CORRUPTIONOFFICIALS OF THE EC AND
MEMBER STATES (6363/03)
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
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 sufficesee Case 45/86
Commission v Council  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
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
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
I hope this information is of assistance.
28 March 2003