Select Committee on European Scrutiny Ninth 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)Minister's letter of 28 November 2001

(b) and (c) EM of 29 November 2001

Previous Committee Report: HC 152-vi (2001-02), paragraph 1 (14 November 2001)
To be discussed in Council: 6-7 December 2001
Committee's assessment: Legally and politically important
Committee's decision: (All) Cleared


  12.1  We last considered a number of documents relating to the establishment of a European judicial cooperation unit, Eurojust, on 14 November. We held the then current version (document (a)) under scrutiny pending further information from the Minister on the progress of the negotiations. We remained concerned with three issues, namely whether the material competence of Eurojust was to extend to fraud and corruption generally or only to those offences which affect the European Communities' financial interests, the role of the Commission and its anti-fraud body (OLAF) in Eurojust, and progress on resolving the question of data-sharing between OLAF and Eurojust.

  12.2  The version of the proposal which we examined on 14 November (document (a)) has been superseded by new versions (documents (b) and (c)). The current version is document (c) and, with document (b), is the subject of the Explanatory Memorandum of 29 November. This describes the various detailed amendments which have been made, but the further changes appear to be of a minor and consequential nature . The outstanding substantive issues which we raised on 14 November are addressed in the letter of 28 November 2001 from the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth).

The Minister's letter

  12.3  In his letter, the Minister first addresses the question of the material competence of Eurojust as follows:

"I have noted your Committee's comments on the question of the scope of Eurojust's competence with regard to fraud and the link to the current discussions on widening Europol's competence. As paragraph 17 of the Home Office EM of 22 October 2001 made clear, the Government fully supports the text at Article 5.1(b), which provides Eurojust with a general competence with regard to fraud and corruption and not just that affecting the European Communities' financial interests. Footnote 2 at the bottom of page 7 of document 11685/4/01 intends to make clear that if Europol's competence is extended before the Eurojust Decision is adopted then it may be necessary to make minor textual changes to Article 5.1 in order to fully reflect the position at the time of adoption."

  12.4  On 14 November, we drew attention to the vagueness in the way the relationship of the Commission and Eurojust was being described. We also asked the Minister if he was satisfied that the present proposal could not lead to the Commission taking any part in prosecution decisions taken in relation to law enforcement in this country. On this central point the Minister responds in detail as follows:

"I note that your Committee remains concerned over the vagueness of the way in which the relationship between the Commission and Eurojust is described in Article 7b. It was felt that the use of so many different terms to describe the same relationship could lead to difficulties in practice, with concerns that this might lead to the Commission taking part in prosecution decisions taken in relation to law enforcement in the United Kingdom. While acknowledging the language used in the draft Decision differs from that used in Article 36(2) TEU, I am satisfied with the current wording describing the relationship between Eurojust and the Commission. I am content it does not invite difficulties in practice, nor does it lead to the Commission taking any part in prosecution decisions.

"The Government's view on the relationship between Eurojust and the Commission was set out in paragraph 23 of the Home Office EM dated 22 October 2001. Throughout the negotiations the Government has emphasised that the Commission should not [be] able to take on any additional powers with regard to investigations and prosecutions. The solution proposed in Article 7b is a compromise that involves separating the provisions concerning the Commission from those dealing with its Anti-Fraud Office (OLAF). Article 7b retains the general language used in earlier versions of the draft Decision, but it does not give the Commission equivalence with the Member States and neither does it give it a seat in Eurojust's college. I have accepted the compromise contained in Article 7b, particularly as 7b.2, which deals with investigations and prosecutions, makes clear that any Commission involvement will only be at Eurojust's invitation. The expertise that the Commission may be invited to contribute in such cases will be primarily restricted to interpretation of Community law. On that basis I can give the assurance your Committee is seeking that I am satisfied that there is nothing in the Eurojust Decision that confers any additional powers on the Commission with regard to investigation and prosecution decisions."

  12.5  The final point we raised on 14 November concerned the arrangements for sharing data between the Commission's anti-fraud office OLAF and Eurojust. The proposal required Member States to appoint their national members of Eurojust as competent authorities for the purposes of the provisions of Council Regulations No 1073/99 and No 1074/99 relating to the forwarding of information from OLAF.[36] The Government was concerned that this might lead to a blurring of the functions which national members carry out within their own judicial systems and their role within Eurojust, but now accepts this as a compromise. The Minister explains the position as follows:

"Finally, your Committee asked to be kept informed of progress on resolving the question of data exchange between Eurojust and OLAF (Article 16a.5 refers). As paragraph 16 of the Home Office EM of 12 November 2001 made clear, the Government was concerned that the solution proposed to enable data exchange blurred the distinction between activities that national members carry out as judicial officers of their own Member State and those they carry out for and on behalf of Eurojust. During further negotiations, the Government argued in favour of a solution that would allow OLAF to recognise Eurojust itself as a competent authority solely for the purposes of data exchange, but this failed to attract any support. Other Member States were prepared to accept the solution offered in Article 16a.5 as an acceptable compromise to resolve the legal difficulty that would otherwise inhibit data exchange between OLAF and Eurojust. In the absence of any support and noting the use of the qualifying phrase, 'without prejudice to Article 7', the Government has indicated that it is also willing to accept this compromise."


  12.6  We are grateful to the Minister for his detailed Explanatory Memorandum on this subject and for his most recent helpful letter.

  12.7  We note the position in relation to the competence of Eurojust to deal with fraud and corruption generally, and agree that this should not be confined to offences affecting the European Communities' financial interests. We welcome the resolution of the textual ambiguity in this matter.

  12.8  Throughout the examination of the Eurojust proposals, by us and the previous Committee, it has been considered important that there should not arise any interference with the discretions exercised at national level by prosecution authorities, and the Minister has given assurances in that regard. We regard it as being of like importance that the Commission and OLAF should not be given any role in decisions relating to investigations and prosecutions under the Eurojust system. The Minister has given an assurance in clear terms on this point, and we accept this assurance.

  12.9  We also consider that the Minister has given a full and satisfactory account of the solution reached with regard to the exchange of data with OLAF.

  12.10  We have no further points of principle to raise on these proposals, and are therefore content to clear the documents.

36  OJ No. L136, 31.5.99 p.1, p.8. Article 10 of these Regulations provides for the forwarding of information from OLAF to the competent authorities of the Member States.  Back

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