Select Committee on European Scrutiny Thirty-First Report



11. TEMPORARY RECEPTION IN EU OF CERTAIN PALESTINIANS

 

 

(23482)

Adoption of a Council Common Position on the temporary reception by Member States of the European Union of certain Palestinians.

Legal base:

Article 15 EU; unanimity

 

 

Department:

Foreign and Commonwealth Office

Basis of consideration:

EM and Minister's letter of 22 May

Previous Committee Report:

None

To be discussed in Council:

To be adopted by written procedure on 21 May

Committee's assessment:

Politically important

Committee's decision:

Cleared

 

 

Background

33038.33159 The peaceful resolution of the situation in the Church of the Nativity in Bethlehem was effected in accordance with the terms of an understanding between the Palestinian Authority and the Government of Israel reached on 5 May 2002. This understanding allows for 13 persons from a group of Palestinians in the Church to be transferred abroad. In a letter dated 22 May, the Secretary of State for Foreign and Commonwealth Office Affairs (Mr Jack Straw) says that the implementation of this understanding represents important progress in the international community's efforts to help Israel and the Palestinian Authority to overcome the current crisis and restart political negotiations.

The Common Position

33038.33160 The Common Position sets out the arrangements for the temporary reception, on exclusively humanitarian grounds, of twelve of the thirteen Palestinians, for a period of up to 12 months. They will be received in Belgium, Greece, Spain, Ireland, Italy and Portugal. None will be received by the UK.

33038.33161 The Common Position states that:

"Although the decisions to grant entry into, and stay in, their territory to any of those persons on humanitarian grounds fall within the competence of each receiving Member State and do not imply a right for the persons concerned to move freely within the territories of the Member States, it is important to adopt a common approach at the level of the EU to certain aspects related to such decisions"; and

"In exercising their responsibilities with regard to the maintenance of law and order in their own territories and the safeguarding of their own internal security, the receiving Member States will take account of the public order and security concerns of other Member States. Receiving Member States accordingly express their readiness to readmit any of the Palestinians they have received who may illegally enter the territory of another Member State or who are otherwise not allowed to stay there".

33038.33162 The Common Position says that it is desirable to ensure that the persons concerned receive comparable treatment with respect to matters such as the duration of their permission to stay, the protection of their security and the security of others.

The Government's view

33038.33163 The Minister says that the draft of the Common Position did not emerge until late last week and negotiations continued over the weekend. He says he is sorry that it was therefore impossible to give the Committee advance warning last week, but hopes that it will understand, given the urgent need to resolve the issue.

33038.33164 The Common Position was due to be adopted by written procedure[25] at 1600 local time on 21 May.

Conclusion

33038.33165 The Common Position makes it clear, as quoted above, that the 12 Palestinians are being given entry to the EU under special humanitarian conditions. We presume that it has been adopted, but we recognise the urgency of the issue and thank the Secretary of State for his letter.

33038.33166 We now clear the document.

12. OCCUPATIONAL PENSIONS

 

(21784)

13420/00

COM(00) 507

Draft Directive on the activities of institutions for occupational retirement provision.

Legal base:

Articles 47(2), 55 and 95(1) EC; co-decision, qualified majority voting

   

Document originated:

11 October 2000

Deposited in Parliament:

16 November 2000

Department:

HM Treasury

Basis of consideration:

EM of 11 December 2000; Minister's letter of 7 May 2002

Previous Committee Report:

See HC 28-ii (2000-01), paragraph 5 (10 January 2001)

To be discussed in Council:

4 June 2002

Committee's assessment:

Politically important

Committee's decision:

Cleared

 

 

Background

33038.33167 In October 2000, the Commission adopted a directive to cover occupational pension schemes operating on a funded basis which are outside of the scope of social security systems. In her Explanatory Memorandum of 11 December 2000, the then Economic Secretary to the Treasury (Miss Melanie Johnson) said that:

"The Directive is intended to improve the operation of the single market for supplementary pensions and protect the interests of scheme members and beneficiaries by:

putting in place a framework of prudential rules covering, for example, a requirement for IORPs[26] to be run by persons of good repute and disclose information to scheme members and beneficiaries;

introducing qualitative rules on the investment of pension scheme assets to deliver secure and efficient investment (although Member States may continue to apply certain quantitative investment rules to IORPs established in their territory);

removing barriers to IORPs using the services of any duly authorised asset manager or custodian within the EU;

giving Member States the option to apply certain prudential provisions of the proposed Directive to the occupational pension business of life assurance companies to ensure a level playing field between providers of similar products;

allowing for the mutual recognition of prudential regimes to facilitate the cross-border membership of pension schemes".

33038.33168 The Minister added:

"The Directive would also require IORPs to have sufficient and appropriate financial assets to cover liabilities (referred to as technical provisions in the proposal) calculated using recognised actuarial methods. In the event of cross-border activity, the technical provisions must be fully funded at all times.

"Member States may choose not to apply the Directive to pension schemes to which fewer than 100 persons are members and beneficiaries.

"Member States may also not apply certain provisions to IORPs where occupational retirement provision is made under statute and which is guaranteed by a public authority".

33038.33169 The previous Committee considered the draft text, but left it uncleared pending further information. The Committee specifically questioned whether effective completion of the single market for occupational pensions would also require action to increase tax co-ordination, and, if so, whether that affected the approach the Government was taking to the pensions directive; and whether the directive raised questions about the competence of the Community to legislate for third country nationals.

The document

33038.33170 Negotiations on the draft text have generally been slow. However, according to the Economic Secretary to the Treasury (Ruth Kelly) considerable progress on the proposed directive has been made under the Spanish Presidency. The Spanish Presidency has now produced a compromise text, which has the support of the European Commission. The Minister says:

"The text prepared by the Spanish Presidency has the same objectives as the Commission's original proposal. The main changes from the Commission's text are:

clarification of the Articles on the calculation of technical provisions (funding arrangements);

the addition of qualitative requirements to amplify principles underpinning the prudent person approach to the investment of pension scheme assets;

flexibility for Member States to apply some quantitative investment rules to IORPs located in their jurisdiction;

the possibility to apply certain quantitative rules to schemes operating across borders. These would not apply to IORPs operating on a cross-border basis between Member States that apply the prudent person approach;

provision for regulatory co-operation between competent authorities to facilitate cross-border operations."

33038.33171 The Minister says that the last point reflects an amendment proposed by the European Parliament in its first reading and adds that the European Parliament proposed a large number of amendments, including: greater detail on the nature of benefits provided by pension schemes; a requirement for all Member States to apply the prudent person approach after a transitional period of 5 years. According to the Minister:

"The European Commission indicated that it was unwilling to accept amendments on these points. Although a move by all Member States to the prudent person approach would be desirable, a majority of Member States were not prepared to support an approach which would impose an approach pursued by three Member States on all others.

"ECOFIN agreed in May 2001 that the directive should "create a Community prudential legal framework for institutions for occupational retirement provision in a way that is coherent with existing single market legislation while fully respecting the great variety of systems among Member States, particularly as regards supervision, as well as the specific characteristics of IORPs"."

33038.33172 As regards the previous Committee's questions on tax coordination, the Minister says:

"Taxation does not form part of this proposal because it is concerned only with establishing principles for the prudential regulation of IORPs. The taxation aspects arising from the reference to a 'greater degree of tax coordination' were dealt with by the Commission in their Communication on the elimination of tax obstacles to the cross-border provision of occupational pensions (COM(2001) 214) issued on 19 April 2001. This Communication presents a non-legislative approach for dealing with the issues arising out of the differing tax treatment of pensions in EU Member States. The Government supports, in principle, efforts to overcome tax obstacles to the cross-border provision of occupational pensions. The Communication contained four areas where the Commission called for action from Member States. The Explanatory Memorandum 8 1 82/01 of 5 May 2001 sets out the Government's reaction to these.

"The Commission proposed only one fully articulated proposal, which calls for the universal adoption of a taxation method for pension schemes. This method treats both contributions to a scheme and investment income within the scheme as exempt, and taxes the pensions and benefits. The UK already uses this tax treatment. A further proposal for unilateral, bilateral and multi-lateral approaches to removing double taxation and exemption is similarly not a new concept for the UK. The UK already includes in double taxation agreements specific rules that deal with the taxation treatment of contributions and pensions.

"The other two main proposals referred to the elimination of discrimination against schemes established in other Member States and protection of Member States tax revenues from pensions through Exchange of Information. Of the first, the Government already makes available generous reliefs to overseas schemes, where those schemes are similar to UK established schemes. With regard to the second, the Government intends to contribute fully to discussions in Europe.

"The directive raises no concerns about an extension of Community competence because the rights in the directive for pension providers to operate on a cross-border basis do not extend to third country pension providers. Third country nationals who are members of pension schemes in the European Union would, of course, in practice benefit from the protection provided by the prudential regime in the directive."

The Government's view

33038.33173 As regards the Minister's view on the proposed Directive, the Minister says that:

"ECOFIN discussed the Commission's proposal (COM(2000)507) in May 2001 and agreed that the directive should 'create a Community prudential legal framework for institutions for occupational retirement provision in a way that is coherent with existing single market legislation while fully respecting the great variety of systems among Member States, particularly as regards supervision, as well as the specific characteristics of IORPs'.

"The Government has engaged constructively to secure an approach that respects these broad principles. Although a move by all Member States to the prudent person approach suggested by the European Parliament would be desirable, a majority of Members States were not prepared to support an approach that would impose an approach pursued by three Member States on all others.

"The Government is working to secure further clarification of the Presidency's text. Subject to this, the Government broadly supports the Presidency's approach. It leaves occupational pension schemes in the UK free to continue to pursue a prudent investment strategy that best meets the needs of scheme members.

"The Presidency's text will also:

anchor the prudent person approach, the validity of which has previously been questioned by some Member States;

deliver some liberalisation of quantitative investment rules currently imposed by some Member States;

provide a basis for cross-border operation by pension schemes."

Conclusion

33038.33174 The previous Committee commented that completing the internal market in respect of occupational pension schemes is an issue of substantial economic and social importance for the Community, from which the UK industry in particular may stand to gain.

33038.33175 We note the Minister's comments that the provisions of the proposal are broadly consistent with the general approach taken in UK law relating to the regulation of occupational pension schemes. We also note the Minister's apology for the delay in providing us with the information requested by the previous Committee. We now request that the Minister keep us informed of any changes to the text more promptly, and report at the earliest opportunity on the outcome of the ECOFIN meeting on 4 June. Meanwhile we clear the document.

13. AMENDING THE EUROPOL CONVENTION AND ITS PROTOCOLS

 

(23154)

5455/02

Initiative of the Kingdom of Belgium and the Kingdom of Spain with a view to adopting a Council Act drawing up a Protocol amending the Convention on the establishment of a European Police Office (Europol Convention), the Protocol on the interpretation (by way of preliminary rulings) by the Court of Justice of the Convention on the establishment of a European Police Office and the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and the employees of Europol.

Legal base:

Article 43 (1) Europol Convention, Article 7 Protocol on interpretation, by way of preliminary rulings, by the European Court of Justice, and Article 18 Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and employees of Europol; consultation; unanimity

   

Deposited in Parliament:

4 February 2002

Department:

Home Office

Basis of consideration:

Minister's letter of 14 May 2002

Previous Committee Reports:

HC 152-xxii (2001-02), paragraph 9 (20 March 2002) and HC 152-xxvi (2001-02), paragraph 6 (24 April 2002)

To be discussed in Council:

Date not set

Committee's assessment:

Legally and politically important

Committee's decision:

Cleared

 

 

Background

33038.33176 The amending Protocol addresses four matters: the involvement of Europol in joint investigation teams; the simplification of the procedure for amending the Europol Convention; the amendment of the Protocol on interpretation, by way of preliminary rulings, by the European Court of Justice (ECJ);[27] and the amendment of the Protocol on privileges and immunities of Europol and its members and employees.[28]

  13.2  When we first considered this document, in March, we commented that the combination within one document of a proposal to amend the Europol Convention in relation to a specific area (participation in joint investigation teams) with a proposal for a simplified procedure for amending the Convention as a whole seemed inherently unsatisfactory. It proved so, and the Presidency decided to focus on each separately, beginning with joint investigative teams, on which it produced a new document.[29]

33038.33177  In April, we cleared those parts of this document which are concerned with Europol's participation in joint teams, and the new document. At that time, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth ) undertook to write to us separately on the outstanding issues related to the rest of this document.

The Minister's letter

33038.33178 The Minister has now responded to our questions. We had asked whether we were right in assuming that the inclusion of proposed amendments to the Protocol on the interpretation, by way of preliminary rulings, by the European Court of Justice (ECJ) of the Europol Convention was intended to ensure that no aspect of the Convention, including its amendment and implementation, was excepted from the jurisdiction of the ECJ. The Minister confirms our view, saying:

"I can confirm that the Protocol on the interpretation, by way of preliminary rulings, by the European Court of Justice (ECJ) of the Europol Convention only provides at present for jurisdiction to give preliminary rulings on the interpretation of the Convention itself. The proposed amendments would ensure that the Court also had jurisdiction over implementation measures, so that no aspect of the Convention would be exempted from that jurisdiction. That would include amendment and implementation measures."

33038.33179 We had also queried the Minister's statement that these proposed amendments would not affect the UK, since it had not opted-in the preliminary rulings mechanism. We pointed out that the UK would be affected by interpretations given by the Court on questions submitted by the other Member States which have opted into such jurisdiction. The Minister concedes the point, stating:

"Any interpretative ruling of the Court following a request from another Member State will... be relevant to the interpretation of the provision concerned as it applies in all Member States. In this regard it should be noted that the UK will be entitled to submit observations to the Court in preliminary ruling cases even if it has not opted-in to the preliminary rulings mechanism. The UK will, therefore, be able to set out its views on the interpretation of any provision that is referred to the Court by some other Member State."

Conclusion

33038.33180 We thank the Minister for his response. As we understand that negotiations on these matters are certain to lead to a new text in due course, we are now content to clear the whole of the current document.

14. EXCHANGING INFORMATION ON TERRORISTS

 

(23377)

5172/4/02

 

Initiative of the Kingdom of Spain for the adoption of a Council Decision on the introduction of a standard form for exchanging information on terrorists.

Legal base:

Articles 29, 31(e) and 34(2)(b) EU; consultation; unanimity

   

Deposited in Parliament:

11 April 2002

Department:

Home Office

Basis of consideration:

Minister's letter of 16 May 2002

Previous Committee Report:

HC 152-xxvii (2001-02), paragraph 6 (1 May 2002)

To be discussed in Council:

13/14 June 2002

Committee's assessment:

Politically important

Committee's decision:

Cleared

 

 

Background

33038.33181 This document proposes the introduction of a standard form for exchanging information about terrorists. When we considered it three weeks ago, we had insufficient information to assess it properly. We left it uncleared and asked the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) for a fuller explanation of its context and contents.

The Minister's letter

33038.33182 The Minister has now responded. He tells us first that the legal base of the text has now been changed from a Council Decision to a Council Recommendation. He then apologises for not having deposited earlier versions of the document for scrutiny, despite their lack of "readiness". He reports that the document has been scheduled for adoption at the meeting of the Justice and Home Affairs Council on 13/14 June.

33038.33183 Turning to the purpose of the document, the Minister explains that it is intended to facilitate the exchange of information on known terrorists who are travelling to large events, not necessarily to commit terrorist acts, but to exploit the events for their own ends. He tells us that "known terrorists" refers to individuals with a police record related to terrorism as defined in the Framework Decision on Combatting Terrorism[30]. The Minister admits that the UK has no real experience of known terrorists behaving as envisaged in the proposal, but it is committed to supporting other Member States in the particular difficulties they face. The issue is very important to the Spanish, who have examples of ETA members exploiting demonstrations for their own propaganda and violent purposes. The UK has expressed its support for the measure.

33038.33184 The Minister lists the key elements of the draft Recommendation as follows:

"—  use of a standard form annexed to the Council Decision for exchanging information;

discretion to provide whatever information is considered necessary or desirable. Any such exchange must be in accordance with national legislation;

linking the exchange to those with a police record in connection with terrorism;

specifically precluding any exchange of information on those merely exercising their constitutional rights as set out in Article 6 of the Treaty of the European Union. It relates to members of groups run by terrorist organisations for the purpose of achieving their own destabilisation and propaganda aims;

requiring any information exchange to be made using the Bureau De Liaison (BDL) system, a secure e-mail network that links the competent authorities responsible for counter-terrorism in each EU Member State. It also requires that information should never be transferred to third parties without the permission of the originating country."

33038.33185 With regard to the protection of information, the Minister says:

"Any information exchanged would be treated confidentially and not forwarded to third parties without the permission of the issuing Member State. Information would be passed to those authorities with responsibility for fighting terrorism in the Member State concerned. Any information received by the UK, for example, could therefore expect to go to the police and the Security Service. The Government is satisfied that these safeguards provide sufficient protection to any information that would be exchanged under this proposal and addresses any concerns about the storage and use of this information once it has been transferred."

33038.33186 The Minister tells us that the Netherlands delegation in the Terrorism Working Group is still unhappy with the definition of "known terrorists", and wants the information exchange to be limited to terrorists connected with organisations that appear in EU issued lists. The UK considers that this would be too restrictive.

33038.33187 Finally, the Minister stresses that the measure is not intended to inhibit the right to demonstrate. It is simply an encouragement to share information in order that Member States can take preventative action.

Conclusion

33038.33188 We thank the Minister for his letter, which has given us a much fuller account of the proposal and its background than his earlier Explanatory Memorandum did.

33038.33189 We are still unimpressed by the proposal, which seems to us to run the risk both of being ineffective and of restricting human rights — an unhappy mixture. We agree with the Netherlands delegation that the exchange of information should be limited to those connected with listed organisations, and hope that the Government will reconsider its opposition to this position.

33038.33190 We are prepared to clear the document, but only because it has now been recast as a Council Recommendation instead of a Council Decision.

 

 

 

 

 

15. We consider that the following documents do not raise questions of sufficient legal or political importance to warrant a substantive report to the House : —

 

 

Department for Environment, Food and Rural Affairs

 

(23344)

7222/02

COM(02) 127

Draft Council Decision concerning the conclusion, on behalf of the Commuity, of the Cartagena Protocol on Biosafety.

 

 

(23433)

8177/02

COM(02) 192

 

Amended draft Directive on the energy performance of buildings.

(23450)

8743/02

COM(02) 221

Draft Council Regulation establishing concessions in the form of Community tariff quotas for certain agricultural products and providing for an adjustment, as an autonomous and transitional measure, of certain agricultural concessions provided for in the Europe Agreement with Lithuania.

(23453)

COM(02) 227

Draft Council Regulation establishing concessions in the form of Community tariff quotas for certain agricultural products and providing for an adjustment, as an autonomous and transitional measure, of certain agricultural concessions provided for in the Europe Agreement with Latvia.

 

FOREIGN AND COMMONWEALTH OFFICE

 

(23234)

Draft Council Regulation imposing certain specific restrictive measures directed against certain persons and entities associated with Usama Bin Laden, the Al-Qaida Network and the Taliban, and repealing Council Regulation (EC) No. 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect to the Taliban of Afghanistan.

 

(23469

Draft Joint Action regarding financial support to the international negotiating process leading to the adoption of an international code of conduct against ballistic missile proliferation.

 

(23471)

Draft Regulation concerning certain restrictive measures in respect of Liberia.

 

HOME OFFICE

 

(23458)

8569/02

Draft Council Decision amending the Council Decision of 27 March 2000 authorising the Director of Europol to enter into negotiations on agreements with third States and non EU-related bodies.

 

Department of Trade and Industry

 

(23383)

7446/02

COM(02) 152

Commission Communication: Follow-up to the multi-annual Community action plan on promoting safer use of the Internet by combating illegal and harmful content on global networks; and

Draft Decision amending Decision 276/1999/EC adopting a multi-annual Community action plan on promoting safer use of the Internet by combating illegal and harmful content on global networks.

 

(23394)

7479/02

COM(02) 165

Commission Opinion, pursuant to Article 251(2), third subparagraph, point (c), of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the draft Regulation on the implementation of the .eu Top Level Domain, amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty.

 

(23462)

7821/02

COM(02) 182

 

Draft Regulation imposing a definitive anti-dumping duty on imports of coumarin originating in the People's Republic of China.

 

Department for Transport, Local Government and the Regions

    

(23460)

Draft Directive amending Council Directive 83/477/EEC on the protection of workers from the risks related to exposure to asbestos at work — Asbestos Worker Protection Directive: European Parliament amendments and proposal to include a general prohibition.

 


25  'Acts of the Council on an urgent matter may be adopted by a written vote where the Council or the Committee of Permanent Representatives of the Member States (COREPER) unanimously decides to use that procedure. In special circumstances, the President may also propose the use of that procedure; in such a case, written votes may be used where all members of the Council agree to that procedure'.

 Back

26   Institutions for Occupation Retirement Provision (IORP). Back

27  OJ No.C 299, 09.10.1996, pp.1-14. Back

28  OJ No C 316,27.11.1995, p.1. Back

29  HC 152-xxvi (2001-02), paragraph 6 ( 24 April 2002). Back

30  (22925) 12647/01; see HC 152-x (2001-02), paragraph 4 (12 December 2001).  Back

 
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