Select Committee on European Union Forty-Ninth Report


COMPENSATION TO CRIME VICTIMS (13349/02)

Letter from the Chairman to Mr Bob Ainsworth MP, Parliamentary Under-Secretary of State, Home Office

  Sub-Committee E (Law and Institutions) considered the proposal at its meeting on 18 December. The Committee notes that you have expressed concern at the use of Article 308 TEC as the legal base for the Directive and have questioned whether the requirements of the principle of subsidiarity have been met. We agree that the issue of vires needs to be addressed first. Only if the matter falls within the competence of the Community is it necessary to consider the issue of subsidiarity.

  The proposed Directive would provide minimum criteria for compensation of victims of crime. The large majority of Member States have schemes but not all. Those who do not have a scheme would have to create one, ie to adopt a form of civil liability (a statutory duty) to compensate victims of crime. So far as we can discern it, the objective is "restorative justice" (see Commission's explanatory memorandum Para 5.2, fourth paragraph) which, as the proposed Council Decision setting up a European Network of National Contact Points for Restorative Justice indicates, is essentially Third Pillar (Title VI TEC). But it is necessary to see if a case can be made on First Pillar grounds, apparently as part of the establishment of an area of freedom, security and justice.

  To satisfy Article 308 the Directive must be "necessary to attain, in the course of the operation of the common market, one of the objectives of the Community". The draft recitals of the Directive refer, however, to the objectives of the Union (see Recitals 1 and 9). Recital 10 takes the reader to Article 308 TEC, the assumption seeming to be that an objective of the Union, or the "objectives" of the proposal as described in the earlier Recitals 8 and 9, is one "of the Community". This leap from the Union into the Community is not explained. The Commission's explanatory memorandum provides little assistance. In paragraph 5.2 the Commission claims only that the "objective" of the proposal would make a "contribution" (the extent or the amount undefined) to the "establishment of an area of freedom, security and justice and the free movement of persons".

  The wording may be deliberately woolly to avoid acknowledging that the "establishment of an area of freedom, security and justice", of which "the free movement of persons" is a part, is essentially an objective of the Union (see Article 2 TEU). This objective is not to be found in the opening Articles of the EC Treaty, though it is referred to in defining the scope of action under Title IV—see Article 61. Whether the reference to the establishment of an area of freedom, security and justice in Article 61 TEC makes that an objective "of the Community" within the meaning of Article 308 is unclear. Further, even if it is, it is by no means clear how far Article 308 can be used to make good any shortcomings of Title IV.

  You will recall Title IV had its origins in the Third Pillar and was only put into the Community Treaty by Amsterdam. Significantly three Member States have a special position in relation to measures taken under that Title. Under Article 69 the UK and Ireland can opt-in selectively. Denmark has opted-out comprehensively. How, if the Directive is intended to further the establishment of an area of freedom, security and justice, does that Article apply in the context of Article 308? Perhaps the UK and Ireland could be deemed to have opted-in (because Article 308 requires unanimity) but the consequences for Denmark (and the constitutional implications) might be harder to explain. Using Article 308 to go further than Title IV also has implications for the jurisdiction of the ECJ, which is limited as regards Title IV but not prima face in relation to measures under Article 308.

  We also note that the Commission makes no reference to furthering the objective of the "free movement of persons" either stemming from EU citizenship or the acquisition of services.

  If one accepts the reasoning of the Commission, the Directive could set a dangerous precedent and there is a risk that it could open the way for the large scale harmonisation of civil law and social measures. There may be discrepancies between national criminal injuries compensation schemes, with the result that Member State A may give compensation where Member State B would not or would do so at a lower level. But discrepancies exist in many areas where the State comes to the aid of the injured or disadvantaged citizen (eg road traffic, industrial injuries), which may have as great if not a greater impact on free movement of persons than the present proposal.

  As a first step the Commission should be invited to define more precisely the objective of the proposal and its correspondence with the objectives "of the Community", as required by Article 308, and the relationship between Article 308 and Title IV TEC. It appears that the Commission is seeking to use Article 308 to circumvent the limitations on the legislative powers given in Title IV to establish an area of freedom, security and justice.

  Finally, we have, in addition to considering the vires issue, taken a first look at the substance of the proposed Directive. It would be helpful if you could clarify two matters relating to scope. First, what is intended to be included within the term "intentional crime"? Would it, for example, include corporate manslaughter or causing death by dangerous driving? Second, who would be included within the term "legal residents of any Member State"? The Commission's explanatory memorandum refers to the proposed Directive on the status of third country nationals who are long term residents. But the UK has chosen not to opt-in to that measure.

  The Committee would welcome your reactions to the points made above. In the meantime the proposal is retained under scrutiny. We reserve the right to raise further points, in particular as regards subsidiarity, as the negotiations proceed.

Letter from Bob Ainsworth MP, Parliamentary Under-Secretary of State to the Chairman

  Thank you for your letter of 19 December 2002.

  I agree that the question of vires for this proposal needs to be addressed first, and that only if the matter falls within Community competence will it be necessary to consider the issue of subsidiarity. I have some initial comments on the issue of the legal base. However, as stated below, we are pursuing this issue in Brussels, and I will aim to write to you again on the matter at a later date.

  Article 2 of the Treaty on the European Union (TEU) sets out the maintenance and development of the Union as an area of freedom, security and justice as an objective of the Union. The competence to adopt measures to achieve that objective is divided between the First and Third pillars. Measures to achieve that objective by assuring the free movement of persons and with respect to external border controls, asylum and immigration potentially fall within First Pillar competence, whilst measures to prevent and combat crime potentially fall within Third Pillar competence. Article 61 of the Treaty Establishing the European Community (TEC) seems to have been drafted on the basis of this division of competence.

  Given this division of competence between the First and Third Pillars, the establishment of an area of freedom, security and justice cannot straightforwardly be treated as an objective of the Community within the meaning of Article 308 TEC. As you say, this objective is not cited in the opening articles of TEC and it is unclear how far Article 308 can be used for its attainment.

  The Commission does not, in fact, rely only on the claim that the proposal contributes to the establishment of an area of freedom, security and justice. In paragraphs 5.1 and 5.2 of its Explanatory Memorandum it also claims that the improvement of compensation to the victims of crime will contribute to the free movement of persons, a First Pillar objective. The Memorandum cites the Cowan case (ECJ Case 186/87) to support this link between the free movement of persons and state compensation to crime victims.

  I share your view, however, that the paragraphs in the Explanatory Memorandum on the legal base for the proposal are rather woolly and leave a number of questions unanswered. I agree, in particular, that we need to consider the relation between Article 308 and Title IV TEC in this context.

  We intend to pursue the question of the legal base for this proposal at the next Council Working Group in February, and I will write to you again once we have the result of these discussions.

  As well as the issue of vires, you also raised at the end of your letter two points on the substance of the proposal.

  First, you asked what was intended to be included within the term "intentional crime" (Article 2.1 (a) and (b) of the draft Directive) and whether this wou1d include corporate manslaughter or causing death by dangerous driving.

  I am afraid I cannot give a definitive answer to this since we ourselves will be seeking clarification on this issue. We are concerned that the provisions in the draft Directive and accompanying Explanatory Memorandum as currently phrased would take us well beyond the scope of the current UK compensation schemes. For instance, they could be held to admit someone who had suffered personal injuries arising from crimes against property and from other crimes such as harassment, racist and xenophobic abuse, where no violence was used or threatened. They might also be held to admit, in some circumstances, victims of corporate manslaughter, and victims of dangerous driving.

  Because of this, we believe there is a good case for seeking further clarification of the intended scope of the definitions in Article 2 of the draft Directive. Thus, here too we intend to pursue the matter in the Council Working Group, and will advise you of the outcome when known.

  Second, you asked who would be included within the term "legal residents of any Member State" (draft Article 3.2).

  In addition to EU citizens, the Directive would also apply to third country nationals who are legally resident in a Member State. Whether or not a person is considered to be legally resident remains of course a matter for national law. You note that the Commission has referred in this content to the Directive on the status of third country nationals who are long-term residents, which the UK has not opted into. But the context of that reference is simply to give an example of another instance in the JHA arena where work is based on the principle of non-discrimination as between nationals and legally resident third country nationals. Indeed, under existing rules, the GB Criminal Injuries Compensation Scheme compensates any person (whether a UK citizen, resident or visitor) who is the subject of an offence whilst on GB territory.

17 January 2003

Letter from the Chairman to Mr Bob Ainsworth MP, Parliamentary Under-Secretary of State, Home Office

  Sub-Committee E (Law and Institutions) considered your letter of 17 January at its meeting on 12 February. The Committee welcomes your assurance that the Government intends to pursue further the questions of legal base and scope in the Council Working Groups and looks forward to being updated on the outcome of these discussions. In the meantime, the proposal is held under scrutiny.

13 February 2003


 
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