Select Committee on European Scrutiny Twenty-First Report

7 Exchange of information and cooperation concerning terrorist offences



COM(04) 221

Commission Communication on measures to be taken to combat terrorism and other forms of serious crime, in particular to improve exchanges of information

Draft Council Decision on the exchange of information and cooperation concerning terrorist offences

Legal base(Communication) —

(draft Council Decision) Articles 29, 30(1) and 34(2)(c) EU; consultation; unanimity

Document originated29 March 2004
Deposited in Parliament14 April 2004
DepartmentHome Office
Basis of considerationEM of 5 May 2004
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


7.1 A number of measures had already been taken at EU level in relation to terrorism even before the attacks on New York and Washington in September 2001. The European Council of 21 September 2001 approved a plan of action including enhanced police and judicial cooperation and taking measures against terrorist funding. A wide variety of measures has since been adopted, many of which (such as the European Arrest Warrant) are not specifically directed towards terrorism, whilst others give effect to United Nations Security Council resolutions on terrorism and terrorist funding. The Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism[31] defines a "terrorist group" and creates the offence of directing a terrorist group, as well as other offences related to terrorism and provides for a common range of penalties across the EU.

The Commission Communication

7.2 The Communication from the Commission argues for a more direct link between measures to combat terrorism and those dealing with organised crime. It suggests that the scope of Joint Action 1998/733/JHA making it a criminal offence to participate in a criminal organisation in the Member States should be reviewed and expanded. It suggests that a new Framework Decision to replace the Joint Action should harmonise the definition of offences and penalties, that it should provide for a specific offence of "directing a criminal organisation" and that it should provide for specific aggravating circumstances (such as the commission of an offence in conjunction with a criminal organisation) and for mitigating circumstances (such as a reduction of penalty for those who assist the police with their inquiries).

7.3 The Communication suggests that such a revision of the Joint Action would contribute to the fight against terrorism and the financing of terrorism, in particular where "the group's terrorist motives have not yet become visible", or where the group "commits terrorist offences, in particular to obtain sources of finance, without it being possible to charge with terrorist offences at that stage" or "in the case of links, or even confusion, between terrorist organisations and organised criminal groups".

7.4 The Communication also argues for systems to be established by the Member States for registering bank accounts allowing the true owners to be identified and for such systems to be accessible to law-enforcement agencies and judicial authorities. The Commission notes that the establishment of such a system is being considered in the context of a draft proposal for a third Directive on money-laundering.

7.5 The Communication recommends that Member States should include, in their legislation on the creation and management of bodies corporate, mechanisms providing for the disqualification of individuals or firms convicted of offences related to terrorism or organised crime.

7.6 The Communication indicates that the Commission will be making a proposal before the end of 2004 for a European criminal record. It notes that such a record was envisaged in the Commission Communication in 2000 on the mutual recognition of final judgements in criminal matters and in the Council and Commission programme of measures to give effect to the principle of mutual recognition of decisions in criminal matters, published in January 2001. The Commission has since funded three studies into the question. The Communication notes that there are major differences between the Member States in the way that criminal records are kept and in the rules governing access to them. It argues that a European criminal record would identify repeat offenders and extend "the effectiveness of penalties throughout the Union", but that other uses would be conceivable such as allowing the national court to apply the ne bis in idem principle[32] and that "it could also help to prevent terrorist groups and organised crime from infiltrating the legitimate public and private sectors".

7.7 The Communication states that, in the light of the studies funded by the Commission, the discussion on the establishment of a European criminal record "must at the very least" deal with the questions of data protection, access, content, removal of data, organisation and financing. The Communication notes that it will be necessary to decide whether police and administrative authorities, as well as judicial authorities, should have access to the record and that "the question of access for Eurojust, Europol, and OLAF will arise". On the question of content, it would have to be decided whether all convictions or disqualifications should be recorded, or only those relating to particularly serious offences such as terrorism and organised crime. On the question of organisation, the Commission does not consider that its proposals necessarily imply a central computer storing all the data, but that it will be necessary to determine what body is best placed to manage the register at European level, and raises the possibility that Europol or Eurojust might do so.

7.8 Apart from the question of a European criminal record, the Communication introduces (under the rubric "the exchange of information between the Member States and the Union bodies responsible for combating terrorism must be total") a draft Council Decision on the exchange of information relating to terrorist offences as defined by the Framework Decision on terrorism (Council Decision 2002/475/JHA) and requiring information concerning investigations, prosecutions and convictions to be sent to Europol and Eurojust.

The draft Council Decision

7.9 Article 1 of the draft Council Decision is concerned with definitions. Article 2 would require Member States to designate a specialised service within its police services which is to have access to and collect information concerning or resulting from criminal investigations into terrorist offences. It would also require each Member State to designate a Eurojust national correspondent for terrorism, or an appropriate judicial or other authority, which would have access to and collect information concerning prosecutions and convictions for terrorist offences. Member States are required to ensure that information obtained by these bodies is passed to Europol and to Eurojust.

7.10 Article 2(4) specifies that the information to be passed to Europol and Eurojust is information which identifies the person, group or entity, the acts under investigation and their "specific circumstances", the offence concerned, any links with other terrorist offences, requests for mutual legal assistance, any previous convictions for terrorist offences, penalties imposed or previous criminal record. In addition, Article 2(5) requires information on the use of communications technologies or any threat posed by the possession of weapons of mass destruction to be passed to Europol. Article 2(6) provides that each Member State must ensure that any relevant information "included in document, file, item of information, object or other means of evidence" which is taken in the course of investigations into a terrorist offence "can be made accessible or available immediately" to authorities in any other Member State where investigations are being carried out or might be initiated or where prosecutions are in progress.

7.11 Article 3 requires Member States "in appropriate cases" to take the necessary measures to set up joint investigation teams to investigate terrorist offences. Article 4 requires Member States to ensure that requests for mutual legal assistance and recognition and enforcement of judgments in connection with terrorist offences are dealt with as a matter of urgency and priority.

The Government's view

7.12 In her Explanatory Memorandum of 5 May 2004 the Parliamentary Under-Secretary of State at the Home Office (Caroline Flint) explains that it is not possible to assess the impact on UK law of the measures outlined in the Communication until these have been developed into firm proposals. In relation to the link which the Communication seeks to draw between terrorism and organised crime, the Minister comments as follows:

"The fight against serious and organised crime is an important one in its own right for all EU Member States. However, the nature of the links between terrorists and organised crime within the EU are complex. The UK considers that the extent of these links within the EU should be carefully assessed before new legislation on organised crime is proposed."

7.13 On the disclosure of information generally, the Minister comments that there is a large body of case-law concerning the disclosure of personal information, such as on convictions, to a third party. The Minister adds that the proposed Council Decision increases the extent of information exchange and is a matter on which the Minister is seeking further advice on the possible legal consequences.

7.14 With regard to the possibility of a new legal instrument on the registration of bank accounts showing their true owners, the Minister comments that the UK already has effective "know your customer" rules in force and welcomes measures which support EU Member States on a voluntary basis rather than by any new instrument.

7.15 The Minister states that the UK has concerns over the feasibility and cost-effectiveness of harmonising information in national registers of companies and charities, but that improved access to national registers would be welcome.

7.16 On the proposal for a European criminal record, the Minister comments as follows:

"The UK is doubtful whether the benefits of a central EU register of criminal records relative to those offered by simply improving access to national criminal records would justify the cost and complexity of overcoming the considerable differences in the formats in which criminal records are stored across Europe."

7.17 The Minister explains that the draft Council Decision complies with the principle of subsidiarity and that it is broadly supported by the UK. The Minister adds that the Government would wish to see a national security exemption, and would like the Council Secretariat to comment on the extent to which the existing instrument has been implemented and on the extent to which the new proposals may duplicate information contained in the Europol Information System.


7.18 We agree with the Minister that there should be a careful assessment of the links between terrorism and organised crime in the EU before any new legislation on organised crime is proposed at EU level. The Commission's Communication rests more on assertion than on evidence in this regard.

7.19 We also agree with the Minister's hesitation over compulsory measures on the registration of bank accounts. The proportionality of any such measure would require the closest attention.

7.20 The Minister does not comment specifically on the question of subsidiarity in relation to the possibility of a European criminal record. In our view, it is not the business of the European Union to determine the composition or content of national criminal records. Such a matter bears directly on the rights of the individual, and is a matter for national parliaments.

7.21 With regard to the draft Council Decision, we note that the Minister is examining the legal consequences of disclosing personal information to third parties, and we ask the Minister for her assessment, in due course, of the compatibility of the draft Council Decision with Article 8 of the European Convention on Human Rights, and whether any amendment of the Human Rights Act 1998 or the Data Protection Act 1998 would be necessary to give effect to the Council Decision.

7.22 We ask the Minister for an account of the views expressed by the Council Secretariat on the points raised with it by the Government. We also ask the Minister to explain how the Council Decision might affect the handling of confidential or secret information provided to the United Kingdom by third countries (notably on the use of communications technologies) and whether it is the Government's intention to seek to qualify or restrict the apparently absolute obligation to pass all information to Eurojust or Europol.

7.23 Article 2(6) of the Council Decision appears to us to duplicate the provisions of the proposal for a European Evidence Warrant, and we ask the Minister to explain the relationship between these two proposals.

7.24 We shall hold the document under scrutiny pending the Minister's reply.

31   OJ No. L 164 of 22.6.02, p.3. Back

32   i.e. the avoidance of double jeopardy. Back

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