme and the scoreboard that we have
on child pornography and we are planning to bring forward an EU
Third Pillar instrument to look at the approximation of laws on
the areas of child pornography and trafficking of human beings.
That is under preparation at the moment, and is likely to be launched
later this year. Obviously the Communication will cross refer
to that. The European Parliament has been very interested in getting
greater approximation of substantive criminal law on child pornography.
As you might be aware, there was an Austrian Presidency initiative
for a Council decision on the subject adopted by the Justice and
Home Affairs Council just the other week. That Austrian Presidency
initiative did not contain provisions which approximated criminal
law offences on child pornography, it was mainly about making
sure that everybody sets up national centres of expertise on combating
child pornography and sets up some networks and contacts to make
sure that people do investigate it. It did not go into detail
about approximating national laws. In the Commission we are keen
to have as much approximation as possible on that sensitive area
because it will help clarify, particularly for industry, what
is and what is not lawful. So the Communication Directive will
refer to that. Another issue which we are considering is the possibility
of using mutual recognition in the context of cybercrime. One
of the outcomes of the Tampere European Council in October 1999
was that the Council and the Commission should draw up a programme
of measures on mutual recognition judicial decisions. We are actually
considering at the moment, and it is very much in its early stages,
whether there is scope to use mutual recognition of court orders
in a cybercrime context. It is obviously very important that there
is speedy and effective co-operation between Member States, so
we do think there is some scope there and the Communication may
refer to that. As I say, it is still being finalised.
1070. Some areas of agreement and some of disagreement.
(Mr Jones) I think with the way the Commission procedures
work, it is going to be a joint Justice and Home Affairs and DG
INFSO initiative, so we work very closely together. There is agreement
between us on the issues. I do not see a problem within the Commission.
Chairman: Indirectly we will come back to this
later but we will change the topic for the moment.
1071. When we are talking about cybercrime you
have been speaking as if we live in a world of our own with the
US. What links do we have with Japan, not in great detail but
is the EU talking to Japan?
(Mr Jones) Absolutely.
1072. Through the G8?
(Mr Jones) Through the G8, yes. The Commission is
actually involved in the G8 discussions on cybercrime.
1073. And they are happy with mutual recognition?
(Mr Jones) The mutual recognition idea is simply an
idea at the moment but obviously it is going to be EU based because
it is an EU initiative. It is not intended to be an initiative
that would cover other G8 countries. The Tampere conclusions are
very clear, mutual recognition of other Member States' judicial
decisions, and there is quite a lot of work going on.
1074. Thank you. Looking at the Brussels Convention,
how widely have you consulted on the proposal of the transfer
of it into law affecting e-commerce?
(Ms Rouchaud) Before answering this question I have
to remind you that in 1997 the Commission adopted a Communication
which was a two-fold Communication containing a draft convention,
Brussels 1 Convention, on the basis of K3(2), which was at that
time the legal basis for judicial co-operation in civil matters.
In fact, it was decided by the Member States during the Permanent
Committee of the Lugano Convention to make a parallel revision
of these two instruments. The Commission issued a Communication
containing a draft convention firstly and, secondly, a consultative
document on possible improvements in the functioning of justice
through the Union in trying to find ways to improve access to
courts, how to improve obtaining judgments throughout the Union
and how to enforce them. This Communication was published and
the Commission received answers which were taken on board during
the discussions in the Council on the revision of the Brussels
Convention. Then in May 1999, there was political agreement on
this revised convention and consultation and the Commission transferred
it into regulation just giving it the legal form of regulation
because the content had been agreed in the Council. When adopting
the regulation the Commission felt that there was a need to have
a more in depth exchange of views with the interested parties,
the firms and consumer organisations and this was the reason why
there was a hearing organised last November which was held here
in Brussels and which was attended by many participants. All of
the discussions which were held during this meeting were made
public firstly and, secondly, forwarded to the Council which took
that on board. Parliament is still working on the draft regulation
and its opinion is expected in September. It was planned to have
it in June but it will be delayed until September.
1075. There were not vast differences between
points of view held at your conference? Was it contentious or
did the participants basically agree with the line that the Commission
(Ms Rouchaud) During the hearing?
(Ms Rouchaud) No. You could say that it was controversial.
Basically I would say that the organisations representing businesses
had the point of view that the Commission should not have drafted
Article 15 as it stands. I think that Article 15, consumer contracts,
was the main point of controversy. The businesses said that this
Article was not adapted to e-commerce and they should not be exposed
to go in as many courts as Member States. The consumers were very
happy with the provision and they want to keep it as it stands.
It was rather controversial. So far the Council has heard the
result of the hearing but has not discussed it again because the
opinion of the Parliament is still expected.
1077. Presumably if the ADR is effective then
it will not have to appear in so many courts because it should
all take place outside, at least at the consumer level, at the
relatively low value level.
(Ms Rouchaud) I think the development of the ADR is
likely to have an effect on the use of the provision on jurisdiction
because in most cases consumers will have the choice to go through
ADR rather than to go to the courts. Even if they go to a court
in their own country it is still expensive and long and sometimes
ineffective. It is likely that ADR will dissuade consumers from
going to the court but in any case we still need to have a provision
for jurisdiction because it is inconceivable that we could say
to a consumer "you do not go to any court, you have to use
ADR". A consumer has the right to go to the court and have
his day in court and that is why we need a provision even if it
is used very scarcely. Apparently even now it is not used very
much and if you look at the Wallis Report you can see that she
has made some enquiries and she has noted that in the United Kingdom
there are very, very few cases where Article 15 has been used
by consumers. We need however to have a provision. The fact that
ADR is developing does not mean that we are not supposed to give
some jurisdiction, we need it in any case.
(Mr Wilderspin) There are perhaps a couple of things
I could add to that. The controversy really in the discussion
with regard to the revision of the Convention and its reformatting
as the Regulation has very much focused on this aspect of jurisdiction
in consumer disputes. In fact, I think it is important not to
overlook the fact that the revision exercise is a fairly thorough
going exercise, the main objective of which is to speed up the
procedure whereby foreign judgments can be declared enforceable
within other Member States. This was the main thrust. The question
of what was regarded by the delegates as really modernising the
provisions on consumer jurisdiction were I would not say peripheral
but certainly did not give rise to much controversy in the revision
exercise. So far as this question of delay goes, I think it would
be regrettable if the entry into force of the revised package
is delayed simply because of this one aspect which is causing
problems. The other aspects represent a great improvement in the
mechanism of the Convention and certainly I think it will be very
welcome the quicker it comes into force.
1078. This is the issue that has been drawn
to our attention with some of the evidence we have taken, particularly
from industry people, who have been advancing the view that they
are not heard, that legislation comes forward often and, yes,
there are consultation procedures but they are not always as actively
involved as they should be.
(Mr Wilderspin) Well on this particular point, as
my colleague has said, the circumstances were exceptional in that
the Commission's proposal for a regulation was simplyand
in conformity with the Commission's commitmenttaking over
the substance of the package which had been already agreed on
in the course of the negotiations. The Commission had done its
part in putting forward a proposal in the beginning of 1998 and
for the rest of the negotiations it was really the responsibility
of the Member States to undertake the necessary consultations.
1079. There is a lot of lobbying going on. We
are meeting some MEPs at lunch time and that is one of the topics
on the agenda. We understand they have been quite heavily leaned
on, some of them.
(Mr Wilderspin) Perhaps there is just one further
point I should make.