16 Establishment of a European Prosecutor
| (24393)
7784/03
COM(03) 128
| Follow-up report on the Green Paper on the criminal law protection of the financial interests of the Community and the establishment of a European Prosecutor.
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| Legal base | —
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| Document originated | 19 March 2003
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| Deposited in Parliament | 31 March 2003
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| Department | Home Office
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| Basis of consideration | EM of 14 April 2003
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| Previous Committee Report | None; but see (22999) COM(01) 715: HC 152-xix (2001-02), paragraph 5 (13 February 2002) and HC 152-xxxiv (2001-02), paragraph 14 (26 June 2002)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
16.1 We reported on the proposals in the Commission's Green Paper
in detail on 13 February and considered the Government's proposed
reply to the Green Paper on 26 June. On both occasions we agreed
with the Government's assessment that no sufficient case had been
made out for the creation of a European Public Prosecutor. We
agreed that the proposal, if adopted, would constitute a breach
of the principle of subsidiarity. We also drew attention to the
lack of democratic accountability of such a Prosecutor, and that
in this regard the proposal would have the result of putting the
prosecution function in the Member States beyond the reach of
national parliaments.
16.2 Following the conclusion of the consultation period, the
Commission held a public hearing on its proposals on 16 and 17
September 2002 and, as appears from the present follow-up report,
took part in no fewer than twenty national seminars or international
conferences on the subject.
The document
16.3 The document is described as a follow-up report on the Green
Paper. It reviews the responses to the Green Paper and the outcome
of the public hearing, dealing first with a 'general evaluation'
of the merits of the proposal, before turning to a more detailed
consideration of the institutional changes which would be required,
as well as changes to the rules of evidence and criminal procedure
in the Member States.
16.4 In the passages dealing with a general evaluation of the
proposal, the report concludes that 'there is a clear majority
in favour of establishing a European Prosecutor', but that those
constituting this majority made a 'series of criticisms and suggestions
aimed at improving the legal framework proposed by the Commission'.
This conclusion is drawn from an analysis of 72 replies, over
50 of which were said to be in favour and 15 opposed, but there
is no description of those who were said to be in favour or the
interests they represented. The report refers to a minority which
'remained fairly sceptical' about the advisability and feasibility
of the proposal in the foreseeable future, and to a small minority
which 'categorically rejected' the idea of establishing a European
Prosecutor. The report does not identify the persons holding these
respective views, but it is apparent from the account of the views
expressed at the public hearing that a majority of representatives
of the governments of the Member States were either opposed to
the proposal or sceptical as to its feasibility. The report identifies
Denmark, France, Ireland, Austria, Finland and the United Kingdom
as those who 'reject the project out of hand'. Germany, Luxembourg
and Sweden are said to be sceptical, leaving Belgium, Greece,
Spain, the Netherlands, Portugal and 'to a certain extent' Italy
being said in principle to be in favour of the proposal.
16.5 Apart from the views expressed by Member States, the report
refers to a majority of 'front line operators' as supporting a
'qualitative step forward'. The report also draws the conclusion
that 'it is even clearer that a very large majority of representatives
from civil society view the establishment of a European Prosecutor
with responsibility for prosecuting Community fraud as a must
for the Union'. The report does not, however, explain the basis
for this conclusion.
16.6 The report seeks to argue that the European Prosecutor would
meet a practical need, but concedes that there are difficulties
in measuring the total volume of fraud, referring to the difficulties
in obtaining data on the extent of fraud and prosecution in the
Member States. The report states that the data gathered does not
provide an overall picture, because the powers involved are 'hopelessly
intertwined' between administrative and judicial bodies in the
Member States and because of the diversity in national data protection
rules. The report states that the Commission does not share the
point of view that the number of transnational fraud cases is
too small to justify establishing the European Prosecutor. The
report refers, but only in a footnote, to the statement made by
the United Kingdom representative that only 30% of fraud cases
involved more than one Member State or third countries, whereas
in 70% of cases the fraud was committed in only one Member State.
16.7 In further support of its argument that the European Prosecutor
would meet a practical need, the report refers to an estimate
that 'of every four cases investigated by OLAF that should give
rise to prosecution in the Member States, only one comes to trial'.
The report does not explain the reasons which might explain this
result (which might also include an insufficiency of evidence,
or relate to the quality of the investigations carried out), but
asserts that 'the figures available reveal a lack of an overall
and homogeneous vision and the will to prosecute unlawful acts
affecting the Community's financial interests.
16.8 The report indicates that the European Prosecutor would be
based on a 'decentralised internal organisation' based on an allocation
of functions between a European Prosecutor 'centralising the minimum
needed at the Community level' and Deputy European Prosecutors
in the national legal systems. The report does not reach any concluded
view on whether the Deputies would be answerable to the European
Prosecutor or to authorities within the national legal system.
16.9 In relation to the substantive criminal law the report refers
to a significant number of written responses expressing the view
that a minimum degree of approximation of the national rules of
criminal law would be essential to the 'smooth operation' of the
European Prosecutor. In relation to procedure, the report envisages
a principle of 'mandatory prosecution' requiring the European
Prosecutor to commence proceedings. It is also suggested that
he should be entitled to use the full range of investigation measures
available in all Member States, and that he should 'enjoy some
room for manoeuvre' in choosing the Member State in which to commence
proceedings. It is also proposed that "any national court
hearing a criminal case on the merits where interests protected
by the Prosecutor are at stake would be obliged to admit evidence
legally obtained in accordance with the national law of another
Member State".
16.10 In a section of the report entitled 'political follow-up'
to the Green Paper, it is concluded that 'the debate has developed
a real momentum and there seems a growing awareness of the need
for a European Prosecutor and the added value such an institution
would provide in the fight against crime against Communities'
financial interests'.
The Government's view
16.11 In his Explanatory Memorandum of 14 April the Parliamentary
Under-Secretary of State at the Home Office (Lord Filkin) disagrees
with the Commission's assertion that it has majority support for
the European Public Prosecutor. The Minister points out that the
majority of respondents were non-governmental practitioners and
members of civil society, many of whom are also members of the
Commission's network of fraud practitioners, and that their views
are not necessarily representative of majority opinion in the
Member States.
16.12 In relation to the views of the Member States, the Minister
comments as follows:
"The Government also disagrees with the Commission's conclusions
that the majority of Member States, who attended the Public Hearing,
were in favour of the EPP. A number of these Member States voiced
significant practical reservations against the proposal and some
said that it could not be justified solely in the context of protecting
the Community's budget. The Government therefore does not agree
that the majority of Member States support this proposal. The
Commission acknowledged that a minority of Member States; including
Denmark, Ireland, Finland, UK and Austria were totally
opposed to the EPP. The Commission also included France in this
category, although France has subsequently emerged as a supporter
of the EPP concept. Since the hearing, Sweden and the Netherlands
have joined the group of countries opposed to the EPP. Member
States opposed to the EPP expressed their views strongly at the
JHA Council at Veria and in the Convention on the Future of Europe.
"The Commission has failed to justify that the creation of
an EPP is necessary in order to tackle Community fraud more effectively.
In particular it was not able to produce figures on the level
or type of fraud to support their assertion that the creation
of an EPP is the most efficient solution to the problem. The reports
also failed to consider or evaluate other solutions.
"The Commission acknowledges that its proposal for an EPP
does require further work. It has yet to establish how conflicts
of jurisdiction would be settled, how the EPP would relate to
Eurojust or OLAF or for example how the EPP would link with national
criminal systems in dealing with hybrid cases. It also recognises
that the different rules of evidence and procedure in Member States
must be addressed. The Commission's view is that the rules of
evidence would require a certain degree of harmonisation and minimum
standards would need to be set for defence rights. The Commission
will use the results of the consultation on its Green Paper on
Procedural Guarantees to develop these ideas more fully. The UK
continues strongly to oppose the EPP, and we are encouraged by
the number of Member States who share this view."
Conclusion
16.13 We continue to share and support
the Government's opposition to this proposal, which we regard
as unnecessary, impractical and a breach of the principle of subsidiarity.
16.14 In our view, the follow-up report
has treated the remarks of consultees in a highly selective fashion
and does not properly reflect the substantial body of opinion
which is opposed to the creation of a European Public Prosecutor.
16.15 Since the report does no more than
report on the consultation the Commission has carried out, we
are content to clear
it from scrutiny. We intend to revert
to this question in our consideration of the report of Working
Group X of the Convention on the Future of Europe on 'Freedom,
Security and Justice'.
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