Select Committee on European Scrutiny Thirteenth Report





Draft Council Decision setting up EUROJUST.

Draft Council Decision setting up EUROJUST.

Draft Council Decision setting up EUROJUST.

Legal base: Articles 31 and 34(2)(c) EU; consultation; unanimity
Department: Home Office
Basis of consideration: (a) and (b)Minister's letter of 19 April 2001

(c) EM of 18 April 2001

Previous Committee Report: HC 28-vi (2000-01), paragraph 2 (14 February 2001) and HC 28-xi (2000-01), paragraph 3 (4 April 2001)
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: (a) and (b) Cleared

(c) Not cleared; further information requested


  2.1  We considered a number of documents relating to the establishment of a European judicial cooperation unit, Eurojust, on 14 February and 4 April 2001. On 4 April we considered a reply by the Minister of State at the Home Office (Mrs Barbara Roche) to the points we had raised on 14 February. We held the then current versions of the draft Decision (documents (a) and (b)) under scrutiny pending a further reply by the Minister.

  2.2  We considered that a key aspect of the Eurojust proposals was the effect the creation of the unit might have on the discretions vested by national law in the prosecuting authorities. Notwithstanding the explanations given by the Minister in her letter of 29 March, we remained concerned that the provisions in the draft Decision indicated that Eurojust was indeed intended to have some influence over prosecuting decisions. We did not think it self-evident that Eurojust should be entitled to reasons for any decision not to act on its requests, and we asked the Minister to explain more fully the degree of influence Eurojust was intended to exercise over national prosecution decisions.

The Minister's letter

  2.3  In her letter of 19 April, the Minister addresses our concerns about those parts of the Eurojust proposal which require a prosecuting authority in a Member State to account to Eurojust for its reasons for not complying with a request to prosecute or co-ordinate prosecutions with those in another Member State. The Minister recalls the explanation given in her earlier letter of 20 March that, while Member States should be under no obligation to act on a request from Eurojust, Eurojust should be entitled to reasons for any decision not to act on such a request, and adds the following comment:

    "The key point is that requests from Eurojust are non-binding so the Government does not believe that they bind prosecution discretion. The requirement to provide reasons for declining to follow a request is intended to ensure that requests are given serious consideration, but once again the Government does not consider that such a requirement would bind prosecution decisions. The final decision in each case will be for the competent national authority and for that authority alone.

      "It should be noted that the information provided by Eurojust when it makes its request may make information available to the competent national authority of which it was previously unaware and which might reveal a need for co-ordination or an international dimension that was previously hidden. It should also be noted that as presently drafted the relevant provision, Article 6.4, provides an exemption from the requirement to provide reasons when the competent authority is unable to do so. Overall, as noted in my earlier letter, the Government believe that the solution arrived at in Article 6 is a balanced one."

  2.4  The Minister also informs us by her letter that documents (a) and (b) have been superseded by a revised proposal, document (c).

    The current proposal

  2.5  Document (c) was deposited on 2 April 2001 and is the subject of an Explanatory Memorandum of 18 April. The document makes detailed amendments to the earlier proposals, which are now superseded. The principal changes may be summarised as follows.

  2.6  The objectives of Eurojust set out in Article 4 have been clarified to make clearer its role of stimulating co-operation between national authorities, in particular by facilitating execution of international mutual legal assistance and requests for extradition. The material competence of Eurojust set out in Article 5 has been expanded by including a reference in Article 5(c) to "fraud, corruption and any other offence affecting the European Communities' financial interests" as well as a reference in Article 5(e) to "environmental crime". A new Article 5(2) has been added to permit Eurojust to assist in investigations and prosecutions for offences other than those listed in Article 5(1) where it is so requested by a competent national authority.

  2.7  Article 6 is a key provision setting out the tasks of Eurojust. It maintains the distinction made in the earlier versions between the tasks undertaken through national members of Eurojust and the tasks undertaken by Eurojust acting as a college. The material difference appears to be that, when a request is made by Eurojust acting as a college, a refusal by a Member State to comply with such a request must be explained to Eurojust, in accordance with the provisions of Article 6(4). The national authority must therefore give its reasons for not complying with a request to investigate or prosecute specific acts (Article 6(3)(i)), or with a request to waive the assertion of jurisdiction in favour of another investigating or prosecuting authority (Article 6(3)(ii)), unless "for pressing reasons" the authority is unable to give its reasons.

  2.8  Article 7 provides for national members of Eurojust. The nature and extent of the judicial powers granted to each member in the national territory is a matter for each Member State, as is the right of each national member to act in relation to foreign judicial authorities. The right of each member to consult national criminal records or the national Schengen Information System is again to be a matter for national law (Article 7(3)). Article 7a is a new provision intended to explain how Eurojust works collectively as a college. Provision is made in Article 7a(2) for rules of procedure to be adopted unanimously. Article 7a(3) provides for decisions on requests under Article 6(3)(a) for investigations or prosecutions to be adopted by a two-thirds majority. Other decisions are to be adopted in accordance with the rules of procedure.

  2.9  Articles 10 to 17 (which contain, inter alia, provisions on data protection) have not been subject to any amendment.

The Government's views

  2.10  In her Explanatory Memorandum of 18 April, the Minister describes and comments on the changes which have been made by the current document. We note, in particular, the following comments.

  2.11  On Articles 7 and 7a, the Minister comments:

"There are outstanding questions concerning 7.3 and 7.4 that will need to be pursued further in negotiations. On 7.3, these questions concern national members with different powers and competences as individuals. On 7.4, the practical issues concerning access to SIS[2] and national criminal records require further consideration.

"Article 7a is new. It is intended to explain how Eurojust works collectively as a College. Subject to the following caveats, the Government is generally content with the Article, including the 2/3 majority voting proposed for decisions under Article 6.3. ... The Government has withheld final agreement pending sight of an outline of the rules of procedure. The Presidency has undertaken to commission work on such an outline. The Government also believes that the Council should be involved in the adoption of rules of procedure and will argue for an appropriate textual change."

  2.12  The Minister comments generally that "a significant amount of further work is still required", and draws attentions to the following outstanding issues, namely:

"Article 6.3(f). Although the nature of the relationship with the European Judicial Network has undergone further clarification it is likely that the issue will need to be re-visited once the draft Decision is closer to its final form.

"Article 9 to 15 inclusive: The data and information protection regime proposed for Eurojust has not received detailed consideration. The Presidency has called an informal meeting for later this month to try to move towards consensus on an appropriate data protection regime for Eurojust. Now a clearer view of how Eurojust will operate is emerging, the Government will use that opportunity to ensure that its concerns are made known about the limited regime proposed in Articles 10 to 15.

"Article 16: The Government favours Eurojust having formal agreements with both Europol and OLAF. Article 16(1) now acknowledges the need for a formal agreement between Eurojust and Europol, but further work is required to clarify the Eurojust/OLAF relationship (cf. Article 16(3)).

"Article 18: The proposed management structure appears to lack accountability and transparency. The Government has made clear that acceptance of the use of the word "college" as shorthand for Eurojust acting collectively is without prejudice to the outstanding discussion on Article 18. There is also an associated discussion outstanding on the question of liabilities and immunities. The UK has already raised this during discussions.

"Article 22: The Government has still not reached a final view on the location for Eurojust, and the issue has not yet been discussed in the negotiations."


  2.13  We are grateful to the Minister for her letter of 19 April. We note the Government's statement that requests from Eurojust do not bind prosecution discretions and that the requirement to provide reasons for declining to follow a request is intended to ensure that requests are given "serious consideration", but that the final decision in each case will be for the competent national authority and for that authority alone. We consider this an important and helpful clarification, but we reserve the right to return to this issue in the light of the further negotiations on the Eurojust proposal.

  2.14  As the Explanatory Memorandum makes clear, a number of substantial issues remain for discussion, notably the data and information protection regime which is to apply to Eurojust, as well as its management structure. We request the Minister to keep us informed of the progress of negotiations.

  2.15  We agree with the Minister that the Council should be involved in the Adoption of the rules of procedure of Eurojust, and we look forward to seeing an outline of those rules in due course.

  2.16  We note that the material competence of Eurojust under the current proposal is to extend to fraud and corruption. However, it is not clear to us whether this extension applies generally, or whether it is confined to cases which affect the European Communities' financial interests. We should be grateful for the Minister's views on whether an ambiguity exists and, if so, on how it is to be resolved.

  2.17  We clear documents (a) and (b) on the grounds that they are now superseded, but shall hold document (c) under scrutiny.

2   i.e. the Schengen Information System. Back

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