Examination of Witnesses (Questions 338
- 340)
WEDNESDAY 9 JANUARY 2008
Mrs Claire-Françoise Durand and Dr Clemens
Ladenburger
Q338 Chairman:
Thank you both very much indeed for coming. I am the Chairman
of Sub-Committee E, Jonathan Mance. We have taken a considerable
amount of evidence already. This session is on the record and
a transcript will be provided afterwards. I do not know whether
you have given evidence before but I do not think it is different
from what you would expect in that regard. If there are any supplementary
points you want to make afterwards in writing in the light of
the transcript or otherwise we would be very grateful to receive
them. We have a short timescale and we are preparing a report
which will be incorporated in a Select Committee report by the
House of Lords on the Treaty, which will hopefully be of relevance
and assistance when the House debates the bill which is being
put forward to implement the Treaty. I would invite members of
the Sub-Committee to focus their attention, in view of your expertise,
on the legal rather than the more general aspects. Obviously,
many of them we have covered with previous witnesses, but if I
may take the first question: the new Chapter IV sets out more
specifically, to some extent in different language, areas of competence
in criminal matters. Can you indicate how far in your view that
expands the present Third Pillar, Title VI powers, and how far
it is simply making them more specific and concrete?
Mrs Durand: The new Chapter IV does not increase
the competences but makes them more precise. Under the present
EU Treaty, Article 31, the EU competence for judicial co-operation
in criminal matters is laid down, and Article 31 starts with a
statement that action on judicial co-operation "shall include",
which in French is translated as "concerns among others",
which is written in a very wide and open manner and in a sense
makes all the rest of the provision non-exhaustive. The corresponding
articles in Lisbon are no longer open-ended and contain on the
contrary a more precise delimitation of competence. This is, of
course, one of the results of this provision now being governed
by co-decision instead of unanimity. If I take the example of
harmonisation of legislation in substantive and procedural criminal
law, and if we compare the current provision with the provisions
of Lisbon the point can be illustrated quite clearly. If we take
criminal procedure, this competence is for the moment governed
by Article 31(1)(c) which provides for measures to ensure compatibility
in rules applicable in the Member States, which is a wide definition
of competence, and, together with the non-exclusive character
of Article 31, in practice one could almost say that this competence
is open-ended. In the Lisbon Treaty, on the contrary, Article
69A of the Treaty on the Functioning of the EU lists three aspects
which can be subject to harmonisation, which are the mutual admissibility
of evidence, the rights of individuals and the rights of victims
of crime. Paragraph (d) indeed again allows for enlarging this
field of competence but this enlargement will be done only by
unanimity. If we go on to Article 69B of the TFEU we can find
the same sort of conclusion. In the current state of the EU Treaty,
sanctions are governed by Article 31(1)(e). Article 31(1)(e) cites
three domains of crime which can be the subject of harmonisation—organised
crime, terrorism and trafficking of drugs, but this provision
again is governed by the non-exclusive character of 31(1), and
secondly it is also governed by Article 29, which again for the
list of crimes cites some crimes, and you have the word notamment—`in
particular'. Therefore, as to the crimes the current Treaty is
open-ended. Now with Lisbon you have a list of nine areas of crime
defined and, as I said before, this list of crimes can be extended
but only by the Council acting by unanimity, so you have on the
one hand something more precise but on the other hand something
more limited, more defined. Article 69B is also defined and provides
for the establishment of sanctions linked to Community policies
but also it is not a new competence, as we know from the current
state of play.
Q339 Chairman:
Sorry—I missed that one. Which one was that?
Mrs Durand: That was 69B(2). One could argue:
is it a new competence? The answer is that it is not a new competence.
It has been done to define sanctions linked to Community policies.
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