eu justice sub-committee - parliament · letter from the chairman to michael gove mp thank you for...

European Union Committee

House of Lords

London

SW1A 0PW

www.parliament.uk/hleue

The primary purpose of the House of Lords European Union Select Committee is to scrutinise EU

law in draft before the Government take a position on it in the EU Council of Ministers. This scrutiny

is frequently carried out through correspondence with Ministers. Such correspondence, including

Ministerial replies and other materials, is published where appropriate.

This edition includes correspondence from 10 July 2015-25 January 2016

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EU JUSTICE SUB-COMMITTEE

CONTENTS

2015 EU JUSTICE SCOREBOARD (7139/15) ........................................................................3

ACCESSION TO THE HAGUE CONVENTION ON CIVIL ASPECTS OF

INTERNATIONAL CHILD ABDUCTION (5218/12, 5306/12, 5312/12) .......................3

COMMON EUROPEAN SALES LAW (15429/11) ...............................................................5

CONSULAR PROTECTION FOR CITIZENS OF THE UNION ABROAD

(18821/11) ......................................................................................................................................6

CROSS-BORDER FAMILY LAW: MATRIMONIAL PROPERTY (8253/11, 8145/11,

8160/11, 8163/11) .........................................................................................................................6

EDUCATION, YOUTH, CULTURE, AND SPORT (EYCS) COUNCIL - 24TH

NOVEMBER 2015 (UNNUMBERED) ......................................................................................7

EU AND KOSOVO: STABILISATION AND ASSOCIATION AGREEMENT

(8532/15, 8534/15, 8535/15) ......................................................................................................7

EU CHARTER OF FUNDAMENTAL RIGHTS (8707/15) ................................................ 12

EU DECENTRALISED AGENCIES: FIRST PROGRESS REPORT (8789/15) ............... 14

EU FRAMEWORK FOR NATIONAL ROMA INTEGRATION STRATEGIES 2015 (10056/15) ................................................................................................................................... 16

EU-SINGAPORE PARTNERSHIP AND COOPERATION AGREEMENT

(UNNUMBERED) ...................................................................................................................... 18

EUROPEAN ACCOUNT PRESERVATION ORDER (13260/11) .................................. 19

EUROPEAN PUBLIC PROSECUTOR'S OFFICE (EPPO) (9372/15, 12621/15,

12558/13) ..................................................................................................................................... 20

EUROPEAN SMALL CLAIMS PROCEDURE (16749/13) ................................................. 22

EXTRA-TERRITORIAL EFFECTS OF LEGISLATION ADOPTED FROM THIRD

COUNTRIES (6237/15) ............................................................................................................ 23

INCREASING THE NUMBER OF JUDGES AT THE GENERAL COURT (9375/15) 25

INTERNATIONAL COOPERATION TO COMBAT MATCH-FIXING (6720/15) .. 29

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JUSTICE FUNDING PROGRAMME 2014-2020: POST-ADOPTION OPT-IN

DECISION (17278/11).............................................................................................................. 32

JUSTICE PRIORITIES FOR THE NETHERLANDS PRESIDENCY OVER THE NEXT SIX MONTHS (UNNUMBERED) .......................................................................................... 33

MARRAKESH TREATY - ACCESS TO PUBLISHED WORKS FOR PERSONS WHO

ARE BLIND, VISUALLY IMPAIRED OR OTHERWISE PRINT DISABLED (14617/14)

....................................................................................................................................................... 34

MEMBER STATES' APPLICATION OF EU LAW IN 2014 (10987/15) ......................... 34

PROMOTING THE FREE MOVEMENT OF CITIZENS AND BUSINESSES BY

SIMPLIFYING THE ACCEPTANCE OF CERTAIN PUBLIC DOCUMENTS (9037/13)

....................................................................................................................................................... 35

PROTECTING THE EU’S FINANCIAL INTERESTS (17670/12) .................................... 40

PROTECTION OF TRADE SECRETS (17392/13) ............................................................. 41

REFORMS TO THE EU'S TRADE MARK REGIME (8065/13, 8066/13) ....................... 43

REPORT FROM THE COMMISSION ON THE APPLICATION IN 2014 OF

REGULATION (EC) NO.1049/2001 REGARDING PUBLIC ACCESS TO

EUROPEAN PARLIAMENT, COUNCIL AND COMMISSION DOCUMENTS

(12124/15) ................................................................................................................................... 43

REPORT ON THE 2014 EUROPEAN PARLIAMENT ELECTIONS (8876/15)........... 43

REPORT ON THE ANNUAL ACCOUNTS OF THE EUROPEAN SCHOOLS FOR

THE FINANCIAL YEAR 2014 (UNNUMBERED) .............................................................. 45

RESTRICTIVE MEASURES AGAINST IRAN (UNNUMBERED) ..................................... 45

RESTRICTIVE MEASURES AGAINST THE DEMOCRATIC PEOPLE’S REPUBLIC OF

KOREA (UNNUMBERED) ...................................................................................................... 46

RESTRICTIVE MEASURES DIRECTED AGAINST CERTAIN INDIVIDUALS,

GROUPS, UNDERTAKINGS AND ENTITIES IN AFGHANISTAN (UNNUMBERED)

....................................................................................................................................................... 47

RESTRICTIVE MEASURES DIRECTED AGAINST CERTAIN PERSONS, ENTITIES

AND BODIES IN VIEW OF THE SITUATION IN UKRAINE (UNNUMBERED) ..... 47

RESTRICTIVE MEASURES IN RESPECT OF BELARUS (UNNUMBERED) ................. 51

RESTRICTIVE MEASURES IN THE CENTRAL AFRICAN REPUBLIC

(UNNUMBERED) ...................................................................................................................... 53

RESTRICTIVE MEASURES IN VIEW OF THE SITUATION IN SYRIA

(UNNUMBERED) ...................................................................................................................... 54

RIGHT OF ACCESS TO A LAWYER AND RIGHT TO COMMUNICATE UPON

ARREST (11497/11) .................................................................................................................. 56

STRENGTHENING THE FOUNDATION OF THE EUROPEAN AREA OF

CRIMINAL JUSTICE (17621/13, 17633/13, 17635/13, 17642/13) .................................. 61

TOWARDS A EUROPEAN FRAMEWORK FOR COLLECTIVE REDRESS

(11499/13) ................................................................................................................................... 62

UNIFIED PATENT RIGHTS (11533/11) ............................................................................... 63

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2015 EU JUSTICE SCOREBOARD (7139/15)

Letter from Michael Gove MP, Secretary of State for Justice, Ministry of Justice, to the

Chairman

I would like to express my sincere apologies that this Explanatory Memorandum has been much

delayed. This was due to a need for proper consideration of the UK’s previous approach to the

Scoreboard. I am now satisfied that for the time being, the UK should continue with that approach for

the foreseeable future.

As you will be aware, such a delay is a rare occurrence for my department and one I hope will not be

repeated.

20 November 2015

Letter from the Chairman to Michael Gove MP

Thank you for your letter dated 20 November and Explanatory Memorandum dated 23 November

2015. They were both considered by the EU Justice Sub-Committee at its meeting of 15 December.

We continue to question the value of the simplistic comparisons in the tables in the Scoreboard, and

note that the Bundesrat has done so too (in its Decision of 12 June 2015). We also think the

Scoreboard repeats work that is successfully undertaken by the Council of Europe.

Your Explanatory Memorandum was very late indeed—the document was deposited on 17 March.

Although a draft Explanatory Memorandum was deposited during Dissolution, it has taken till now,

with prompting from our staff, for your Explanatory Memorandum to be received. Such a delay is

inexcusable, in any circumstances. We ask for it not to be repeated.

We now clear the 2015 Scoreboard from scrutiny, and do not expect a reply to this letter.

15 December 2015

ACCESSION TO THE 1980 HAGUE CONVENTION ON CIVIL ASPECTS OF

INTERNATIONAL CHILD ABDUCTION BY GABON (5218/12), ANDORRA (5306/12),

SEYCHELLES (5307/12), RUSSIAN FEDERATION (5308/12), ALBANIA (5309/12),

SINGAPORE (5310/12), MOROCCO (5311/12) and ARMENIA (5312/12)

Letter from the Chairman to David Lidington MP, Minister of State for Europe, Foreign

and Commonwealth Office

Thank you for your letter of 8 July, which was considered by the EU Justice Sub-Committee at its

meeting of 21 July.

We accept that, in the circumstances, the override of the scrutiny reserve on the Singapore and

Andorra Decisions was unavoidable. If overrides do occur, however, the Committee’s Terms of

Reference require the Government to inform it at the first opportunity. No doubt this delay was

caused by the change in departmental lead on the dossier; but we draw it to your attention and ask

that it does not happen again.

On the substance, we have previously stated our support for the accession of Singapore and Andorra

to the Hague Convention. The suitability of the remaining six countries may, however, be harder for

Member States to assess and agree. We ask you to send us an update on the UK’s views, together

with those of other Member States, on the assessment of each country against the EU benchmarks, in

time for our meeting of 15 September.

In the meantime, the documents remain under scrutiny.

22 July 2015

Letter from David Lidington MP to the Chairman

Further to my letter of 8 July, I am writing to update you on progress made in relation to the

remaining six countries’ seeking accession: Albania, Armenia, Gabon, Morocco, the Russian Federation

and Seychelles.

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Discussion on these countries took place at working group level in the Council’s Civil Law

Committee on 1 July and 21 September. The UK has assessed that Albania, Armenia, Morocco, the

Russian Federation and Seychelles all meet the minimum benchmarks to enable them to operate the

Convention but that Gabon does not because it does not have a Central Authority, a requirement of

the Convention. Given the general support for this approach, we expect the Presidency to refer the

proposals for Albania, Armenia, Morocco, the Russian Federation and Seychelles to Council for

adoption at the earliest opportunity. While that is likely to be the JHA Council on 3-4 December they

may wish to do so at an earlier Council. For that reason I am writing to request that the Committee

release the six remaining proposals from scrutiny.

The Explanatory Memorandum of 30 January 2012 sets out the subject matter in detail. The text of

the declaration to be made by each Member State when accepting the accessions (Article 1) follows

the template of the Decisions for Singapore and Andorra, which were copied to you with my

previous letter.

The Council Decisions for Andorra and Singapore were duly adopted at the June JHA Council.

Unfortunately as your Committee had yet to be re-established it was not possible to obtain scrutiny

clearance before the Council. As you know, the responsibility to keep your Committee informed is

something I take seriously but regrettably, the need for the override of scrutiny on this occasion was

unavoidable.

23 September 2015

Letter from the Chairman to David Lidington MP

Thank you for your letter of 23 September, which was considered by the EU Justice Sub-Committee

at its meeting of 27 October.

We will not, unfortunately, be in a position to release from scrutiny the draft Decisions on Albania,

Armenia, Morocco, Russia and the Seychelles to the Convention in the absence of much more

detailed information on their suitability for accession to the Convention. Our previous letter asked

for “an update on the UK’s views, together with those of other Member States, on the assessment of

each country against the EU benchmarks, in time for our meeting of 15 September.” This you have

failed to provide, and so we ask for it again.

Reliance instead on an Explanatory Memorandum of January 2012, before EU exclusive competence

over the Convention had been established and the EU’s benchmarks conceived, displays a casual

attitude to Parliamentary scrutiny of these proposals, which is regrettable. This view is reinforced by

asking the Committee to release the “six remaining proposals from scrutiny”, which would include

Gabon, whose accession the EU does not currently support. We do not, therefore, propose to

release the Decision on Gabon from scrutiny.

We note that under the heading of “Rule of Law”, for example, the EU benchmarks ask the following

questions:

“In the accession third State, is the situation regarding independence of the judiciary, the right to a fair

trial, the equal access to justice for nationals and non-nationals, and the upholding of fundamental

rights generally and specifically in relation to children, such that it would give rise to concerns about

the effective implementation of the Convention?”

We would like to know on what basis you have concluded that the five countries meet these criteria,

particularly Russia.

Similarly, under the heading of “Enforcement procedures”, the benchmarks ask:

“Do you have concerns regarding procedures and measures in place to enforce a return order? For

example, lack of provisional enforceability of first instance decisions or delays in the appeal process?”

We would like to know how you assess the five countries’ suitability under these criteria. We would

be grateful for the same assessment in relation to the other criteria in the EU benchmarks.

We ask for this information because we want to be satisfied, before lifting the scrutiny reserve, that

countries that accede to this important convention are able to comply with its obligations.

We ask that you ensure that the draft Decisions are not tabled for adoption in the Council until we

have cleared them from scrutiny.

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We now clear the Decisions on Andorra (Doc. 5310/12) and Singapore (Doc. 5306/12) from scrutiny,

as they have now been adopted.

We would be grateful for a reply to this letter within the usual ten days.

27 October 2015


Thank you for your letter of 27 October. I am sorry that you feel your Committee has not been given

enough information to enable you to decide whether to release from scrutiny the draft Council

Decisions on Albania, Armenia, Morocco, the Russian Federation and Seychelles, with regard to their

accession to the 1980 Hague Convention on the civil aspects of international child abduction.

As I am sure you will appreciate, the views of the Member States about the ability of countries to

apply the Convention are very sensitive. We have shared the completed benchmark assessments with

the Commission but have not shared them with other EU Member States. I can report, however, that

apart from the issues raised about Gabon, no significant concerns arose in discussions in the Council’s

Civil Law Committee about the ability of any of the other countries to apply the Convention.

We take the view that acceptance of the accessions of these countries will help to encourage or

strengthen reforms and that the framework provided through the application of the Convention will

be in the best interests of children.

The UK retains a scrutiny reservation on these proposals and we do not anticipate the Presidency will

seek to table them for adoption until that reservation is lifted. Nevertheless the Presidency would like

them to be adopted at the December JHA Council so I would request clearance from scrutiny, if

possible, before then.

6 November 2015


Thank you for your letter of 6 November, which was considered by the EU Justice Sub-Committee at

its meeting of 24 November.

We were grateful for your helpful assessments of the suitability of Albania, Armenia, Morocco, the

Russian Federation and Seychelles for accession to the Hague Convention on the Civil Aspects of

Child Abduction. On the basis of these assessments, we agree with the Government’s policy of

supporting their accession.

We now clear the draft Decisions on Albania (5309/12), Armenia (5312/12), Morocco (5311/12), the

Russian Federation (5308/12) and Seychelles (5307/12) from scrutiny.

The draft Decision on Gabon (5218/12) remains under scrutiny.

We do not expect a reply to this letter, but look forward to an update on the suitability of Gabon for

accession in due course.

25 November 2015

COMMON EUROPEAN SALES LAW (15429/11)

Letter from the Chairman to Michael Gove MP, Secretary of State for Justice, Ministry

of Justice

I refer to your predecessor’s letter dated 18 March 2015 on the Common European Sales Law, which

was considered by the EU Justice Sub-Committee at its meeting of 13 October.

We are pleased to note the Commission’s intention to withdraw a significant proposal which was

unpopular with Member States, and on which the previous Committee had a number of concerns.

Nonetheless, we retain the proposal under scrutiny until you write to inform us of its formal

withdrawal.

We do not expect a reply to this letter.

13 October 2015

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CONSULAR PROTECTION FOR CITIZENS OF THE UNION ABROAD (18821/11)

Letter from David Lidington MP, Minister of State for Europe, Foreign and

Commonwealth Office to the Chairman

Thank you for your letter of 26 March, in which you asked for a post-election update on the

discussions on the Proposal for a Directive on consular protection for citizens of the union abroad. I

would like to apologise for the delay in replying, which seems to have been the result of an oversight

by officials in the period after the return of Parliament. In your letter, you asked for clarification on

how the proposed amendment to Recital 17 ensured that that Member State competence for

consular affairs would not be infringed by the role ascribed to EU delegations in the proposal. You

also asked why we sought clearance from scrutiny in July 2014.

As you are aware, the Directive (which was renamed during the Latvian Presidency as the “Directive

on the coordination and cooperation measures to facilitate consular protection for unrepresented

citizens of the Union in third countries”) was adopted on 20 April 2015. The UK abstained at the

final vote, as the House of Commons European Scrutiny Committee still held the Directive under

scrutiny. We were however content that all of the Government’s red lines had been met – as

outlined in our correspondence to the Committees on 6 June 2014 and 11 March 2015. Copies of

these letters are attached at Annexes A & B [not printed] for ease of reference. A copy of the final

text of the Directive is attached at Annex C as requested [not printed].

Ensuring Member State competence for consular affairs was a key red line for the Government. The

text of Recital 17, when read in conjunction with Articles 1 (General Provisions) and 11 (Role of the

Union delegations – previously numbered as Article 9 in earlier iterations) makes it clear that the role

of the EU Delegations is limited to supporting Member States in their consular activities, and in line

with previously agreed legislation (Article 35 of TEU and Article 5 (10) of Decision 2010/427/EU).

FCO and COELA Legal Advisers were content that this redrafted text does not give the EU scope to

expand their role beyond the previously agreed boundaries.

In my letter to the Committee of 6 June 2014, I explained how our red lines had been met and

outlined my belief that the Council was likely to accept a version of the text. I also undertook to

keep the Committee updated on discussions. We had seen a significant amount of progress under

the Lithuanian and Greek Presidencies, coupled with the majority of Members States vocally

supporting the text. We believed that the incoming Italian Presidency would continue the momentum

from the previous Presidencies and conclude the discussions at the technical level during their term.

However, a number of Member States identified minor technical difficulties with some elements of the

text which had not been previously discussed, which prolonged the discussions. This led to the

Latvian Presidency finally concluding the technical level discussions on 5 March 2015.

27 July 2015


Thank you for your letter of 27 July 2015, which was considered by the EU Justice Sub-Committee at

its meeting of 13 October.

We were grateful for your explanation as to how the adopted Directive respects the primary

competence of Member State for consular affairs, and of the reason for requesting scrutiny clearance

in July last year for a proposal which was adopted in April this year.

We have no further questions to ask and draw this correspondence to a close. We do not, therefore,

expect a reply to this letter.

13 October 2015

CROSS-BORDER FAMILY LAW: MATRIMONIAL PROPERTY (8253/11, 8145/11, 8160/11,

8163/11)

Letter from Dominic Raab MP, Parliamentary Under-Secretary of State for Justice,

Ministry of Justice, to the Chairman

I am writing to update you on the consideration of these two draft regulations at the Justice and

Home Affairs Council on 3 December.

7

You may recall that the Italian Presidency had proposed in November 2014 a period of reflection for

those who had problems with the proposals to consider whether they might be prepared to accept

them. This period was scheduled to end by the end of 2015. Accordingly, the Luxembourg

Presidency sought to reach agreement at the recent JHA Council. Two Member States made it clear

that they could not accept the Registered Partnerships proposal because, in their view it would

require indirect recognition of same-sex relationships that are not provided for under their national

laws. Other Member States expressed their disappointment at this outcome. They did not accept

that the Registered Partnership proposal would have such an effect and thought it was important that

the two proposals should be taken as a package. Given that unanimity was required for the passage of

these proposals, the Presidency concluded that agreement was not possible and the proposals fell. A

significant number of Member States confirmed that they wish to pursue these proposals through the

enhanced cooperation procedure. We expect proposals to be brought forward next year.

15 December 2015

Letter from the Chairman to Dominic Raab MP

Thank you for your letter dated 15 December 2015, which was considered by the EU Justice Sub-

Committee at its meeting of 12 January 2016.

We take note of the absence of unanimity in the Council on the two proposals, and of the likelihood

that the enhanced cooperation procedure will be used as an alternative.

We now clear the Communication and two draft proposals from scrutiny in the expectation that the

authorisation for the use of the enhanced cooperation procedure, and the subsequent two proposals,

will be deposited for scrutiny in the normal way.

The property consequences of the breakdown of marriages and civil partnerships inherently cause

anxiety for the couples concerned; but even more so when a cross-border element is present. We

therefore ask that you not close your mind to the possibility of joining the enhanced cooperation

proposal. Accordingly, we would be grateful if your Explanatory Memorandum set out the policy

implications for the UK in detail.


14 January 2016

EDUCATION, YOUTH, CULTURE, AND SPORT (EYCS) COUNCIL - 24TH NOVEMBER

2015 (UNNUMBERED)

Letter from Ed Vaizey MP, Minister of State for Culture, Communications and the

Creative Industries, Department for Culture, Media and Sport, to the Chairman

I am pleased to enclose a copy of my written statement to Parliament outlining the agenda items and

the positions that the UK intends to adopt on each of them for the forthcoming Education, Youth,

Culture, and Sport Council taking place on 24th November in Brussels.

23 November 2015

EU AND KOSOVO: STABILISATION AND ASSOCIATION AGREEMENT (8532/15,

8534/15, 8535/15)


Commonwealth Office to the Chairman

Thank you for your letter of 3 July regarding the Council Decisions on the signature and conclusion of

the EU-Kosovo Stabilisation and Association Agreement and my accompanying Explanatory

Memorandum.

You noted that the Government’s response to the Committee’s report about the application of the

UK’s Justice and Home Affairs (JHA) opt-in is overdue. The Government’s position on this remains as

set out in the joint letter to you from the Home Secretary and the Secretary of State for Justice dated

26 June. The new Government is considering its JHA opt-in policy, taking into account the

8

Committee’s report. I expect this review to conclude soon. We will respond to the Committee’s

report as soon as the Government’s position is confirmed.

Until the Government agrees any revised position, we continue to work on the basis of our existing

policy. My Explanatory Memorandum on the above-mentioned Council Decisions was sent against this

background.

I also confirm that the Government intends to support the Council Decisions on signature and

conclusion of the EU-Kosovo Stabilisation and Association Agreement, which are expected to be

adopted at the 20 July Foreign Affairs Council.

10 July 2015


I wrote to you on 10 July about the Council Decisions on the signature and conclusion of the EU-

Kosovo Stabilisation and Association Agreement (SAA). I am now writing to inform the Committee in

more detail of the Government’s position on the application of our Justice and Home Affairs (JHA)

opt-in policy for the SAA.

As set out in my Explanatory Memorandum of 18 June, the Government’s view is that the JHA opt-in

is triggered by the provisions in the Agreement on Mode IV and readmissions.

All language versions of the Council Decisions were published on 30 April. Whilst linguistic errors

resulted in the withdrawal and reissuing of some language versions, the Government took 30 April as

the publication date. Working on the basis of the usual JHA opt-in three month deadline, the

Government wrote to the Presidents of the Justice and Home Affairs Council on 23 July with formal

notification of the UK’s JHA opt-in. I therefore regret that I found myself in the position of having to

assert the UK opt-in without your Committee having had the opportunity to scrutinise the decision.

The Government is committed to taking all opt-in decisions on a case-by-case basis, putting the

national interest at the heart of the decision-making process. In making the opt-in decision on this

proposal, the Government had particular regard to whether the provisions on Mode IV were in line

with the UK’s previously-agreed Mode IV commitments under the WTO General Agreement on

Trade in Services (GATS).

On readmissions, the Government had particular regard to whether the UK wanted to be bound by

an exercise of EU competence in relation to readmissions with Kosovo, which might limit the UK’s

ability to maintain its existing, effective readmission arrangements. We judged that the provisions in

the SAA, or a future readmissions agreement, would not be an improvement on the effective

readmission arrangements we already have with Kosovo, and that it was therefore not appropriate

for us to opt in on this occasion.

3 August 2015


Thank you for your letters dated 10 July and 3 August 2015, which were considered by the EU Justice

Sub-Committee at its meeting of 13 October.

Although you say that the UK did not opt into the readmission provision of the SAA with Kosovo, we

note that the Commission relies on the judgment of the CJEU in C-377/12 to say that a separate

decision with a Title V legal base is not required. We agree with this view. We further note that you

did not succeed in persuading the Council that the opt-in Protocol applies. This is why a JHA legal

base, which triggers the application of the Protocol, does not appear in the draft Council Decision.

In the eyes of the other Member States and Kosovo, therefore, the UK is bound by the readmission

provisions. To argue that the UK is not bound breaches the duty of sincere cooperation, a pre-

requisite for effective EU international agreements, and will lead to legal uncertainty, as the experts

who gave evidence at our opt-in inquiry all confirmed. On what basis, therefore, can you argue that

the UK is not legally bound by the readmission provision in this EU-only agreement?

We would also be grateful for an explanation as to why you did not ask us to release the document

from scrutiny before the FAC on 20 July.

We would be grateful for a reply within the usual ten working days.

Pending this, the proposals remain under scrutiny.

9

14 October 2015


I wrote to you on 10 July and on 3 August about the Council Decisions on the signature and adoption

of the EU-Kosovo Stabilisation and Association Agreement (SAA).

The Government has consistently wanted to see Kosovo joining other Western Balkans countries in

concluding an SAA. Signature and implementation of the SAA will help promote integration in

Kosovo; will create pressure for Kosovo’s leaders to make hard choices on the rule of law and much

needed political and economic reform; and will bring added scrutiny and assistance to help strengthen

Kosovo’s weak public institutions.

The draft Council Decisions was adopted at the Agriculture and Fisheries Council on 22 October. As

set out in my letter of 10 July, the Government supported the adoption of the Council Decisions. I

therefore regret that I found myself in a position of having to agree to the adoption of the Council

Decisions on the signature and conclusion of the SAA before your Committee had the opportunity to

complete the scrutiny of these documents.

As you know, the responsibility to keep your Committee informed on issues concerning Kosovo is

something I take seriously, but the need for the override of scrutiny on this occasion was regrettably

unavoidable. I will reply separately to your letter of 14 October.

26 October 2015


Thank you for your letter of 14 October about the EU-Kosovo Stabilisation and Association

Agreement (SAA) in which you asked about the Government’s decision not to opt in to the

provisions in the SAA on readmission. You will have received my letter of 26 October, overriding

scrutiny, following the SAA’s adoption by the Council on 22 October.

As I have set out in previous correspondence, the Government remains committed to taking all opt-in

decisions on a case-by-case basis, putting the national interest at the heart of the decision-making

process.

We too are keen to ensure that legal uncertainty is avoided. That is why we have pressed

consistently for a Title V legal base for these Decisions to clarify that the UK’s opt-in is engaged,

reflecting our view that incidental JHA content requires a JHA legal base. There was, however,

insufficient support in Council to secure this, although we did secure an amendment to the Council

Decision acknowledging that the Agreement contains provisions relating to JHA.

The Home Secretary and Justice Secretary wrote to you on 15 October noting that the

Government’s response to the Justice Sub-Committee’s report on the application of the opt-in to

third country agreements remains outstanding. Their letter noted that the Government is still

considering its response to the report and that a response will be provided to the Committee as soon

as possible. In July, when this opt-in decision was taken, we asserted the opt-in to measures on Mode

IV and readmissions as they constitute JHA content. We will of course update the Committees in the

event of any further developments.

We also secured a recital in the SAA text itself clarifying that the opt-in would apply to JHA measures

in any future agreements which could be made based on the Kosovo SAA. I judged that the political

importance of the Kosovo SAA in addressing our wider foreign policy and security objectives meant

that we should not block adoption of the SAA over this matter.

When the Council Decisions were adopted, we placed on record our position by laying a minute

statement. This minute statement makes clear the legal position with respect to the measures on

Mode IV and readmissions.

In addition, we also secured amendments to the Council Decisions which include wording which

makes clear: “the commitments and co-operation to be entered into by the Union under the Agreement relate

only to the areas covered by the acquis or existing Union policies. Signature and conclusion of the Agreement

as an EU-only Agreement is without prejudice to the nature and scope of any similar agreements to be

negotiated in the future. It is also without prejudice to the powers of the EU institutions conferred on them in

the Treaties and the positions of EU institutions and Member States on competences”. I judge that this

10

provides sufficient assurance that the use of an EU-only agreement on this occasion will not set a

precedent.

28 October 2015


Thank you for your letters dated 26 and 28 October 2015, which were considered by the EU Justice

Sub-Committee at its meeting of 10 November.

In our letter dated 14 October we said as follows:

“Although you say that the UK did not opt into the readmission provision of the SAA with Kosovo,

we note that the Commission relies on the judgment of the CJEU in C-377/12 to say that a separate

decision with a Title V legal base is not required. We agree with this view. We further note that you

did not succeed in persuading the Council that the opt-in Protocol applies. This is why a JHA legal

base, which triggers the application of the Protocol, does not appear in the draft Council Decision.

“In the eyes of the other Member States and Kosovo, therefore, the UK is bound by the readmission

provisions. To argue that the UK is not bound breaches the duty of sincere cooperation, a pre-

requisite for effective EU international agreements, and will lead to legal uncertainty, as the experts

who gave evidence at our opt-in inquiry all confirmed.”

In the light of which, we asked a precise question: “On what basis, therefore, can you argue that the

UK is not legally bound by the readmission provision in this EU-only agreement?”

Your letter does not provide an answer. We would, therefore, be grateful for replies to the following

questions. What is the legal reasoning for saying that the UK is not legally bound by the readmission

provision in this EU-only agreement, which lacks a separate Title V Council Decision covering the

readmission provision? Is this reasoning consistent with case C-377/12? Do other Member States and

Kosovo accept that the UK is not bound by the readmission provision? If not, how can legal

uncertainty be avoided? Did you give thought to litigation as a means of providing legal certainty? We

note what you say about the Government’s response to the opt-in report being outstanding, but we

do not consider this should be used as a reason not to answer fundamental questions on the legal

consequences of Government policy on a document deposited for scrutiny.

Your letter also discloses an inconsistency in the Government’s approach to opting in to international

agreements. In their written evidence to the previous Committee’s opt-in inquiry, the Home

Secretary and (then) Justice Secretary said as follows:

“If the international agreement pursues two objectives, a JHA objective and a non-JHA objective, with

the JHA objective being incidental to the non-JHA objective (for the purposes of this evidence an

‘incidental JHA measure’), then under the normal legal base rules, the relevant Decision containing the

negotiating mandate or on signature or conclusion would only require the legal base that corresponded to the

non-JHA objective.”. (OIA0009, paragraph 14)

This analysis is correct: the legal base for international agreements should reflect the predominant

purpose(s) of the agreement. The Government’s evidence went on to say that there were two

possible arguments why the UK would not be bound by such incidental JHA content, both of which

were discredited by the expert evidence given to the inquiry.

By contrast, in your letter of 28 October you now say that incidental JHA content needs a separate

legal base: “We too are keen to ensure that legal uncertainty is avoided. That is why we have pressed

consistently for a Title V legal base for these Decisions to clarify that the UK’s opt-in is engaged,

reflecting our view that incidental JHA content requires a JHA legal base”.

This is a significant contradiction, and one which is symptomatic of the Government’s confused

approach towards opting in to international agreements. Is it now Government policy that incidental

JHA content in an international agreement needs a Title V legal base?

Our letter of 14 October asked you why you did not seek the release of these documents from

scrutiny before the FAC on 20 July. It also sought a response within the usual ten working days. We

are, therefore, very concerned that you did not write within that timeframe explaining that Council

adoption had been postponed until 22 October, and seeking the release of the documents before that

date. In our view, the scrutiny override was plainly avoidable. On what basis do you say it was

unavoidable?

11

I should make clear that the Committee deprecates ministerial replies which fail to address the

questions the Committee has asked. Doing so undermines our function and frustrates the purpose of

scrutiny. It also jars with the Prime Minister’s statements about enhancing the role of national

parliaments in the EU. We note this is not the first time this has happened. In a letter dated 27

October, on the Hague Convention on International Child Abduction, we made the following

complaint:

“Our previous letter asked for “an update on the UK’s views, together with those of other Member

States, on the assessment of each country against the EU benchmarks, in time for our meeting of 15

September.” This you have failed to provide, and so we ask for it again. Reliance instead on an

Explanatory Memorandum of January 2012, before EU exclusive competence over the Convention

had been established and the EU’s benchmarks conceived, displays a casual attitude to Parliamentary

scrutiny of these proposals, which is regrettable.”

We look forward to a reply to this letter within the usual ten working days.

The Committee may ask you to give evidence on your approach to the scrutiny of these documents,

once it has considered your reply.

In the meantime, the documents remain under scrutiny

11 November 2015


Thank you for your letter of 11 November about the EU-Kosovo Stabilisation and Association

Agreement (SAA) in which you ask further questions about the Government’s decision not to opt in

to the provisions in the SAA on readmission.

Let me first say I and the rest of the Government, as you know, take very seriously the scrutiny role

of the Committees. That is why I and we have always sought to respond to the Committee’s

questions and requests as fully as possible and in a timely manner. On the Kosovo SAA, I appreciate

your strong interest in the rationale for the Government’s decision not to opt into the provisions on

readmission; and in further details on the legal reasoning behind our argument that the UK is not

legally bound by these provisions.

As you are aware, the Government has not yet concluded its consideration of its response to the

Committee’s report on the application of the JHA opt-in. These are complex issues that require

detailed and careful consideration. I do not want to prejudge this consideration and therefore cannot

comment on what the Government’s response will be and whether or how our future approach to

the application of the opt-in to incidental JHA obligations will be affected. You will have noted that the

Prime Minister’s speech on the EU renegotiation, and his subsequent letter to the President of the

European Council, made clear that as part of the renegotiation the Government will be seeking

confirmation that the EU institutions will fully reflect the purpose behind the JHA Protocols in any

future proposals dealing with Justice and Home Affairs matters, in particular to preserve the UK’s

ability to choose to participate.

However, I would like to make clear that the opt-in decision in relation to the Kosovo SAA was taken

by this Government based on the approach of the Coalition Government. This Government

continues to consider its response to the issues raised in the report produced by your Committee.

The arguments in support of the Government applying the opt-in to incidental JHA obligations in

relation to this opt-in decision remain as those set out in the Coalition Government’s evidence to the

Committee’s inquiry. The main arguments that address the issues raised in your letter are set out in

paragraphs 6-8 of that written evidence, dated 11 December 2014, in relation to incidental obligations

and paragraphs 15-16 in relation to legal base. The Government’s response to the Committee’s

report on the JHA opt-in policy will address any differences between the Coalition Government’s

policy and this Government’s policy in relation to the issues raised in your letter.

You asked why the Government did not seek release of the documents from scrutiny before the

Council adoption on 22 October. In the Explanatory Memorandum deposited on 6 May, and my

subsequent letter of 15 July I noted that we hoped to be able to agree the SAA at the 20 July Foreign

Affairs Council. This was however postponed, given Spanish reservations. My officials first heard on 6

October that adoption at an October Council was possible, but the date of 22 October for adoption

was only finally confirmed during the week beginning 19 October, after your committee’s letter of 14

October. Given the ongoing correspondence with your Committee on the broader JHA issues and

12

the pressing need to avoid blocking adoption of the SAA, which we judged strategically important for

wider regional security and stability, I regret an override in the Lords was necessary in this case.

1 December 2015

EU CHARTER OF FUNDAMENTAL RIGHTS (8707/15)

Letter from Michael Gove MP, Secretary of State for Justice, Ministry of Justice, to the

Chairman

Thank you for your letter of 1 July asking some further questions on the European Commission’s

report and the government’s views on the issues it raises.

Firstly you ask about the government’s view on the proposed colloquium which this year is entitled

‘Tolerance and respect: preventing and combating anti-Semitism and anti-Muslim hatred’.

The United Kingdom has a strong record of bringing hate crime offenders to justice. We have one of

the most robust legislative frameworks globally, supported by the cross-government Hate Crime

Programme which brings officials together with criminal justice agencies. We were the first country in

Europe to establish a cross-government working group on anti-Semitism and anti-Muslim hatred

which includes representatives of Jewish and Muslim communities. Our efforts to improve the

reporting and recording of hate crime through such initiatives as True Vision, Community Security

Trust and Tell MAMA put the United Kingdom ahead of many other states, as demonstrated by the

annual hate crime reports of the Organisation for Security and Cooperation in Europe. Despite our

relatively robust crime data however, the Crime Survey of England and Wales demonstrates that

most hate crimes never come to the attention of authorities and for this reason we will continue the

work to improve our responses.

We believe the United Kingdom has many good practices to share with other states and we are keen

to learn from the success of others. We welcome an event that has the potential to address the

scourge of racism and other hatred and we are considering the government’s involvement. The

government is conscious, however, of the limits of EU competence on fundamental rights and will

rigorously and robustly seek to ensure those limits are respected.

Secondly you ask about the increase in the number of human rights based infraction proceedings. The

report indicates that there has been an increase in the number of infraction proceedings that mention

the Charter. As the report acknowledges, such proceedings must relate to a provision of EU law

which triggers the application of the Charter. This is reflected in the staff working document that

accompanies the report, as the infringement proceedings mentioned relate to specific pieces of EU

legislation, such as a failure to correctly implement provisions of the Return Directive. The

Government does not record all infraction proceedings against other Member States and we

therefore do not have the details of all these individual cases. However, the increase in references to

the Charter in infraction proceedings reflects a general trend in cases before the CJEU. The

Government will continue to monitor cases to the Court of Justice of the European Union which cite

the Charter and will remain vigilant to avoid, so far as we possibly can, any broadening interpretation.

The government has accepted seven of the eight recommendations and partially accepted one. The

Home Office’s response to the Chief Inspector’s report can be found here:

http://icinspector.independent.gov.uk/wp-content/uploads/2014/10/Home-Office-response-to-ICI-

LGB-report.pdf [external link]. We have made good progress and are on track to complete the

implementation of the recommendations.

Thirdly, you ask about the Accession of the EU to the European Convention on Human Rights

(ECHR). I retain concerns that EU accession would create additional legal uncertainty and in particular

impinge on our domestic approach to human rights law. The UK will remain engaged in EU

discussions on the next steps on this issue, and I look forward to updating the Committee in due

course.

Finally you raise the issue of the proportion of sanction decisions which are held to be illegal by the

Court of Justice of the European Union. Recent jurisprudence, in particular the watershed Kadi II case

of 2013, clarified what the Council of the European Union or the European Commission needs to

provide in the way of evidence underpinning their listing decision, and the due process standards

which must be followed. As litigation cases can take between 18-24 months to conclude, 2014 saw a

number of judgments on listings agreed before the Kadi II judgment and before the changes to the

http://icinspector.independent.gov.uk/wp-content/uploads/2014/10/Home-Office-response-to-ICI-LGB-report.pdf

http://icinspector.independent.gov.uk/wp-content/uploads/2014/10/Home-Office-response-to-ICI-LGB-report.pdf

13

approach to sanctions cases – set out below - had been implemented. This accounts for the large

proportion of adverse judgments during this timeframe.

The Kadi II judgment clarified that sanctions imposed at EU level - including EU measures

implementing UN Security Council obligations - must conform to the EU's standards of lawfulness

based on fundamental rights. This means the Council must disclose to individuals the reasons for their

listing; that the listed person should be able to respond to the reasons provided; and if challenged, the

EU is required to prove that at least one of the reasons is substantiated by information or evidence.

In response to the greater clarity on applicable legal standards provided by evolving jurisprudence, the

UK has reviewed and adapted its approach to sanctions. This includes work to improve the quality of

UN and EU sanctions; developing our capabilities for dealing with open source material; and lobbying

other countries to ensure future sanctions meet proper standards and due diligence.

We are working hard to improve the quality of UN and EU sanctions listings including by ensuring

rigorous procedures when adopting new sanctions listings. There are three broad elements to this

work which aims to ensure better quality sanctions listings that are more sharply aligned with policy

objectives, legally robust and which are monitored and adjusted to be responsive to events on the

ground. These are:

— A decision to apply sanctions against a regime must be linked to achieving a

specific policy objective and identify measures and designations most likely to

produce results, so that we are clear as to the reasons for using sanctions as

a tool;

— Ensuring that individual listings contribute to the policy aim, are legally robust

and consistent with the criteria for listing set out in the legal instrument (e.g.

UNSCR, Council Decision); and

— Periodic review of the regime (which may include individual listings) to

ensure continuing impact, effectiveness, relevance and compliance with the

listing criteria.

In addition to EU Council due process, the UK applies rigorous standards to new proposed listings in

order to ensure sanctions are robust and fair. An assessment will be carried out, in consultation with

other domestic government departments, which will include:

a. The identifying information to ensure the correct target has been identified and that sufficient

information is available

b. Analysis of the underlying evidence to support the listing – has the threshold for listing been

met? Could the information be openly disclosed if challenged in court?

c. Impact of the listings

d. The negotiability of the measures in international fora (including details of the support from

international partners)

e. The ‘exit’ strategy – if/when should the listed entity be delisted?

We therefore expect the quality of sanctions listings to become better, and for the number of

successful Council defences of listings to rise. This appears to be the case. So far in 2015, the Council

has won a number of important cases.

17 July 2015

Letter from the Chairman to Michael Gove MP

Thank you for your letter dated 17 July 2015. It was considered by the EU Justice Sub-Committee at

its meeting of 15 September 2015.

We have decided to clear the Commission’s report from scrutiny. We are grateful to you for your

answers to our questions and note your detailed explanation of the EU’s post-Kadi II approach to

sanctions decisions. We do not expect a response to this letter.

15 September 2015

14

EU DECENTRALISED AGENCIES: FIRST PROGRESS REPORT (8789/15)



Thank you for your Explanatory Memorandum dated 15 June 2015. It was considered by the EU

Justice Sub-Committee at its meeting of 21 July 2015.

We have decided to retain the Commission’s report under scrutiny.

We note that, save for your disappointment regarding the six per cent increase in the agencies’

budgets, the Government welcomes the majority of the detailed measures taken by the Commission

and the agencies to give effect to the Common Approach.

There are three matters arising from the report and your Explanatory Memorandum that we wish to

pursue. The first relates to the introduction of Key Performance Indicators to measure Executive

Directors’ performance. You say that the Government is currently undertaking its own review into

the effectiveness of these measures. We would welcome more details from you as to the nature of

your review; what provoked the Government to undertake it; and, whether, in order to inform

Parliamentary scrutiny of this report, you intend to share the outcome with the Committee.

The second matter relates to the signing of headquarters’ agreements. In response to the

Commission’s call to the seven agencies and the relevant Member States (including the UK) to sign

these agreements, you say that the resolution of this issue ought to remain a matter for the individual

agency and the Member State concerned. Your views appear at odds, however, with the stated aims

of the Common Approach to bring uniformity to the roles, structure and governance of the EU’s

agencies - aims which the Government says its welcomes. We would be grateful for a more detailed

explanation of the Government’s stance.

The third matter regards paragraph 22 of your Explanatory Memorandum. You refer to two

European Parliamentary documents produced for discussion at the relevant Inter-Institutional

Working Group. The documents deal with the rationalisation of the agencies’ work and the criteria

for choosing the agencies’ locations. What are the Government’s views of the issues raised by the

European Parliament?

As for your letter of 18 June, we agree, that failure to deposit the Commission’s first report is a

regrettable oversight. We are grateful for your apology, and seek your reassurance that measures

have been put in place to avoid a reoccurrence.

We look forward to considering your reply when the House returns in September.

22 July 2015


Thank you for your letter of 22 July requesting additional information further to my Explanatory

Memorandum on the progress report on the Common Approach on EU Decentralised Agencies.

The Key Performance Indicators (KPIs) are designed to measure the performance of agency directors.

They are not ‘one size fits all’ given the vast differences between agencies in terms of size, budget,

work force and location; agencies therefore select the most relevant KPIs. Officials conducted a light

touch review to determine whether agencies had been consulted on the design of these KPIs;

whether they had implemented the KPIs; and, to seek their views on the substance of the KPIs and

the guidelines, in order to inform our own view of the effectiveness of these guidelines and the

Commission’s consultation. Feedback received by officials from agencies suggested that agencies were

not consulted on the guidelines and, whilst agencies welcomed the guidelines, they were cautious

about prospects for measuring the effectiveness of the guidelines. One agency also noted that, on

their own, the guidelines would be of limited effectiveness and needed to be looked at in conjunction

with other information available.

Regarding headquarters agreements, we are generally supportive of the Common Approach on the

decentralised agencies. However, this support for the Common Approach is balanced with our view

that the decision to sign a headquarters agreement should be a decision for the relevant Member

State and agency. This approach is necessary given the differing national legal regimes.

Regarding the European Parliamentary documents to which you refer, the Government strongly

believes that a clear impact assessment should be carried out before a seat is chosen to avoid

15

excessive and unnecessary costs. The Government also takes the view that the Commission should

consider any similarities or overlap among existing agencies with a view to streamlining agencies to

keep to a minimum costs and headcount, and ensure clear lines of accountability and well-defined

responsibilities. Such a streamlining of agencies and their work will contribute to the agreed

reduction in headcount and budget. We will continue to press the case for further streamlining and

rationalising of the agencies.

Finally, I can assure the Committee we will endeavour to avoid any further failures to deposit a

Commission document for the Committee’s consideration.

2 September 2015


Thank you for your letter dated 2 September 2015. It was considered by the Justice Sub-Committee

at its meeting of 13 October.


Our most recent letter to you on the Commission’s progress report pursued three matters of

substance. The first concerned the introduction of Key Performance Indicators to measure Executive

Directors’ performance and your disclosure in the Explanatory Memorandum that the Government

had recently undertaken its own review into the effectiveness of these measures. We note your

broad outline of the review’s outcomes but are not reassured by the conclusions outlined in your

letter. We would welcome further details from you on the outcome of your review.

The second matter related to the signing of headquarters’ agreements. The basis for our question

stemmed from the aims of the Common Approach to bring uniformity to the role, structure and

governance of the EU’s agencies. We note your response and do not disagree with your statement

that the signing of these agreements ought to be a matter for the individual Member States concerned

and the relevant agencies, particularly “given the differing national legal regimes”. There are currently

two EU agencies based in the UK: the European Medicine Agency and the European Banking

Authority. Can you explain to the Committee why only one of these agencies has signed a

headquarters agreement with the Government?

Turning to the European Parliament’s recent work in this area, we note your comments that the

creation of a new EU agency ought to be preceded by a clear impact assessment before a new

Agency’s seat is chosen. We also note your comments that the Commission ought to consider the

overlap between existing agencies with a view to streamlining their work and reducing costs, whilst

ensuring clear lines of accountability and well-defined responsibilities. In light of your statement that

the Government will continue to call for “further streamlining and rationalising of the agencies”, are

you aware of any immediate plans by the Commission to undertake such a study of the EU’s 32

agencies?

We look forward to considering your reply within the usual 10 working day deadline.

13 October 2015


Thank you for your letter of 13 October requesting additional information further to my letter of 2

September on EU Decentralised Agencies.

The aim of the light touch review conducted by officials was to get initial views from agencies on the

Key Performance Indicators (KPIs), including the process of consultation by the Commission with the

agencies in drawing up these guidelines. Overall, the agencies have been supportive of the KPIs, and

have acknowledged them to be a potentially useful tool, in conjunction with other information to get

a fuller picture of overall agency and director performance. We will be able to monitor the use of the

KPIs after the first annual reporting cycle.

On the headquarters agreements, as you state, the European Banking Authority (EBA) does have a

headquarters agreement, while the European Medicines Agency (EMA) does not. The agreement with

the EBA was signed in 2012, after it was created in 2010 in line with the founding regulation of the

EBA which requires headquarters agreement. The EMA was established in 1995 which pre-dates the

requirement for a headquarters agreement and initiative to request one lies with the EMA. Should

the EMA wish to request a headquarters agreement, the Government will consider the request.

16

Whilst not having such an agreement, the EMA is still covered by Protocol 7 of the Treaty on

European Union and the Treaty on the Functioning of the European Union which covers diplomatic

privileges and immunities.

You also asked about the immediate plans of the Commission on decentralised agencies. As you will

be aware, resources and staffing levels of the agencies are part of the Common Approach, and the UK

will continue to be involved in the EU level discussions on these issues, and will continue to support

the Commission’s work in this area. In particular, the Inter-Institutional Working Group (IIWG) met

last month and looked at the resources and staffing levels of the agencies. The Working Group will

meet again early next year once the annual budget process has been concluded. The UK will adopt its

customary rigorous approach to those budgetary negotiations. Beyond this, I am not aware of any

immediate plans the Commission has to undertake a study of the agencies.

2 November 2015


Thank you for your letter dated 2 November 2015. It was considered by the Justice Sub-Committee

at its meeting of 24 November.

We decided to clear the Commission’s report from scrutiny. In addition, we are now content to clear

the Commission’s “Roadmap on the follow-up to the Common Approach on EU decentralised

agencies” from scrutiny (document 5022/13).

We are grateful to you for the responses to our questions. We note your explanation for the

different approach to the signing of headquarters’ agreements with the two agencies based in the UK

and your confirmation that the Commission has no current plans to review the operation of the EU’s

32 Agencies.

We do not expect an answer to this letter.

25 November 2015

EU FRAMEWORK FOR NATIONAL ROMA INTEGRATION STRATEGIES 2015

(10056/15)

Letter from the Chairman to Baroness Williams of Trafford, Parliamentary Under

Secretary of State, Department for Communities and Local Government

Thank you for your Explanatory Memorandum dated 1 July 2015. It was considered by the EU Justice

Sub-Committee at its meeting of 21 July 2015.


Turning first to the contents of your Explanatory Memorandum. Your comments on the

Commission’s report focus almost entirely on the boundary between the respective responsibilities

under the Framework between the Commission and the individual Member States. At no point in the

Explanatory Memorandum do you offer the Committee any commentary on the contents or

substance of the Commission’s report. This is disappointing given the serious matters covered by the

Commission’s report and the original Framework for National Roma Integration Strategies.

As for the contents of the report, whilst we note that the EU’s Framework is at an early stage, we are

pleased that the Commission identifies progress, in particular in the Member States’ efforts to

coordinate their individual National Roma Integration Strategies, and in highlighting to all Member

States the availability of considerable EU based funds to assist in achieving the Framework’s goals.

However, in light of the fact that solutions are the principal responsibilities of the Member States, the

report also demonstrates the limits of Commission action in this field.

You will be aware that the Commission’s report rarely addresses the situation in the UK. This is

perhaps unsurprising given the report’s focus on the five Member States which have the largest Roma

populations. We are concerned, however, by the fact that where the report does mention the UK, it

is to highlight the finding that a majority (50%) of the UK population (along with the populations of:

Italy (85%); France (66%); and Greece (53%)) hold “unfavourable views of Roma”. We note that the

report argues that this is as a result of “heated debates on free movement and social rights” in these

17

States. Again, it is disappointing that your Explanatory Memorandum did not address this finding by

the Commission. What is your view of the Commission’s conclusion?

We look forward to considering your response in October.

22 July 2015

Letter from Baroness Williams of Trafford to the Chairman

Thank you for your letter of 22 July regarding my Explanatory Memorandum of 1 July on the above

Commission communication. As requested by the Committee, I am writing to provide further

commentary on the Commission’s report.

As the Commission note in the Introduction to their report, integration of Rome is primarily the

responsibility of the Member States, and in your letter you rightly identify this as an important issue to

bear in mind when considering the Commission’s comments on this issue.

As you note in your letter, the Commission’s report mainly concerns those Members states with

large and disadvantaged Roma populations, and which have developed national Roma integration

strategies. Section 2.1 of the report looks in particular at how EU funds are being used in those

countries to address Roma integration. While it would not be appropriate for me to comment on the

situation in individual Member States, it seems sensible for the Commission to pay particular attention

to countries with large and disadvantaged Roma populations and to examine the use of EU funds,

given their potential to address Roma exclusion in those countries.

Section 2.2 of the report concerns cooperation and coordination between government, local

authorities and civil society. Again, the Commission’s comments largely concern those Member States

which have developed national Roma integration strategies, and the role of the “National Roma

Contact Point” in developing the strategy. While we understand the Commission’s wish to focus on

those Member States, it might have been helpful if the Commission had also highlighted the value of a

mainstream and local approach to integration, such as that pursued in the UK and in some other

Western European Member States. The report does mention the UK as one of a number of Member

State with “consultation forums”. We take this to refer to the fact that the government departments

routinely consult on development of policy and legislation, and that Roma, Gypsy and Traveller

organisation are included in such consultations. My own officials hold a quarterly meeting with Roma,

Gypsy and Traveller civil society organisation to discuss issues of interest and concern to those

communities. We have noted the Commission’s comments about the role of the National Roma

Contact Point (which in the UK is the Department for Communities and Local Government).

However, the Commission’s comments again appear to be primarily directed at Member States with

national Roma integration strategies. As far as the UK is concerned, we consider the National Roma

Contact Point’s role primarily to be just that – the Commission’s principal point of contact with the

UK Government on Roma issues. My officials play an active and constructive role in the EU Network

of National Roma Contact Points, which meets regularly under the Commission chairmanship and

provides an opportunity for the Members States to exchange good practice and discuss issues of

common interest.

Section 2.3 rightly highlights the fact that the Roma are subject to discrimination and hate crime in

many parts of Europe, and we welcome the particular attention that the Commission place on the

institutionalised segregation of Roma children in schools in some Member States. We would have

welcomed the inclusion of some examples of good practice from the UK in this section, such as our

strong legislation on equalities and hate crime.

We also noted the reference to the Pew Research Centre report, and the claim that 50% of

respondents from the UK had unfavourable views of Roma and Gypsies. The sometimes poor

relationship between the traveller and settled communities is something we have had in mind when

making reforms to the planning system. Gypsies and Travellers are also a priority group in the

Government’s hate crime action plan and work is being done with those communities to encourage

them to report race hate crimes and incidents. However, I would question where the evidence is for

the Commission’s assertion that this stems from debates over freedom of movement and social

rights. The Pew reports does not mention the reasons behind anti-Roma sentiment. The reasons for

individuals’ views were not asked through the survey. While the Pew report does not mention recent

controversial policies in Italy and France there is no reference to free movement and social rights.

Section 2.4 of the report concerns monitoring and policy development. While this primarily concerns

national Roma integration strategies, we have contributed to work led by the EU’s Fundamental

18

Rights Agency to develop an indication framework to help both Member States and the Commission

to assess progress on Roma integration. We will see in the coming year how this is in practice.

Section 3 provides a brief summary of the Commission’s work with enlargement countries. We

welcome the fact that the Commission are including Roma integration in their work with countries

which hope to join the EU in the future.

The Commission conclude with their views on the way forward. It is encouraging that they see some

progress in aligning national Roma integration strategies with EU funding in several Member States.

We have noted their concluding recommendations to Member States. We share their views on the

importance of tackling hate crime and discrimination and the value of piloting approaches at the local

level, but we have some concerns about the “top down” approach implicit in some of their

observations and recommendations. For example, we do not see it as the Government’s role to “set

up” a National Roma Platform.

I welcome the Committee’s interest in this important subject, and hope this letter has been helpful.

18 September 2015

Letter from the Chairman to Baroness Williams of Trafford

Thank you for your letter dated 18 September 2015. It was considered by the EU Justice Sub-

Committee at its meeting of 20 October.

We decided to clear the Commission’s report from scrutiny.

As requested, you have supplied us with a more detailed commentary on the contents of the

Commission’s report, for which we are grateful. We note that you welcome the focus of the

Commission’s report on the five Member States with the highest Roma populations. We are also

pleased to note the range of best practices highlighted by your letter, which are currently being

followed in the UK. We refer to, for example, the localised approach to solving the issues faced by

the UK’s Roma communities, and the work undertaken by your officials both locally in liaising with

relevant civil society organisations, and also in the wider EU sphere, within the network of National

Roma Contact Points.

On the matter of the negative attitudes towards Roma and Gypsy communities reportedly held by

50% of the UK’s population, we note that you question the evidence for the Commission’s assertion.

We believe that you would be wrong to dismiss entirely the basis for the Commission’s conclusion. In

our view, recent negative public discussions in the UK about EU free movement rights and access to

social rights will have inevitably been a contributory factor.

We do not expect a reply to this letter, and bring this correspondence to a close.

20 October 2015

EU-SINGAPORE PARTNERSHIP AND COOPERATION AGREEMENT (UNNUMBERED)



I refer to your letter of 13 March 2015, which was considered by the EU Justice Sub-Committee at its

meeting of 21 July.

The points you raise are considered in our report, The UK’s opt-in Protocol: implications of the

Government’s approach, which was published on 24 March this year. We had hoped to consider the

Government’s response to the report before replying to your letter, but I note with dismay that the

response to the report is still outstanding. I would be grateful for an explanation for the delay from

you, given your oversight of Parliamentary scrutiny of the EU, within ten working days.

For the reasons set out in our report, we think your assertion that the UK has a right to opt out of

the readmission provisions in this agreement with Singapore, in the absence of a JHA legal base, is

without legal foundation. It is also likely to create legal uncertainty at EU level, despite the UK

ratifying the agreement itself.

We also think that the rationale of the Court of Justice’s judgment in the Philippines case (C-377/12)

is highly likely to be applied to this agreement. A significant factor, which your letter overlooks, is that

19

both agreements are Partnership and Cooperation Agreements with similar readmission provisions,

despite the absence of a development cooperation legal base in the Singapore agreement.

We ask to be informed of the outcome for the UK of the negotiation of the EU’s signature of this

agreement.

22 July 2015


Thank you for your letter of 22 July 2015.

I appreciate that the Government’s response to your report, The UK’s opt-in Protocol: implications of the

Government’s approach, is still outstanding. The Government is still considering its policy on this

matter carefully, taking into account the Committee’s report. The Protocol 21 opt-in is a complex

technical issue, and extremely important in protecting the UK’s interests in Europe. As Lord Faulks

noted in the debate on the Committee’s report on 15 July, the Government’s response to that report

will now be sent after the Summer Recess.

On the Singapore Partnership and Cooperation Agreement, the Commission continues to prepare

the necessary documents for the referral of the FTA to Court. Once the outcome is known, I will

write to inform the Committee.

3 August 2015

EUROPEAN ACCOUNT PRESERVATION ORDER (13260/11)



As your Committee is aware, this proposal was adopted as Regulation 655/2014 on 15 May 2014.

Since then the Government has considered whether it is in the UK’s interests to seek to opt in to the

Regulation.

As part of this consideration, views were received from the Lord Chancellor’s Advisory Committee

on Private International Law (chaired by Lord Mance and composed of senior judges, lawyers and

academics representing all UK jurisdictions), 64 members of the legal profession at a meeting hosted

by a City of London law firm and via correspondence.

Those who provided their views on the Regulation were almost unanimous that such a procedure had

the potential to be of value to creditors but, despite the substantial improvements to the text that the

UK helped to obtain during the negotiations, such benefits were not thought sufficient to outweigh

concerns previously expressed by the majority of those who responded to the 2011 public

consultation on the Commission’s proposal, that the Regulation is imbalanced in favour of creditors,

to the detriment of debtors, and will be cumbersome to operate.

In particular concerns were raised that courts still will not have enough discretion about whether to

issue an order and whether or not to hear the debtor’s side of the dispute before it is issued; there

will still be a danger that an order could be issued because a debtor is in financial difficulty rather than

because he/she is deliberately trying to dissipate assets to evade payment, something likely to be

detrimental to business rescue; and the provisions on security and liability are not strong enough.

The procedures for varying or challenging an order were also thought to be inadequate. First because

there will be no guarantee that a debtor will be able to exempt from seizure sums to enable him to

finance a legal challenge. Second, because of a lack of opportunity to apply to the court to vary an

order on the grounds that the substantive proceedings on the debt are delayed, this could lead to a

situation where a debtor’s account is frozen for months or years while he awaits a court decision on

whether he is liable for a debt. The uncertain effects on third parties, including the beneficiaries of a

trustee account, were also highlighted.

The overwhelming view was that the UK should not seek to opt in now but should rather wait to see

how the Regulation is applied and, in the light of that experience, should consider the arguments for

opting in at a later stage.

20

On that basis, having fully considered the matter, the Government accepts the serious concerns

expressed about this Regulation and has therefore decided not to seek to opt in to the Regulation at

this time.

23 November 2015


Thank you for your letter dated 23 November 2015. This was considered by the EU Justice Sub-

Committee at its meeting of 8 December.

We are grateful to you for your update on the outcome of the Government’s consideration of

whether or not to opt in to this Regulation, and note the opinions cited in your letter that

“overwhelmingly” stated that the UK should not opt in at this time. We decided to retain the matter

under scrutiny pending your promised reassessment of the opt in issue, “at a later stage”, once the

Regulation has been in operation.

We do not expect an answer to this letter.

8 December 2015

EUROPEAN PUBLIC PROSECUTOR'S OFFICE (EPPO) (9372/15, 12621/15, 12558/13)

Letter from the Chairman to James Brokenshire MP, Minister for Immigration, Home

Office

Thank you for your Explanatory Memorandum dated 30 June 2015. It was considered by the Justice

Sub-Committee at its meeting of 21 July 2015.

We decided to retain the matter under scrutiny.

None of the texts produced to date, and submitted for scrutiny to this Committee, have directly

addressed the position of the non-participating Member States such as the UK. As you know, this

oversight was one of the concerns that guided this Committee, in the previous session, in its decision

to launch an inquiry into this proposal in January 2014. We note that, aside from the confirmation in

this Explanatory Memorandum that there is “agreement among the Member States that any reference

to ‘Member State’ … refers to a participating Member State only”, and the recognition by the other

Member States that the position of non-participating Member States must be respected, this latest

text continues this trend.

Your Explanatory Memorandum confirms that Member State discussion has focussed on Articles 1 –

16 which draw heavily on the changes proposed by the Greek Presidency’s text introduced in March

2014. Whilst you state that the participating Member States expressed “broad support” for these

Articles in June, the expression of “broad conceptual support” sheds little light on the precise status

of the various texts we retain under scrutiny. The Committee would welcome clarification. Can you

confirm that in expressing support for this text the participating Member States have found a

consensus on the basic organisational principles of the proposed European Public Prosecutors Office

on which to base their future negotiation of this proposal?

We look forward to considering your response by 15 September.

22 July 2015

Letter from James Brokenshire MP to the Chairman

Thank you for your letter of 22 July. You asked whether at the June Justice and Home Affairs Council

(15 and 16 June) the Member States participating in a European Public Prosecutor’s Office (EPPO)

found a consensus on the basic organisational principles of the proposed EPPO, on which to base

their future negotiation of this proposal. The then Latvian Presidency invited Ministers to agree in

principle on the text of the first 16 Articles of the Regulation, on the understanding that the details of

the text will need to be re-examined once the Council has reached an agreement in principle on the

full text of the Regulation. The Presidency did not report that it secured agreement in principle on the

text of the first 16 Articles of the Regulation, but that “the Council broadly expressed conceptual

support”, which can be read as a less definitive endorsement than the Presidency had sought.

21

The Luxembourg Presidency will focus, at least initially, on Articles 17 and onwards.

I hope this provides clarification.

13 August 2015

Letter from the Chairman to James Brokenshire MP

Thank you for your letter dated 13 August 2015. It was considered by the EU Justice Sub-Committee

at its meeting of 13 October 2015.


We are grateful for your reply to our question and note that the participating Member States

continue their efforts to agree the key foundational aspects of this proposal. We look forward to

considering periodic updates, in due course, as the discussion of this matter continues.

13 October 2015

Letter from James Brokenshire MP to the Chairman

I write to update on negotiations on the draft EPPO Regulation following the 8-9 October Justice and

Home Affairs (JHA) Council. The Luxembourg Presidency produced a declassified document,

12621/15, which I attach to this letter [not printed]. At the Council meeting, the Presidency sought

agreement to a Partial General Approach on Articles 24-33 and 35 of the draft EPPO Regulation. The

Presidency presented the Articles as two packages. (1) Articles 25, 26, 27 and 31 relating to rules on

investigation measures and other measures for the conduct of cross-border investigations, gathering

and admissibility of evidence. (2) Articles 24, 28, 28a, 29, 30, 32, 33 and 35 relating to lifting the

privileges or immunities of persons protected under national law, investigation, confiscation,

prosecution at national courts and procedural rights of suspects and accused persons. These Articles

have been the subject of repeated discussions in the last two years because of their sensitive nature

for participating Member States. The Presidency’s text sought to balance the views of some Member

States which are seeking to retain national control over processes with the views of others which

want a centrally-led EPPO.

The Presidency was unable to secure agreement to a Partial General Approach as Member States

were divided on several issues, most notably the appropriate balance of competence between the

EPPO and Member States. Whilst most were supportive of the direction of travel, several Member

States, such as Malta, Ireland, Cyprus, Slovenia and Portugal, sought clearer references to respect for

national laws. The position of the Dutch Parliament precluded agreement from the Netherlands.

France opposed any weakening of the text. Italy and the Commission, supported by Bulgaria,

expressed concern in strong terms that the compromises under discussion would result in the failure

of the EPPO and urged Member States to retain their ambition. The Government registered its strong

interest in ensuring that any EPPO respects UK competence and does not go beyond the Treaties.

The Presidency concluded that Justice Ministers had expressed broad support in principle for the text

under discussion.

The Presidency has indicated it will consider the Articles discussed at the Council as frozen for now,

and will work on Articles 17-23, 34, 36 and 37 with the aim of reaching an agreement on these

Articles in the second half of its Presidency.

I will continue to provide you with regular updates on the progress of negotiations on this dossier.

16 November 2015

Letter from the Chairman to James Brokenshire MP

Thank you for your letter dated 16 November 2015. It was considered by the EU Justice Sub-

Committee at its meeting of 1 December 2015.


Once again your update on the Council’s ongoing discussion of this proposal demonstrates the

difficulties that the participating Member States are facing in their efforts to agree the foundational

aspects of the proposed European Public Prosecutor’s Office. We note that the discussion of the

Articles highlighted by your letter has been “frozen”.

22

In light of the UK’s decision not to participate in this proposal, a decision endorsed by this Sub-

Committee under its previous membership in its report into the ramifications of the European Public

Prosecutor’s Office for the non-participating Member States (4th Report of Session 2014-15, HL Paper

53), you need only update this Committee on these negotiations if there are significant developments

such as the imminent agreement of aspects of the text.

We do not expect a response to this letter.

1 December 2015

EUROPEAN SMALL CLAIMS PROCEDURE (16749/13)



Chris Grayling wrote to you on 10 January confirming details of the text of this proposal that had

been agreed at the December JHA Council. Since then there have been negotiations between the

Council and the European Parliament and it is hoped that it will be possible to adopt the resulting text

in the autumn. I enclose a copy. In most part it is the same as the Council’s text that was sent to your

committee on 6 November. I set out the main substantive changes below.

SCOPE OF THE PROCEDURE (ARTICLE 2)

The European Parliament proposed a threshold of €10,000 for businesses and €5,000 for individuals.

The Council, having agreed €4,000 in the General Approach in December, agreed a compromise of a

single threshold of €5,000 with a commitment to review the level after five years.

The review will also consider whether to extend the scope of the Regulation to employment law

claims for unpaid wages after the Council was unable to support a request from the European

Parliament to include such disputes within scope.

CROSS-BORDER RESTRICTION (PREVIOUSLY ARTICLE 2, NOW ARTICLE 3)

The European Parliament supported the Council’s decision to retain the definition in Article 3 of the

current Regulation.

ORAL HEARING (ARTICLE 8)

Following discussion between the European Parliament and the Council about the appropriate use of

distance communication technology, a new recital (12a) has been included which says that Member

States should promote the use of distance communication technology and that courts should have

access to it. For videoconferencing, account should be taken of recently adopted Council

Recommendations on its use.

COURT FEES (ARTICLE 15A)

The European Parliament reduced the Commission’s cap on court fees from 10% to 5% of the value

of the claim. This was rejected almost unanimously by the Member States. Instead the Council and the

European Parliament have agreed that the wording that was in recital 13 of the Council’s General

Approach text should be included in Article 15a which says now: “The court fees charged in a

Member State for a European Small Claims Procedure shall not be disproportionate and shall not be

higher than the court fees charged for national simplified court procedures in that Member State”.

The Council also agreed to a European Parliament request to include recital 13b which says that to

facilitate access to justice in the procedure, legal aid should be provided in accordance with the Legal

Aid Directive. The Government is satisfied that this does not place any additional burdens on Member

States. That Directive already provides for legal aid to be obtained by parties in another Member

State on the basis of the rules in the Member State where the court is situated. It also allows Member

States not to provide legal aid in procedures designed to be used without lawyers (which can include

small claims procedures).

23

AMENDMENT OF THE STANDARD FORMS (ARTICLES 26 AND 27 OF THE SMALL CLAIMS REGULATION AND

ARTICLES 30 AND 31 OF THE EUROPEAN ORDER FOR PAYMENT)

While most Member States, including the UK, had preferred the implementing acts procedure with

examination, the European Parliament wanted the delegated acts procedure, as proposed by the

Commission, for both the Small Claims and European Order for Payment Regulations. In the light of

the concessions by the European Parliament on the threshold, scope and court fees, Member States

agreed to accept the delegated acts procedure. While that is not the Government’s preferred option,

given that any amendments to the forms are likely to be only technical and must be in accordance

with the Regulation, and considering the overall package that has been agreed with the European

Parliament, the Government is prepared to accept the use of delegated acts here. The Government is

pleased to note that recital 18 says: “It is of particular importance that the Commission carries out

appropriate consultations during its preparatory work, including at expert level”.

EUROPEAN ORDER FOR PAYMENT

There have been no other changes to the text of the European Order for Payment Regulation to

those already agreed by the Council in December.

The enclosed text is subject to plenary agreement by the European Parliament. Depending on the

date of that agreement, it is possible it will be referred to the JHA Council for adoption at the start of

October. It will be helpful, therefore, if your committee is able to release it from scrutiny before then.

14 July 2015



its meeting of 15 September.

None of the first-reading amendments to the General Approach text changes our support for the

proposal. As the previous Committee released it from scrutiny in November last year, there is no

need for it to be released again.

We do not expect a reply to this letter, and bring our scrutiny of this proposal to a close.

15 September 2015

EXTRA-TERRITORIAL EFFECTS OF LEGISLATION ADOPTED FROM THIRD

COUNTRIES (6237/15)

Letter from Lord Maude of Horsham, Minister of State for Trade and Investment,

Department for Business Innovation and Skills, to the Chairman

I understand that a letter to tell you about this opt-in decision that I signed off on 25 June was not

sent. Please accept my apologies for this oversight, and for the subsequent delay in writing to confirm

that the UK opted in to a proposal from the European Commission, for a Regulation protecting

against the effects of the extra-territorial application of legislation adopted by a third country. I have

also attached the text of a Written Ministerial Statement [not printed] confirming the UK’s opt-in,

which was made in the House on 30 June.

The proposed Regulation consolidates existing EU legislation (Regulation (EC) No. 2271/96 and its

subsequent amendments); it does not contain any new and/or substantive material and does not

change the existing measure in substance. It can therefore be supported.

The Government considers that there are Justice and Home Affairs obligations in Articles 4 and 6 of

this draft EU regulation. Article 4 prevents certain judgments from outside the EU being recognised

and enforced within the EU. Article 6 provides that the Brussels I (recast) Regulation applies to

proceedings brought under that Article to recover damages.

While the Government has not yet been successful in securing citation of a legal base in Title V of

Part 3 of the Treaty on the Functioning of the European Union to this measure, we consider that

these JHA obligations triggered the UK’s opt-in. The Government communicated its decision to the

President of the Council on 15 May.

24

I note that the Justice Committee of the European Union Committee issued a report under the last

Government on the application of the UK’s EU Justice and Home Affairs opt-in. The Government is

considering its policy in light of this report and will respond to that report in due course.

The proposed Regulation raises another significant issue for the UK, namely the use of Article 352 of

the TFEU as its legal basis. This could require primary legislation to confirm the UK position. In his

letter to Lord Livingston dated 26 March, Lord Boswell wrote that the Lords European Union

Committee wished to consider the Government’s conclusions on whether an Act of Parliament

would be required as soon as possible after the State Opening of Parliament. The use of the Article

352 legal base is still under discussion in the Council Working Party and I will write again to confirm

the outcome.

4 August 2015

Letter from Lord Maude of Horsham to the Chairman

I am writing to update you on progress with the proposal from the European Commission for a

Regulation protecting against the effects of the extra-territorial application of legislation adopted by a

third country.

You will recall that the proposed Regulation raised a significant issue for the UK, namely the use of

Article 352 of the TFEU as its legal basis. This could require primary legislation to confirm the UK

position.

Discussion is continuing within the institutions on whether Art 352 is an appropriate legal base. There

is an argument that Article 352 should only be used when no other specific legal base is available, but

this is not the case here. If this view is confirmed, I believe that this proposed regulation will not be

able to go forward.

A draft report is scheduled to be presented at the 19 November meeting of the European

Parliament’s International Trade Committee, with a vote on amendments planned for 10 December,

but we currently believe this will not be presented. We are seeking confirmation.

I will write again with a further update when we have confirmation on these points.

8 October 2015

Letter from the Chairman to Lord Maude of Horsham

Thank you for your letters dated 4 August and 8 October 2015. They were both considered by the

EU Justice Sub-Committee at its meeting of 13 October.

We decided to retain the proposed Regulation under scrutiny.

As you know, we retained this matter under scrutiny in March because we wanted to see what

progress would be made in relation to the two domestic legal matters that it raises: whether the

UK’s opt-in Protocol applies, and the possible engagement of the EU Act 2011.

Dealing with the latter first, we note from your letters that the legal basis for this proposal remains

under discussion in the Council Working Groups. Whilst we continue to await the outcome, we note

that the exceptions to the requirement for primary legislation under section 8(6) of the EU Act 2011

are clear: they apply only to existing measures previously adopted under Article 352 TFEU. They do

not apply to this Regulation and, in our view, if an Article 352 TFEU legal basis is retained then an Act

of Parliament will be required before you can vote in favour of this measure in the Council.

As for your assertion that the UK’s opt-in applies to this measure, our views on this matter are set

out in our recent report to which you refer, and to which the Government has yet to respond

despite its publication in March 2015. We remain of the view that unless and until proposed EU

legislation includes a Title V legal basis, we do not accept that the UK’s opt-in Protocol applies. As we

said in our letter of 26 March, if the Government proves able to convince the Council that this

proposal requires a Title V legal basis, we would consider that the enhanced scrutiny procedures that

you are attempting to engage would apply from the date the Council adds the Title V legal basis and

not before.

Unfortunately, on this occasion, this situation is further complicated by the fact that your Department

failed to send the letter informing the Committee that it has decided to opt in. However, given that

we do not accept that at this point in time the UK’s opt-in applies to this proposal, we are not

25

minded to pursue this oversight. We hope that measures have been put in place to ensure that, in

future, when the UK’s opt-in does apply, errors of this kind do not recur.

We look forward to considering updates on the Council’s discussion of this proposal in due course.

15 October 2015

Letter from Lord Maude of Horsham to the Chairman

I am writing to update you on progress with the proposal from the European Commission for a

Regulation protecting against the effects of the extra-territorial application of legislation adopted by a

third country.

There has been no progress on this proposal since I last wrote. The reason for this is that in March

2015 the Council, Commission and European Parliament were asked to consider two aspects of this

proposal, namely the use of Article 352 of the TFEU as its legal base, and establishing authorisation

criteria by delegated acts rather than by implementing acts. The report from these combined

institutions has not yet issued.

In my previous letter I informed you that this proposal was scheduled to be presented at the 19

November meeting of the European Parliament’s International Trade Committee, with a vote on

amendments planned for 10 December. We understand that this presentation was re-scheduled

instead for 30 November but it appears that it did not take place, and we have been unable to

confirm when it may now take place.

I will write again with a further update when we have confirmation on these points.

18 January 2016

INCREASING THE NUMBER OF JUDGES AT THE GENERAL COURT (9375/15)



Thank you for your Explanatory Memorandum dated 20 July 2015, which was considered by the EU

Justice Sub-Committee at its meeting of 15 September 2015.


Once again, on this significant matter, we are being asked to opine in highly unusual circumstances.

For understandable reasons, particularly during Dissolution, normal scrutiny procedures were not

followed and to all intents and purposes, subject to the EP’s views, the Council effectively agreed this

matter in June. In light of this fact, your suggestion that the submission of this Explanatory

Memorandum on a Council first reading agreement offers the Committee an opportunity to scrutinise

this matter “properly”, in our view, overstates the position. It is disappointing that the Committee’s,

and the Government’s, call to the Member States to afford national Parliaments adequate time to

scrutinise this matter have not been heeded by the Council.

As you know, this Committee has produced two reports in recent years calling on the Member States

to address the significant workload problems facing the General Court by increasing its judiciary. The

Committee repeated its views and set out its arguments in support of this reform in its most recent

letter to you, dated 26 March 2015. In conclusion, the letter argued that:

“In light of the Member States’ latest failure … the President has brought forward the only solution

(with the costs mitigated by the abolition of the Civil Service Tribunal) that stands any chance of being

agreed by the Member States. The increase will crucially enable the General Court to address its

significant workload difficulties.”

It is the Member States’ failure to put national interest aside and forego an additional judge that has

left the President of the Court with no alternative other than to propose a doubling of the General

Court’s judiciary.

There are, however, two issues of substance that we wish to pursue: first, your Explanatory

Memorandum is silent on the detail of the judicial appointment system, particularly in what order

Member States will get their additional judges. Could you explain the proposed system to the

26

Committee? Second, you also say that the General Court opposed these proposed reforms. Are you

able to offer a more detailed analysis of the Court’s opposition?

We look forward to considering your response within the usual ten working days.

15 September 2015


Thank you for your letter of 15 September 2015 about the Council’s position at the first reading of

the adoption of a Regulation amending Protocol No.3 of the State of the Court of Justice of the

European Union (Doc 9375/15.)

The Government shares your concerns about how this dossier has been handled, and agrees that it is

highly unsatisfactory, not least because national Parliaments have not had sufficient time to carry out

scrutiny. The Government has raised these concerns with officials representing the Presidency, the

CJEU, the Member States, the General Secretariat of the Council and the Commission’s Legal Service.

I agree that the workload of the General Court must be addressed, and in that light, the Government

was prepared to agree to up to twelve additional judges. However, as you know, the UK voted

against the adoption of this regulation in June, on the basis that a doubling of the General Court’s

judiciary is disproportionate to the need. I am disappointed that the President of the Court of Justice

(CJEU) felt he was left with no alternative other than to propose this. The UK has been, and

continues to be, the only Member State to oppose the proposal consistently. However, other

Member States have increasingly voiced their concerns, in particular as regards the associated cost

implications.

You asked for a further explanation of the proposed judicial appointment system. If this Regulation is

adopted without significant changes to the CJEU’s proposal, the number of judges in the General

Court will be increased by 28, to 56, by 2019 in three separate stages:

Stage 1 – from September 2015: increase the number of judges by 12;

Stage 2 – from September 2016: dissolution of the Civil Service Tribunal (CST) and integration of its

case-load into the General Court, and the creation of 7 additional General Court judges reflecting the

number of CST judicial positions; and

Stage 3 – from September 2019; increase the number of judges by 9.

The Latvian Presidency proposed that the order of appointment of judges should be as follows:

Stage 1 – September 2015 (increase of 12 judges)

a. The first judge to be appointed under Stage 1 to be drawn by lot from a total of 24 Member

States (the four Member States who have sitting CST judges will be automatically excluded

from the first stage);

b. The next 11 judges in Stage 1 to follow based on the order of the rotating Presidency;

c. Any Member State drawn in Stage 1 which indicated that it did intend to nominate a

candidate would be placed in Stage 3.


The Member States with sitting CST judges would have the option to nominate their CST judges to

the General Court, or to nominate a new candidate;


The remaining Member States will secure their second judge.

Whilst this proposal has no formal status, the first stage has in effect been implemented with lots

drawn at an Antici meeting on 10 March 2015 to select the 12 Member States who would be eligible

to nominate their additional judge first. The Member States that were selected are: Czech Republic,

Sweden, Spain, Belgium, Hungary, Poland, Cyprus, Lithuania, Greece, Latvia, Luxembourg, and

Slovakia. The UK was not selected, and will therefore now get its second judge in 2019 under the

third stage, if the proposal is adopted. The UK has no objection to this selection process, without

prejudice to its opposition to the underlying proposal.

On your second question on the General Court’s position, I should clarify that these views were not

submitted directly to the Member States. However, the views of Marc Jaeger, the President of the

27

General Court became known publicly when his private letter to Italy’s Ambassador was referenced

by Slaughter and May, an international law firm, in a newsletter published in May 2015. In the letter

he stated that "there are more appropriate, more effective and less onerous means by which to

strengthen the General Court and to achieve better and even faster outcome for litigants” (see

Annex A [not printed]). We agree.

The General Court’s views are further referenced in the explanatory statement to the draft

recommendation of the European Parliament’s rapporteur on this dossier (see Annex B [not

printed]), in which he notes that the General Court opposes these reforms on the basis that the

figures provided by the CJEU on the number of outstanding General Court cases, differ from, and

contradict facts and figures provided by the General Court on the number of outstanding cases. This

is based on evidence presented by the President of the General Court and a number of General

Court judges at a hearing before the Legal Affairs Committee in Strasbourg, at the invitation of the

rapporteur.

ATTACHMENT LIST

Annex A - http://www.slaughterandmay.com/media/2497148/eu-competition-and-regulatory-

newsletter-01-may-07-may-2015.pdf) [external link]

Annex B

http://www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&mode=XML&language=EN&refere

nce=PE567.628 [external link]

25 September 2015


Thank you for your letter dated 25 September 2015, which was considered by the EU Justice Sub-

Committee at its meeting of 20 October 2015.


We are grateful for your replies to our questions with regard to the detail of the judicial appointment

system and the General Court’s opposition to this proposal. However, beyond referencing the

General Court’s opposition, you do not offer the Committee any commentary on the European

Parliament’s stance. We would welcome your analysis of the Parliament’s views, and an update on the

progress of this matter through the EU’s legislative process.

As for the General Court’s opposition to this proposal, it is of course significant that judges currently

serving the General Court, including its President, have reservations about this matter. However,

whilst on the face of it this proposal has been brought forward to address the workload problems

facing the General Court, as we have said in previous correspondence the proposal to double the

General Court’s judiciary has been brought forward because the individual Member States proved

incapable of putting national interest aside and foregoing an additional judge. Had the Member States

been able to agree an acceptable judicial appointment system, an increase in the number of judges

serving the General Court, less than the number of Member States, would have been possible.

We look forward to considering your response within the usual ten working days.

20 October 2015


Thank you for your letter of 20 October 2015 about the Council’s position at the first reading of the

adoption of a Regulation amending Protocol No.3 of the Statute of the Court of Justice of the

European Union (Doc 9375/15).

You have asked for our analysis of the European Parliament’s position on the regulation. Its position

is now known (provisional edition of the text attached as Appendix A [not printed]).

On 28 October 2015, the European Parliament held its second reading on the regulation, and voted in

favour of it in their plenary session on the same day. The European Parliament therefore approved

the Council’s position at first reading, including a doubling of the number of judges at the General

Court (to 56), through a three-stage process.

28

The European Parliament also approved two new provisions, which were not contained in the original

version of the regulation agreed by the Council. The first is a review clause which stipulates for the

Court of Justice to draw up a report on the efficiency of the General Court and the effectiveness of

the increase in judges five years after the entry into force of the Regulation (that is, after the increase

in the number of judges is complete).

The European Parliament has also inserted new language in the form of a recital aimed at ensuring, to

the greatest possible extent, gender balance within the appointment of judges at the General Court.

This is combined with an article synchronising the mandates of the two judges of each Member State,

with the aim of facilitating the appointment by Member States’ of one woman and one man. The

European Parliament’s resolution is accompanied by a joint statement of the Council and Parliament,

which the Member States’ will be asked to agree to when the regulation is scheduled for adoption.

This declaration seeks to ensure a political commitment from the Member States’ that they will, to

the greatest possible extent, ensure equal representation of men and women at the Court through

their judicial appointments process. This is not legally binding on the UK; therefore the UK will not

be required to change its current recruitment process.

The UK has consistently emphasised the importance of merit in judicial appointments, in accordance

with our domestic recruitment process, and that candidates should be drawn from the widest

possible pool. This is to ensure professional competence, impartiality, and representation across all

areas of law.

You have also asked for an update on progress on the passage of this regulation. I expect the

regulation, as passed by the European Parliament, to come before the Council for adoption by the

middle of November 2015. I will vote against its adoption.

I strongly agree with your observations that, whilst on the face of it the proposal to double the

number of judges has been put forward to address the General Court’s workload, this has in fact

come about because agreement between the Member States’ could not be reached on an acceptable

judicial appointment system for an increase of 12 judges only. The UK has consistently opposed the

doubling of judges, which we consider to be a disproportionate response.

The UK has tabled a scrutiny reserve on adoption of this regulation; a full official version of the

regulation to be adopted, with an Explanatory Memorandum, will be deposited for Parliamentary

scrutiny as soon as an official finalised version of the text is available, which should be by week

commencing 09 November.

ATTACHMENTS

Appendix A - European Parliament legislative resolution of 28 October 2015 on the Council

position at first reading with a view to the adoption of a regulation of the European Parliament and of

the Council amending Protocol No 3 on the Statute of the Court of Justice of the European Union

(09375/1/2015 – C8-0166/2015 – 2011/0901B (COD)) (Ordinary legislative procedure: second

reading) [not printed]

2 November 2015


Thank you for your letter dated 2 November 2015, which was considered by the EU Justice Sub-

Committee at its meeting of 17 November.

We decided to clear this matter from scrutiny.

It is clear from your reply that this proposal to double the General Court’s judiciary will be agreed

imminently and the UK, alone, will continue to oppose this reform. We note the European

Parliament’s proposed amendments highlighted by your letter and the fact that the text as “passed by

the European Parliament” will form the basis of the Council’s agreement.


17 November 2015

29

INTERNATIONAL COOPERATION TO COMBAT MATCH-FIXING (6720/15)

Letter from Tracey Crouch MP, Parliamentary Under Secretary of State for Sport,

Tourism and Heritage, Department for Culture Media and Sport, to the Chairman

I am writing to you in relation to the draft Council Decisions for the EU to sign the Council of

Europe’s Convention on the manipulation of sports competitions (match-fixing).

I wanted to apologise for not updating the Committee sooner, but I hope that this letter fully

addresses the Committee’s concerns and provides a helpful update on the status of the proposals. In

addition to this update to the Committee, a Written Ministerial Statement notifying Parliament of the

Government’s opt-in decision is being made separately.

It is important to state that the original Decisions published by the European Commission were not

informed by any prior discussion amongst Member States at the Council. Following publication, many

Member States - including the UK - raised concerns at the wide-ranging scope of the EU’s proposals.

Discussions have progressed slowly under Luxembourg’s Presidency of the Council of Ministers, but

the Government agreed with many of the concerns raised by the Committee and has worked hard to

amend the proposed Decisions for the EU to sign the Convention. I can now update you on the

current status of negotiations.

The Committee agreed with the Government’s view which questioned whether the two proposals

complied with the principle of subsidiarity. My officials participated in the Council of Europe

negotiations of the Convention itself and succeeded in ensuring that the obligations in the final text

left it open to Member States to decide how best to regulate and cooperate. The Government does

not believe that a compelling case has been made for the harmonisation of national sanctions and

procedures and does not believe that the EU should be exercising shared competence through these

Decisions.

The EU has not made a compelling argument as to the value it can add in the fight against match-fixing

which goes beyond providing a forum to exchange best practice and expertise and which would

require it to go beyond Article 165 TFEU in becoming a signatory to the Convention. In that regard,

the Government was also not convinced as to the necessity of the original proposals.

The original proposals were published on 2 March 2015 and so the deadline for the Government's

opt-in Decision on the JHA decision was three months from that date. The Government decided not

to opt-in.

Malta had requested an Opinion from the Court of Justice of the EU (CJEU) regarding the

compatibility of the Convention with the EU Treaties. Malta's specific concern was about the

Convention's definition of “illegal sports betting” (Article 3(5)) not being consistent with EU law and

felt that this definition was unnecessary in the fight against match-fixing. However, Malta subsequently

decided to withdraw its request for a CJEU Opinion.

Gibraltar did not participate in the negotiation of the Convention but is aware of it. Should the

Government sign up to the Convention then the possibility of extending the Convention will be

discussed with Gibraltar given its status as a British Overseas Territory. The EU proposals, as

currently worded, do not allow the EU to exercise any shared competence by becoming a

Convention signatory and, furthermore, the relevant article provisions (Article 11) of the Convention

are flexible in terms of their application. Having consulted with the Gambling Commission, the

Government does not believe that the EU signing the Convention would be an impediment to an

internal market.

The Government recognises that the Convention itself could be a potentially powerful tool in

combating match-fixing, especially given its cross-border nature. While the UK has effective systems

in place to combat match-fixing, illegal and irregular betting, the Government believes that the

Convention can help raise the standards of other countries and mitigate against the threat that sport

in the UK faces from overseas. It is only right that the UK plays its part in the global fight against

match-fixing - this is why the UK participated in the negotiation of the Convention and, while a

timeline has yet to be agreed, the Government will be taking steps to accede to the Convention in its

own right.

Negotiations have been taking place under Luxembourg’s Presidency, however, based on recent

discussions my officials have had with the Council Secretariat and Presidency, we believe that it will be

some time before the adoption of the Decisions will be considered. We anticipate that further

negotiations may take place during the Netherlands’ Presidency of the EU Council.

30

The Council Secretariat and Presidency are aware that the UK still has a Parliamentary scrutiny

reservation but I hope that this update allows the Committee to lift its scrutiny reservation.

29 November 2015

Letter from the Chairman to Tracey Crouch MP

Thank you for your Explanatory Memorandum of 29 November 2015, which was considered by the

EU Justice Sub-Committee at its meeting on 15 December.

It is disappointing that it was only after prompting by our staff that we received your reply to our

letter dated 24 June, which asked for a response, particularly on the Government’s opt-in decision,

within ten days. Your letter gives no explanation for the delay; we ask that you provide one in

response to this letter.

You say in your letter that the original Decisions published by the Commission was not informed by

any prior discussion amongst Member States in the Council. You also say that, following publication,

many Member States, including the UK, raised concerns about the wide-ranging scope of the EU’s

proposals. We find this surprising given that the EU was authorised to participate in the negotiations.

We would be grateful if you could explain the purpose of the EU’s participation in the negotiations,

and whether EU competence over the Convention was considered in the negotiations.

Your approach to Parliamentary scrutiny of the opt-in Decision leaves us particularly concerned. It

pays little regard to the enhanced scrutiny obligations placed on Government for opt-in decisions,

which are contained in a code of practice annexed to the relevant Cabinet Office guidance. Can you

explain why you did not give an indication of the Government’s views on the opt-in decision, and the

factors likely to influence the Government’s decision, in your original Explanatory Memorandum, or in

subsequent correspondence? Can you explain why a Written Ministerial Statement confirming the

Government’s opt-in was not laid until 1 December, when the deadline for the Government’s

decision was 2 June?

On the substance of the opt-in Decision, Article 16 of the Convention obliges States Party to adopt

criminal legislation penalising the laundering of proceeds criminal offences relating to the manipulation

of sports competitions. Given that the EU has far greater power than the Council of Europe to

ensure its Member States comply with this important obligation, on what basis did you conclude that

it was not in the national interest for the UK to opt into the draft JHA Decision?

More generally, we are not clear from your letter what the Government’s view is on the EU’s

competence for each of the proposals. You say that you do not believe that a compelling case has

been made for the harmonisation of national sanctions and procedures, and that you do not believe

that the EU should be exercising shared competence through these Decisions. You also say that the

proposals, as now worded, do not allow the EU to exercise any shared competence by becoming a

Convention signatory. Having consulted with the Gambling Commission, however, you do not believe

that the EU’s signing of the Convention would be an impediment to the internal market, which seems

to imply that you accept EU competence.

It seems to us that the Commission has to claim exclusive external competence over the draft JHA

Decision, and thereby Article 16 of the Convention, rather than shared competence, for the EU to

sign the Convention on this account. Do you agree? If not, on what basis do you say that the

Commission’s justification in recital 4 of the draft JHA Decision for EU competence is misconceived?

We would also be grateful if you could confirm that the Commission accepts that the UK can opt out

of this Decision, despite its claim of EU exclusive competence over it.

With regard to the draft Decision based on Article 165 TFEU, which gives the EU supporting

competence in the field of sport, do you support the Commission’s justification for EU competence as

reflected in recital 6? If the EU’s competence in relation to the Convention is only a supporting one,

we cannot at this stage see the basis for the EU to sign the Convention (following the AETR

doctrine), notwithstanding the safeguard in recital 7 that it is not exercising shared competence. Are

there examples of other treaties to which the EU has acceded based on a supporting competence?

It is premature to consider releasing either of the proposals from scrutiny in the absence of clarity

over the EU’s competence with regard to this Convention, and over whether the Government

supports the claim for EU competence.

We look forward to a reply to this letter within the usual ten days.


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15 December 2015

Letter from Tracey Crouch MP to the Chairman

Thank you for your letter of 15 December 2015. I am writing to address the points raised by the EU

Justice Sub-Committee in relation to the Council Decisions for the EU to sign the Council of Europe’s

Convention on the manipulation of sports competitions (match-fixing).

Firstly, may I say how mortified I am about the delay in providing an update to the Committee. I have

raised this with the Permanent Secretary. It was due to an administrative oversight by officials, that

the updates to both the Commons and Lords Scrutiny Committees, as well as the Written Ministerial

Statement, were not provided within the expected timeframes. However, lessons have been learned

by my Department and, with a new Head of EU Strategy in place and a new EU Scrutiny Coordinator

about to take up post, officials are ensuring that appropriate processes are put in place so this is

never repeated in future.

Turning to the specific issues you raised. You asked if I could explain the purpose of the EU’s

participation in the negotiations, and whether EU competence over the Convention was considered in

the negotiations. Around the time the negotiations began on the Convention itself, several Member

States felt that the EU should participate given that combating match-fixing had been identified as one

of the priority areas set out in the ‘EU Work Plan for Sport 2011-14’. Subsequently the Commission

presented two negotiating mandate proposals (JHA and non-JHA) to set out the parameters of the

EU’s involvement. Competence issues were considered at this stage and, as with the subsequent

proposals for signature, the Government had concerns as to the wide-ranging nature of the mandates

being sought. The UK and other Member States were successful in ensuring that the final negotiating

mandates authorised by the Council required the Commission to ensure that the provisions of the

future Convention did not aim to, nor effectively result in, the harmonisation of the regulation of

betting services without such rules having first been adopted by the Union.

Article 19(1) of the Convention obliges every Party to establish extraterritorial jurisdiction over the

offences listed in Articles 15 to 17 of the Convention, but Article 19(2) allows each Party (including

the EU) to reserve the right not to apply Article 19(1) or apply it only in specific cases or conditions.

It was in the national interest of the UK to retain the ability to itself decide whether or not it should

derogate from the obligation to establish extraterritorial jurisdiction, and therefore not to opt into

the draft JHA Decision.

We agree that the Commission has to claim exclusive external competence over the draft JHA

Decision in order to claim that it must sign the Convention. If it does not have exclusive competence

then it may be authorised to sign the Convention by a Decision of the Council.

We do not consider that the EU has exclusive competence in the areas covered by the Decision,

because signature of the Convention will not affect the uniform application of common EU rules. Both

the Convention and the European Union legislation referred to in recital 4 simply set out minimum

standards. The UK argued that the Decision was unnecessary and that there should simply be one

Decision, covering the non-JHA areas, authorising the EU only to exercise supporting competence.

There was some support for the UK’s position. The UK, and other Member States, subsequently

lodged a minute statement regarding the JHA decision with COREPER, and will do the same when the

next opportunity arises to lodge it with the Council. The statement reads:

“STATEMENT BY THE REPUBLIC OF CYPRUS, THE REPUBLIC OF FINLAND, HUNGARY, THE REPUBLIC OF

POLAND, THE REPUBLIC OF SLOVENIA AND THE UNITED KINGDOM

The Republic of Cyprus, the Republic of Finland, the Republic of Hungary, the Republic of Poland, the Republic

of Slovenia and the United Kingdom fully support the Council of Europe Convention on the Manipulation of

Sports Competitions (the Convention).

The Republic of Cyprus, the Republic of Finland, the Republic of Hungary, the Republic of Poland, the Republic

of Slovenia and the United Kingdom continue to have doubts as to the existence of EU exclusive external

competence in relation to Article 16(1) of the Convention. Article 83(1) of the Treaty on the Function of the

European Union allows the European Parliament and the Council to establish minimum rules concerning the

definition of criminal offences and sanctions in the area of particularly serious crime. In the view of the

Republic of Cyprus, the Republic of Finland, the Republic of Hungary, the Republic of Poland, the Republic of

Slovenia and the United Kingdom, signature of the Convention will not affect the uniform application of

common EU rules. Both the Convention and the European Union legislation simply set out minimum

standards.

32

Therefore, in the opinion of the Republic of Cyprus, the Republic of Finland, the Republic of Hungary, the

Republic of Poland, the Republic of Slovenia and the United Kingdom, the Council Decision on signing the

Convention on behalf of the European Union does not set a precedent concerning the exclusive external

competence of the European Union.”

Given recital 8 of the draft JHA Decision provides that the UK is not taking part in the adoption of

the Decision, the fact that the UK opt-in applied has been agreed by the relevant institutions.

We consider that the EU only has supporting and shared competence in the areas of the Convention

covered by the non-JHA Decision. It is a decision for the Council whether or not to allow the EU to

exercise its competences. The safeguard in recital 7 restricts the EU from exercising shared

competence. We therefore consider that the EU is only being authorised to exercise supporting

competence under the non-JHA Decision. The non-JHA Decision is silent as to the existence of any

exclusive competence, but we do not consider that the EU has exclusive competence in the areas

covered by the non-JHA decision.

We consider that the Council can authorise the EU to sign the Convention in exercise of its

supporting competence. Article 165(3) TFEU provides that the EU and the Member States shall

foster cooperation with competent international organisations in the field of sport, in particular the

Council of Europe. We are not aware of examples of other treaties to which the EU has acceded

based on a supporting competence only.

You may have noted that the Government published a new sport strategy, “Sporting Future: A New

Strategy for an Active Nation”, in December 2015. This strategy sets out a range of actions and

recommendations that the Government will be taking forward and, in terms of protecting the

integrity of sport, one of the actions is to sign and ratify the Convention.

The Council Secretariat remains aware that the UK still has a Parliamentary scrutiny reserve but, I

hope that this subsequent update further reassures the Committee and allows you to now lift the

scrutiny reservation.

Due to Parliamentary recess over the Christmas break, this response is being sent outside of the

usual ten days but, my officials have been in contact with your officials to advise them of this and seek

an extension which has been agreed.

This is my final week in the Department before I go on maternity leave, however, both my officials

and David Evennett MP, who will be the acting Minister in my absence, will be pleased to assist you

with any further queries you may have in relation to this file.

20 January 2015

JUSTICE FUNDING PROGRAMME 2014-2020: POST-ADOPTION OPT-IN DECISION

(17278/11)



I am writing to inform you of the Government’s decision to remain opted-out of the Regulation of the

European Parliament and of the Council establishing a Justice Programme for the period 2014-2020,

following a review of the 2014 post-adoption opt in decision.

The Government decided in 2012 that the UK should not opt in to this measure due to questions

over the value of the activities the programme intended to fund. Careful consideration was given to a

post-adoption opt-in in 2014 and the Government decided against this as the programme still raised

questions on the overall value for money to the UK taxpayer.

The previous Justice Secretary cited the lack of evidence of the value of predecessor programmes and

proposed that officials would monitor the impact of the UK’s non-involvement and conduct a review

of the decision over the summer. This led the Government to maintain its decision to remain outside

of this programme.

The findings of the review demonstrated that during the period of 2008-2012, UK led projects

received €15 million Euros (6% of the available budget of €233 million Euros), whilst the Government

contributed €35 million Euros. Commission data suggests that under the previous programmes while

UK-based organisations were frequently awarded projects, they were often for small sums of money

33

meaning the UK consistently contributed more than it received in funding. Not opting in would allow

the UK to receive around £7 million pounds in reimbursements each year.

UK-based organisations will still be eligible to participate in particular projects (promoted by the

Annual Work Programme), however they would have to fund themselves.

To address concerns raised by the judiciary last year about the potential for loss of influence within

EU judicial networks, the Ministry of Justice will allocate funding, as needed, for EU judicial training in

England and Wales to a degree that will allow them to maintain the levels of training seen in previous

years.

10 December 2015

JUSTICE PRIORITIES FOR THE DUTCH PRESIDENCY OVER THE NEXT SIX MONTHS

(UNNUMBERED)



The Dutch Presidency of the Council of the European Union runs from January 2016 until June 2016. I

am writing to provide an overview of the Presidency’s priorities in the areas of justice on which the

Ministry of Justice leads. I hope that this will help in the planning of the scrutiny of dossiers that are

likely to be considered by the Justice and Home Affairs (JHA) Council during this period.

The Dutch Presidency is planning to host the following JHA Councils:

— 25– 26 January (Informal Council in Amsterdam);

— 10 –11 March (Brussels);

— 9– 10 June (Brussels).

The Dutch have identified four key legislative justice priorities that they intend to progress during

their Presidency:

— the Procedural Rights Package

— the Directive on the fight against fraud to the financial interest of the Union

(PIF)

— the European Public Prosecutor’s Office (EPPO) and Eurojust; and

— the Data Protection package.

As you will be aware, the first is led by the Ministry of Justice, the PIF directive by HMT, EPPO and

Eurojust by the Home Office and the Data Protection package by DCMS. Each department will

remain responsible for updating the scrutiny committees as these dossiers progress.

During their Presidency, the Dutch will continue on the Procedural Rights Package. The UK has

not opted into the package but has participated in it. The Presidency is likely to start negotiations on

the revision of the Brussels IIa Regulation on family law matters if, as is expected, it is issued by

the Commission in the spring.

Following the fall of the proposals on Matrimonial Property Regimes and the property

consequences of registered partnerships at the December Council it is likely that the Dutch will

be keen to pursue enhanced cooperation if proposals are issued during their term.

The main non-legislative priority will be the EU's accession to the European Convention on

Human Rights. The incoming Presidency is likely to wish to continue the consideration of how the

EU should respond to Opinion 2/13 by the ECJ and to progress the current work on e-Justice.

4 January 2016

34

MARRAKESH TREATY - ACCESS TO PUBLISHED WORKS FOR PERSONS WHO ARE

BLIND, VISUALLY IMPAIRED OR OTHERWISE PRINT DISABLED (14617/14)

Letter from Baroness Neville-Rolfe, Parliamentary Under Secretary of State and

Minister for Intellectual Property, Department for Business Innovation and Skills, to the

Chairman

Thank you for your letter of 26 March 2015. I am writing to provide you with further information on

matters concerning the Marrakesh Treaty to Facilitate Access to Published Works for Persons who

are Blind Visually Impaired or Otherwise Print Disabled.

The European Commission’s proposal for a Council decision on the conclusion, on behalf of the

European Union, of the Marrakesh Treaty, was discussed in the European Council’s Working Party on

Copyright on 24 November 2014, 29 January 2015, and 17 February 2015. On 25 March 2015, the

Permanent Representatives Committee (COREPER) considered the matter, but only found agreement

to call on the Commission, in accordance with Article 241 TFEU, to submit without delay a legislative

proposal setting out the amendments to the EU legal framework necessary to accommodate the

Marrakesh Treaty.

On 13 August 2015 we received formal notification from the Court of Justice of the European Union

(CJEU) that the Commission has requested an opinion as to whether the European Union has

exclusive competence to conclude the Marrakesh Treaty. The Government is carefully considering its

position in relation to the request for an opinion.

On the basis of the current EU legal framework, the Government does not consider an EU exclusive

competence approach to conclusion of the Treaty to be appropriate. The Government believes that

Member States remain competent to ratify the Treaty in their national capacities. Furthermore, the

Government does not consider the Commission’s proposed joint Article 114 (TFEU), Article 207

(TFEU) legal base to be appropriate for conclusion of the Treaty. As the Marrakesh Treaty is primarily

humanitarian and not about trade, Article 19 (TFEU) would appear to be a more appropriate legal

base.

The Government remains a strong supporter of the Marrakesh Treaty and is committed to the

principle of access to copyright works for visually impaired people. In seeking to ensure that the

Treaty enters into force at the earliest possible date, we are committed to ensuring that the

aforementioned legal difficulties reach a satisfactory conclusion. We will also seek to ensure that the

respective competences of the EU and Member States are clearly set out in the text of any decision.

8 September 2015

Letter from the Chairman to Baroness Neville-Rolfe

Thank you for your letter of 8 September 2015, which was considered by the EU Justice Sub-


We would be grateful to be provided with a summary of the arguments made by the UK in the

proceedings before the CJEU, once arguments have been heard and before the opinion is delivered.

We also ask that, at that time, you explain which Articles of the Treaty the UK considers to fall within

Member State competence.

In the meantime, the document remains under scrutiny.

13 October 2015

MEMBER STATES' APPLICATION OF EU LAW IN 2014 (10987/15)



Thank you for your Explanatory Memorandum dated 17 August 2015, which was considered by the

EU Justice Sub-Committee at its meeting of 13 October.

We were pleased to note that the overall number of complaints against the UK fell by 17% in 2014;

that the number of EU pilot files opened against the UK declined for the third year running; and that

35

the number of new infringement procedures against the UK for failure to notify was unchanged from

last year, and at its lowest level since 2010.

We support your policy of reducing the number of unavoidable infringements procedures where the

UK does not have respectable legal arguments. We also agree with you that, in cases where the

Government does not consider the UK to be in breach of its transposition obligations, it is right to

challenge infringement procedures, including before the Court of Justice.

We do not expect a reply to this letter and now clear the report from scrutiny.

13 October 2015

PROMOTING THE FREE MOVEMENT OF CITIZENS AND BUSINESSES BY SIMPLIFYING

THE ACCEPTANCE OF CERTAIN PUBLIC DOCUMENTS (9037/13)


Commonwealth Office, to the Chairman

I am writing in reply to your letter of 1 July in which you asked several questions relating to this

Proposal.

Firstly, you asked me to explain the proposed system introduced by the text in June. I take this to

mean the system by which multilingual translation aids are issued.

The system proposed is that a citizen will request a translation aid for his or her civil status certificate

from the issuing authority - in this case, the General Register Offices (GROs) of England & Wales,

Northern Ireland and Gibraltar and National Records of Scotland (NRS). We are considering

practical issues ahead of implementation which is likely to be early in 2019. We expect that citizens

will request the document and have to pay a small fee, and that the translation aid will be issued

centrally by the GROs/NRS. The issuing officer will log onto the e-Justice portal and select the

template and languages required e.g. “Scottish birth certificate”, “pre-1964 version”, “into Spanish”. A

bilingual template will appear, with information fields/text boxes corresponding to each of the fields

on the original document. The issuing officer will enter the personal data in the fields (e.g. “Elizabeth

Jane”, “Lings Bar hospital”) and print out the complete translation aid which will show the titles of all

the information fields in both the original and target languages with the personal data entered into the

form left in the original language. In addition, each aid will have at the foot or on the reverse a

glossary consisting of a translation of the information fields into all official EU languages. Once printed,

the personal data will not be stored. The translation aid will be attached to the original document

which can then be presented to the receiving authority in another Member State; the receiving

authority should not ask for further translation without good reason.

Domestically, new legislation may be required to allow fees to be charged for these translation aids.

The General Register Office, which will be the biggest producer of these translation aids, has

calculated that a fee to cover production costs would be in the order of £8.50. We expect costs to

be broadly similar across all the administrations. The cost estimates will be updated if there are

changes in the final Regulation and also nearer to the implementation date.

You also asked me to explain how the proposal will fulfil the stated aims of promoting the free

movement of citizens by simplifying the acceptance of public documents, and whether the

Government believes this Proposal has potential to simplify the practical problems of citizens moving

between Member States.

The Government believes this Proposal will ease some of the red tape and practical problems citizens

face when moving between Member States. Movement of citizens will be easier if documents required

to be shown in connection with the move are accepted without the need for additional legalisation

and if they are accompanied by a translation. Although the UK does not ask for apostilles from other

Member States, it will benefit our citizens who currently have to obtain them for use in other

Member States. Abolishing the requirement for an apostille will save time and money (in the case of a

UK apostille, 3-4 days and £30 for each document). Being able to use a translation aid issued at cost

of less than £10 will save money for the citizen (typical private translation charges are £25-40 for a

single document).

You also raised a number of questions related to the potential use of modern technology in

simplifying the acceptance of public documents.

36

This Regulation is specifically concerned with reducing red tape connected to paper documents.

Although the Commission has plans to look further at how modern technology such as

interconnecting registers or electronic confirmation systems could be used to further simplify

transactions, Member States generally agreed with the Commission that such items are still relatively

rare and research into them would be time-consuming and expensive. The Commission therefore

proposed that such research should be separate from this proposal in the interests of citizens being

able to benefit sooner rather than later from simplification of procedures relating to the documents

which are already in use. For the UK, there would be an added complication in that approximately

half of the General Register Office (England & Wales) records are not stored electronically. The

Regulation does allow for e-documents to be included but in practice very few Member States have

the set-up at present to take advantage of this.

The Internal Market Information system (IMI) and e-Justice systems are separate from each other and

do not interact. Neither of these systems is a database. IMI, which would be used to send translated

messages requesting information from the issuing State on the authenticity of documents (which may

or may not have been presented with a translation aid), can retain information but it is expected that

data would be deleted after a limited time; the e-Justice software proposed to create translation aids

will not store any information other than templates as a security measure to protect personal

information.

Although detailed analysis has yet to be carried out, early indications from Member States are that the

cost of developing suitable software and equipping all potential receiving offices across the EU with

the necessary hardware and internet access would be disproportionately high for the level of the

problem and number of documents involved. In the UK we also have concerns about allowing

external users to access our civil status databases. The planned EU research into using technology to

improve document transactions and security will however consider the viability of possibilities such as

this for future proposals.

The last part of your letter concerns the issue of external competence in relation to matters arising

under this Regulation and others.

In Opinion 01/13 of the Court of Justice of the European Union (CJEU) in October 2014, the Court

found that in the context of a Hague Convention concerning child abduction, accepting a new state’s

accession to that particular Convention was a matter of EU exclusive competence. This was based on

the reasoning that internal EU rules would be undermined should Member States continue to accept

accessions. Any time new internal rules are adopted, there may be a risk that Union competence

expands in the external field to generate exclusive external competence, particularly where there is

an overlap of the subject matter of the proposal with pre-existing international agreements in the

same field. We do not know whether this will provide a precedent for future legislation but it seems

likely that Member States will at least consider carefully the risk of external competence in other

proposals.

Accordingly, during negotiations on this dossier, the Council considered this risk and proposed a

number of drafting measures intended to mitigate it, such as defining the limits of the Regulation and

including text which states that the Regulation does not preclude Member States from acting

externally in the field covered by the Regulation. This makes clear the co-legislators’ intention that

this measure should not affect the ability of the Member States to act externally and should not

produce exclusive external competence for the Union.

Whilst it is not possible to exclude the possibility that the CJEU might find there to be EU exclusive

competence, we consider the risk acceptable given the amended text. This accords with the advice

given in February which we think covers the issue in a coherent manner.

Trilogue negotiations between Council and the European Parliament on the final content of the

Regulation will start in mid-July and I will keep you informed of progress.

15 July 2015


I am writing to update you on negotiations and to ask you to consider granting a waiver from scrutiny

to allow the UK to vote in favour of the principles of the proposal at the Justice and Home Affairs

Council (JHAC) on 8-9 October, subject to a satisfactory outcome on final trilogue negotiations with

the European Parliament (EP). As you know, we have secured several advantageous changes to the

original proposal and would like to support our position by voting in favour.

37

We had previously expected that trilogue discussions between Council and the European Parliament

would take place during the autumn with a view to adopting the Regulation at the December JHA.

We have now been informed that the timescales have been pushed forward, and that Member States

will be asked to agree the principles of the proposal at the October JHAC, prior to final adoption of

the Regulation in December. I am aware that your Committee will not be meeting between the

conclusion of trilogue negotiations and the October JHAC, so I am setting out below the areas which

have been earmarked for discussion and UK views on these. You may like to refer also to the letter

which I wrote on 3 August to Sir William Cash, copied to you, which in answering his questions

explains more background to some of the issues. I hope to be in a position to provide full and final

details of the proposed Regulation in October and to seek clearance from Scrutiny ahead of the

adoption vote in December.

The European Parliament wishes to widen the scope of the Regulation to include additional categories

of document and to loosen requirements for certified copies and translations.

SCOPE OF THE CATEGORIES FOR ABOLITION OF LEGALISATION

The European Parliament proposes adding a number of categories, of which we understand

educational diplomas, company status documents and criminal records to be the highest priority. We

understand that 10 Member States, who could form a blocking minority, oppose any increase to the

scope agreed at Council, and 11 others including the UK have some flexibility depending on category;

but all oppose the inclusion of educational diplomas as well as social security and immigration status

documents. We expect the most likely categories to be added will be those relating to company

status and criminal records, both of which we can support.

Annex A sets out the UK’s position on all of the documents which the EP has proposed to include

within scope in more detail.

CERTIFIED COPIES

The European Parliament proposes that non-certified copies of documents should be accepted except

in limited cases, where the receiving authority is financially liable for errors in a register made on their

basis. All Member States (including the UK) have been clear that this is not acceptable, as most

Member States require legal certainty to make entries into registers. We therefore expect that the

final text will not include any requirement to accept non-certified copies.

CERTIFIED TRANSLATIONS

The European Parliament has suggested that certified translations should not be demanded and that

translations made by the citizens themselves or any other non-certified source should be accepted.

Due to the same need for legal certainty as for certified copies, Member States oppose this and have

been very keen to enshrine in the text their right to demand certified translations. The UK supported

this approach, but in order to ensure flexibility we have secured a recital stating that we should not

be forced to demand a certified translation where it is not required according to national law or

custom. We expect that the final text will be acceptable to the UK.

MULTILINGUAL FORMS

It is a priority for the Government, supported by a significant number of Member States that the

multilingual translation aids should stay as mere attached translation aids rather than standalone

forms. Whilst the European Parliament do not oppose this, they do wish to see their scope enlarged

to include further categories of information. Several other Member States support this idea as it could

lead to savings for citizens.

The UK was originally strongly opposed to multilingual forms on the grounds that they were originally

intended to have evidentiary value, they were to bear EU flags and we would not have been permitted

to charge a fee to the citizens who requested the forms in order to cover the costs of producing

them. In subsequent negotiations we have now succeeded in removing all these areas of concern.

In terms of the scope of multilingual forms, we will consider whether to support the extension of

their use to the different categories proposed by the EP on its merits. In summary, we believe the UK

can be relatively flexible in those areas where inclusion would have little practical impact. We would

strongly oppose the inclusion of educational diplomas on the basis that there are different and

38

complicated systems in use across the EU and a high incidence of fraudulent use. We would also

oppose inclusion of immigration, disability and social security documents because of the risk of fraud.

Annex B sets out our initial position on the possible categories of information for inclusion in more

detail.

I will continue to keep you updated as trilogue negotiations between Council and the European

Parliament progress in late September.

1 September 2015


Thank you for your letters dated 15 July and 1 September 2015. They were both considered by the

EU Justice Sub-Committee at its meeting of 15 September 2015.

The Committee decided to waive the scrutiny reserve ahead of the Council meeting on 8 – 9

October.

We are grateful for your answers to the questions set out in our letter dated 1 July. We welcome

your acknowledgment of the positive contribution this legislation will make to the ability of UK

citizens to move and reside in another EU Member State. We also asked a number of questions about

the role modern technology can play in the system introduced by this proposal. It is clear from your

reply that the focus of this proposal is firmly on paper documents, and that modern technology will

play a limited role in the system it seeks to introduce. We note your statement that in future the UK

Government would be concerned about granting other Member State authorities access to UK

databases, and your conclusion that detailed analysis of how modern technology can facilitate the

acceptance of public documents remains a task for the Commission to research in the future.

As for your letter of 1 September, we are grateful to you for the detailed update on the progress

being made in these negotiations. You appear confident that the Government has conducted a

successful negotiation and secured its desired amendments to the text to be agreed in October. We

note your suggestion that these gains will be protected by Member State opposition to the European

Parliament’s amendments highlighted by your letter, including the extension of the proposal’s scope to

cover educational diplomas and the use of non-certified documents and translations.

We look forward to considering, in due course, a further update on the agreed text post the October

Council.

15 September 2015


Further to my letter of 1 September, I write to inform you that the final trilogue discussions between

the Council and the European Parliament have concluded, with relatively minor changes. I am

therefore writing to ask you to consider clearing this file from scrutiny to allow the UK to vote in

favour of adopting the proposal, which we anticipate will be on the agenda of the Justice and Home

Affairs Council (JHA) on 3-4 December.

SUMMARY

There are a small number of changes from the General Approach, which I highlight in the following

paragraphs. The text of the General Approach was sent to you with my letter of 15 June. Overall, I

am content with the outcome for the UK. Importantly, the European Parliament accepted the Council

proposal to have multilingual translation aids instead of autonomous forms as well as the Council

wording on external competence. Their focus in trilogue discussions was mainly on widening the

scope.

CHAPTER I: SCOPE OF THE CATEGORIES FOR ABOLITION OF LEGALISATION

Company status documents, educational diplomas, immigration, disability and social security

documents have not been included in the proposed agreed text due to strong opposition from several

Member States, but there is a commitment to review the inclusion of company status documents,

educational diplomas and disability certificates two years after implementation of the Regulation. The

following categories have been added to the overall scope of the Regulation:

39

i) Documents confirming that someone is alive (the UK does not normally issue such

documents, but can accept their inclusion)

ii) Documents certifying the absence of a criminal record (which we had expected and can

accept),

iii) Documents required to stand for, or vote in, EP elections and local municipal elections (the

UK does not issue such documents, but can accept their inclusion).

CHAPTER II: CERTIFIED COPIES AND CERTIFIED TRANSLATIONS

No change from the Council’s General Approach, with which the UK was content.

CHAPTER III: MULTILINGUAL FORMS

There is no change to the Council-proposed status of these as mere attached translation aids without

evidentiary value rather than standalone forms. We succeeded in retaining the ability to charge fees

for the translation aids, with satisfactory wording agreed to limit the level of such fees to cost-

recovery. The scope has been enlarged to include documents, all of which we can accept, confirming:

i) Capacity to marry (or enter into a partnership) The UK issues these and the format lends

itself to production of translation aids.

ii) Marital status (and partnership status, as a separate document). The UK does not normally

issue such documents.

iii) Domicile/residence. The UK does not normally issue such documents.

iv) The absence of a criminal record. The UK issues these and the format lends itself to the

production of translation aids.

Educational diplomas, immigration, disability and social security documents were removed from scope

altogether, so no consideration of whether they were appropriate for multilingual forms was needed.

We had opposed their inclusion because of a risk of fraud.

UK DOMESTIC ISSUES: ESTIMATE OF COSTS AND LEGISLATION FOR FEES

My previous estimate of loss of income to HMG of approximately £900,000 per annum in fees

currently paid for apostilles is likely to increase by approximately £80,000 due to the extra categories.

No significant cost is expected in implementing the Regulation, since the software will be provided by

the EU and we may charge a fee for issuing the translation aids. Provision would need to be made in

domestic legislation for these fees.

TIMING

The proposed implementation date has been brought forward by 6 months; it is now 30 months after

adoption, which we consider achievable.

The European Parliament aims to clear their approval procedures in time for the JHA Council. Almost

all other Member States have confirmed their approval of the compromise agreement reached and it

is therefore expected that this QMV file will be adopted in December. Implementation would

therefore be in June 2018, with a review of categories in June 2020 and a first evaluation report due in

June 2023.

In summary, the UK has secured an agreement which meets our objectives and will deliver a

noticeable reduction in the bureaucratic hurdles faced by citizens attempting to move between EU

Member States.

I hope that you will now feel able to clear this from Scrutiny. I will of course inform you of the

outcome of the adoption vote.

12 November 2015


Thank you for your letter dated 12 November 2015 which was considered by the EU Justice Sub-

Committee at its meeting of 1 December.

40

We decided to clear this proposal from scrutiny. We welcome this proposal particularly given your

expectation that its adoption in December, and subsequent implementation by June 2018, will “deliver

a noticeable reduction in the bureaucratic hurdles faced by citizens attempting to move between EU

Member States”.


1 December 2015

PROTECTING THE EU’S FINANCIAL INTERESTS (17670/12)

Letter from David Gauke MP, Financial Secretary, HM Treasury, to the Chairman

I am writing to update you on the European Commission proposal for a Directive on the fight against

EU fraud (the ‘PIF’ Directive), which is intended to improve the equivalence and effectiveness of

efforts to protect the EU’s financial interests.

As you are aware, the Commission published the draft PIF Directive in July 2012. It is designed to

repeal and replace the existing 1995 EU Convention and Protocols on the Protection of Financial

Interests (the PIF Convention). The Government takes the misuse of EU funds very seriously and

continues to welcome efforts to tackle fraud against the EU budget. However, the UK has not opted

into the proposed PIF Directive due to concerns over a number of provisions. While some of these

concerns have been addressed, a resolution has not yet been found on the issue of whether or not

VAT fraud should fall within scope of the Directive.

Our position to date has been to seek to influence the text in line with UK interests in order to keep

open the possibility of post-adoption opt-in, should the final adopted text be acceptable to us. We

have therefore played an active role in negotiations so far.

Negotiations have not progressed significantly since our last update, with the issue of inclusion of VAT

fraud in the scope of the Directive continuing to be a sticking point for Council and the European

Parliament. As you will recall, the Commission and European Parliament insist on the inclusion of VAT

in the Directive, while a majority in Council, including the UK, are opposed to this for tax sovereignty

reasons.

Recent discussions have been influenced by the European Court of Justice (ECJ) ruling issued in

September 2015 on the so-called ‘Taricco’ case. This relates to a request from the Italian court for a

preliminary ECJ ruling on whether Italian statutory limitation period rules for criminal offences,

including VAT fraud, were compatible with EU law. In this case, the Italian authorities were unable to

prosecute perpetrators of VAT fraud due to the expiration of national limitation periods, thereby

failing to protect VAT revenues as mandated by EU law. The European Court ruled that the Italian

court must disapply its national limitation period rules, where such rules are found to be incompatible

with Treaty obligations to protect EU financial interests by imposing effective and dissuasive criminal

sanctions.

The Council had previously taken the view that VAT fraud did not fall within scope of the current PIF

Convention, as a revenue which is not collected directly for the EU. However, in Taricco, the ECJ has

definitively ruled that VAT is an EU Own Resource which falls within scope of the PIF Convention.

Given that the new Directive is intended to replace the 1995 Convention, this has led to renewed

discussions about the inclusion of VAT fraud. These discussions are unlikely to be concluded quickly.

The UK position remains unchanged – as Ministers have set out to your committee previously,

inclusion of VAT in this Directive would be an instance of a tax measure in a non-tax dossier and

would go against the principle that all tax issues should be agreed by unanimity at ECOFIN. Inclusion

of VAT in the PIF Directive would prevent any consideration of UK participation. We continue to

make our position clear in discussions. Regarding the Taricco ruling, our analysis is that the judgement

does not oblige Council to accept VAT fraud in the PIF directive; instead, it requires Member States

to ensure ‘effective and dissuasive’ criminal sanctions are in place in order to protect VAT revenues.

This can and is achieved through existing national criminal justice frameworks – indeed, Member

States have a strong incentive to protect what is first and foremost a national revenue (all but a very

small percentage of VAT receipts are retained by the Exchequer). Inclusion of VAT fraud in PIF would

therefore be a policy choice rather than a legal obligation.

UK officials regularly attend Working Group meetings. However, the timeline for taking the trilogues

forward is uncertain whilst all parties discuss the implications of the Taricco judgment. We expect a

41

formal update from the Presidency at the Justice and Home Affairs Council in March, which might

provide more clarity on a way forward to break the deadlock on VAT.

I hope this update is helpful and I stand ready to answer any further queries you may have on the

status of this dossier.

19 January 2016

PROTECTION OF TRADE SECRETS (17392/13)



Chairman

I am writing to update you on the latest developments on the proposal for a Directive on Trade

Secrets, which you continue to hold under scrutiny.

The Legal Affairs Committee of the European Parliament (EP) has agreed its report and informal

trilogues are now under way. It is possible that the Luxembourg Presidency will seek to reach a deal

before the end of the year.

EUROPEAN PARLIAMENT POSITION

In many places, the EP’s text is very similar to that of the Council’s General Approach. I have attached

a copy of the EP Report [not printed] to this letter, but would like to draw the Committee’s attention

to the significant points.

First, a point of similarity. The EP text retains provisions protecting confidentiality during legal

proceedings. These are important elements of the proposal, as the fear of secrets leaking during

litigation can act as a barrier to seeking redress.

I will now turn to areas of difference:

— Minimum harmonisation. The Council General Approach contained text

which made clear that the Directive would harmonise minimum levels of

protection and that Member States would be free to apply higher standards

where they wished to do so, provided that the Directive’s safeguards (such

as protection of whistleblowers) were maintained. The EP text contains no

such language. I believe that minimum harmonisation of trade secret

protection is an important principle.

— Limitation period. The jurisdictions of the United Kingdom have longer

periods during which a case may be brought to court, than those originally

proposed by the Commission: 6 years in England and Wales and Northern

Ireland, 5 years in Scotland, 1-2 years in the original proposal. The Council’s

General Approach settled on a maximum of 6 years, while the EP opted for

a maximum of 3 years. The Government takes the view that the limitation

period should be as close as possible to the one that is currently applicable

in the UK.

— Employees changing jobs. The potential impact of the Directive on the

ability of workers to change employers has been a politically important issue

during the EP debates. A dynamic labour market has economic benefits, but

it is the Government’s view that protection of trade secrets does not in

itself act as a barrier to movement between employers or to the ability to

set up one’s own business. Evidence from the United States supports this

view. Restrictive practices such as non-compete clauses, rather than trade

secret protection, reduce employee mobility. The EP text contains several

references to the ability of workers to use knowledge and skills that they

have gained during the course of their employment. The Government is

keen to ensure that an appropriate balance is struck between the interests

of the employer and the employee. Former employees are one of the most

commonly cited sources of trade secret appropriation. A distinction is made

by the courts between information that is a trade secret (which an employee

42

cannot use) and the know-how and experience that an employee gains

during the normal course of his or her employment.

— Freedom of expression and the media. The EP has sought to

strengthen the safeguards for freedom of expression, including media

freedom, by inserting references to the Charter of Fundamental Rights. It is

the Government’s view that such references are not appropriate for the

operative Articles of a Directive, and should instead be made in Recitals.

— Whistleblowing. The EP has also agreed an amendment to strengthen the

protection of whistleblowers. The Government believes that this is an area

where the Directive needs to strike a balance between the interests of trade

secret holders and the public interest in revealing wrongdoing, fraud or

other misconduct. The General Approach and Commission’s text required

the acquisition, use or disclosure of the trade secret to be ‘necessary’ for the

revelation, but the EP text loses this condition. The Government thinks that

courts need to be able to balance the different interests, according to the

circumstances of the individual case.

— Government use of trade secrets. The UK had been successful in

securing an amendment to the General Approach to allow for the

acquisition, use and disclosure of trade secrets where this is required by law.

The EP has added a further amendment that this should be ‘without

prejudice to any other duty not to disclose the trade secret or to limit its

use that may be imposed by Union or national law’. The Government wants

to preserve the ability of Parliament to legislate for the Government to

acquire, use and/or disclose trade secrets in specific circumstances.

— Criminal law. The proposed Directive is not intended to cover criminal

law. The legal base is Article 114 TFEU (harmonisation of rules for the

establishment and functioning of the Internal Market). The EP text retains

some references to criminal law offences such as bribery and deception, and

contains an amendment (Article 1(2)(g)) that says that Member States may

not use criminal law to restrict the exemptions contained in the Directive.

The Government believes references to criminal law are not appropriate in

this text.

— Charitable Use of Infringing Goods. In Article 11(3), the Commission

had proposed that courts should be able to order that infringing goods be

delivered to a charitable organisation under conditions aimed at ensuring

that goods in question do not re-enter the market. The Council amended

this to be an option for Member States to implement if they wished, while

the EP has retained the original Commission proposal. Such an action would

have enforcement implications, so the Government believes that it is

preferable for this to be an option that Member States can decide whether

or not to introduce, based on an assessment of the costs and benefits.

I hope you find this letter helpful. We will provide you with a further update as negotiations progress.

28 October 2015

Letter from the Chairman to Baroness Neville-Rolfe

Thank you for your letter dated 28 October 2015. It was considered by the EU Justice Sub-


We decided to retain the proposal under scrutiny.

Whilst your letter necessarily focuses on the areas of difference between the Council text and the

European Parliament’s proposed amendments, we note from the low number and their nature (the

technicalities of this proposal rather than substantive areas of policy) that there is a great deal of

common ground between all parties involved in the trilogue discussion of this proposal.

We look forward to considering, in due course, further updates as these negotiations progress.

11 November 2015

43

REFORMS TO THE EU'S TRADE MARK REGIME (8065/13, 8066/13)

Letter from the Chairman to Baroness Neville-Rolfe, Parliamentary Under Secretary of

State and Minister for Intellectual Property, Department for Business Innovation and

Skills



We congratulate you on achieving the majority of the UK’s objectives in the negotiation of these

important proposals, and are grateful to you for such a thorough overview of the final outcome. We

are also pleased to note that our views helped inform those of the Government in the course of the

negotiations.

We do not expect a reply to this letter and consider correspondence on this item to be formally

ended.

15 September 2015

REPORT FROM THE COMMISSION ON THE APPLICATION IN 2014 OF REGULATION

(EC) NO.1049/2001 REGARDING PUBLIC ACCESS TO EUROPEAN PARLIAMENT,

COUNCIL AND COMMISSION DOCUMENTS (12124/15)

Letter from the Chairman to Matt Hancock MP, Minister for the Cabinet Office

Thank you for your Explanatory Memorandum of 13 October, which was considered by the EU

Justice Sub-Committee at its meeting of 10 November.

We were grateful for the Commission’s analysis of how the access to documents Regulation was

applied in 2014.

We have no questions to ask, however, and now clear the document from scrutiny.


11 November 2015

REPORT ON THE 2014 EUROPEAN PARLIAMENT ELECTIONS (8876/15)

Letter from the Chairman to John Penrose MP, Parliamentary Secretary (Minister for

Constitutional Reform), Cabinet Office

Thank you for your helpful Explanatory Memorandum of 30 June, which was considered by the EU

Justice Sub-Committee at its meeting of 15 September.

We note the serious concerns expressed by the Commission, the Political and Constitutional Reform

Committee of the House of Commons, and the Electoral Commission about EU citizens residing in

the UK being unable to vote in the 2014 European Parliament elections. We would be grateful for an

explanation of the problem, of how the Government proposes to tackle it, and when it is likely to be

resolved.

We look forward to hearing from you in the usual ten working days.

In the meantime, we retain the Communication under scrutiny.

15 September 2015

44

Letter from John Penrose MP to the Chairman

Thank you for your letter of 15 September in response to the Explanatory Memorandum of 30 June,

concerning issues that had arisen with the participation of non-national EU citizens resident in the

UK1 in the May 2014 election to the European Parliament (EP).

The UK’s system of electoral registration is set out in the Representation of the People Act 1983 (the

1983 Act) and associated regulations. The relevant provisions apply to the registration of EU citizens

by virtue of the European Parliamentary Elections (Franchise of Relevant Citizens of the Union)

Regulations 2001.

EU citizens have a choice for EP polls of either voting in the State where they are a citizen or the in

the State where they live. If they choose to vote in the UK, they must complete and submit the

necessary forms; the standard registration form and an EP voter registration form (known as the EC6)

which is the formal declaration that they wish to exercise their EP vote here.

The additional form can be completed when they register, but is more usually completed in response

to forms sent out ahead of the polls. This ensures EU citizens are still in the UK and make an active

choice close to the time of the poll, rather than significantly in advance when their circumstances may

change later. This system has been in place since 1993 and has not previously raised concerns.

At the EP elections in May 2014, we heard reports that some EU citizens weren’t able to vote

because of issues over the completion and return of the EC6 form, but received no direct complaints

at the time.

The House of Commons’ Political and Constitutional Reform Committee, in its report ‘Voter

engagement in the UK’, sets out that the Electoral Commission received 74 enquiries from EU

citizens complaining that they were unable to vote. The European Commission provided details of 10

complaints which showed no single reason for people not being registered.

Given the low numbers of complaints as a proportion of the total number of EP voter registrations,

and that concerns have not been raised in previous elections, it seems a stretch to argue this

constitutes evidence of widespread or an endemic problem of confusion or inadequate information

about the process of registration for EU citizens.

That said, there’s no justification for complacency either so we have noted the findings of the Political

and Constitutional Reform Committee, in particular that it has recommended that the Electoral

Commission should bring forward proposals for simplifying the process for EU citizens living in the

UK to register to vote at EP elections so the necessary changes can be made before the next EP

election in 2019.

The Electoral Commission has confirmed to us that it plans to carry out work on this issue, which we

welcome. We have had initial discussions with the Commission about its planned work which, in

particular, will consider whether EU nationals should not need to complete an additional form when

registering to vote.

Given the ongoing work with the Electoral Commission and others, we are not yet in a position to

give specific information about the improvements envisaged. We have advised the European

Commission that they will be kept informed of developments and any proposed changes as they

emerge and are agreed.

29 October 2015

Letter from the Chairman to John Penrose MP

Thank you for your helpful letter dated 29 October 2015, which was considered by the EU Justice

Sub-Committee at its meeting of 17 November.

We note your comments that the scale of the problem has been exaggerated in the report of the

Political and Constitutional Reform Committee, but that nonetheless the Electoral Commission is

proposing reforms to the system of registration of non-national EU citizens in the UK.

We will keep the document under scrutiny pending the outcome of those reforms. Any changes to

the national franchise are inherently significant, and the Committee will want to satisfy itself that they

will lead to actual improvements.

1 For brevity, referred to as “EU citizens” in this letter

45

Our last letter asked for a reply within ten days; your reply is dated some six weeks later. We would

be grateful if you could ensure similar delays are avoided on EU documents handled by your

Department.

We look forward to hearing from you in due course, with an explanation of the final outcome of the

reforms.

17 November 2015

REPORT ON THE ANNUAL ACCOUNTS OF THE EUROPEAN SCHOOLS FOR THE

FINANCIAL YEAR 2014 (UNNUMBERED)

Letter from the Chairman to Nick Gibb MP, Minister of State for Schools, Department

for Education

Thank you for your Explanatory Memorandum dated 15 December 2015, which was considered by

the EU Justice Sub-Committee at its meeting of 19 January 2016.

We take note of the reforms being implemented by the Secretary-General, but also of the slow

progress in their implementation. The Court of Auditors’ audit of the 2015 accounts will give us a

further opportunity to scrutinise how well the reforms have been implemented.

We now clear the document from scrutiny.


19 January 2016

RESTRICTIVE MEASURES AGAINST IRAN (UNNUMBERED)



I am writing with regard to the attached EU Council Decisions [not printed] which each provide for a

short extension of the sanctions relief measures, initially agreed in the Joint Plan of Action (JPOA)

with Iran in November 2013.

As detailed in the attached Explanatory Memorandum [not printed], the JPOA suspends certain

sanctions measures against Iran. This baseline sanctions relief was due to expire, leading to the re-

imposition of these sanctions measures, on 30 June 2015.

We had expected that the E3+3 nuclear negotiations with Iran would conclude on or before 30 June

2015. As you will be aware, E3+3 Foreign Ministers have been in Vienna for intensive negotiations

with the Iranians. In the light of the good progress being made in the talks, they judged that it was

right to agree to three short extensions to the 30 June deadline. Allowing the JPOA measures to

lapse, and the re-imposition of sanctions, could have had a significant negative impact on the progress

of negotiations at a sensitive time. The EU therefore agreed to short extensions of the JPOA. The

fast-moving nature of the negotiations and the urgency with which it was necessary to adopt the legal

texts, meant that normal Parliamentary scrutiny timelines could not be followed.

As you know, the responsibility to keep your Committee informed on issues concerning Iran

sanctions is something I take seriously. I hope you share my assessment that in these unusual

circumstances, and in order to seek an historic deal with Iran, the need for the override of scrutiny

was justified and unavoidable.

16 July 2015



its meeting of 21 July.

We were very grateful for the thoroughness of your response, and for the speed with which it was

received.

46

We have no further questions to ask and now clear the documents from scrutiny.


22 July 2015


Thank you for your Explanatory Memorandum of 25 June 2015, which was considered by the EU

Justice Sub-Committee at its meeting of 15 September.

Your Explanatory Memorandum provided a useful account of how the Council approaches the annual

review of an EU sanctions regime, for which we were grateful.

Though regrettable, we consider that the override on these documents to have been unavoidable in

light of the confidentiality of the Council’s review process.

We now clear the documents from scrutiny, and do not expect a reply to this letter.

15 September 2015


I am writing regarding the attached EU Council Decisions [not printed] which provide for short

extensions of the sanctions relief measures, initially agreed in the Joint Plan of Action (JPOA) with Iran

in November 2013, and an existing derogation to the asset freeze to allow for the satisfaction of prior

contracts relating to the supply of Iranian crude oil and petroleum products.

Following the completion of the E3+3 Iran nuclear negotiations and the agreement of the Joint

Comprehensive Plan of Action (JCPOA) in July 2015, the sanctions relief agreed under the JPOA and

the asset freeze derogation were extended until 14 January 2016 to allow time for Iran to complete

the agreed actions on its nuclear programme, and for these actions to be verified by the International

Atomic Energy Agency (IAEA).

In early January, it became clear that a further extension would be necessary to allow for a small

amount of additional time to allow the IAEA to verify that Iran had completed the actions on its

nuclear programme agreed under the JCPOA. Following confirmation from the IAEA, the phased

sanctions relief agreed under the JCPOA came into effect on ‘Implementation Day’;16 January 2016.

I am aware of the Committee’s interest in documents relating to the EU sanctions regime against Iran,

and I take the responsibility to keep your Committee informed on these issues extremely seriously.

Unfortunately, the urgent need to agree these short extensions to allow for the additional time

needed for the implementation of the nuclear deal necessitated the use of a ministerial override of

Parliamentary scrutiny on this occasion.

25 January 2016

RESTRICTIVE MEASURES AGAINST THE DEMOCRATIC PEOPLE’S REPUBLIC OF

KOREA (UNNUMBERED)



I am writing with regard to the aforementioned EU Council Decision and Commission Implementing

Regulation concerning restrictive measures against the Democratic People’s Republic of Korea

(DPRK).

The draft EU Decision and Regulation were received by my officials on 30 June and formally adopted

on 2 July 2015. In order to ensure the details of the designations were not made public until after the

measures were in place, thereby mitigating the risk of asset flight, I regret that I found myself in the

position of having to agree to the adoption of these Council documents before your Committee had

an opportunity to scrutinise them.

47

As you know, the responsibility to keep your Committee informed on issues concerning sanctions is

something I take seriously and the need for the override of scrutiny on this occasion is regrettably

unavoidable.

16 July 2015

RESTRICTIVE MEASURES DIRECTED AGAINST CERTAIN INDIVIDUALS, GROUPS,

UNDERTAKINGS AND ENTITIES IN AFGHANISTAN (UNNUMBERED)



I am writing in relation to the Council Implementing Decision and Regulation above. These documents

provide for the listing of one individual, Mr Torek Agha, under the sanctions regime against

Afghanistan.

On 2 November 2015, the United Nations Security Council Committee established pursuant to

paragraph 30 of UN Security Council Resolution 1988 (2011) amended the list of individuals, groups,

undertakings and entities subject to restrictive measures. Mr Agha, was added to the UN sanctions

list. He is a key commander for the Taliban military council, involved in fundraising from Gulf-based

donors.

The UN sanctions regime against Afghanistan is mirrored by an EU Council Decision and Regulation.

It was necessary to update these EU documents to reflect the changes made at the UN.

As you are aware, the rapid transposition of UN sanctions into EU legislation is important to maintain

the effectiveness of sanctions as a foreign policy tool for the UK. Minimising the time delay in

transposition reduces the risk of asset flight.

UK officials liaised with their EU counterparts to ensure the relevant EU legislation was drafted in a

timely manner. The draft documents were circulated to Member States on 4 November 2015,

discussed in the External Relations Counsellors working group on 9 November and adopted at the

Foreign Affairs Council on 16 November. In order to ensure the rapid adoption of these legal texts it

was necessary to use a Ministerial override of Parliamentary scrutiny.

You have previously been very understanding of the need to override scrutiny in similar

circumstances, for which I am grateful.

1 December 2015

RESTRICTIVE MEASURES DIRECTED AGAINST CERTAIN PERSONS, ENTITIES AND

BODIES IN VIEW OF THE SITUATION IN UKRAINE (UNNUMBERED)



Thank you for your letter of 8 July on the EU restrictive measures that target those held responsible

for the misappropriation of Ukrainian state funds and human rights violations in Ukraine. As well as

confirming that the EU-Sub Committee on External Affairs had considered the above documents and

decided to clear them from scrutiny, your letter also raised a number of issues on the scrutiny

process.

You remarked on my decision to include an indication of the evidence underpinning these relistings.

The question of what evidence we are at liberty to share with your Committee has been the subject

of previous correspondence and is, I acknowledge, still a live issue.

The EU restrictive measures regime against Ukraine is one of three misappropriation regimes, the

others concerning Egypt and Tunisia. The EU has imposed these particular regimes to prevent

misappropriated state funds from undermining the stability and development of the state in question.

Designations under misappropriation regimes are often made on the basis that an individual is subject

to on-going domestic legal proceedings in the country in question. The information provided to your

Committee in this case referred only to the update on those legal proceedings that the Ukrainian

authorities had been able to provide to the EU Council. The EU Council issued a press release on the

48

day these texts were adopted which confirmed that “this decision was taken in the light of ongoing

judicial proceedings in Ukraine with regard to these persons”. This kind of supporting evidence is

distinct from the open source evidence collected by EU Member States which underpins most

designations in other sanctions regimes and which is not publicly available.

You also asked in your letter about our Smarter Sanctions policy. This is the FCO’s internal guidance

for building better quality sanctions listings that are legally robust, aligned with policy objectives, and

which are monitored and adjusted to be responsive to events on the ground. There are three broad

elements to this work:

— A decision to apply sanctions against a regime must be linked to achieving a

specific policy objective and identify measures and designations most likely to

produce results, so that we are clear as to the reasons for using sanctions as

a tool;

— Ensuring that individual listings contribute to the policy aim, are legally robust

and consistent with the criteria for listing set out in the legal instrument (e.g.

UNSCR, Council Decision); and

— Periodic review of the regime (which may include individual listings) to

ensure continuing impact, effectiveness, relevance and compliance with the

listing criteria.

Finally, you also raised concerns about the amount of time provided by the EU Council for our

parliamentary scrutiny needs. This is an issue of concern to me, and one on which we continue to

press the EEAS to seek improvements. In the case of the misappropriation regimes, there are

particular difficulties in that the information that the EU Council relies upon to conduct its review can

only be provided by an authority in the targeted state. Although EU Member States are committed to

supporting the asset recovery process in Ukraine, Egypt and Tunisia, there are limits to the influence

we can bring to bear on their national judicial proceedings. There may continue to be occasions

where the Council will need to adopt legal texts at short notice, having been provided the necessary

evidence only at the last minute, to ensure the continuity of these regimes and to mitigate the risk of

asset flight.

15 July 2015




We note your comment that the supporting evidence for misappropriation regimes is distinct from

supporting evidence for other sanctions regimes and that, as a consequence, it can be shared with us.

The fact that this evidence, albeit procedural in nature, does not come within Council rules on

confidentiality is something we may wish to examine further.

We look forward to a time when your efforts in Brussels to ensure more time for parliamentary

scrutiny of sanctions proposals pay off. In this case, we think the EEAS should have impressed upon

the Ukrainian authorities the importance of providing the information in sufficient time for prior

scrutiny by national parliaments, rather than a few days before adoption by the Council. We would be

grateful to know the date on which the EEAS first requested the information on the relevant legal

proceedings in Ukraine; how the request was made (by letter from Brussels/through the EU

delegation?) and to whom; whether the request contained a deadline for a response; whether scrutiny

by EU national parliaments was mentioned in the request; whether the request was followed up

before a response was received; the date of the response; and the recipients of the response (first the

EU delegation and then the EEAS in Brussels?).


15 September 2015


Thank you for your letter in response to the items above. You requested information relating to the

EEAS’ interaction with the Ukrainian Authorities. As this request relates to an internal process of the

49

EEAS, we are reliant on them to provide us with the information. My officials have pursued this with

the EEAS and I understand the sequence of events was as follows.

There were regular contacts between the EEAS and the Ukrainian Authorities in relation to the legal

cases against those subject to EU restrictive measures, mainly at working level with the General

Prosecutor's Office. A specific person in the Prosecutor's Office was allocated to deal with these

cases and they were asked to provide information and attestations when there were relevant

developments. The EEAS requested information for relevant cases by a deadline of 31 December

2014; this information was provided in the form of attestations to the EEAS on 31 December 2014.

The EEAS requested that the Prosecutor's Office provide any further information for specific cases by

January 2015. I do not know whether a specific link was made to Parliamentary Scrutiny in Member

States, but the Prosecutor's Office was reminded on regular occasions of the deadlines for renewal of

the restrictive measures before March 2015, and the need to provide information in sufficient time.

My officials at the UK Representation in Brussels continue to work closely with the EEAS to highlight

the UK’s Parliamentary scrutiny obligations.

1 October 2015


I am writing with regard to the above EU Council Decision and Council Implementing Regulation

concerning restrictive measures directed against certain persons, entities and bodies in view of the

situation in Ukraine.

As detailed in the attached Explanatory Memorandum [not printed], the EU Council agreed to extend

the restrictive measures against Mr Serhii P. Kliuiev, to the annual review date of the overall sanctions

regime; 6 March 2016.

On 6 March 2015, the Council agreed to renew the asset freeze regime targeting 14 individuals linked

to the misappropriation of Ukrainian state assets for 12 months. At the time, Mr Kliuiev and 3 other

individuals had their listings extended only until June 2015, to allow more time for the Ukrainian

authorities to provide satisfactory evidence that supported their continued listing. In June Mr Kliuiev’s

listing was extended briefly again, to 6 October. We are still engaged in correspondence on this

matter. I hope my responses to date have been informative.

On 26 June the EU received sufficient evidence from the Ukrainian authorities and wrote to Mr

Kliuiev’s lawyers inviting them to make representations in respect of the evidence.

On 23 September the EEAS circulated the draft legal texts which extend Mr Kliuiev’s listing until 6

March 2016, in line with the annual review date of the overall sanctions regime.

Designated individuals or entities are notified of the Council’s intention to relist them, and granted

the opportunity to present their observations. The legal texts providing for their relisting are not

prepared until the time window for receiving these observations has passed. Mr Kliuiev’s legal

representations were received by the EEAS on 31 August. Unfortunately draft legal texts were only

circulated to Member States on 23 September, providing insufficient time for the UK Parliamentary

scrutiny process to be completed before the sanctions against Mr Kliuiev would have lapsed on 6

October.

I am frustrated that this situation, which necessitated a Ministerial override of scrutiny, arose due to

the late circulation of documents by the EEAS. I am writing to HR/VP Mogherini to express my

disappointment over this episode, and to re-iterate the importance of national scrutiny processes.

Furthermore, my officials are seeking to meet the EEAS in order to explore these issues and

emphasise our concerns.

16 October 2015


Thank you for your letter of 1 October 2015, which was considered by the EU Justice Sub-


Your letter does not address the deadline for the expiry of these four listings, which is disappointing.

Your EM of 8 June 2015 explained that they were extended until 6 June 2015 to allow time for an

update to be received from the Ukrainian authorities on the progress of judicial investigations. Your

50

EM also explained that the override was “due to the updates on these four cases being provided by

the Ukrainian authorities only a short time before the expiration of the listings”. As a consequence,

“the new drafts of the Council Decision and Regulation were circulated at too late a date to allow the

usual time to be provided for scrutiny procedures before these listings expire on 6 June 2015”.

Your letter only explains the contact which took place between the EEAS and the General

Prosecutor’s Office in Ukraine until March 2015.

We ask you to address your mind to the questions we previously posed, but in relation to the

correct deadline of 6 June 2015.


20 October 2015


Thank you for your letter of 20 October, requesting further information on the interactions between

the EEAS and the Ukrainian Authorities from 6 March to 6 June 2015.

I am sorry that you were disappointed by my letter of 1 October. As your request relates to an

internal process of the EEAS, we are reliant on them to provide us with the information. My officials

are pursuing this with the EEAS, and we are currently awaiting their response. Once received, I will

write again.

3 November 2015


Thank you for your letter of 20 October, requesting further information on the interactions between

the EEAS and the Ukrainian authorities from 6 March to 6 June 2015 in relation to the extension of

listings of 4 designated persons.

As noted in my letter of 3 November, we are reliant on the EEAS for this information, and I am

grateful to them for exceptionally providing the following details.

On 31 March 2015 the EEAS sent a letter to the Ukrainian authorities, which requested an update by

20 April, on the progress of the legal cases against Olena Lukash, Viktor Yanukovych, Serhii Kliuiev,

and Dmytro Tabachnyk.

On 20 April the EEAS received attestations in all cases apart from the case relating to Mr

Yanukovych, who was delisted from the sanctions regime. The other attestations did not state that a

formal notification of suspicion had been issued by Ukrainian authorities to the individuals in question.

Further attestations were received by the EEAS, on 26 May for Mr Tabachnyk and 28 May for Ms

Lukash, which confirmed that a notification of suspicion had been issued to them both. Ms Lukash’s

and Mr Tabachnyk’s listings were extended until 6 March 2016 and the supporting information was

amended.

In the case of Mr Kliuiev, on 14 May the EEAS received an updated attestation from the Ukrainian

authorities stating they would send a notification of suspicion to Mr Kliuiev if, or when, his

Parliamentary immunity was lifted. Ukrainian authorities then made a request to their Parliament to

rescind his immunity, and Parliamentary consent was given on 3 June. Subsequently, on 4 June, the

Ukrainian authorities issued a written notification of suspicion to Mr Kliuiev, stating that he was under

investigation. Mr Kliuiev’s listing was then extended until 6 October 2015 and supporting information

was amended. Please note that the expiry of Mr Kliuiev’s listing has now been aligned to the expiry

date of the broader Ukraine misappropriation sanctions regime. This expiry date is the 6 March 2016

as set out in my Explanatory Memorandum of 16 October 2015.

I hope you find this information useful.

18 December 2015


Thank you for your letter of 18 December 2015, which was considered by the EU Justice Sub-


51

We are grateful to you for your efforts in finally providing the information we requested. It is helpful

for us to understand when and how information was provided to the EEAS in advance of these three

relistings. It also shows that the final piece of supporting information was only received from the

Ukrainian authorities the day before their adoption by the Council, on 5 June. This left no scope for

prior scrutiny by the Committee.

We have no further questions to ask and now bring this correspondence to a close.

14 January 2016

RESTRICTIVE MEASURES IN RESPECT OF BELARUS (UNNUMBERED)



Thank you for your Explanatory Memorandum and letter of 6 November 2015, which was considered

by the EU Justice Sub-Committee at its meeting of 1 December.

In case T-276/12 the General Court had no hesitation in concluding that the listing of Yuri Chyzh had

no evidential basis whatsoever:

“As regards, first, Mr Chyzh’s alleged financial support of the regime, the Council argues, first, that it

is ‘widely known’ that he is one of the leading businessmen in Belarus and the regime of President

Lukashenko has close ties with those businessmen. Mr Chyzh does not deny that he is a businessman

who is successful and who is known to the public. However, even assuming that Mr Chyzh is a leading

businessman in Belarus, and that that fact is widely known, it cannot however be inferred from this

that he financially supports the regime, as the Council contends.

“It should be noted in that regard that the Council provides no evidence showing that Mr Chyzh

financially supports the regime. First, as the applicants point out, the study commissioned by the

European Parliament on the impact of sanctions against Belarus, relied on by the Council, and dated

May 2012, was made after the adoption of Implementing Decision 2012/171 and Implementing

Regulation No 265/2012 by which Mr Chyzh’s name was included on the list in Annex V to Decision

2010/639 and Annex IB to Regulation No 765/2006, respectively, such that it may not form the basis

of those listings. In any case, as argued by the applicants, no evidence is produced in that study of

Mr Chyzh’s support for the regime. The Council, moreover, merely cites that study, without

identifying, within that study, evidence establishing that Mr Chyzh financially supports the regime.

“Next, the Council cannot infer from Mr Chyzh’s tax payment that he supports the regime, since such

a payment constitutes a legal obligation applicable to all Belarusian taxpayers.

“Moreover, as regards Mr Chyzh’s alleged payment of bribes to officials of that regime, suffice it to

note that the Council does not provide proof of this. It merely asserts that, even if it is difficult to

provide hard evidence of the payment of bribes, it is ‘most unlikely’ that the favours granted to

Mr Chyzh by the regime have not been returned one way or another. In doing so, the Council does

not provide any evidence of the payments of bribes by Mr Chyzh or that he provided any other

consideration to the regime.”2

We are concerned that the Council, having placed Mr Chyzh under restrictive measures to prevent

him from providing further financial support to the Lukashenka regime, could not provide the Court

with any evidence to justify the listing when it was challenged in litigation. We would be grateful if you

could explain why this was, and also what your view is of the conclusions of the General Court cited

above.

We would also be grateful if you could explain why, on this occasion, the Council decided neither to

appeal the General Court annulments, nor to relist any of the applicants on revised statements of

reasons. A summary of the reasons will suffice; we do not ask you to disclose the details of Council

negotiations which are confidential.

We note, and accept, the reason for the scrutiny override on this occasion.

We look forward to a reply within the usual ten working days.

Pending this, the documents remain under scrutiny.

2 Case T-276/12, paragraphs 167-170

52

1 December 2015


I am writing in response to your letter of 1 December regarding the Council’s response to the EU

General Court judgment in Case T-276/12 (Chyzh & Others v. Council of the European Union) of 6

October 2015, which annulled the Council Decisions in so far as they related to Mr. Yury Chyzh and

13 entities under his control.

The Council made submissions to the Court that the decision to list this individual and entities under

the Belarus restrictive measures was substantiated by the manner in which successful businesspeople

and entities operate within the Belarusian political context, particularly in respect of maintaining

relationships with the regime’s leadership. Much of the basis for the original listing decision relied

upon this assessment. However, the Court gave little weight to that context. Whilst it was not

denied that Mr. Chyzh is a successful businessman in Belarus, the Court insisted upon concrete

evidence in support of the Council’s position that, inter alia, Mr. Chyzh financially supports the

Lukashenko regime and that the entity Triple LLC had obtained public awards and concessions other

than by its own merit. The Council did not provide this level of specific evidence to the Court. In

view of this judgment and the wider political context, the Council elected not to appeal, nor to re-list,

any of the applicants and to accept the General Court’s decision in this instance.

As is always the case with EU restrictive measures, the negotiations at the Council required some

degree of compromise, including on questions of appealing judgments of the Court. The UK’s top

priority during the negotiations was to gain consensus on the rollover of the regime in order to place

continued pressure on the Lukashenko regime and improve human rights, democracy and rule of law

in Belarus. We were able to secure that outcome. The restrictive measures play a key role in

signalling to Belarus the importance the EU places on respect for human rights and democracy in the

country, whilst the suspension of some of the listings allows for an improved dialogue between

Belarus and the EU.

11 December 2015


Thank you for your letter of 11 December 2015, which was considered by the EU Justice Sub-


Your letter highlights the markedly different standards of evidence applied by the Council in listing Mr

Chyzh and related companies, and by the General Court in reviewing those listings. The Council

relied on no more than the general political context of corruption and clientelism in which successful

businesses operate in Belarus, whereas the General Court required actual evidence of direct financial

support, in other words, a “sufficiently solid factual basis” for the listing.

We note you say that the Court gave “little weight to the political context”; instead that it “insisted

upon concrete evidence”. This sounds as if you think the Court may have come to the wrong

conclusion. Was the Court, in your view, wrong to insist on concrete evidence of direct financial

support? In relation to the Council’s allegations of the payment of bribes, for example, on what basis

was the Court wrong to conclude as follows:

“Moreover, as regards Mr Chyzh’s alleged payment of bribes to officials of that regime, suffice it to

note that the Council does not provide proof of this. It merely asserts that, even if it is difficult to

provide hard evidence of the payment of bribes, it is ‘most unlikely’ that the favours granted to

Mr Chyzh by the regime have not been returned one way or another. In doing so, the Council does

not provide any evidence of the payments of bribes by Mr Chyzh or that he provided any other

consideration to the regime.”

In our view, the clear conclusion to be drawn from these cases is that reliance on general assertions

of the culture of a political regime is not a sufficiently solid factual basis on which to impose restrictive

measures against an individual or entity. Is this not the lesson the Council should draw from these

cases for future designations?

We look forward to a reply within the usual ten working days.

Pending this, the documents remain under scrutiny.

53

14 January 2016

RESTRICTIVE MEASURES IN THE CENTRAL AFRICAN REPUBLIC (UNNUMBERED)



I am writing with regard to the aforementioned EU Council Decision and Regulation concerning

restrictive measures on the Central African Republic.

On 28 January 2014, the United Nations Security Council adopted Security Council Resolution

(UNSCR) 2134 (2014) in view of the situation in the Central African Republic. This resolution

provided a framework for sanctions, including a travel ban and asset freeze measures, targeting certain

persons responsible for, complicit in or having engaged in, directly or indirectly, actions or policies

that threaten the peace, security or stability of the Central African Republic.

On 20 August 2015, the Sanctions Committee established to oversee the relevant sanctions measures

concerning the Central African Republic added three persons and one entity to the list of persons and

entities subject to UN sanctions. The EU Council Decision and Regulation attached [not printed]

transpose these measures into EU law.

The draft EU Council Decision and Regulation were received by my officials on 31 August 2015 and

were formally adopted on 2 September 2015. The rapid transposition of UN sanctions designations

into EU legislation is highly desirable in so far as it mitigates the risk of asset flight once designations

have been published by the UN and ensures the effectiveness and credibility of the sanctions regime. I

regret that I found myself in the position of having to agree to the rapid adoption of these Council

documents before your Committee had an opportunity to scrutinise them.


something I take seriously and the need for the override of scrutiny on this occasion is regrettably

unavoidable.

18 September 2015


I am writing with regard to the aforementioned EU Council Implementing Decision and Regulation

concerning restrictive measures on the Central African Republic.

On 28 January 2014, the United Nations Security Council adopted Security Council Resolution

(UNSCR) 2134 (2014) in view of the situation in the Central African Republic. This resolution

provided an updated framework for sanctions, including a travel ban and asset freeze measures,

targeting certain persons responsible for, complicit in or having engaged in, directly or indirectly,

actions or policies that threaten the peace, security or stability of the Central African Republic.

On 17 December 2015, the UN Sanctions Committee established to oversee the relevant sanctions

measures concerning the Central African Republic added two persons to the list of persons and

entities subject to UN sanctions: Mr Haroun Gaye and Mr Eugene Barret Ngaikosset. The EU Council

Implementing Decision and Regulation (attached [not printed]) transpose these measures into EU law

by amending EU Decision 2013/798 and EU Regulation 224/2014 which initially implemented the UN

Sanctions regime into the EU.

They also implement minor updates to the biographical supporting information for Mr. Oumar

Younous Abdoulay who is already designated under UN and EU sanctions.

The draft EU Council Decision and Regulation were first considered by my officials on 19 December

2015 and were formally adopted on 23 December 2015. The rapid transposition of UN sanctions

designations into EU legislation is highly desirable in so far as it mitigates the risk of asset flight once

designations have been published by the UN and ensures the effectiveness and credibility of the

sanctions regime. I regret that I found myself in the position of having to agree to the adoption of

these Council documents before your Committee had an opportunity to scrutinise them.


something I take seriously and the need for the override of scrutiny on this occasion was regrettably

unavoidable.

54

8 January 2016

RESTRICTIVE MEASURES IN VIEW OF THE SITUATION IN SYRIA (UNNUMBERED)




its meeting of 21 July.

We were very grateful for the thoroughness of your response, and for the speed with which it was

received.

Whilst it is reassuring that the Council carefully reviewed the evidence against Messrs. Sabbagh and

Al-Tabbaa, and as a consequence, decided not to relist them, it does lead us to question what

evidence existed to justify the listings in the first place. In both judgments, the General Court is

critical of the Council’s approach to justifying the reasons for the listings (see, for example, paragraph

94-98 of the Al-Tabbaa judgment). To what extent do you think these cases might have been decided

differently if the closed material procedure in the General Court had been in force? To what extent

do you think the new procedure would have allayed the Court’s concerns about the lack of evidence

justifying the initial listings?

In addition, whilst both Messrs. Sabbagh and Al-Tabbaa succeeded in having their listings eventually

annulled, we are conscious that their assets in the EU were frozen for, respectively, two and four

years. Mr Al-Tabbaa contacted the Council to find out the basis for his listing, but, as the Court notes,

he did not receive a reply:

“Moreover, the applicant summarises the negative effects for him resulting from the adoption of the

contested acts and complains that he has written to the Council on a number of occasions requesting

the documents and information on which the Council based its decision to list him in the acts at issue,

without receiving any reply. The only information which was communicated to him after lodging the

present action was the Council’s letter of 26 July 2012 to which was annexed a proposal from an

unidentified Member State to include his name on the lists at issue for the same reasons as those

which appear in the contested acts.” (para 70)

The failure of the Council to respond to Mr Al-Tabbaa’s requests appears to contradict the

assurances in your last letter about the procedural safeguards in place for initial listings. On this

occasion the designated individual appears to have had no means of disputing the listing other than

bringing legal proceedings, which were concluded over two years after the initial listing. This concerns

us: it is an example of procedural safeguards not being respected. Is such an omission by the Council

exceptional, or symptomatic of a wider problem? And if the latter, has the problem been addressed?

We look forward to your response within the usual ten days. In the meantime, the documents

remain under scrutiny.

22 July 2015


Thank you for your letter of 22 July 2015 requesting further information on the Council’s decision

not to relist two individuals following the annulment of their listings by the EU General Court. I am

writing to address the specific questions that your Committee posed.

You first asked to what extent these cases might have been decided differently if a closed material

procedure in the General Court had been in force and to what extent the new procedure would have

allayed the Court’s concerns about the lack of evidence justifying their original listings.

I am sure you will understand that I cannot comment on whether there was or was not classified

material to support the listings in these cases. I am afraid I therefore cannot speculate as to how the

outcome of these cases might have changed had a mechanism to share confidential information been

in place in the General Court at the time of the hearing. In principle, however, the new confidential

information sharing mechanism may provide opportunities for the Council to make more evidence

available to the Court in future but this will depend on the owners of the information being satisfied

that the mechanism provides appropriate protection. I have written to you previously about the

55

information sharing mechanism that has been agreed and the UK’s position on it and discussed this

with Committee members at the evidence session on 2 March 2015.

In your letter you also refer to the Council’s handling of Mr Al-Tabbaa’s requests for the information

that formed the basis of his listing. You expressed concern about whether procedural safeguards

were respected and asked whether the Council’s approach was exceptional or symptomatic of a

wider problem.

The Council’s established practice is that, once a listing is adopted and the individual or entity has

been notified, they may request access to the information on their file and make representations to

the Council in respect of it. Once such a request has been received, the Council undertakes a review

of the observations provided and decides what can be disclosed to the individual or entity in question

and what needs to be withheld as confidential. It is usual practice for open-source information held

on the file to be disclosed to the individual or entity and their legal representatives.

Discussions of the Council are covered by an obligation of professional secrecy so I cannot divulge

the specifics of the consideration of Mr Al-Tabbaa’s listing that took place after he wrote to the

Council in 2012. However the Court judgment to which you refer sets out the way in which the

Council handled Mr Al-Tabbaa’s request, including the content of its response sent on 26 July 2012

which was limited to providing the information included in the statements of reason agreed by the

Council when it initially adopted the listing.

For the reasons set out above, I am unable to comment further on the totality of the evidence

available to the Council. However it is worth noting that this case is now three years old and in light

of developments in jurisprudence, the Council has increased its focus on open source evidence to

underpin sanctions listings, with the Council Legal Service playing a prominent role in scrutinising the

evidence.

3 August 2015


Thank you for your letter of 3 August 2015, which was considered by the EU Justice Sub-Committee

at its meeting of 13 October 2015.

Your letter did not address our questions about whether the Council’s failure to reply to Mr Al-

Tabbaa’s letter was illustrative of a wider problem in the Council’s administration of sanctions cases;

and, if so, whether the problem had been addressed. Given that each Explanatory Memorandum we

receive on a sanctions proposal assures us that the procedural rights of designated individuals and

companies are respected, we think it significant when a judgment of the Court suggests that they have

not been. We are also conscious that, in this case, the failure of the Council to respond to Mr Al-

Tabbaa’s requests meant that he had no means of disputing the listing other than by bringing legal

proceedings, which were concluded over two years after the initial listing.

We ask again, therefore, whether you think this kind of omission is a surprising lapse in a process that

otherwise works well, or whether it is part of a wider problem that is being addressed. Your insight

on this would be very helpful. (As we are not seeking information on Mr Al-Tabbaa’s case, or on

discussions in the Council, the Council’s rules on confidentiality do not prevent you from

commenting.)

We look forward to your response within the usual ten days. In the meantime, the documents

remain under scrutiny.

13 October 2015


Thank you for your letter of 13 October 2015 regarding the Council’s procedures for responding to

correspondence made by or on behalf of persons listed under EU restrictive measures. You inquired

whether there was a problem with the Council’s administration of sanctions cases; and, if so, whether

the problem had been addressed. In my judgment the Council takes very seriously the need to

respond to correspondence from listed individuals and entities and the process works efficiently in

most instances. Below I have set out the Council procedures for responding to correspondence made

by or on behalf of persons listed under EU restrictive measures in two scenarios: when access to a file

is requested by a listed person, and other correspondence from listed persons including requests to

be de-listed.

56

Where a listed person has requested access to their file, the Council seeks to respond as requests are

received. In such cases, the Council undertakes a review of the observations provided and decides

what can be disclosed to the individual or entity in question and what needs to be withheld as

confidential. It is usual practice for open-source information held on the file to be disclosed to the

individual or entity and their legal representatives.

Correspondence from listed persons received over the course of the year is reviewed as part of the

annual review process for each sanctions regime. In advance of the annual review date, the Council

reviews listings and informs all listed person that they may submit observations by a certain deadline

to be considered as part of the annual review. This also presents the Council with the opportunity to

consider any other representations made by listed persons at any time leading up to the annual

review process. The Council takes into account any representations made by those persons in

advance of making its decision on whether to maintain the person on the list or not, and on what

basis. Following a decision to continue or amend the respective listings, the Council responds by

letter to any representations made. In limited cases where it is clear from the correspondence that

there is a particular urgency, the Council attempts to respond outwith the annual review process, but

time and resources preclude an immediate response to every request.

I take very seriously the need to ensure procedural rights of designated individuals and entities are

respected at all times. To that end, we are continually working with the Council and the European

External Action Service to improve the efficiency and consistency of the practice of responding to

correspondence from or on behalf of listed individuals and entities.

29 October 2015




We were very grateful for your further explanations on the Council and EEAS’s practice in

responding to correspondence from individuals and entities designated under EU sanctions. We note

that there may be considerable delay in responding to a listed individual if a request does not concern

access to the Council’s file, unless the request is particularly urgent.

We have no further questions to ask on these documents, clear them from scrutiny, and bring the

correspondence to a close.


27 November 2015

RIGHT OF ACCESS TO A LAWYER AND RIGHT TO COMMUNICATE UPON ARREST

(11497/11)

Letter from Dominic Raab MP, Parliamentary Under Secretary of State for Justice,


Thank you for your letter of 1 July, addressed to Shailesh Vara, regarding the above proposed

directive, among other issues. I am now responsible for EU business at the Ministry of Justice. As you

requested, I will be writing to you separately in respect of your question regarding Directive

2013/28/EU on the right of access to a lawyer in criminal proceedings and in European Arrest

Warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and

to communicate with third persons and with consular authorities while deprived of liberty.

You asked for an update as to how the discussion of this proposal has progressed since Shailesh

Vara’s letter of 18 March, and in particular on the specific issue of individual assessments (Article 7).

On this point, as Shailesh explained in his last letter to you, the Parliament’s proposal specifies in

considerable detail the content of such assessments. It would also require that the assessment be

undertaken before the deprivation of liberty, for example when taken into custody by the police pre-

trial. The General Approach text, on the other hand, provided that such an assessment be undertaken

at the earliest appropriate stage in the proceedings, and at the latest in time to be considered at

sentencing. The latter is in line with current practice in England and Wales, where a report is

prepared pre-sentence, at the point of conviction, and informs sentencing. There has been some

57

further discussion of these points in working groups and trilogues, but no agreement has yet been

reached.

You also asked for a more general update on this proposed directive. The Luxembourg Presidency

has announced its intention to complete negotiations on this proposed directive by the end of the

year. In addition to the meetings mentioned in Shailesh’s letter of 18 March, a third trilogue meeting

was held on 19 May, a technical meeting with the Council, Parliament and Commission was held on 1

July 2015, and a fourth trilogue is scheduled for 14 July. There have been Council working groups to

prepare each of these meetings, on 12 May, 29 June and 8 July. We will provide a further update once

trilogue negotiations have concluded.

14 July 2015


Thank you for your letter dated 14 July 2015. It was considered by the EU Justice Sub-Committee at

its meeting of 15 September 2015.

We have decided to retain the proposal under scrutiny.

Disappointingly, your response is not the reply we were seeking. Whilst we can understand that the

“new Government” is continuing to consider the merits of opting in to the Directive, our letter of 1

July (amongst other matters) asked the Government for its analysis of the agreed text of the Directive

– legislation agreed by the participating Member States nearly two years ago.

We expect and look forward to considering your promised update on this issue, including the

requested analysis of the agreed text, in the autumn.

15 September 2015

Letter from Dominic Raab MP to the Chairman

In my letter of 14 July 2015, I undertook to update the Committee this autumn on the Government’s

decision whether to opt in to this Directive post-adoption. Thank you for your further letter of 15

September on this matter.

Having now reviewed the final version of the Directive, I can confirm that the Government has

decided to continue the previous Government’s position, and remain outside this measure.

Britain has a proud and distinctive tradition of liberty, and in particular of protecting civil liberties and

rights. Across Europe and worldwide, our common law traditions are held up as a model for the

protection of individual rights and liberties.

It is my view that the UK should only participate in EU measures in the field of criminal justice where

this is in the national interest. Although I am supportive of efforts by other Member States to improve

standards in this area, and appreciate that the final text includes some improvements to the

Commission’s original proposal, it remains the case that the UK already offers robust rights for

defendants and I do not consider there to be compelling benefits for the UK of opting in to this

Directive.

This assessment is compounded by the fact that the Directive as adopted may require changes to

current UK legislation or practice in a number of areas. For example, the Directive might interfere

with the operation of the UK’s “drink-drive” regime, as the police would no longer be able to

conduct breathalyser tests at the police station in the absence of a lawyer, if questions must be asked

to ensure the validity of the test and the evidence. Furthermore, the Police and Criminal Evidence Act

1984 codes of practice would require amendment, to remove, for example, the power to delay access

to a lawyer to prevent serious damage to or loss of property in certain circumstances.

I am aware that the proposed Directive underwent significant changes during negotiations both within

the Council and in trilogue negotiations with the European Parliament, and your letter of 15

September asked for the Government’s analysis of the final version of the Directive. This is

summarised below. I also attach a copy of the final text adopted [not printed], for completeness.

— The aim of the Directive, as set out in Article 1, is to lay down rules

concerning the right of suspected and accused persons in criminal

proceedings, and of persons subject to European Arrest Warrant (EAW)

proceedings, to have access to a lawyer and to communicate upon arrest

58

with a third person. In the negotiations, a minor amendment was made to

the text to reflect the fact that the EU only has the competence to set

“minimum” rules in this area.

— Article 2 sets out the scope of the Directive. It reflects the scope of the

previous Directives on the Roadmap and specifies that it applies to persons

subject to a European Arrest Warrant (EAW) from the time they are

arrested. Text was added to exclude minor offences which are dealt with by

authorities other than a criminal court. This means that the Directive will

not apply to minor offences which are disposed of out of court, for example

fixed penalty notices for traffic offences. A provision was also added to

exclude minor offences where deprivation of liberty cannot be imposed as a

sanction. This was intended to accommodate Member States for which the

use of out of court disposals to deal with minor offences is not possible in

their criminal justice systems. It would still require the Directive to apply in

such cases, if the suspect or accused person were deprived of his liberty

during the investigative stage and during any proceedings before a court

having jurisdiction in criminal matters. Amendments were also made to the

text which would exclude proceedings relating to some minor offences

perpetrated by prisoners which are dealt with by prison governors. In

addition, Recital 13 specifies that proceedings in relation to offences

committed in a military context which are dealt with by a Commanding

Officer should not be considered to be criminal proceedings for the

purposes of this Directive.

— Article 3 sets out what the right of access to a lawyer should entail. Text was

added to Recital 16 to clarify that the term “lawyer” should not be restricted

to meaning qualified solicitors or barristers. Article 3(1)(a) of the

Commission’s proposal said that access to a lawyer should be provided

before “any questioning by the police or other law enforcement authorities”

to persons who have been officially notified that they are a suspect or

accused person. Member States wanted to ensure that the police could still

ask some basic preliminary questions, such as whether a suspect is carrying a

dangerous weapon and questions which need to be asked immediately

because failing to do so could prejudice the acquisition of evidence. The

relevant provision in the adopted Directive (now at Article 3(2)(a)) is more

precise than the Commission’s proposal because it states that access to a

lawyer should be granted before a person who has been officially notified

that they are suspected or accused of a criminal offence “is questioned”.

Recital 21 clarifies that for the purposes of the Directive “questioning” does

not include preliminary questioning for the purposes of identifying the

person; to verify whether there are any safety issues; or to determine

whether an investigation should be started.

— Article 3(1)(b) of the Commission’s proposal set out that access to a lawyer

should be provided upon carrying out any procedural or evidence gathering

act where the presence of the suspected or accused person is “required or

permitted” by national law. This implied that access to a lawyer would be

required at house searches and possibly even at routine personal searches.

Now at Articles 3(2)(b) and 3(3)(c), it was significantly amended during

negotiations: the final version gives a suspected or accused person the right

to have his lawyer present at three specified procedures if they are provided

for in national law, and if the suspected or accused person is required or

permitted to attend them.

— Article 4(1) of the Commission’s proposal said that the suspect or accused

person should have the right to meet with the lawyer representing him. The

final version of Recital 24 clarifies that the right to meet a lawyer should not

prevent Member States from organising the right of the suspect or accused

person to legal assistance by telephone in minor cases where the person will

not be questioned by the police or other law enforcement authorities.

— Article 4(4) of the Commission’s proposal provided that lawyers should have

the right to check detention conditions. This provision has been deleted and

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instead Recital 29 states that a lawyer should be able to raise issues in

relation to detention conditions on behalf of his client with the competent

authorities.

— Article 4(5) of the Commission’s proposal provided that the duration and

frequency of meetings between the suspect or accused person and his

lawyer should not be limited in any way that might prejudice the exercise of

his rights of defence. This provision has been moved to Recital 23 and text

has been added to clarify that Member States “may make practical

arrangements concerning the duration, frequency and means of

communication”.

— A new provision has been added at Article 3(4) which sets out that Member

States need to “make the necessary arrangements to ensure that suspects or

accused persons who are deprived of liberty shall be in a position to

effectively exercise their right of access to a lawyer, unless they have waived

this right”.

— The text at Article 3(4) requires Member States to make “arrangements” in

respect of people who are deprived of their liberty, but does not require

them to take any action to ensure that a suspect or accused person who is

not deprived of his liberty is able to access a lawyer. Additionally, the final

Directive is clear that it does not require Member States to provide publicly

funded legal advice. Recital 28 lists the provision of legal aid as an illustrative

example of action that Member States might take in order to discharge the

obligation to make “the necessary arrangements”. Article 10 sets out that

this Directive is without prejudice to national law in relation to legal aid. As

the Committee is aware, the Commission has since proposed a new

Directive concerning legal aid, which is currently subject to trilogue

negotiations with the European Parliament.

— Article 3(5) and (6) of the adopted Directive set out the permitted

derogations to right of access a lawyer. The text was amended during the

negotiations so that the police, not just a judge or prosecutor, can authorise

derogations. The Commission’s proposal, at Article 8, would only have

allowed the police and law enforcement authorities to ask questions in the

absence of a lawyer if it were “justified by compelling reasons pertaining to

the urgent need to avert serious adverse consequences for the life or

physical integrity of a person.” As the Committee is aware, a number of

Member States, the European Parliament and the Commission felt very

strongly that this should remain the only circumstance in which it should be

possible temporarily to postpone access to a lawyer. The final text allows

derogations to be made in “exceptional circumstances” when it is

“imperative to prevent a substantial jeopardy to criminal proceedings”.

— The Commission’s proposal required all Member States to guarantee the

confidentiality of meetings between the suspect or accused person and his

lawyer. The European Parliament wanted to strengthen this provision to

state that confidentiality should be “absolute” and “not be subject to any

exception”. Article 4 of the final Directive has amended the obligation on

Member States from “guaranteeing” confidentiality to “respecting” it.

Recitals 33 and 34 outline the situations in which Member States are

required to respect confidentiality. The requirement to respect

confidentiality only applies to communication between a suspect or accused

person and his lawyer in the exercise of the rights provided by this

Directive. Specifically it does not apply: where there is a suspicion that the

lawyer is involved in a criminal offence; procedures within prisons to screen

correspondence for illicit enclosures; or to breaches which are incidental to

a lawful surveillance operation. The recitals also clarify that the Directive

should be without prejudice to the work carried out to safeguard national

security in accordance with Article 4(2) of the Treaty on European Union or

that falls within the scope of Article 72 of the Treaty on the Functioning of

the European Union, which sets out that Directives in this area shall not

affect the exercise of the responsibilities incumbent upon Member States

60

with regard to the maintenance of law and order and the safeguarding of

internal security.

— The Commission’s proposal required that a person deprived of liberty

should have the right to communicate with at least one person named by

him as soon as possible. The final text at Article 6 requires Member States

to give persons who are deprived of their liberty the right to communicate

with a third person of their choice, but Member States are able to limit or

defer the exercise of this right in view of “imperative requirements or

proportionate operational requirements.”.

— The right for a person who is deprived of his liberty to have a third person

informed is subject to much narrower derogations than the right to

communicate with a third person. These are set out at Article 5(3). Article

5(2) of the Commission’s proposal required Member States to inform an

adult that a child had been deprived of liberty. This has been amended in the

final text to require that where a person under 18 is deprived of liberty,

someone with parental responsibility is informed of the child’s detention;

unless doing so would be contrary to the child’s best interests, in which case

another individual or organisation must be informed.

— The Commission’s proposal contained a provision which gave non-nationals

the right to have their consular or diplomatic authorities informed of their

detention and to communicate with them. This has been amended in Article

7 so that the detained person may have the authorities informed and

communicate with them if he so wishes. This is consistent with the 1963

Vienna Convention on Consular Relations which states that notification of

the arrest of a non-national shall be made to the consular authorities, "if he

so requests".

— Article 9 of the adopted Directive sets out the conditions for a waiver to the

right to access a lawyer and states that Member States shall ensure that

suspects or accused persons may revoke a waiver subsequently at any point

during the criminal proceedings and they should be informed about that

possibility.

— Article 10 sets out that a person subject to a European Arrest Warrant

should have the right of access to a lawyer in the executing Member State. It

also provides that such a person should have the right to have a third person

informed of the deprivation of liberty and to communicate with third

persons and consular authorities. There is an additional requirement,

however, at Article 10 for the person subject to an EAW to have the right

to access a lawyer in the Member State that requests extradition: this has

been referred to as “dual defence”. Currently such persons do not have a

right of access to a lawyer in the issuing state until they are returned there.

The Directive requires the competent authorities in the executing Member

State to inform the arrested person that they have the right to appoint a

lawyer in the issuing Member State. If the person wants to exercise this

right, the executing Member State has to inform the issuing Member State.

The issuing State would then have to provide information, such as a list of

lawyers, to help the person to appoint a lawyer.

— The Commission’s proposal would have required a person who is, for

example, interviewed by the police as a witness, but who then becomes a

suspect, to be afforded the rights set out in the Directive. The provision at

Article 10(2) of the Commission’s proposal, which would have barred the

admissibility of statements made prior to the person being made aware that

he was suspected or accused of an offence, has been deleted.

— Article 12(1) of the Commission’s proposal said that the Directive was

without prejudice to domestic provisions on legal aid. However, Article

12(2) and Recital 24 of the final text set out that Member States would need

to extend the provision of legal aid to any situations where the Directive

extended the right of access to a lawyer. Paragraph 12(2) was deleted in the

final text.

61

— Article 13 of the adopted Directive is a new provision which requires

Member States to ensure that the particular needs of vulnerable suspects

and accused persons are taken into account.

— Article 14-18 are technical provisions. The implementation deadline was

increased from 24 to 36 months.

I hope that this analysis is useful for the Committee and would like to thank you for your work on

this measure.

15 October 2015


Thank you for your letter dated 15 October. It was considered by the EU Justice Sub-Committee at

its meeting of 10 November.


We would welcome the opportunity to discuss the Government’s decision not to opt in to this

proposal with you in person. To that end Committee officials will shortly be in contact to arrange a

mutually convenient time.


11 November 2015

STRENGTHENING THE FOUNDATION OF THE EUROPEAN AREA OF CRIMINAL

JUSTICE (17621/13, 17633/13, 17635/13, 17642/13)

Letter from Dominic Raab MP, Parliamentary Under Secretary of State for Justice,


Thank you for your letter of 1 July, addressed to Shailesh Vara, regarding the above proposed

directive, among other issues. I am now responsible for EU business at the Ministry of Justice. As you

requested, I will be writing to you separately in respect of your question regarding Directive

2013/28/EU on the right of access to a lawyer in criminal proceedings and in European Arrest

Warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and

to communicate with third persons and with consular authorities while deprived of liberty.

You asked for an update as to how the discussion of this proposal has progressed since Shailesh

Vara’s letter of 18 March, and in particular on the specific issue of individual assessments (Article 7).

On this point, as Shailesh explained in his last letter to you, the Parliament’s proposal specifies in

considerable detail the content of such assessments. It would also require that the assessment be

undertaken before the deprivation of liberty, for example when taken into custody by the police pre-

trial. The General Approach text, on the other hand, provided that such an assessment be undertaken

at the earliest appropriate stage in the proceedings, and at the latest in time to be considered at

sentencing. The latter is in line with current practice in England and Wales, where a report is

prepared pre-sentence, at the point of conviction, and informs sentencing. There has been some

further discussion of these points in working groups and trilogues, but no agreement has yet been

reached.

You also asked for a more general update on this proposed directive. The Luxembourg Presidency

has announced its intention to complete negotiations on this proposed directive by the end of the

year. In addition to the meetings mentioned in Shailesh’s letter of 18 March, a third trilogue meeting

was held on 19 May, a technical meeting with the Council, Parliament and Commission was held on 1

July 2015, and a fourth trilogue is scheduled for 14 July. There have been Council working groups to

prepare each of these meetings, on 12 May, 29 June and 8 July. We will provide a further update once

trilogue negotiations have concluded.

14 July 2015

62


Thank you for the letter dated 14 July 2015. It was considered by the EU Justice Sub-Committee at its

meeting of 15 September 2015.

We have decided to retain the proposal under scrutiny.

We are grateful for your response to our questions. With regard to the issue of individual

assessments, we note the gap between the European Parliament’s desire to see a child’s needs

assessed before the deprivation of liberty, and the Council’s wish to afford Member States sufficient

latitude to make the assessment, at the latest, before sentencing. It seems to us that this issue goes to

the heart of the principles underlying this proposal and we will continue to monitor its development

as these negotiations continue.

We look forward to considering periodic updates on these negotiations in due course.

15 September 2015

TOWARDS A EUROPEAN FRAMEWORK FOR COLLECTIVE REDRESS (11499/13)

Letter from Nick Boles MP, Minister of State for Skills, Department for Business

Innovation and Skills, to the Chairman

I am writing to update the Committee on discussions and actions following the European

Commission’s Recommendation on Collective Redress mechanisms and the associated

Communication on a European Framework for Collective Redress. I am sorry that the Committee

has not received an earlier update but there have in fact been few concrete developments, particularly

latterly.

The Commission gave a presentation on collective redress at a meeting of the Consumer Protection

Co-operation Network on 22 May 2014 and the subject was also discussed at the European Judicial

Network in Civil and Commercial Matters (EJN) on 1 October 2014. At the latter meeting only four

Member States spoke, but all supported the UK in querying the need for new EU legislation in this

area and suggested that any such legislation should take a sectoral rather than horizontal approach.

Member States (including the UK) have since contributed to what was described as a tentative

mapping exercise drawing together for the Commission the relevant provisions across Member

States. We have not had any other correspondence with the Commission about this work and there

have been no discussions at Ministerial level.

Although a further discussion at the EJN was promised, none has taken place or been scheduled as

yet. We understand from informal contacts that there is uncertainty in the Commission about what if

anything to do with this dossier. Formally, the Commission will be reviewing the position in 2016 with

the view to the possibility (no more) of making a proposal in 2017. The Government will engage in

any further discussions which the Commission initiates, drawing on the UK’s experience of domestic

provisions, including provisions introduced in the Consumer Rights Act 2015, and emphasising that

before proposing any EU legislation the Commission would have to establish that it was necessary and

proportionate and respected subsidiarity.

Finally, I would note that there are ongoing discussions within Whitehall about which Department

should lead on this dossier given the wide-ranging scope of the Commission Recommendation. I

thought I ought to write to update you given the earlier correspondence and the fact the Explanatory

Memorandum was submitted by my predecessor.

29 October 2015

Letter from the Chairman to Nick Boles MP



We were grateful for the update, and take note of the stalling of negotiations.

We ask to be informed in due course of further concrete developments.



63

25 November 2015

UNIFIED PATENT RIGHTS (11533/11)



Chairman

Given the keen interest that the House of Lords Select Committee has shown in the Unified Patent

Court (UPC) Agreement, I wanted to take some time to update you on progress made in

implementing the UPC. I last sent an update on 10 February and since then I am pleased to say that

there has been much positive progress.

The unitary patent was the subject of the final agenda item at the Competitiveness Council on 1

October where the Commission formally announced that Italy has joined the enhanced cooperation

on the unitary patent.

The Council was followed by a signing ceremony on the Protocol on Provisional Application of the

UPC Agreement. I signed for the UK along with six other Member States; an eighth, Hungary, has

since signed. The signing of the protocol is an important step in bringing the court in to being. It will

allow some provisions of the Agreement to come into effect early so that the administrative bodies of

the Court can be established and take the final operational decisions, such as recruitment of judges, in

time for the court opening.

Also on 1 October, the Preparatory Committee announced the timetable for completing its work and

the opening of the Court. According to the timetable, the Preparatory Committee should complete

its work in June 2016 with the view of the Court opening in early 2017.

Working level discussions on the Rules of Procedure for the UPC have concluded and the rules were

adopted by the Preparatory Committee on 19 October. I am very pleased to say that we have

secured changes to the rules which UK stakeholders wanted. In addition to the change which I

mentioned in my previous letter to mitigate the effects of bifurcation, the UK has also made sure that

the rules make provision for an appeals route on procedural decisions of the Court. We also

obtained some clarification on how the opt-out will work. These are both important issues for UK

businesses.

Adoption of the Rules of Procedure means that the major work on the rules has been completed.

However, further amendments will be needed once the fees for the Court have been agreed. The

court fees were the subject of a consultation by the Preparatory Committee over the summer and

the UK is playing a leading role in the working party responsible for the consultation and for finalising

the fees. The team has made great progress in analysing the consultation responses and has prepared

a factual summary which was adopted by the Preparatory Committee on 19 October.

Negotiations to amend the fee schedule in light of the consultation responses continue and I expect a

first discussion of a revised fee schedule at the Preparatory Committee in December and adoption of

the fees early next year.

The Preparatory Committee also adopted rules on the qualifications that European patent attorneys

will need in order to represent clients before the UPC. The original rules excluded highly experienced

UK patent attorneys who already litigate before the UK courts. I am pleased to say that the

Government was able to negotiate a more inclusive set of rules which ensure that the UK patent

attorney profession will be able to act for their clients before the UPC. As well as being a key issue

for the UK profession, this change will also provide businesses with a wider choice of experienced

representatives.

Progress has also been made on the financial aspects of the unitary patent with the Select Committee

of the European Patent Office reaching a preliminary decision on the level of annual renewal fees in

June 2015. This agreement is subject to agreement on the overall package of renewal fees and the

distribution of the income amongst the Member States. Discussions on the latter part of the package

are ongoing.

The Select Committee provisional agreement supports a fee level equivalent to the fees charged

today for protection in four Member States (Germany, France, UK and the Netherlands). This fee

level is considered to be attractive for businesses, in particular SMEs, and it would also allow the EPO

64

to balance the budget and ensure the sustainability of the unitary patent for the EPO. UK businesses

have been largely supportive of the proposal.

When I last wrote to you I also said that my officials were in the process of finding a London location

for the UPC. I am delighted to say that the IPO has now signed a lease for space in Aldgate Tower.

Located on the edge of the City, Aldgate Tower is close to the legal and business heart of London

offering modern facilities and it represents an affordable and good value for money option within

Central London. This will strengthen UK’s legal and professional services sector, and further highlight

London’s status as a world leader for dispute resolution. The news has been warmly welcomed by

potential future users of the Court and the legal profession who were consulted throughout the

process.

I hope this further information is helpful in explaining how the Government continues seek to mitigate

the concerns of the Committee throughout the work to implement the UPC Agreement.

28 October 2015