Examination of Witnesses (Questions 340
- 359)
WEDNESDAY 9 JANUARY 2008
Mrs Claire-Françoise Durand and Dr Clemens
Ladenburger
Q340 Chairman:
Can I just ask you a supplementary with regard to Article 69B(2)?
We now have, as part of the Lisbon Treaty, Title IV, subject to
qualified majority voting, this provision relating to the approximation
of criminal laws and regulations where essential in areas subject
to harmonisation measures, and that is a special law. Can you
tell us how you see that in relation to the existing jurisprudence
in the environmental and ship pollution cases which established
Pillar One criminal jurisdiction for the Community, which was
outside Title IV? Does that continue? Can it be further developed
or is it subsumed now within 69B(2)?
Mrs Durand: I am afraid that on this issue we
are still in the process of analysing this particular legal question
and at this stage I cannot give you an answer from my institution.
Lord Lester of Herne Hill: Could I just
ask a very brief question? I do not have the old Treaty in front
of me to compare but, just looking at the crimes listed, are they
exactly the same?
Chairman: No.
Q341 Lord Lester of Herne Hill:
Take the example of forcing people and children to marry against
their will, a wide abuse that happens to some. When it refers
here to "the sexual exploitation of women and children"
or "trafficking in human beings", are those new crimes
that are here? They are not defined, I do not think, except as
listed as names, but are they in the existing Treaty?
Mrs Durand: They are not cited as such. In the
current Treaty you have "trafficking in persons and offences
against children". Therefore, what you are pointing out falls
within that category. It would clearly fall also within the old
Treaty. My point was more that since you have in the current Treaty
"combating crime, organised or otherwise", "in
particular" terrorism and trafficking, therefore among the
"in particular" you could there find—
Q342 Lord Lester of Herne Hill:
No; that I understood. Is that the nature of the crime rather
than with the inclusive words you cited?
Mrs Durand: Yes.
Baroness Kingsmill: This seems to be
wider, in fact, because sexual exploitation of women and children
is—
Lord Jay of Ewelme: Yes, but this is
limited; this is specific, whereas the earlier one was "in
particular", so it was in fact broader.
Baroness Kingsmill: But in terms of the
numbers of crimes you said that this is narrower because it is
clearly enumerated, but the definition thereof could be wider
because—
Lord Lester of Herne Hill: Precisely.
Baroness Kingsmill:— the sexual
exploitation of women and children is limited in the old Treaty
to "trafficking". Here it is spelled out as "sexual
exploitation of women and children".
Baroness O'Cathain: It is not trafficking.
It is not in it.
Baroness Kingsmill: So it could easily
be, as you say, forced marriages, or indeed prostitution.
Lord Lester of Herne Hill: I am not opposed
to it. I am just saying that, if one takes it very carefully,
in clarifying and producing an exhaustive list, as it were, subject
to co-decision and unanimity, there is a bit of widening (welcome
widening in my view) of the definition of the nature of the offences
which would cover wider evils than are covered under the existing
Treaty.
Q343 Baroness O'Cathain:
But the existing Treaty does not cover people trafficking.
Mrs Durand: Yes, it does.
Q344 Baroness O'Cathain:
Where does it? In Article 31?
Mrs Durand: Article 29.
Q345 Chairman:
Am I not right that in the light of the use of the word notamment
or "in particular" under Pillar III there have been
measures in each of the areas which are now specified in 69B(1)?
Is that right? I am suggesting that 69B(1), and I may be wrong;
help me, covers specifically areas in which there have already
been measures.
Mrs Durand: I am not sure.
Dr Ladenburger: When I recall the process of
when this was drafted, indeed, the examples to make a case that
there should be harmonisation at Union level were drawn from past
practice of the Council, so I think one could probably point to
a harmonising act for each of the areas of crime already. There
is also, if I may add, a further precision in the new article
that, if you wish, makes competence more precise or restricted
as compared to the open-ended current language, and that is that
each area of crime subject to harmonisation must not only be particularly
serious but also have a cross-border dimension. That may go without
saying but it is not something you will find in the current Treaty.
Q346 Lord Lester of Herne Hill:
Baroness Kingsmill was making the same point. What I am suggesting
is that there has been a helpful widening as well as narrowing,
but the narrowing is the notamment point. The widening
is that the reference to sexual exploitation of women and children
is capable of covering more than trafficking, for example, cross-border
forcing of a young child or woman to enter into a so-called marriage
against her will, where kidnapping and abduction and all of that
would be criminal matters for national law but under this there
would be a competence to deal with them in a cross-border way,
which was not so clear under the old Treaty.
Dr Ladenburger: It is a helpful precision.
Q347 Baroness Kingsmill:
It is a helpful precision in that particular area, yes.
Dr Ladenburger: It was all controversial so
far.
Baroness Kingsmill: It is a helpful precision—that
is a good way of putting it.
Q348 Chairman:
Can we move on? Let me pose a third question, enhanced co-operation
by a group of Member States in certain circumstances if a Member
State ever felt it necessary to operate the emergency brake procedure.
Can you just give us a view as to what the position in relation
to external competence of the union would be, that is, under the
new Article 188L, and the position, if the Union did have an external
competence, of Member States who were not party to the enhanced
co-operation?
Mrs Durand: Where an internal act is adopted
in enhanced co-operation it does not bind those Member States
which are not part of the enhanced co-operation, and therefore
any external competences resulting from this act would not affect
the external competences of those states who are not part of the
enhanced co-operation.
Q349 Chairman:
But you do consider, do you, that external competence of the Union
would follow in relation to those states who were party to the
enhanced co-operation?
Mrs Durand: Yes.
Q350 Baroness Kingsmill:
Can I just get some clarification on that, because maybe I have
not understood it as well as I should have done, just looking
at it as an example and from a British perspective if I may? There
is something into which the UK has exercised its right to opt
in, or indeed opt out, and then there becomes an area of disagreement
and the emergency brake is applied for four months, and at that
point, the same point at which the emergency brake is applied
for the four months that there can be discussion, the enhanced
co-operation arises and a minimum of nine Member States have to
get together to bring about this enhanced co-operation. Is that
the way it would work?
Mrs Durand: If a Member State objects and says,
"I have a problem with a fundamental aspect of criminal justice
systems; this new directive causes me a problem", then the
draft Act goes to the European Council. In cases where there is
consensus within the European Council to go on with the act they
go on. In cases where there is no consensus that is the point
when those who want to take the act—
Baroness Kingsmill: It is an alternative
to consensus. I see.
Q351 Lord Blackwell:
Can I just ask on this point of the emergency brake what authority
would adjudicate on whether it was affecting a fundamental aspect
of the criminal justice system in the country which was objecting?
If a country says that is that enough or is it open to dispute?
If the UK used the emergency brake and said, "We do not want
to go ahead with this. It affects a fundamental aspect of our—
Mrs Durand: The point is that it is hardly controllable
by the Court because the sentence starts with "Where a member
of the Council considers that" it affects ... . It appears
more like a political process than a legal process.
Q352 Chairman:
You do not read in the words "on reasonable grounds"?
Mrs Durand: You have the notion of consensus
as to the decision-taking by the European Council, which is a
procedure which it is not very easy to circumscribe.
Q353 Baroness Kingsmill:
One imagines also that the emergency brake would very rarely be
applied. It is the existence of it which would trigger negotiations
presumably if a member of the Council decided that there was something
they were uncomfortable with.
Mrs Durand: That is also a political question.
Q354 Chairman:
Has anyone given examples of situations in which a country might
consider that fundamental aspects of its criminal justice system
were affected?
Mrs Durand: Examples thought of would be when
a measure would affect in particular the judicial system of the
country, the way people are tried and this kind of thing.
Q355 Chairman:
I have heard references to the jury system in this connection,
for example, but that may be fanciful.
Mrs Durand: But this presupposes that the harmonisation
act contains aspects which affect them.
Q356 Lord Jay of Ewelme:
In some ways it is a sort of extension of the Luxembourg compromise,
is it not?
Mrs Durand: Not really. The new element in this
emergency brake that was from the Treaty is the notion of enhanced
co-operation, which is that some countries do not want to go along
with it but the others can go on.
Lord Norton of Louth: It is only temporary.
You could not block it if many others wanted to proceed.
Q357 Lord Bowness:
My Lord Chairman, while we are on this section, and I apologise
because I must say I do not quite follow it, in 69B(2) the last
words are, "without prejudice to Article 61I", and,
looking at Article 61I, how do these two relate? I have to say
it is a very short set of words and I do not quite see what it
is trying to say.
Mrs Durand: I think it refers to the fact that
in this field Member States also have the initiative. It is not
only a proposal of the Commission, which is the rule for other
Union policies; in this field Member States have the initiative.
Therefore, Member States could also make a proposal in that field.
Q358 Lord Bowness:
My Lord Chairman, forgive me. I appreciate that fact, but what
is the point of the reference to it in 69B? What effect does this
have in regard to the proposals on the emergency brake?
Mrs Durand: It is connected with the procedure
of adoption of the 69B(2) act. That is how we read it.
Q359 Lord Bowness:
I am sorry, my Lord Chairman, I am probably being very stupid
over this, but it says, "Such directives shall be adopted
by the same ordinary or special legislative procedure as was followed
for the adoption of the harmonisation measures in question, without
prejudice to 61I". My question, rather rudely, is, so what?
61I enables Member States or the Commission to bring it forward.
What is the significance of the reference?
Mrs Durand: Here it says, "Such directives
shall be adopted by the same ordinary or special procedure ...
". The ordinary procedure always starts with a proposal of
the Commission. Therefore, it was felt necessary to add that the
general rule covering Title IV, which is that Member States have
also the initiative, still would apply.
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