Select Committee on European Union Forty-Ninth Report


Letter from the Chairman to Lord Filkin CBE, Parliamentary Under-Secretary of State, Home Office

  The draft Council Decision was considered by Sub-Committee E (Law and Institutions) at its meeting on 5 March. Provided the Gibraltarians are content to incorporate the provisions of the Convention into their criminal law, the proposed Decision would seem to be unobjectionable on policy grounds. But as your Explanatory Memorandum indicates, the proposed Decision is a most unusual one and it would be helpful if you could clarify the following matters:

  1.  What is the position of Gibraltar in relationship to the Treaty on the European Union? It is clear that Gibraltar falls within the territorial application of the Treaty establishing the European Community (Article 299(4) TEC) though some Community rules do not apply (Article 28 of the 1972 Act of Accession).

  2.  The Committee notes that a number of other EU Conventions are impliedly or expressly restricted to the UK and Northern Ireland (see the 1998 EU Convention on Driving Disqualifications (Article 18), the EU Convention on Jurisdiction etc in matrimonial matters (Article 22) and the 1998 EU Convention on mutual assistance and cooperation between customs administrations (Article 31)). The 1997 EU Convention on Corruption contains no such restriction or limitation. What is the argument for saying that the 1997 EU Convention on Corruption does not apply to Gibraltar?

  3.  Which are the "other Conventions drawn on the same basis" (paragraph 3 of the Preamble)? Are they to be amended similarly?

  4.  The Decision is described as a Decision of the Council and will be published in the OJ. Will you please explain more fully the legal basis on which the measure is being taken under the Treaty? The Committee notes that the Court of Justice has generally condemned the taking of measures without identifying the legal base. In this context the recital "having regard to the Treaty" may not suffice—see Case 45/86 Commission v Council [1987] ECR 1493.

  5.  You describe the proposed Decision "as the most appropriate and least time-consuming mechanism by which Member States could acknowledge the application of the Convention to Gibraltar". What other methods would be available? For example, could the UK make a declaration?

  6.  What precedent is there for the use of a "Decision of the Council"? In what circumstances has such an instrument been used in the past? What can, and cannot, be done by such an instrument? The Committee will wish to be assured that national ratification procedures cannot be avoided by this type of inter-governmental measure.

  We look forward to receiving your replies to the above questions. In the meantime the document remains under scrutiny.

6 March 2003

Letter from Bob Ainsworth MP, Parliamentary Under-Secretary of State, Home Office, to The Chairman

  I am writing in response to your letter of 6 March to Lord Filkin, who signed the Explanatory Memorandum to document 6363/03 in my absence. You asked for clarification on a number of matters relating to the status of Gibraltar in Third Pillar measures and the legal background to the proposed Council Decision.

  Q1 and 2.  You asked about the position of Gibraltar in relationship to the Treaty on the European Union and what arguments exist for saying that the 1997 EU Corruption Convention does not apply to Gibraltar. The Treaty on European Union has no territorial extent provision. It is therefore necessary to determine the position on territoriality by applying the principles of international law. Under international law a treaty is binding upon each country in respect of its entire territory unless a different intention appears from the treaty or is otherwise established. The practice of expressly dealing with the application of Third Pillar instruments to Gibraltar has established this different intention. Thus we take the view that Third Pillar measures, including the Corruption Convention, do not automatically apply to Gibraltar. We therefore consider the application of Third Pillar measures to Gibraltar on a case by case basis.

  Q3.  You also ask which are the "other Conventions drawn up on the same basis" and whether they are to be similarly amended. As the Preamble indicates, several EU Conventions were concluded prior to the date on which the arrangements took effect between Spain and the UK relating to Gibraltar authorities in the context of EU and EC instruments. In addition to the Conventions which you mention, these include the:

    —  1995 Convention on the protection of the Communities' financial interests;

    —  1995 Convention on simplified extradition procedure between the Member States of the EU;

    —  1996 Convention relating to extradition between the Member States of the EU;

    —  1995 Convention on the establishment of Europol; and

    —  1995 Convention on the use of information technology for customs purposes.

  We have no current intention similarly to amend the territorial application of these instruments.

  Q4 and 6.  The Decision adopted in this case is a decision sui generis. Such measures (often referred to by the German term "Beschluss") are distinct from the decisions provided for in Article 249 of the Treaty establishing the European Community (known in German as "Entscheidung". Decisions sui generis are frequently used in the operation of the Community institutions including, for example, for the Council's adoption of mandates for the negotiation of international agreements and for the approval of the conclusion of such agreements.

  In its judgment in Case 22/70 Commission v Council (the AETR case) the European Court of Justice confirmed that the requirement to state the legal grounds on which a measure is based, applicable to measures falling within the scope of what is now Article 249, would not extend to measures falling outside the scope of that provision. There is therefore no requirement to state the legal basis on which decisions sui generis are based.

  Clearly decisions sui generis should not be used for measures for which a regulation, directive or decision (within the meaning of Article 249) would be appropriate. Nor can there by any question of a decision sui generis supplanting the national ratification procedures. In this case the decision was not used in relation to the ratification of the Convention but to make a statement regarding its territorial scope.

  Q5.  You ask what other methods could have been used in order to achieve the same outcome. As you note, the UK could have made a unilateral declaration simply announcing that the Convention applied to Gibraltar. However, we concluded that this would not provide the certainty and transparency when applying the Convention between the Member States that the Council Decision affords.

  I hope this information is of assistance.

28 March 2003

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