Select Committee on European Scrutiny Sixth Report









Draft Council Decision on setting up a EUROJUST team.

Initiative by the Federal Republic of Germany regarding a Decision
on setting up a EUROJUST team.

Initiative of the Portuguese Republic, the French Republic, the
Kingdom of Sweden and the Kingdom of Belgium seeking the
adoption by the Council of a Decision setting up EUROJUST.

Initiative of the Portuguese Republic, the French Republic, the
Kingdom of Sweden and the Kingdom of Belgium with a view to the
adoption of a Council Decision setting up EUROJUST to reinforce the
fight against serious organised crime.

Communication from the Commission on the establishment of

Draft Council Decision setting up EUROJUST.

Draft Council Decision setting up EUROJUST.

Legal base: Articles 31 and 34(2)(c) EU; consultation; unanimity
Document originated: (a) 19 June 2000
(b) 12 May 2000
(c) 13 July 2000
(d) 20 July 2000
(e) 22 November 2000
(f) 4 December 2000
(g) 22 December 2000
Forwarded to the Council: (a) 19 June 2000
(b) 22 June 2000
(c) 13 July 2000
(d) 20 July 2000
(e) 22 November 2000
(f) 4 December 2000
(g) 22 December 2000
Deposited in Parliament: (a) and (b) 23 June 2000
(c) 20 July 2000
(d) 22 September 2000
(e) 8 December 2000
(f)19 December 2000
(g) 11 January 2001
Department: Home Office
Basis of consideration: (a) - (c) and (d) EM of 29 September 2000
(e) EM of 21 December 2000
(f) and (g) EM of 19 January 2001
Previous Committee Report: None; but see (21451)10354/00, (21576) 11344/00, (21667) 11344/2/00: HC 23-xxx (1999-2000), paragraph 3 (22 November 2000) and HC 23-xxxi (1999-2000) paragraph 14 (29 November 2000)
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: (a) to (e) Cleared;
(f) and (g) Not cleared; further information requested


  2.1  The Tampere European Council decided in October 1999 that a European judicial co-operation unit, Eurojust, should be established. At our meetings on 22 and 29 November 2000 we considered proposals for establishing a judicial co-operation unit on a provisional basis, and cleared the proposal on receipt of clarification from the Minister of State at the Home Office (Mrs Barbara Roche) as to its effect and scope, in particular, an assurance from the Minister that the unit would serve to facilitate co-ordination of investigations and prosecutions involving two or more Member States, but would not direct those investigations and prosecutions. An objective of establishing the provisional unit was to obtain experience which might inform the negotiations now under way for establishing a permanent judicial co-operation unit, Eurojust.

  2.2  The Nice European Council agreed to amend Articles 29 and 31 EU to include a reference to Eurojust.

The documents

  2.3  The first document (21340) (EUROJUST 3) is a version of the original proposal by Germany (21341) (EUROJUST 2) which has been examined and finalised by jurist linguists. There were no substantive changes between the two documents. The third document (21452) EUROJUST 6 is a proposal by Portugal, France, Sweden and Belgium, and the fourth document (21574) EUROJUST 8 is the version of the third document following its examination by jurist linguists. There were no substantive changes between the two latter documents. In the EU working group it was agreed at the end of 2000 to set aside the EUROJUST 2 and 3 documents and to continue discussion only on (21574) EUROJUST 8.

  2.4  The fifth document (21853) EUROJUST 18 is a communication from the Commission setting out a commentary on the proposals as they stood in November 2000. The sixth document (21897) EUROJUST 19 is a revision of EUROJUST 8, and the seventh document (21972) EUROJUST 21 contains a revision of Article 6 of the proposed Decision and sets out proposals on the powers and activities of Eurojust. The position now reached is that the earlier EUROJUST documents (2, 3, 6 and 8) have been superseded, and the texts now under discussion in the Council Working Party on Co-operation in Criminal Matters are EUROJUST 19 and 21, with the Commission communication EUROJUST 18 informing that discussion.

  2.5  The Commission communication EUROJUST 18 comments on the views thus far of Member States on the tasks and powers of Eurojust as follows:

"Up to now, the notions and concepts on what tasks and powers Eurojust should have varied rather widely. It seems that the common denominator of Member States' opinions comprises as a minimum activities such as providing information on national law, building up a documentary basis, arranging contacts among investigating national bodies, transfer of information on the stage of proceedings or on judgments, exchange of experience and, to a certain degree, legal advice."

  2.6  The Commission considers that these activities could, to a large extent, also be carried out by the European Judicial Network.[11] It suggests a more operational role for Eurojust, as follows:

"In the Commission's opinion, Eurojust should however be more than a documentation and information centre providing advice on an abstract level. This unit should be involved in individual criminal investigations. The new unit should be able to contribute actively to proper co-ordination of individual cases, in particular when urgent cross-border action is needed and/or when such action must be backed up legally, for example with a view to the probative value of the investigative results for formal accusation and judicial proceedings. This does not necessarily mean that Eurojust itself, as a collegial body, should have the power to initiate and carry out investigations or to create joint investigation teams."

  2.7  The Commission further makes a number of detailed suggestions on the functions and organisation of Eurojust. It suggests that Eurojust should be able to "mediate actively" between national prosecuting authorities, either at the request of a national authority or on its own initiative, and that Eurojust should be empowered to address formal recommendations to national authorities on such matters as the setting up of joint investigation teams, questions of jurisdiction, exchange of information among national authorities including access to records, the content of letters rogatory or their treatment by the requested Member State, as well as the taking of evidence or the protection of witnesses. Such recommendations would not be binding, but the Commission suggests that any national authority not following such a recommendation should be obliged to provide a reasoned justification for this within a reasonable time. The Commission also suggests that Eurojust should have access to national registers of convictions and proceedings, and to records of criminal cases which are related to two or more Member States.

  2.8  The Commission also suggests that it should be a member of a Steering Committee or Strategy Board of Eurojust, and thus take part in decisions to co-ordinate prosecutions:

"A collective decision would also be required for any co-ordination activity of cross-border prosecution, at least in cases where a larger number of Member States is involved or where it cannot be said from the beginning, which Member States will have to be involved. Any formal recommendation (e.g. to initiate an investigation) should also be based on the collegial principle. Therefore, insofar as the collegial principle has to be applied, the delegates should form a Steering Committee (or Strategy Board) as the central organ of Eurojust. This Committee should include a delegate of the Commission as a full member, represented, if need be by a deputy, in accordance with Article 36(2) TEU."

  2.9  The document EUROJUST 19 is the most recent version of the draft Council Decision setting up Eurojust. Article 2 of the draft Decision provides that Eurojust shall be composed of one national member seconded by each Member State 'being a prosecutor, magistrate or police officer of equivalent competence'. Article 4 sets out the objectives of Eurojust which are 'to stimulate and improve the coordination of investigations and prosecutions in the Member States', 'to improve cooperation between the competent national authorities' and 'to promote the effectiveness of investigations by the competent authorities of the Member States by lending them assistance'.

  2.10  The substantive competence of Eurojust is set out in Article 5. It is to cover the types of crime and the offences in respect of which Europol is competent pursuant to Article 2 of the Europol Convention of 26 July 1995,[12] computer crime, the protection of the European Communities' financial interests, the laundering of the proceeds of crime and other forms of crime connected with the above.

  2.11  The powers of Eurojust are set out in Article 6. In addition to functions of informing competent authorities of investigations and prosecutions, Eurojust is also to be empowered to ask competent authorities to investigate or prosecute specific acts. If the competent authorities decide not to comply with such a request, they are to inform Eurojust of the reasons for their decisions. Eurojust is also to assess whether investigations and prosecutions conducted by the competent authorities in two or more Member States should be coordinated, and is to be entitled to ask those authorities to coordinate their procedures. By virtue of Article 6(c) such coordination 'may, in particular, contribute to the consideration of arrangements for opening and conducting investigations and prosecutions'. A competent authority which decides not to comply with such a request is to inform Eurojust of the reasons for its decision.

  2.12  Article 7 provides for the functions and powers of national members, and 'national correspondents' are provided for in Article 8. The latter are to act as contact points to and from Eurojust in the national territory. Articles 10 to 15 provide rules for data protection. These provide for data security and confidentiality, and for time limits on processing, but there are no subject access rights and no provision is made for any supervision of data processing by Eurojust. Article 16 provides for relations with partners, notably with the European Judicial Network. Article 17 confers legal personality on Eurojust, and Articles 18 to 23 provide for organisation and operation, languages, information to the European Parliament and the Council, finance and location.

  2.13  The document EUROJUST 21 sets out a revised form of Article 6 on the activities and powers of Eurojust. It distinguishes those cases where Eurojust acts through a national member from those where it acts collectively. Eurojust is to act collectively where a national member makes a request, or where a case involves investigations or prosecutions which have repercussions at European Union level or which might affect Member States other than those directly concerned, or where a question of principle relating to the objectives of Eurojust is raised. It is only where Eurojust acts collectively that a request may be made to a competent authority of a Member State to investigate or prosecute specific acts, with a corresponding obligation on the competent authority to inform Eurojust of the reasons for not complying with the request. Acting collectively, Eurojust may also request a competent authority 'to coordinate between the competent authorities of the Member States concerned', with the like obligation on the competent authorities to state reasons for not complying with the request. Where Eurojust acts through a national member, it may only 'urge' the competent authority to investigate or prosecute, or to coordinate and there is no obligation to state reasons for not complying.

The Government's views

  2.14  In her Explanatory Memorandum of 21 December 2000 the Minister of State at the Home Office (Mrs Barbara Roche) comments on the Communication from the Commission, EUROJUST 18, as follows:

"The Commission's assessment that a consensus has still to emerge concerning the final shape of Eurojust accurately describes the current state of the negotiations.

"The Commission's view of how Eurojust should look is quite close to the Government's own view, as set out in the earlier Explanatory Memorandum[13]. As noted in that Explanatory Memorandum, the Government believes that Eurojust should be 'an organisation that would co-ordinate and facilitate cross-border investigations, without directing the national authorities involved. It should be able to act pro-actively, for example by proposing joint investigation teams and, where appropriate, taking part in those teams.' "

  2.15  The Explanatory Memorandum further indicates that the Government agrees with the Commission's views on the need for Eurojust to have a wide sphere of competence, to have powers to act collectively and to have legal personality. However, the Explanatory Memorandum also records a number of points where the Government's view diverges from that of the Commission, and gives the views of the Commission on the creation of a European Public Prosecutor to deal with fraud against the finances as an "obvious example", commenting that:

"The establishment of Eurojust, with strong and defined links to OLAF, represents a more effective and appropriate way of dealing with such fraud".

  2.16  The Explanatory Memorandum comments on the question of participation by the Commission in Eurojust as follows:

"The Government would also need to examine closely the mechanism by which the Commission was associated with the work of Eurojust (page 8 of the Communication refers). The Government could not accept any wording that accorded the Commission any 'operational' role in national investigations or prosecutions."

  2.17  In her Explanatory Memorandum of 19 January 2001 the Minister comments on the policy implications of the latest Eurojust documents EUROJUST 19 and 21 as follows:

"—  Detailed consideration has been largely devoted to Article 6, previously titled 'Powers' but now covering 'Eurojust activities'. Previously, both documents 10357 (Eurojust 8) and 14052/00 (Eurojust 19) set out powers for Eurojust acting collectively, but were largely silent on how the national members would operate.

"—  Document 14900/00 (Eurojust 21) makes the first attempt to cover both situations. It is envisaged that most of Eurojust's activity will be conducted at an 'informal' level by the national members of the concerned Member States, without the need to involve all of the national members or the unit as a whole. This is described in the opening part of Article 6 in document 14900/00. The national members will only act collectively, or as a unit, where:

"—  one of the national members concerned so requests;

"—  where the case has a significance which goes wider than just those Member States immediately concerned;

"—  or a question of principle relating to Eurojust's objectives is raised.

"—  Articles Y and Z set out the differentiated powers of Eurojust when it is acting collectively (or 'formally') or 'informally' through its national members. The main point to note is that Eurojust acting collectively can ask, but not order, Member States to undertake certain actions and can expect to be told the reasons if the Member State concerned declines. This power is not available to national members acting informally without the backing or authority of Eurojust acting as a unit.

"—  The Government's view is that document 14900/00 provides the basis for a sensible working model for Eurojust and achieves an acceptable and workable compromise between those Member States who wanted all of Eurojust's powers to be used collectively and those who wanted them all devolved to the national members. It would be wrong to create an organisation that slowed down judicial co-operation by requiring all decisions to be taken collectively and centrally, but equally where it is required, it must be possible to issue decisions backed by the authority of the unit as a whole."

  2.18  On the question of data protection, dealt with in Articles 9 to 15 of EUROJUST 19, the Minister points out that this has not received detailed consideration, but comments:

"However, the Government has made clear during negotiations that currently the regime lacks any provision relating to individuals' rights to gain access to the data held about them, lacks oversight by a national supervisory authority of the processing done by a Member State and lacks oversight by an EU-wide supervisory authority of the processing done by Eurojust itself."


  2.19  We consider that a key aspect of the Eurojust proposal is the effect the creation of the unit may have on the discretions vested by national law in the prosecuting authorities. With this concern in mind, we welcome the Government's view that it could not accept any wording which accorded the Commission any operational role in national investigations or prosecutions.

  2.20  We also note the Government's view that Eurojust should be an organisation which would co-ordinate and facilitate cross-border investigations without directing the national authorities. We agree with this view, but we consider that the current text is ambiguous on the degree of influence which Eurojust is expected to exercise. The requirement that a prosecuting authority in a Member State should be obliged to account to Eurojust for its reasons for not complying with a request to prosecute, or for not complying with a request to co-ordinate prosecutions with those of another Member State, suggests to us that Eurojust is intended to have some influence over prosecution discretions; otherwise there would seem to be little point in asking for the reasons to be stated. We invite the Minister to explain why it is thought necessary to include this requirement.

  2.21  We welcome the Minister's views on the need for improvements to the data protection regime proposed for Eurojust, and we shall look forward to an account by the Minister of how these concerns have been met.

  2.22  As the earlier Eurojust proposals have been superseded by new proposals, we see no reason to hold them under scrutiny. We therefore clear documents (21340)(EUROJUST3), (21341)(EUROJUST2), (21452)(EUROJUST 6) and (21574)(EUROJUST 8). Since it is not a legislative proposal, but merely a communication, we also clear (21853), the Commission communication on the establishment of Eurojust (EUROJUST 18).

  2.23  We ask the Minister to keep us informed of progress in the negotiations and shall hold the current proposals (21897) (EUROJUST 19) and (21972) (EUROJUST 21) under scrutiny.

11  Established by Joint Action of 29 June 1998, OJ No. L 191, p.4.  Back

12   See OJ No. C 316, 27.11.1995, p.1. The relevant matters are terrorism, drug trafficking, trafficking in nuclear and radioactive substances, money laundering, illegal immigrant smuggling, trade in human beings and motor vehicle crime.  Back

13  The EM of 29 September 2000 covering EUROJUST 3 and EUROJUST 8. Back

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