Select Committee on European Union Eleventh Report

The Criminal Law Competence of the EC: follow-up Report

Introduction

1.  On 1 November 2006 Sub-Committee E (Law and Institutions) met the Minister for Europe, the Rt Hon Geoff Hoon MP, to discuss a number of the questions arising from our Report, The Criminal Law Competence of the European Community.[1] In particular we were concerned to learn about the prospects of the so-called passerelle in Article 42 of the Treaty on European Union (which would transfer certain criminal law competence to the Community)[2] and to inquire about the progress of a number of legislative proposals affected by the ruling of the European Court of Justice (ECJ) in Case C-176/03 where there is an impasse between the Commission and the majority of Member States. The meeting also provided the opportunity to question the Minister on a number of other issues, including the proposal to extend the competence of the ECJ over justice and home affairs matters.

2.  The purpose of this Report is to publish, for the information of the House, the transcript of the evidence of that meeting and subsequent correspondence, and to draw the attention of the House to three matters especially.

The passerelle

3.  It seems clear that little, if any, progress is likely to be made on the passerelle pending the outcome of discussion on the future of the Constitutional Treaty. Use of the passerelle would enable police and judicial cooperation in criminal matters to be dealt with under the EC Treaty, with consequentially increased roles for the Commission, the European Parliament and the ECJ. The Constitutional Treaty would have similar effect but with express cross-border limitations and an "emergency brake" to safeguard the interests of Member States.

4.  While Mr Hoon was keen to maintain that the Government remained flexible in their approach they, and the governments of a number of other Member States (including Germany), have not been enthusiastic about the proposal.[3] However, the Government have consistently stressed their belief that the debate on the passerelle is "over", and their desire to focus on practical cooperation rather than institutional change (Q 15).[4] The Minister described the then current situation with regard to the use of the Article 42 passerelle as "a matter of intellectual inquiry only" (Q 5). In the Government's subsequent formal response to the Committee's previous Report Gerry Sutcliffe MP wrote: "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".[5]

5.  It is clear that what is or might be acceptable in the context of the Constitutional Treaty is not necessarily acceptable as an individual proposal. Accusations of "cherry picking" are still made, and constitute a serious political obstacle to the use of the passerelle.[6] Though the passerelle was discussed at the December 2006 Justice and Home Affairs Council (JHA) and the following European Council the conclusions of those meetings were indecisive.[7] It seems most unlikely that the passerelle will feature on any Council agenda until the future of the Constitutional Treaty becomes clearer.

EC criminal law competence

6.  As we explained in our previous Report, the extent of EC criminal law competence following the ruling of the ECJ in Case C-176/03 Commission v Council[8] is contentious between the Commission and a large number of Member States including the United Kingdom. The Commission, taking the view that the Court's ruling is not limited to the Treaty articles relating to environmental protection, has brought forward several proposals which would require Member States to impose criminal sanctions.[9] We are holding them under scrutiny and monitoring the progress of their negotiation.

7.  The hope remains that the extent of criminal law competence under the present (EC) Treaty will be clarified by the ECJ in the Ship Source Pollution case[10] currently before the Court. But a ruling from the Court is unlikely before the end of 2007 at the earliest (Q 41). In the meantime only one legislative proposal (on the approximation of sanctions in relation to intellectual property right infringements[11]) has suffered delay (Q 39).

8.  We note that this is another area where the Constitutional Treaty would change the position, by enabling the making of "minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with cross-border dimensions".[12] At the present time the Government are resisting the development of any general Community (i.e. under the EC Treaty) competence (Q 45).

The jurisdiction of the European Court of Justice

9.  In our previous Report we also examined the Commission's Communication (issued in July 2006) which proposed that the jurisdiction of the ECJ should be extended to allow first instance courts to make preliminary references to the ECJ in matters covered by Title IV of the EC Treaty (asylum, immigration, judicial cooperation in civil matters).[13] Such references can at present only be made by the most senior courts in Member States. The Commission argues that removing the limitations will improve access to justice.

10.  The Minister informed us that the UK had chosen not to opt in to the Commission's proposal (Q 28). While he acknowledged that there could be a benefit for parties faced with genuinely difficult questions of interpretation of EC law, "there is clearly a risk that adding what is in effect an avenue of appeal at a very early stage in the process might be an opportunity of further complicating our existing asylum and immigration processes" (Q 28).

11.  Again this is a matter where the Constitutional Treaty would effect a similar change to that put forward by the Commission. The Minister, when asked about the seeming inconsistency in Government policy, replied: "The Constitutional Treaty was a package of measures agreed as a package … I do not think at this stage I could say simply because it is in the Treaty we are necessarily going to cherry pick any elements of it" (Q 34).

12.  The Committee holds the Commission's Communication under scrutiny, together with the related ECJ Discussion Paper, 'Treatment of questions referred for a preliminary ruling concerning the area of freedom, security and justice'.[14]

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1   The Criminal Law Competence of the European Community, 42nd Report (2005-06), HL 227 ('2006 Report'). http://www.publications.parliament.uk/pa/ld200506/ldselect/ldeucom/227/227.pdf. Back

2   See our 2006 Report, chapter 4. Use of the passerelle contained in Article 42 TEU would raise complex questions: the right of legislative initiative; voting procedures and the possible existence of an "emergency brake"; and the future of the UK and Irish opt-ins and the Danish opt-out.  Back

3   The Minister reported that one country was enthusiastic about the passerelle and eight were "pretty firmly against" (Q 5). Back

4   On 28 November 2006 Baroness Scotland of Asthal stated: "we consider the current debate to be over and believe that we should instead focus on practical measures". Written Statement of 28 November 2006 by the Minister of State, Home Office (Baroness Scotland of Asthal) on the Justice and Home Affairs Council. Joan Ryan MP, in a debate on the Hague Programme in the House of Commons on 30 November, said that "we think that the current debate is effectively over. We should instead focus our energy on delivering practical measures". HC Deb 30 November 2006 col 1256.  Back

5   Letter from Gerry Sutcliffe MP, Parliamentary Under Secretary of State at the Home Office, to Lord Grenfell, Chairman of the Select Committee on the EU, on 5 Dec 2006. To be published in the next Report of Government Responses. Back

6   The Minister said: "The cherry picking aspect is quite important to the real world consideration of what happens next" (Q 6). Back

7   The JHA of 4-5 December 2006, concluded that "the decision making mechanisms which apply in the justice and home affairs area do not always contribute to effective and efficient decision making processes". Council press release on the 2768th Council Meeting, Justice and Home Affairs, Brussels, 4-5 December 2006, p 9. http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/jha/91997.pdf. The JHA referred the question to the European Council meeting of 14-15 December. The European Council, at this meeting, was "convinced that the framework for pursuing the Union's policies aimed at enhancing the area of Freedom, Security and Justice will need to be genuinely strengthened in order to meet present challenges". However, the European Council emphasised its commitment to the principles behind "the Union's reform process" as "the most balanced basis for future work in the area of Freedom, Security and Justice". Presidency Conclusions from the Brussels European Council of 14-15 December 2006, p 7. http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/92202.pdf. Back

8   The Court ruled that a Directive drafted by the Commission, which included a prescription of criminal penalties, should indeed have been a Directive (first pillar legislation) rather than-as the Council had argued-a Framework Decision (third pillar legislation). See our 2006 Report, chapter 2. Back

9   For example, Proposal for a Directive of the European Parliament and of the Council amending Council Directive 91/477/EC on control of the acquisition and possession of weapons. Doc 7258/06. Proposal for a Council Regulation, amending Regulation (EC) No 1334/2000, setting up a Community regime for the control of exports of dual-use items and technology. Doc 16989/06. Back

10   Case C-440/05 Commission v Council, pending. Back

11   Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights. COM(2006) 168 final. Doc 8866/06. Back

12   Treaty establishing a Constitution for Europe, Article III-271. Back

13   Commission Communication on the adaptation of the provisions of Title IV TEC relating to the jurisdiction of the Court of Justice (Council doc 11356/06). The Court's jurisdiction in this area (Title IV of the TEC) is currently limited by Article 68 of the TEC: the Commission argues the case for removing existing limitations in relation to Title IV and giving the Court the same jurisdiction in this area as in other matters under the EC Treaty. Historically Member States have often been inclined to limit the jurisdiction of the ECJ in this area, citing concerns about the importance of national control over the definition and enforcement of criminal law, the risk of the ECJ being overwhelmed by appeals, and the potential problem of repeated references being used to prolong immigration and asylum cases.  Back

14   Doc 13272/06. Brussels, September 2006. Back