Select Committee on European Union Fortieth Report


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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