Examination of Witnesses (Questions 420
- 423)
WEDNESDAY 9 JANUARY 2008
Ms Diana Wallis MEP, Mr Philip Bradbourn MEP, Mr
Klaus-Heiner Lehne MEP, Mr Manuel Medina Ortega MEP, Baroness
Ludford MEP and Mr Michael Cashman MEP
Q420 Chairman:
What about the expanded competence? How do you ensure that there
is within the Court skill in the criminal justice area if it is
going to have substantial criminal justice competence?
Mr Lehne: That is up to the Court. I think they
have enough judges; they can organise this. They simply have to
make internal decisions as to how they handle this, and I personally
believe that with so many highly qualified judges it should be
possible to deliver specific qualifications on certain areas.
Mr Cashman: I agree with what my colleague has
said. I think it is worth recalling that not only are they appointed
but of course they are not appointed for ever. They are appointed
for a fixed six-year term and have to be re-appointed, and will
be re-appointed based, arguably, on the work they have done. I
welcome the involvement of the ECJ in the broader scope. It would
be inconceivable if they did not have competence within the broadened
scope. However, it is worthwhile recalling that they have competence
on EU law and not on domestic law.
Q421 Chairman:
Are there any further points?
Baroness Ludford: I just want to say a word
about data protection. Philip mentioned one aspect of data protection
earlier. I just want to say that we have ambiguity in what the
role of the European Parliament will be in international agreements
on exchanges of data. You have the famous Article 25A in the Treaty
which was put in at the last minute.
Q422 Chairman:
Which is a derogation from the general rule?
Baroness Ludford: It is a derogation from the
general rule and says that the Council can adopt a position on
data protection rules in the area of common foreign and security
policy. Given our experience on PNR, where indeed the Council
ended up making an agreement with the United States on passenger
name records under the CFSP provisions, which cut us out of the
seam, and that was why some people said we had a Pyrrhic victory
but I do not agree with that, I think we had to go to court on
it, they do not even have to consult the European Parliament.
My personal view is that I think the Parliament would argue that
if you had an area like passenger name records or something to
do with terrorism and crime which was a Title IV policy governed
by the normal rules on data protection then Article 188N, where
the Parliament has to consent to international agreements, should
apply in conjunction with Article 16B on data protection, but
I think it is ambiguous because I cannot see what the point of
Article 25A is personally when you have 188 which is that Parliament
has to consent. Obviously, the Council is hoping that that means
that they can leave us aside but I think the Parliament will try
and say, "Oh, no, you cannot. We have to consent to an international
agreement which involves data exchange and data protection".
I think there is ambiguity there and the potential for considerable
dispute, political if not legal, because you cannot review this.
There is no recourse to the Court. If the Council invokes Article
25A there is no Court review there, but we would jump up and down,
I imagine.
Q423 Chairman:
That is very helpful, drawing attention to the way in which you
might respond, and we will have that in mind.
Mr Cashman: May I just add that it would be
worthwhile, given what Sarah has just said, referring to Treaty
declaration 36, which states, "The conference confirms that
Member States may negotiate and conclude agreements with third
countries or international organisations in the areas covered
by Chapters III, IV and V of Title IV of Part II in so far as
such agreements comply with Union law".
Chairman: Thank you very much for your
participation and for meeting us. It has been very useful.
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