EUROPEAN JUDICIAL COOPERATION UNIT (EUROJUST)
(a)
(21897)
14052/00
(b)
(21972)
14900/00
(c)
(22273)
7408/01
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Draft Council Decision setting up EUROJUST.
Draft Council Decision setting up EUROJUST.
Draft Council Decision setting up EUROJUST.
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| Legal base: |
Articles 31 and 34(2)(c) EU; consultation; unanimity
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| Department: |
Home Office |
| Basis of consideration:
| (a) and (b)Minister's letter of 19 April 2001
(c) EM of 18 April 2001
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| Previous Committee Report:
| HC 28-vi (2000-01), paragraph 2 (14 February 2001) and HC 28-xi (2000-01), paragraph 3 (4 April 2001)
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| To be discussed in Council:
| No date set |
| Committee's assessment:
| Legally and politically important
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| Committee's decision:
| (a) and (b) Cleared
(c) Not cleared; further information requested
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Background
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."
Conclusion
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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