CONTROL OF THE ACQUISITION AND POSSESSION
OF WEAPONS (7258/06)
Letter from the Chairman to Vernon Coaker
MP, Parliamentary Under Secretary of State, Home Office
Thank you for your Explanatory Memorandum of
22 June. This proposal has been sifted for scrutiny by Sub-Committee
E (Law and Institutions) which, as you may know, is currently
conducting a detailed inquiry into the Criminal Law Competence
of the European Community. We note the position being taken by
the Government as regards the Commission's proposals for criminal
offences and penalties in this Directive (the new Article 16).
As you may know, your colleague, Gerry Sutcliffe
MP, met the Sub-Committee on 21 June to discuss, inter alia,
the implications of Case C-176/03. He drew our attention to the
present proposed Directive as the first example of the application
of the new Council Procedure for dealing with First Pillar legislative
proposals containing criminal law provisions. We would be most
interested to learn how the negotiation of the present procedure
will proceed if the UK, and we presume a substantial number of
other Member States, will object to Article 16 in its present
form. Unlike the draft Directive on criminal measures aimed at
ensuring the enforcement of intellectual property rights (the
IP Directive), which would replace an existing Framework Decision
by an EC measure, the present proposal, with the possible exception
of Article 16, is clearly First Pillar and we note that, with
some minor alterations, the Government welcome the proposal.
While it is to be hoped that the European Court
will, in Case C-440/05 (Ship source pollution), provide some clarification
as to the extent of criminal law competence under the First Pillar,
we assume that the present Directive, unlike the IP Directive,
cannot simply be kicked into touch for the next year or so until
we have the Court's judgment. We therefore would be grateful if
you could tell us what the present state of the negotiations is,
whether other Member States share the UK's concerns about Article
16 and, if so, what steps are being taken to advance discussion
of the substance of the proposed Directive without prejudice to
the position on criminal law and sanctions.
The Committee decided to retain the proposal
under scrutiny and looks forward to receiving the information
requested above.
6 July 2006
Letter from Vernon Coaker MP to the Chairman
Thank you for your letter of 6 July about the
above proposal. In particular, you wished to know the present
state of negotiations on the Directive; whether other Member States
share the UK's concerns on the Directive's criminal sanctions;
and, without prejudice to such concerns, what steps are being
taken to advance the proposal. You also refer more generally to
criminal law provisions in First Pillar legislative proposals
and the UK's view in regard to these.
With regard to the negotiation of this instrument
in light of the current institutional dispute over the extent
of competence under the Treaty of the European Community to create
obligations for Member States in criminal matters, it is important
that the Government ensures consistency of approach. As Gerry
made clear to the sub-committee on 21 June, in our intervention
in support of the Council in the recently instituted challenge
by the Commission to the adopted Framework Decision dealing with
maritime pollution, we are going to argue that the effects of
the judgment of the European Court of Justice of 2005 in the case
concerning the Commission's challenge to the Framework Decision
on the protection of the environment should be restricted to measures
to protect the environment only. Accordingly, in line with this
argument, our position on this instrument is the same as that
adopted in negotiation of the intellectual property instrument
and that dealing with a proposed new customs code; and that is
that there is no community competence for criminal law provision
to be included in the instrument.
As you are aware, negotiation of the Directive
on criminal law measures to protect intellectual property rights
has been effectively suspended pending JHA Council discussion
of the best way forward in light of a significant majority of
Member States indicating that they do not favour proceeding with
negotiations on the substantive detail until the competence issue
is resolved by the judgment of the ECJ in the maritime pollution
FD case or at very least until there is some agreement in the
Council on a means of proceeding pending that decision.
Negotiations on this weapons Directive have
not as yet progressed very far but the UK has already made our
position clear during the initial working group discussions. The
position of other Member States is as yet unclear. The issue has
been raised in negotiations at the expert level and the views
expressed have been mixed. We do not yet known how the Finnish
Presidency will handle the issue. The option of referring the
matter upwards through Article 36 Committee to the JHA Council
is obviously available, in the same manner adopted in the case
of the intellectual property dossier. The handling of all this
is a matter for the Presidency but it is clear that negotiations
on a number of instruments may now stall and a co-ordinated approach
would appear to be sensible.
We will, of course, keep the Committee appraised
of future progress.
24 July 2006
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