Select Committee on European Communities Fourteenth Report

APPENDIX 5 (continued)



  This supplementary explanatory note updates the earlier explanatory note on this Convention to take account of the current version of the text which is attached. This document is being made available to Parliament in line with the Government's commitment to keep Parliament informed of work being carried out under Title VI (the Justice and Home Affairs Pillar) of the Treaty of European Union. The proposal under discussion would not lead to Community legislation, does not form part of a communication from one Community Institution to another and is outside the scope of the scrutiny rules that apply to Community proposals.

Subject Matter

  1. The latest version of the text includes various changes from the text submitted to the Committee on 12 November. The most important changes relate to the territorial application of the Convention, its relation to other international agreements (in particular, the Schengen Agreement) and the exact role of the European Court of Justice. There are other significant changes in Article 28 and in Article 25.

  2. Although Article 1 which defines the scope of the Convention is essentially unchanged, there is a new Article (Article 30a) which limits the applicability of the Convention to the Community Customs Territory.

  3. A new paragraph has been added to Article 30 which makes clear that obligations arising from the Schengen Agreement will not be affected by the Convention. This reinforces a related provision in the earlier draft of the Convention in Article 1 paragraph 2.

  4. The current version of the Convention now contains a text for Article 26. This states that the European Court of Justice will have jurisdiction to resolve disputes between Member States in relation to the interpretation or application of the Convention where the Council itself is unable to do so within six months. The Court will also have jurisdiction in relation to disputes between Member States and the Commission concerning the interpretation or application of the Convention. A Member State may also make a declaration stating that it is prepared to accept the jurisdiction of the Court in giving preliminary rulings in relation to the Convention. Paragraph 5 of Article 26 makes clear that the Court will have no competence to assess the validity or proportionality of operations undertaken by law enforcement agencies within the context of the Convention. This is in line with Article K 7 paragraph 5 of the Amsterdam Treaty.

  5. Article 28 of the Convention which deals with exemptions from the obligation to provide assistance has been amended to make clear that Member States have the right to refuse requests, particularly in relation to Title 4, where the scope of the action requested is obviously disproportionate to the seriousness of the presumed infringement.

  6. Article 25 has been amended to include in paragraph 1 a specific reference to the 1981 Council of Europe Convention on the Protection of Individuals with Regard to Automatic Processing of Personal Data. A further change is the replacement of the word "use" by "processing" (French: traitment) at various points in the article. As the new paragraph 3 makes clear, this is simply to bring the Convention in line with the recent EC directive on the protection of personal data. The penultimate sentence of sub-paragraph (e) of paragraph 2 has also been amended to read "laws, regulations and procedures" rather than just "laws".

  7. Other changes include many minor amendments, for example, the addition of a further explanatory paragraph to Article 22 on controlled delivery. There are also several more statements by individual Member States which are to be annexed to the Convention and published in the Official Journal.

Policy Implications

  8. The Government believes that this Convention will be a valuable tool in helping to strengthen international law enforcement co-operation against drugs smuggling and trafficking in other illicit goods. It considers that this text is acceptable.

  9. The Government considers that it is appropriate for the Convention to be limited to the Common Customs Territory of the Community, since one of the aims of the Convention is to strengthen customs co-operation following the introduction of the Single Market and the abolition of border controls on goods within the European Community. Gibraltar is outside the Customs Territory of the Community and the provisions on territorial application of the Convention will mean that the Convention will not apply to Gibraltar. Gibraltar is not a party to the original Naples Convention of 1967 and having consulted with the Gibraltar Government the Government is content that they should not be a party to the new Convention.

  10. The Government has no objection to the new paragraph in Article 30 on the relationship between this Convention and the Schengen Agreement. In agreeing the Convention, Member States are assuming new obligations, but there was never any intention that the Convention should interfere with or reduce other obligations Member States might have entered into it. The UK is not a party to the Schengen Agreement.

  11. The Government has no objection to the content of Article 26 on the role of the ECJ which reflects the provisions of the Amsterdam Treaty on the future role of the ECJ in the third pillar. It is also happy with the modification of Article 28 which sensibly makes plain that any actions taken under the Convention should be proportionate to their object.

  12. The changes to Article 25 are also acceptable to the Government, as the UK is committed to taking appropriate data protection measures in relation to personal data. The UK is, for example, already a signatory to the Council of Europe Convention that is now mentioned. The amendment to paragraph 2 (e) brings this sub-paragraph into line with sub-paragraph (f) and corresponds to the UK situation where data protection is provided for by a mixture of legislation, regulation and other administration provisions. The effect of this amendment is that the Convention will no longer require new UK legislation in the data protection area and which might otherwise have considerably delayed the process of ratification in the UK.

  13. As far as the statements annexed to the Convention are concerned, these are unilateral statements by the Member States concerned. They indicate how these Member States interpret various provisions in the Convention, but cannot function as reservations, since Article 30 of the Convention explicitly states that there can be no reservations except for those specifically allowed for in the Convention itself.


  14. The Presidency has indicated a wish to have this Convention signed on 18 December 1997.

28 November 1997

Letter from Lord Tordoff, Chairman of The European Communities Select Committee to Dawn Primarolo MP, Financial Secretary to the Treasury

  Thank you for your letter of 28 November. I note the concerns you raise but I am sure you will agree that Parliament must have the opportunity to conduct a sufficient and proper examination of the Naples II Convention under the scrutiny procedure. I am writing to inform you of the progress being made and to seek further information from you.

  Sub-Committee E considered the draft Convention at its meeting today. As you are aware Naples II overlaps and raises similar questions, in particular as regards the effective investigation of crime and the protection of civil liberties, as the draft Convention on Mutual Assistance in (Criminal Matters "the MLA Convention") into which the Committee is currently conducting a short enquiry. The Sub-Committee has decided to retain Naples II under scrutiny and examine it in the context of that enquiry.

  The Committee has already received evidence on the MLA Convention and is seeking further comments in the light of Naples II. Witnesses have been urged to respond promptly. As you may know Ms Quin has agreed to give oral evidence to the Committee on 17 December. In order to assist the Committee in its examination of the two draft Conventions, and in particular to expedite its work on Naples II, it would be helpful if you could provide the following information:

    (1)   How do you see the two Conventions working together in practice? What opportunities will be given for co-operation between law enforcement agencies and customs authorities which do not exit at present?

    (2)   To what extent do the provisions of Naples II overlap with obligations in the Schengen acquis? It would be helpful if you could identify and describe all relevant provisions.

    (3)   How will existing procedures for controlled deliveries be enhanced by the provisions of Article 22?

    (4)   How important in practice is Article 23 likely to be? What conditions does/would the United Kingdom impose on foreign authorities conducting covert investigations here?

    (5)   As regards Article 25 (Data Protection) you say in your Supplementary Explanatory Note that amendments have been proposed in order to avoid the need for legislative change in the United Kingdom which process would delay ratification. The Committee would be grateful if in addition to a detailed explanation of the amendments made you would describe their legal and practical implications for the citizen and also to what extent, given the Government's commitment to introduce a Data Protection Bill this Parliamentary session (Data Protection: The Government's Proposals, CM 3725), there would be an unacceptable delay, if any, if primary legislation were needed to give effect to data protection safeguards provided by the Convention.

    (6)   Further on the question of data protection, I enclose a copy of evidence received from the Data Protection Registrar. It would be helpful to have your comments on the points she makes, in particular those concerning the CIS Convention. Finally, can you confirm that the protection given by Article 25 applies to personal data transmitted under Title II (Spontaneous assistance)?

3 December 1997

Letter from Dawn Primarolo MP, Financial Secretary to the Treasury to Lord Tordoff Chairman of the European Communities Select Committee

  Thank you for your letter of 3 December informing me of the progress being made in relation to Parliamentary scrutiny of Naples II. I am very grateful for the efforts being made by Sub-Committee E to expedite this work.

  You asked a series of questions to assist your examination of Naples II alongside the draft Convention on Mutual Assistance in Criminal Matters. I enclose a memorandum prepared by HM Customs and Excise officials in response to your questions.

11 December 1997

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