Select Committee on European Union Minutes of Evidence

Examination of Witness (Questions 1066 - 1079)




  1066. Thank you very much indeed for finding the time to come and hopefully answer our questions this morning. We are sure it will be interesting but we hope also it will be mutually beneficial for all of us. I do not know if you want to say anything initially or shall we go straight into questions?

  (Ms Rouchaud) No, I have nothing to say in opening except that we are happy to be here and to have the opportunity to answer your questions and give you information about our activities. We welcome your questions and we will try to do our best to give accurate answers.

  1067. The background to our being here is we are conducting an inquiry primarily which is about the way in which policy has developed on e-commerce in Brussels and on co-ordination but, of necessity, the subject is such, e-commerce that we have gone into a whole variety of other areas, as you will note from some of the questions we have to sent to you. Some are quite a little bit away from structural issues. If I may, could I open up with question number one and I will link with it also question number four. We are going to see OECD, incidentally. This evening, we are going on to Paris and we will be seeing OECD in the morning. OECD is the main forum for States to discuss the problem of cybercrime. At the G8 Industry Conference on Cybercrime on 15 May the French Prime Minister called for the early adoption of the Council of Europe Convention on Cybercrime. Is there not a danger of crossing wires? What will be in the Communication on Cybercrime which is in the Commission's work programme for 2000?
  (Ms Rouchaud) I think that is more a question for Mr Jones.
  (Mr Jones) Perhaps I could just introduce myself first of all. I am Chris Jones and I work in the Judicial Co-operation Unit in DG Justice and Home Affairs. I am actually on secondment to the European Commission, I used to work in the Home Office until a few months ago. Some of these issues, particularly on United Kingdom legislation, I am reasonably familiar with from my previous job in the Home Office.

  1068. You might be able to answer some of the criticisms from some of my colleagues on the current legislation that is going through.
  (Mr Jones) To take your first question, you asked whether it is correct that we should be looking for early adoption of the Council of Europe Convention on Cybercrime when OECD is the main forum for cybercrime. I think in fact most Member States, and I think the Commission shares this view, believe that the Council of Europe Convention is the main international convention under negotiation at the moment on cybercrime. It involves all the European Member States; the United States and Canada are also involved. It is fairly well progressed and the aim is to complete the Convention by the end of this year. It covers a range of issues, including substantive criminal law, issues such as offences for hacking, denial of service, as well as more general issues about mutual assistance on cybercrime matters. The Council of Europe Convention is going to be quite a wide ranging convention. They have a broad remit. We are aware of the work going on in the OECD and we do not see any conflict with the work going on in the OECD because of the range of States which are represented and heavily involved in the Council of Europe negotiations. We would hope that there will be consistency between the Council of Europe work and the OECD work. Then you asked what will be in the Communication on Cybercrime which as you quite rightly say is on the work programme for this year. That Communication is still being finalised so I cannot really say exactly what is going to be in it but we have been through a period of informal consultation in the Commission with industry, with data protection authorities and with Member States and law enforcement authorities to try to get the best feel possible for where some of these solutions might lie in what is a fairly sensitive area.

  1069. Could you give us the heads?
  (Mr Jones) Certainly. I think the Communication will recognise that the Council of Europe Convention is an important international Convention and obviously the Commission does not want to cross wires, as you say, with what is going on there. Certainly the Commission will be considering bringing forward legislative proposals. There are already proposals in the Justice and Home Affairs work programme and the scoreboard that we have on child pornography and we are planning to bring forward an EU Third Pillar instrument to look at the approximation of laws on the areas of child pornography and trafficking of human beings. That is under preparation at the moment, and is likely to be launched later this year. Obviously the Communication will cross refer to that. The European Parliament has been very interested in getting greater approximation of substantive criminal law on child pornography. As you might be aware, there was an Austrian Presidency initiative for a Council decision on the subject adopted by the Justice and Home Affairs Council just the other week. That Austrian Presidency initiative did not contain provisions which approximated criminal law offences on child pornography, it was mainly about making sure that everybody sets up national centres of expertise on combating child pornography and sets up some networks and contacts to make sure that people do investigate it. It did not go into detail about approximating national laws. In the Commission we are keen to have as much approximation as possible on that sensitive area because it will help clarify, particularly for industry, what is and what is not lawful. So the Communication Directive will refer to that. Another issue which we are considering is the possibility of using mutual recognition in the context of cybercrime. One of the outcomes of the Tampere European Council in October 1999 was that the Council and the Commission should draw up a programme of measures on mutual recognition judicial decisions. We are actually considering at the moment, and it is very much in its early stages, whether there is scope to use mutual recognition of court orders in a cybercrime context. It is obviously very important that there is speedy and effective co-operation between Member States, so we do think there is some scope there and the Communication may refer to that. As I say, it is still being finalised.

  1070. Some areas of agreement and some of disagreement.
  (Mr Jones) I think with the way the Commission procedures work, it is going to be a joint Justice and Home Affairs and DG INFSO initiative, so we work very closely together. There is agreement between us on the issues. I do not see a problem within the Commission.

  Chairman: Indirectly we will come back to this later but we will change the topic for the moment.

Viscount Brookeborough

  1071. When we are talking about cybercrime you have been speaking as if we live in a world of our own with the US. What links do we have with Japan, not in great detail but is the EU talking to Japan?
  (Mr Jones) Absolutely.


  1072. Through the G8?
  (Mr Jones) Through the G8, yes. The Commission is actually involved in the G8 discussions on cybercrime.

Viscount Brookeborough

  1073. And they are happy with mutual recognition?
  (Mr Jones) The mutual recognition idea is simply an idea at the moment but obviously it is going to be EU based because it is an EU initiative. It is not intended to be an initiative that would cover other G8 countries. The Tampere conclusions are very clear, mutual recognition of other Member States' judicial decisions, and there is quite a lot of work going on.

  1074. Thank you. Looking at the Brussels Convention, how widely have you consulted on the proposal of the transfer of it into law affecting e-commerce?
  (Ms Rouchaud) Before answering this question I have to remind you that in 1997 the Commission adopted a Communication which was a two-fold Communication containing a draft convention, Brussels 1 Convention, on the basis of K3(2), which was at that time the legal basis for judicial co-operation in civil matters. In fact, it was decided by the Member States during the Permanent Committee of the Lugano Convention to make a parallel revision of these two instruments. The Commission issued a Communication containing a draft convention firstly and, secondly, a consultative document on possible improvements in the functioning of justice through the Union in trying to find ways to improve access to courts, how to improve obtaining judgments throughout the Union and how to enforce them. This Communication was published and the Commission received answers which were taken on board during the discussions in the Council on the revision of the Brussels Convention. Then in May 1999, there was political agreement on this revised convention and consultation and the Commission transferred it into regulation just giving it the legal form of regulation because the content had been agreed in the Council. When adopting the regulation the Commission felt that there was a need to have a more in depth exchange of views with the interested parties, the firms and consumer organisations and this was the reason why there was a hearing organised last November which was held here in Brussels and which was attended by many participants. All of the discussions which were held during this meeting were made public firstly and, secondly, forwarded to the Council which took that on board. Parliament is still working on the draft regulation and its opinion is expected in September. It was planned to have it in June but it will be delayed until September.

  1075. There were not vast differences between points of view held at your conference? Was it contentious or did the participants basically agree with the line that the Commission was taking?
  (Ms Rouchaud) During the hearing?

  1076. Yes.
  (Ms Rouchaud) No. You could say that it was controversial. Basically I would say that the organisations representing businesses had the point of view that the Commission should not have drafted Article 15 as it stands. I think that Article 15, consumer contracts, was the main point of controversy. The businesses said that this Article was not adapted to e-commerce and they should not be exposed to go in as many courts as Member States. The consumers were very happy with the provision and they want to keep it as it stands. It was rather controversial. So far the Council has heard the result of the hearing but has not discussed it again because the opinion of the Parliament is still expected.

  1077. Presumably if the ADR is effective then it will not have to appear in so many courts because it should all take place outside, at least at the consumer level, at the relatively low value level.
  (Ms Rouchaud) I think the development of the ADR is likely to have an effect on the use of the provision on jurisdiction because in most cases consumers will have the choice to go through ADR rather than to go to the courts. Even if they go to a court in their own country it is still expensive and long and sometimes ineffective. It is likely that ADR will dissuade consumers from going to the court but in any case we still need to have a provision for jurisdiction because it is inconceivable that we could say to a consumer "you do not go to any court, you have to use ADR". A consumer has the right to go to the court and have his day in court and that is why we need a provision even if it is used very scarcely. Apparently even now it is not used very much and if you look at the Wallis Report you can see that she has made some enquiries and she has noted that in the United Kingdom there are very, very few cases where Article 15 has been used by consumers. We need however to have a provision. The fact that ADR is developing does not mean that we are not supposed to give some jurisdiction, we need it in any case.
  (Mr Wilderspin) There are perhaps a couple of things I could add to that. The controversy really in the discussion with regard to the revision of the Convention and its reformatting as the Regulation has very much focused on this aspect of jurisdiction in consumer disputes. In fact, I think it is important not to overlook the fact that the revision exercise is a fairly thorough going exercise, the main objective of which is to speed up the procedure whereby foreign judgments can be declared enforceable within other Member States. This was the main thrust. The question of what was regarded by the delegates as really modernising the provisions on consumer jurisdiction were I would not say peripheral but certainly did not give rise to much controversy in the revision exercise. So far as this question of delay goes, I think it would be regrettable if the entry into force of the revised package is delayed simply because of this one aspect which is causing problems. The other aspects represent a great improvement in the mechanism of the Convention and certainly I think it will be very welcome the quicker it comes into force.


  1078. This is the issue that has been drawn to our attention with some of the evidence we have taken, particularly from industry people, who have been advancing the view that they are not heard, that legislation comes forward often and, yes, there are consultation procedures but they are not always as actively involved as they should be.
  (Mr Wilderspin) Well on this particular point, as my colleague has said, the circumstances were exceptional in that the Commission's proposal for a regulation was simply—and in conformity with the Commission's commitment—taking over the substance of the package which had been already agreed on in the course of the negotiations. The Commission had done its part in putting forward a proposal in the beginning of 1998 and for the rest of the negotiations it was really the responsibility of the Member States to undertake the necessary consultations.

  1079. There is a lot of lobbying going on. We are meeting some MEPs at lunch time and that is one of the topics on the agenda. We understand they have been quite heavily leaned on, some of them.
  (Mr Wilderspin) Perhaps there is just one further point I should make.

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