SIXTEENTH REPORTTHE FUTURE OF EUROPE:
CONSTITUTIONAL TREATY - DRAFT ARTICLE 31 AND DRAFT ARTICLES FROM
PART 2 (FREEDOM, SECURITY AND JUSTICE)
These draft Articles propose a number of important
changes. They would take forward common policies on immigration,
border controls and asylum. They would strengthen the roles of
Europol and Eurojust and enhance operational cooperation between
police forces and other law enforcement agencies across Europe.
The Commission would have a right of initiative in police and
criminal law matters and the majority of measures would be adopted
by co-decision (of the European Parliament and Council) and by
qualified majority voting (QMV). The jurisdiction of the European
Court of Justice would be significantly extended. Particular concern
arises from the proposals to increase Union competence over criminal
procedures and to create a European Public Prosecutor. We make
this Report to the House for information.
1. The Government welcomes the Committee's report
on the draft articles on justice and home affairs. It provides
an important contribution to the debate on the Future of Europe.
We share the Committee's views that these articles propose some
important measures, including building on the existing Treaties
in the areas of asylum and immigration, improving the effectiveness
of Europol and Eurojust, enhancing operational cooperation between
police forces and other law enforcement agencies across Europe,
and applying QMV to some areas of police and judicial co-operation.
2. We agree with many of the Committee's specific
conclusions. We welcome, for example, the references to the mutual
recognition principle, the proposed article on right of initiative,
as well as efforts to provide a stronger role for national parliaments
of the EU. The Committee identifies some concerns, in particular
regarding criminal procedural law and the creation of a European
Public Prosecutor. We share those concerns about the proposals
to increase Union competence over criminal procedural law and
to create a European Public Prosecutor. We are not alone in this.
There is no consensus in the Convention on these key areas, and
we are working hard to identify an acceptable way forward. The
Government has suggested to the Convention that a provision be
inserted into the JHA chapter to retain unanimity for all aspects
of these articles that affect tax.
Draft Article 31, Part One: Implementation of
the area of freedom, security and justice
Article 31(2) is innovative in two respects. It
implies the establishment of "evaluation mechanisms".
Second, it provides for an enhanced role for national parliaments,
in participating in such evaluation as well as in monitoring Europol's
initiatives. We welcome both these developments. We support, in
particular, the notion of national parliaments scrutinising the
activities of Europol. There is, however, a problem with the language
of the second clause of Article 31(2). The words "shall be
involved" imply that the new Constitutional Treaty can impose
obligations on national parliaments. We therefore suggest that
"shall be involved" should be deleted or that "shall"
be replaced by "shall have the right to".
3. The Government welcomes the inclusion in Article
31(1) of mutual recognition as a fundamental constitutional feature
of the area of Freedom, Security and Justice. Indeed, we believe
that this reference could be strengthened further. It should also
be made clear that approximation of national laws should take
place only where necessary in accordance with the provisions of
Part II of the draft Treaty.
4. We agree with the Committee that the reference
to "all competent authorities of the Member States for internal
security" could be clarified. The Government would prefer
the term "law enforcement" rather than "internal
5. On Article 31(2), the Government agrees
that it is important to enhance the role of national parliaments
in the EU. Evaluation mechanisms are one useful way of achieving
6. We further agree that it is necessary to improve
the accountability of Europol. We welcome the Committee's recognition
that duplication should be avoided by working together with other
national parliaments. We also note the Committee's drafting suggestion
to avoid any implication that the new Constitutional Treaty can
impose obligations on national parliaments.
Article 31(3) maintains Member States' right of initiative
in the field of police and judicial cooperation in criminal matters.
But following the Working Group's suggestion, Member States' initiatives
would have to have the support of a quarter of Member States.
This is a welcome limitation.
7. The Government agrees. We share the Committee's
view that there is a need to provide some limitation on Member
States' right of initiative. A requirement to have the support
of a significant proportion of other Member States prior to launching
a legislative initiative will result in much greater coherence
to future work in the justice and home affairs area.
Title X: Area of Freedom, Security and Justice
Article 1: [Definition of the area]
There is an express reference to the need to respect
fundamental rights and to take account of "the different
European legal traditions and systems". This is welcome.
8. The Government agrees. We welcome the explicit
reference to the need to take account of the different European
legal traditions and systems. This is an important guiding principle
for future action in this area. This article also includes welcome
references to the mutual recognition principle.
Article 3: [Role of national parliaments]
We welcome the involvement of national parliaments
in these matters. For the same reason as given above in relation
to Article 31(2), "shall be involved" should be deleted
or "shall" replaced by "shall have the right to".
Article 3(2) is intended to be placed in the Protocol
on national parliaments and provides a special rule for national
parliaments monitoring the principle of subsidiarity in the area
of freedom, security and justice. A lower (one quarter in place
of one third) threshold for the "yellow card" is proposed
(this would require the Commission to reconsider its proposal).
This is welcome in so far as it goes. But while the "yellow
card" will in most cases strike the right balance between
the right of national parliaments to be heard and a right of veto,
the "red card" principle (which would require the Commission
to withdraw its proposal if two thirds of national parliaments
objected) should be maintained. If national parliaments are to
have a collective voice which could actually make a difference
then the "red card" should be available here, perhaps
with a one half, instead of a two thirds, threshold.
9. The Government supports efforts to provide a stronger
role for national parliaments in the EU. We have been strong advocates
in the Convention of a new mechanism for national parliaments
to monitor and enforce the principle of subsidiarity and proportionality.
The key to the success of such a mechanism will be its credibility.
The Commission should not be able to disregard the strong view
of a significant majority of national parliaments that a certain
proposal was in breach of subsidiarity.
Article 5: [Operational cooperation]
It is envisaged that the new Committee would have
responsibility for co-ordinating the action of national police,
customs and civil protection authorities in the event of a crisis
of the sort mentioned in the Praesidium's note ("a major
catastrophe, attacks and events or demonstrations on a European
scale"). To what extent this would mean giving the Committee
a power to direct the actions of national police and other authorities,
and is so to whom the Committee would be accountable, needs to
be clarified. As drafted the Article would seem to extend Union
competence beyond police and judicial co-operation in criminal
10. The Government strongly supported Working Group
X's recommendation that the Treaty should separate legislative
and operational tasks and strengthen co-ordination and operational
collaboration. However, we agree that there is a need to clarify
the scope of operational collaboration for which the new Committee
would be competent.
11. The Government is also seeking to clarify that,
while the new Committee should have a strong co-ordinating function,
it should not have powers of direction in relation to specific
actions. We want to give the new Committee the role of assisting
the Council in identifying priority areas for Europol. The operation
of the Management Board to date has demonstrated the need for
some external identification of priorities.
12. The new Committee would be established within
the Council. However, we agree that further consideration needs
to be given to the accountability of the new Committee and the
exact way in which it would work within the Council structures.
Article 9: [Judicial control]
We recommend that the ECJ should be entitled to
measure the legality of Union action, including that of Member
states and their authorities when implementing EU law, against
the norms contained in the Charter and the ECHR. Accordingly we
are pleased to see that the new Treaty will remove the current
limitations of the Court's jurisdiction in relation to justice
and home affairs matters. We note that Article 9 contains a very
limited (indeed an apparently tautological) exception.
13. The Government has proposed that there should
be JHA-specific rules in connection with the ECJ. For instance,
Article 68(1) TEC currently limits the national courts which can
make a request to the ECJ for a preliminary ruling to those against
whose decision there is no judicial remedy. This acts as a filter
mechanism, and stops the ECJ being overloaded with requests in,
for instance, the asylum and immigration field. We have proposed
that the option to make this limitation be retained, so that Member
States would have the flexibility to decide which arrangements
for preliminary rulings fit best with their national judicial
systems, maintaining the theme of respect for the diversity of
legal systems and traditions which needs to run throughout the
14. We also support the retention of a provision
corresponding to Article 35(5) of the Treaty on European Union
to make it clear that the European Court of Justice does not have
jurisdiction in relation to Member States' law enforcement operations
or their responsibilities for maintaining law and order and safeguarding
Article 10: [Check on persons at borders]
As mentioned above, the document is silent on
the question of the special position of certain Member States,
including the UK, in relation to the subject matter of this Title
(see paragraphs 9-13 above).
15. Article E of Part Three (General and Final Provisions)
of the draft Constitution provides that the protocols shall remain
an integral part of the new Treaty. As the Committee has noted,
the question of reconsidering these protocols has not been raised
in the Convention. The Government position on the UK's Protocols
has not changed. The Government does not intend to give up its
right under the Treaties to exercise at its frontiers with other
Member States such controls on persons seeking to enter the UK
as it considers necessary.
Article 11: [Asylum]
The references in Article 11(2) to "subsidiary
protection" are especially welcome.
The last paragraph of the Praesidium's Explanatory
note on this Article states: "Nationals of third countries"
must be understood to include stateless persons". We agree.
The text of Article 11 should be amended accordingly.
16. The Government supports the interpretation of
third country nationals as including stateless persons. As this
is an accepted interpretation, the Government does not believe
that the text of the draft articles needs to be amended to reflect
Article 12: [Immigration]
In our Reports and day-to-day scrutiny we have
repeatedly emphasised the need for a 'common' EU approach to immigration.
A further impetus towards the enhancement of EU action in the
field, in particular as regards more 'inclusive' measures, will
be provided by the shift from unanimity and consultation to qualified
majority voting and co-decision ('the legislative procedure')
provide for by Article 12(2). This is a positive step to avoid
legislative paralysis in an EU of 25, but will be controversial
in view of Member States' reluctance to relinquish power in sensitive
matters such as the treatment of TCNs.
17. The Government recognises the need for greater
use of QMV in an EU of 25. Nevertheless, in certain sensitive
areas, including social security matters relating to third country
nationals, it will be necessary to retain unanimity within the
Council and consultation with the European Parliament. Our amendments
to the articles reflect that position.
Article 14: [Judicial cooperation in civil matters]
The "internal market" criterion has
sometimes seemed rather artificial and strained, for example,
in the context of measures relating to the recognition and enforcement
of judgments in matrimonial matters and to matters of parental
responsibility. The new test is preferable, being more apposite
to closer co-operation in non-economic matters. What is important
is that there should be a genuine and proven need for action at
the European level and that in future the Commission will take
full account of the need to respect different legal systems, and
their values and traditions (as envisaged by Article 1 above).
The opportunity should also be taken to clarify
the meaning of "extrajudicial cases" and "extrajudicial
documents". Further, we note that the eighth indent of paragraph
2 of this Article refers to "support" for the training
of judges, while the third indent of Article 15(2) (criminal matters)
refers to encouraging judicial training. What is the significance
of the different wording? Does "support" imply making
18. The Government welcomes the proposition that
judicial co-operation in civil matters should be based on the
principle of mutual recognition.
19. However, this article goes significantly further
than Article 65 TEC by providing expressly for the adoption of
measures for the approximation of national laws having cross-border
implications. The Government has considerable reservations about
this extension of competence and has tabled an amendment to delete
the second sentence of Article 14(1). Approximation of substantive
and procedural civil law should not be an end in itself and should
only follow where there is a proven need for it, in particular
as a consequence of implementing the principle of mutual recognition.
20. The "internal market" criterion may
indeed seem artificial, but it is significant, as is clear from
the tobacco advertising jurisprudence of the European Court of
Justice . Recent experience in the context of negotiations on
civil legal aid has shown that its absence risks allowing measures
to be brought forward which primarily have an impact on purely
domestic cases, on the grounds that the laws in question are capable
of having cross-border implications. That would be an unwelcome
21. The Committee sought clarification of the meaning
of "extrajudicial cases" and "extrajudicial documents".
These expressions already appear in Article 65(a) TEC. The former
relates to an ambition to promote mutual recognition of decisions
made in the context of alternative dispute resolution. The latter
has its origin in the Hague Convention dating from 1965 on the
service abroad of judicial and extrajudicial documents.
22. The Committee drew attention to the different
wording in the paragraphs in Articles 14 and 15 concerning support
for the training of judges. The Government sees no need for a
difference of approach in relation to the subject matter of the
Article 16: [Criminal procedure]
As the Praesidium's Explanatory note indicates,
Article 16 reflects Working Group X's Conclusions with the addition
of a provision on victim's rights. It is a new and potentially
Rules on the admissibility of evidence in criminal
proceedings may be closely related to the mode of trial (for example,
in England and Wales, to trial by jury). That such rules could
be changed without the consent of a Member State is, we believe,
Accordingly we recommend that if Article 16 is
to remain in the Treaty, it should be amended so as
(i) to be limited to the adoption of minimum rules
under the "legislative procedure" (i.e. co-decision
and QMV) concerning
(a) the definition of the rights of individuals
in criminal procedure so as to ensure compliance with fundamental
(b) the rights of victims of crime.
(ii) to enable the Council, acting unanimously,
to adopt minimum rules relating to other specific aspects of criminal
procedure, which shall have been identified in advance by the
Council acting unanimously and with the assent of the European
Further, the power to make any European laws or
framework laws under this Article should, as a matter of the division
of competence between the Union and the Member States, be restricted
to cases having cross-border implications, as would be the case
under Article 14 (Judicial cooperation in civil matters). We recognise,
however, that even with such restriction any EU legislation under
Article 16 would most likely have substantial effects on procedure
in purely domestic criminal cases.
23. The Government shares the serious reservations
of the Committee about the proposed article on criminal procedural
law, including the Committee's concern that rules on evidence
could be changed without the consent of a Member State.
24. The Government remains firmly opposed to giving
the EU wide-ranging competence to harmonise criminal procedural
law. Judicial co-operation in criminal matters should be based
on the principle of mutual recognition and respect for the diversity
of Member States' legal systems. Common procedures should therefore
be pursued only where they are a necessary consequence of implementing
25. We recognise that it may be necessary to develop
some light minimum standards in the areas where people facing
criminal proceedings in a Member State of which they are not a
national would be disadvantaged by virtue of that fact. The Government
has therefore tabled an amendment to provide for this in the areas
of legal advice, information, interpretation and access to diplomatic
and consular authorities. The amendment would also make any approximation
in this limited area subject to the use of framework laws and
Article 17: [Substantive criminal law]
We have argued that the definitions used in EU
criminal law approximation measures should also be used to define
the offences listed in the Warrant. This would improve legal certainty
and aid consistency, as between Member States, in the application
of the Warrant.
26. The Government is content with the basic approach
in this article. On the list of offences, the Government has tabled
an amendment proposing that "computer crime" should
be replaced by "attacks against information systems",
which is the title of the recent Framework Decision in this area.
The amendment also proposes the deletion of "organised crime"
from the list of offences since there is no common understanding
within the EU of this category of criminal offences.
27. As for approximating substantive criminal law
where this is considered essential to ensure effective implementation
of a Union policy, the Government has suggested that the policy
areas to be covered should be listed in the article. The voting
regime should also be based on the voting regime applicable to
the Union policy area, as suggested by Convention Working Group
X. For example, in the case of approximating criminal offences
related to discrimination based on race, this would be governed
by unanimity (Article 13 TEC).
28. In relation to the European Arrest Warrant, the
current EU legislation provides for warrants to be issued based
on the definition of the offences in the issuing state. EU approximation
measures may bring about greater convergence in these definitions,
but would not prevent a Member State from criminalising additional
conduct which still falls within one of the generic offence categories.
The Government believes this is the right approach as it gives
the fullest effect to the principle of mutual recognition.
Article 18: [Crime prevention]
Being a new area of competence, EU action is only
supporting and excludes approximation of legislation. That is
welcome. However, the Article should be amended so as to ensure
that Union action can be taken only where there are cross-border
29. The Government agrees that it is important to
make clear that competence is restricted to incentive and support
measures to improve cross-border co-operation on crime prevention.
Article 19: [Eurojust]
It is not clear what is meant by 'serious crime
affecting two or more Member States', but it would seem to differ,
and be more extensive in scope, than the definition of "particularly
serious crime with cross-border dimensions" in Article 17.
We question whether Eurojust should be given such an open-ended
brief. The current approach, and that of the new Article 17, is
Second, Eurojust could be tasked to supervise Europol's
operational activities, thus subordinating Europol to Eurojust.
This would not be objectionable and mirrors the regime in some
Member States whereby police activity may be subject to the control
of the prosecuting authority. It is unclear, however, whether
this new supervisory role is intended to compensate for lack of
supervision by the courts, since Europol, as an EU agency, will
presumably become subject to review by the Community courts.
30. The Government agrees that the tasks of Eurojust
should be more tightly defined in the new Treaty. We have proposed
amendments to achieve this. We have also sought to ensure that
unanimity will apply to any further extension of the tasks and
powers of Eurojust, and that any such extension should take place
only on the basis of demonstrable need and taking into account
the different European legal traditions and systems.
31. As for the proposed role of Eurojust to supervise
Europol's activities, this would not be compatible with the United
Kingdom's legal tradition and system. However, we are prepared
to consider such a role for Eurojust where Europol is supporting
an investigation in a Member State whose legal tradition and system
provides for the judicial supervision of the investigation. We
have proposed an amendment to this effect.
Article 20: [European Public Prosecutor's Office]
This Article, establishing a European Public Prosecutor's
Office, is a surprising and undesirable inclusion in the new Treaty.
There is no doubt that more could be done to ensure that effective
action is taken against fraud with the Union. But the European
Public Prosecutor (EPP) is not a realistic and practical way forward.
We recommend the deletion of Article 20.
32. The Government agrees. We remain firmly opposed
to the creation of a European Public Prosecutor's Office. We share
the Committee's view that further action needs to be taken to
tackle fraud within the Union, but that the European Public Prosecutor
is not a realistic and practical way forward. The UK and seven
other governments co-sponsored a contribution to the Convention
on 21 May entitled 'Improving the Union's response to fraud -
alternatives to the European Public Prosecutor' (CONV 753/03 CONTRIB
331). This explained why we are opposed to the creation of a European
Public Prosecutor and suggested an alternative way forward based
on the principle that criminal prosecutions should remain a national
Article 21: [Cooperation with regard to internal
Article 21(2) would enable the adoption of 'any
other measure' which encourages police cooperation. The wording
is vague and could lead to extensive EU competence in police matters.
We recommend the deletion of the third indent of Article 21(2).
In view of the vast amounts of data that may be
collected, analysed and exchanged under the police cooperation
chapter, we believe that adequate data protection safeguards are
essential and should be clearly reflected in the Constitutional
Treaty. This is something to which we will return when the Praesidium
publishes its proposals on data protection.
33. The Government agrees that "any other measure"
is too vague and should be deleted.
34. The Government agrees that data protection safeguards
are important for police and judicial co-operation in criminal
Article 22: [Europol]
It is important to note that Article 22(2) does
not contain an exhaustive list of Europol tasks, but merely indicates
areas of action. This could lead to a significant extension of
Europol powers without democratic supervision. A defined exhaustive
list would be preferable (possibly set out in a Protocol annexed
to the new Treaty).
As we have said above (see comment on Article
31), the Committee strongly supports enhancing the accountability
of Europol and has recommended the creation of a joint scrutiny
committee of members of national parliaments and the European
35. The Government agrees that this article is currently
too broad and open-ended. In particular, crimes which affect a
common interest covered by a Union policy should fall within Europol's
mandate only to the extent that the crime is serious and affects
two or more Member States. If a crime is purely internal to a
Member State, it is a matter for that Member State's law enforcement
36. The Government supports increasing the accountability
of Europol particularly with regard to ensuring that due care
is taken to protect EU citizens' rights in the treatment of personal
data. The UK has supported the Danish proposals to amend the Europol
Convention which seek to increase the oversight of Europol by
the European Parliament for example on Europol's relations with
third countries. The continued involvement of national parliaments
in scrutinising Europol's work is equally important. The Government
agrees that there is a need to consider establishing inter-parliamentary
mechanisms for the supervision of Europol's work.
142 Government Response dated 2 July 2003. Back