42nd REPORT: THE CRIMINAL LAW COMPETENCE
OF THE EUROPEAN COMMUNITY
Letter from Gerry Sutcliffe MP, Parliamentary
Under Secretary of State, Home Office to the Chairman
I am writing in response to the above report,
published 28 July 2006. Firstly I would like to apologise for
the delay in responding, which was due in part to the summer recess
and pressure of other work but was also due to our perception
that we should allow some time for possible developments, particularly
in relation to the passerelle proposals, which we could comment
on by way of an update. I would like to thank the Committee for
a very well reasoned and comprehensive report, which thoroughly
examines the implications of both Case 176/03 and the Article
42 passerelle proposals.
As regards case 176/03 and community competence
criminal matters, the report eloquently identifies and addresses
the issues that are at the heart of the debate on how far the
Community can go in defining criminal offences and stipulating
penalties and the implications for future domestic and European
Union law making. The Government fully agrees with the Committee's
overall assessment of the issues and the conclusions drawn. In
particular we endorse the committee's view that, in addition to
taking a case-by case approach, the Commission should carefully
examine need and urgency before introducing legislation that is
designed to replace existing Third Pillar instruments or that
will include criminal law provisions.
We also share the Committee's concerns about
the uncertainty surrounding the interpretation of the judgment
in case C-176/03 and agree that it is essential that the European
Court of Justice takes the opportunity provided but the maritime
pollution to clarify the extent of Community criminal law competence.
We also note the concerns about the need for political guidance.
The Government would welcome the opportunity to discuss the prospects
for guidance within the Council but we have to acknowledge that,
partly because a large number of Member States maybe conscious
of the need to ensure consistency with their intervention in support
of the Council in the maritime pollution case, it is now unlikely
that such guidance will emerge before the European Court of justice
passes judgment in that case. You will have noted the agreement
at the Justice and Home Affairs Council of 5-6 October to resume
discussion of the intellectual property Directive at expert level
without prejudice to a final decision on the appropriate legal
I note the reference to the possibility of a
remedial treaty as an option should the ECJ not accept the Council's
arguments in the maritime pollution case. I am also reluctant
to look too deeply into this crystal ball for the time being,
and we will need, of course, to examine all the options if this
circumstance arises. But in this regard it is also, of course,
entirely plausible that the issue before the ECJ could be overtaken
by any resolution on the Future of Europe debate and the fate
of the Constitutional Treaty, given that the latter would have
collapsed the Pillars.
42 "PASSERELLE" PROPOSALS
We welcomed the Committee's very detailed consideration
and balanced assessment of the issues raised by the proposal to
use the Article 42 passerelle. Its report provided a useful contribution
to the Government's analysis. As the Committee noted at paragraph
172, the proposal deserved "careful examination and caution
against any knee-jerk reaction resulting from media coverage".
The Government felt that there should be a real
discussion of the issues at the Informal JHA Council in Tampere,
Finland and we were interested in hearing others' views. We welcomed
the opportunity to consider whether decision-making in justice
and Home Affairs could be made more effective. The Government
did express serious and substantive concerns about the proposal.
Most Member States also expressed significant concerns, or were
not persuaded that using the passerelle was necessary or would
result in faster or more effective decision making. With this
in mind, we consider that discussion on this question has been
conclusive and that the EU should now move on, focussing on practical
measures rather than institutional change at this time.
The Committee's report amounts to a very comprehensive
and useful contribution to the debate on both the implications
of the judgment of the ECJ in case C176/03 and the proposal to
use the Article 42 passerelle and will considerably assist us
in our approach to the future development of EU criminal law business.
As regards the former issue it looks very much as if we will now
need to await the judgment of the ECJ in the maritime pollution
case. As to the passerelle, we consider the current debate to
be over, although we expect the European Council conclusions to
make some reference to the debate under the Finnish Presidency.
In any event we will of course return to these matters should
there be any significant developments.
5 December 2006