in criminal matters
269. An important development in this area has been
the explicit reference to the principle of mutual recognition
in criminal matters (which the Government particularly welcomes)
(see paragraph 81 of the White Paper) and the extension of EU
competence in the field of criminal procedure (which the Government
accepts only to a limited extent)
(Article III-171). There would be a very large transfer of power
from Member States to the Union in the area of criminal justice
(see page 12 of evidence below).
270. The text has been amended since its early version:
the Treaty now provides for minimum rules to facilitate judicial
co-operation in criminal matters 'with a cross-border dimension'
on the mutual admissibility of evidence between Member States,
the definition of individual rights in criminal procedure and
victims rights. The remit may be extended by a unanimous decision
of the Council after receiving the 'approval' of the Parliament.
A new paragraph has been added stating that minimum rules will
not prevent Member States from maintaining or introducing a higher
level of protection for the rights of individuals in criminal
procedure (Article III-171).
271. We welcome the limitation of action in the
field of criminal procedure to cases having a cross-border dimension,
which is in conformity with the recommendation in our earlier
We also welcome the tightening of the wording on the admissibility
of evidence, but regret that the adoption of such rules remains
subject to majority voting.
272. The provision on substantive criminal law has
also been redrafted (Article III-172). Measures in the field would
take the form of European Framework Laws (and not of European
Laws which are directly applicable) - this means that Member States
will retain a level of discretion in the implementation of EU
273. Like the earlier draft, the provision includes
an exhaustive list of offences for which the EU has competence
to act - but the list may be expanded by the Council acting unanimously
and after obtaining the consent of the European Parliament. Approximation
may also take place where it is necessary to ensure the effective
implementation of an EU policy where there has been harmonisation
(an example would be fraud). In these cases, the type of law-making
procedure will be the same as the procedure followed for the adoption
of the harmonisation measures.
274. We welcome the safeguards in this provision.
However, we are concerned that Articles III-171(2)(d) and 172(2)
would permit the extension of EU competence in criminal law and
procedure without the need for a Treaty amendment and thus for
ratification by national parliaments. We accordingly call for
any such extensions of competence to be subject to the prior approval
of Parliament in each case (as we have recommended in paragraph
85 above (Flexibility Clause)). We note that the Foreign Secretary
has told the House of Commons: "we will oppose
that would undermine our system of common law and criminal law".
275. In spite of opposition from our own Government
and the lack of consensus between the Convention members, the
provision on the establishment of a European Public Prosecutor
(EPP) has been retained (Article III-175). It has been amended
and provides for the possibility of the EPP Office being established
not 'within', but 'from' Eurojust by unanimity in the Council
and with the consent of the Parliament. The Government's White
makes clear that they see no need for the Prosecutor "who
would have power to decide - at EU rather than national level
- how to investigate and prosecute serious crimes".
276. As we stressed in our earlier Report, this
Article is a surprising and undesirable inclusion in the Treaty.
We recommend its deletion, although the provision for unanimity
in this case means that any one Member State could veto any proposal
actually brought forward.
277. Article III-174 confers a broad mandate on Eurojust,
whose actions cover "serious crime affecting two or more
Member States or requiring a prosecution on common bases".
As we mentioned in our earlier Report, it is questionable whether
Eurojust should be given such an open-ended brief.
It would be preferable to define Eurojust's mandate on the basis
of specifically enumerated offences.
278. The scope of Article III-176 (on police co-operation
between national authorities) has been tightened, with the vague
reference to the possibility of adoption of 'any other measure
that encourages co-operation' by majority voting being removed
from its second paragraph. Paragraph 3 enables the adoption of
measures regarding operational co-operation, but this is subject
to unanimity in the Council.
279. The provision on Europol (Article III-177),
along with the arrangements for parliamentary scrutiny referred
to above, continues to define Europol's mandate through a general
reference to serious transnational crime, terrorism, and forms
of crime which affect a common interest covered by EU policy.
As we mentioned in our earlier Report, a defined exhaustive
list of offences would be preferable (possibly set out in a Protocol
annexed to the Treaty).
100 We have already referred in paragraph 211 above
to our ongoing work on the European Court of Justice. Back
See HL Deb 9 September 2003, cols 188, 245 and 257. Back
See our comments on this on our 9th report 2002-03 HL Paper 61.
As the final Report of the Convention Working Group has noted,
'the battle against crime is an area in which the European Union
can demonstrate its relevance to its citizens in the most visible
way' CONV 426/02, 2.12.02, p.1. Back
See note 23 above: SN 173/03, p.8. Back
See paragraphs 56-59 above. Back
Unanimity is required for the adoption of measures on family law
(Article III-170(3)); decisions to include areas of criminal procedure
in the Treaty (Article III-171(2)(d); the establishment of a European
Public Prosecutor (Article III-175(1)); measures on operational
co-operation between national police authorities (Article III-176(3));
and police operations in the territory of another Member States
(Article III-178). Back
Articles III-170(3), 176(3) and 178 provide for consultation.
Consultation is also required in Article III-164 (administrative
co-operation). Articles 171(2)(d) and 175(1) on the other hand
require the 'comment' of the Parliament. 'Comment' presumably
means 'assent' but this is currently not clear. Back
The Court will have no jurisdiction to review the validity or
proportionality of operations carried out by the police or other
law enforcement services of a Member States or the exercise of
the responsibilities incumbent upon Member States with regard
to the maintenance of law and order and the safeguarding of internal
security, where such action is a matter of national law- Article
See Articles 35 TEU and 68 TEC, both limiting considerably the
Court's jurisdiction in AFSJ matters. Back
The separation between 'legislative' and 'operational' tasks has
been one of the key objectives of the Convention's AFSJ Working
Group (see CONV 426/02). The creation of a Standing Committee
dealing with operational matters reflects this move. Back
Europol's Role in Fighting Crime (5th Report, Session 2002-03,
HL Paper 43). Back
Explanatory Memorandum, paragraph 27. Back
29th Report, session 2003-03, HL Paper 133. Back
Although presumably the 'Title IV' Protocol will have to be redrafted
in view of the merging of the pillars in the draft Treaty. Back
Paragraph 25. Back
According to the Explanatory Memorandum, the Government remains
firmly opposed to giving the EU wide-ranging competence to harmonise
criminal procedural law but it may be necessary to develop 'some
light minimum standards' in the areas where people facing criminal
proceedings in a Member States of which they are not a national
would be disadvantaged by virtue of that fact- (paragraphs 32-33). Back
According to the explanatory note accompanying the revised Treaty
text, this wording has been inserted to 'obviate any misunderstanding':
the sole purpose of the provisions is to establish minimum standards
such that evidence obtained in conformity with those rules can
then be used in proceedings in other Member States, but without
prejudice to the freedom of the court to take into account other
evidence in accordance with its national law. (Doc. CONV 727/03,
27.5.03, p.32). Back
The Future of Europe: Constitutional Treaty-Draft Article 31
and draft Articles from part 2 (freedom, Security and Justice),
16th Report, 2002-03, HL Paper 81, paragraph 54 (p.30). Back
The Explanatory notes to the amendments make clear that there
must be a link to harmonisation measures already adopted by the
Union and that the legislator must in fact assess whether criminal
sanctions prove essential to ensure the effective implementation
of the policy. (Op. cit., p.32, emphasis added). Back
HC Deb 16 September 2003 col 798. Back
Paragraph 85. Back
Op. cit., paragraph. 59 (p. 33). Back
Op. cit., paragraph. 61 (p.34). Back
Op. cit., paragraph 68 (p.38). Back