APPENDIX 5 (continued)
SUPPLEMENTARY EXPLANATORY NOTE
HM CUSTOMS AND
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.
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
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
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
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.
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
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
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