Select Committee on European Scrutiny Thirty-Fourth Report



COM(01) 715
Green Paper on criminal law protection of the financial interests of the Community and the establishment of a European Prosecutor.

Legal base:
Department:Home Office
Basis of consideration:EM of 16 January 2002; Minister's letters of 19 March and 24 June 2002
Previous Committee Report:HC 152 -xix (2001-02), paragraph 5 (13 February 2002)
Discussed in Council:28 February/1 March 2002
Committee's assessment:Legally and politically important
Committee's decision:Cleared


  14.1  The proposal by the Commission to establish a European Public Prosecutor aims to improve the protection of the Community's financial interests through effective enforcement. The Commission presented an outline of its proposal at the Nice Intergovernmental Conference in 2000[16], but this contribution was not then taken up by the European Council. The European Council at Laeken in 2001 asked the Council to examine the present Green Paper "taking account of the diversity of legal systems and traditions" of Member States.

  14.2  The Commission gave a presentation of its proposals to the Justice and Home Affairs Council on 28 February and 1 March. The Council held a short discussion in which they noted several difficulties of a practical and constitutional order, and 'considered that the time had not come to take such a radical decision'[17]. It also appears[18] that only one Member State spoke in favour of the Commission's proposals at that Council.

  14.3  We considered the Green Paper proposals in detail on 13 February. We did not think that any sufficient case had been made out for the Commission's proposals, and agreed with the Government that the establishment of Eurojust made these proposals unnecessary. We identified a number of concerns of principle, such as the ready assumption by the Commission that the function of prosecuting offences should be combined with that of investigation, the notion that the European Public Prosecutor would have the power to commit a person for trial, and to determine the Member States in which the trial is to be held and the creation of differing standards of criminal responsibility for fraud according to whether or not the offence concerns the Community's financial interests. We were particularly concerned that the proposals had the effect of putting the prosecution function completely beyond the reach of democratic accountability.

  14.4  We asked the Minister to send us a copy of his proposed response to the Green Paper so that we could consider whether to contribute further comments and whether the matter should be debated. In his letter of 19 March the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) undertook to send a copy of the Government's proposed reply. The Minister also agreed with us that views should be sought from Scotland and Northern Ireland, having regard to the different organisation of prosecution functions in the various parts of the United Kingdom.

The Minister's letter

  14.5  In his letter of 24 June the Minister attaches a copy of his proposed reply to the Commission Green Paper. The Minister comments that in his response he maintains the line that the Government remains unconvinced of the need for, or desirability of, a European Public Prosecutor.

  14.6  The response to the Green Paper concentrates on issues of principle, rather than responding to the various detailed questions the Commission poses as to how the office of a European Public Prosecutor might be set up. The Minister's response points out that these questions are based on a presumption that the establishment of a European Public Prosecutor has been agreed, whereas the United Kingdom[19] remains 'unconvinced that creating an EPP would be necessary or desirable'.

  14.7  The response makes the following comments of principle on the proposals:

      "They appear to conflict with the subsidiarity principle, since they would have a major impact on Member States' laws and procedures without clear justification to show that the new arrangements are necessary and that they would bring added value;

      "The lack of accountability of the EPP to any national law officers or to Parliament. The Green Paper proposal fails to address crucial issues of transparency and accountability;

      "Creating a European Public Prosecutor on a First Pillar basis[20] such as Article 280 is incompatible with the balance currently found in the Treaties whereby the application of criminal law should, like the maintenance of law and order and national security, remain reserved to Member States."

  14.8  The Minister also points out that the effective prosecution of fraud within the Community can be achieved by other means such as by improvements in co-operation between the Member States and the development of bodies such as Eurojust, and that such co-operation "is most likely to be effective if it takes into account the differing structures of the national criminal justice systems, rather than seeking to impose a uniform European model."

  14.9  The response also identifies a number of practical concerns raised by the proposals, examples of which are described as follows:

      "We are concerned that the EPP's remit would oblige it to give priority to prosecution rather than other measures which can be more effective in protecting EU financial interests: for example, disrupting the activities of those involved in fraud, seizing illicitly trafficked goods before they reach the market, or negotiating out of court settlements to have the amounts illegally obtained repaid without the costs and risk of a prosecution. An EPP attempting to concentrate effort on mounting credible prosecutions would divert national authorities from selecting the best strategy to achieve the key objective of protecting Community funds.

      "Another practical difficulty in the EPP proposals is that they mainly focus on co-operation within the EU. Major frauds affecting EU financial interests are usually transnational and involve third countries. As the Green paper acknowledges the EPP would need to rely on mutual legal assistance requests by Member States. It is unlikely that the EPP would be more successful than individual Member States in securing co-operation from third countries.

      "Further practical difficulties may arise from the proposal for mutual admissibility of evidence. Although we support the principle of mutual recognition and welcome the fact that the Green Paper makes use of this concept, we have serious doubts about applying it just to one type of offence. The proposals in paragraph of the Green Paper could lead to two almost identical fraud cases being tried in one jurisdiction, but applying different rules of evidence because one case related to EU fraud but the other did not. Such differential treatment would be difficult to justify, and might even create bad publicity for the EU."

  14.10  The Minister concludes by observing that these practical difficulties underscore the Government's concerns that to create the European Public Prosecutor without clear and convincing justification would be in breach of the subsidiarity principle, and that the Government remains unconvinced that the Green Paper proposals would achieve the result of securing better protection of EU financial interests.


  14.11  We thank the Minister for showing us the draft response to the Green Paper. We strongly support the points which are made, in particular the references to the proposal amounting to a breach of the principle of subsidiarity.

  14.12  We continue to believe that this proposal is impractical and that it raises serious issues of principle. We see no reason for creating an institution at EU level, which will have the effect, on the one hand, of diluting the responsibility of Member States to deal with fraud and, on the other, of putting the function of criminal prosecutions beyond the reach of democratic accountability.

  14.13  We agree with the Government that the rules of evidence should not vary simply because of differences in the source of funds which are the object of fraud. In addition to creating 'bad publicity' for the EU, we believe that basing the rules of evidence on such factors is likely to lead to injustice.

  14.14  As the Green Paper has now served its purpose of eliciting views and is effectively spent, we are content to clear the document having seen the Government's proposed reply.

16   COM(2000) 608 (see also COM(2000) 34). Back

17  Bulletin Quotidien Europe No. 8162 of 2 March 2002. Back

18  See Written Answer by the then Parliamentary Under- Secretary of State at the Home Office: Official Report, 15 March 2002, col.1259W. Back

19  And, it seems, most other Member States. Back

20  i.e. under the EC Treaty. An amendment to the EC Treaty would be necessary in any event. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2002
Prepared 11 July 2002