EU: Customs Convention slips through
01 July 1995
Another of the Conventions agreed at the meeting of COREPER on 26 July was that on the Customs Information System (CIS) which an explanatory note from the UK government described as follow:
"The draft CIS Convention is closely based on the relevant articles of the European Information System, which in turn is closely based on the relevant articles of the Schengen Convention.. "
In effect this is saying that the non-Schengen EU member states - Ireland, UK, Sweden, Denmark, Finland and Austria - at the time the Schengen Agreement was signed were having to agree to the terms set out there covering customs being included in the CIS Convention without amendment.
There are also a number of novel features about the CIS Convention. First, it is a "hybrid" measure. There to be two "separate data-based systems" dealing with customs matters both of which are going to be on a central computer system run by the European Commission. The two systems will "belong to two different legal systems". One, the "intergovernmental CIS", covered by this Convention dealing with fraud and trafficking in illicit goods "for areas outside of Community competence", the other, "the Community CIS", for areas "within" Community competence, covering import duty and agricultural levies, to be covered by a Council Regulation (under the "first pillar").
The European Court of Justice (ECJ) clause has been deleted from the Convention on the "intergovernmental CIS" - until its role is resolved in this Convention and those on Europol and financial interests. The "Community CIS" Regulation will include the ECJ to resolve disputes.
The setting up of the central computer will come out of the EC budget while only the running costs of the inter-governmental database will be paid by individual member states.
Rolling ratification and "Provisional application"
The Convention as signed allows for "provisional application" as it is officially termed. This allows for the Convention to come into operation "provisionally" three months after a majority of the 15 EU states have ratified it (Article 24). It also allows for the "provisional application" of the Convention once two or more member states have ratified it - who may then decide "by unanimous vote" to proceed. The Spanish delegation had objected to this idea arguing that it did not come within the terms of Article K.3 of the Maastricht Treaty for certain member states to proceed in advance of others (Article K.3 refers to a two-thirds majority taking implementing measures "unless otherwise provided"). But the UK and Irish governments "pointed out the practical advantages of a more flexible mechanism for allowing the treaty to come into operation".
This "rolling ratification" procedure - not included in the Dublin Convention or the Europol Convention - means that EU countries with the least conscientious parliaments or procedures (like the UK) can ratify the Convention and put it into practice placing other national parliaments who wish to examine the Convention in detail in an extremely difficult position. The Convention adopted in March this year on "Simplified extradition" was the first to adopt this approach. This method reflects the Council's (ie: EU governments) new policy of undermining national parliamentary ratification procedures which they have found so frustrating - the Dublin Convention on asylum applications signed in June 1990 still await ratification by all EU states.
Its provisions
Many of the provisions set out in the CIS Convention are familiar. Information held on individuals can include "permanent physical characteristics" (such as a person's race; Article 4.v). It allows for the recording and transmission of intelligence gathered by "sightings, discreet surveillance or specific checks" on people who have committed, are in the act of committing, or "will commit" offences (Article 5). Customs officials in one country can request another to conduct a search whic