Select Committee on European Union Thirty-Seventh Report


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 base.

  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.


  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

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