2 Reform of Eurojust
| (35216)
12566/13
COM(13) 535
| Draft Regulation on the European Union Agency for Criminal Justice Co-operation (Eurojust)
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| Legal base | Article 85 TFEU; QMV; co-decision
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| Document originated | 17 July 2013
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| Deposited in Parliament | 22 July 2013
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| Department | Home Office
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| Basis of consideration | EM of 7 August 2013
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| Previous Committee Report | None; but see (22788) 11685/4/01, (22890) 11685/5/01, and (22923) 11685/6/0: HC 152-ix (2001-02); chapter 12 (18 December 2001); (29306) 5037/08, (29551) 7254/08, and (29747) 10663/08: HC 16-xxvi (2007-08); chapter 10 (2 July 2008)
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| Discussion in Council | October
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; opt-in decision for debate on the floor of the House, together with the draft Regulation for a European Public Prosecutor's Office; further information requested
|
Background
2.1 Eurojust was established in 2002[81]
to support cooperation between Member States in cross-border criminal
investigations and prosecutions, particularly in cases involving
multiple jurisdictions. Its current role involves advising on
the requirements of different legal systems, supporting the operation
of Mutual Legal Assistance (MLA) (judicial cooperation) arrangements,
bringing together national authorities in coordination meetings,
and providing funding and technical support to Joint Investigation
Teams (JITs).
2.2 This proposal is intended to reform the EU agency
Eurojust. The 2002 Council Decision was amended in 2003 and again
in 2009.[82] This new
proposal would repeal and replace the existing measures.
2.3 The Commission had indicated its intention to
bring forward a proposal to reform Eurojust for some time. It
was referenced in the 2012 Work Programme. The proposal that has
been published comes as part of a package of Commission proposals
on protecting the EU's financial interests. The associated elements
of the package are a legislative proposal to create a European
Public Prosecutor's Office (EPPO), and a Communication on reinforcing
the role of OLAF. All three documents are reported together in
this Report.
2.4 On page 2 of the explanatory memorandum, the
Commission puts the proposal in the following context:
"The fight against organised crime and the
disruption of criminal organisations remain a daily challenge.
Regretfully, the past decade has seen an explosion of cross-border
crime. Drug trafficking, trafficking in human beings, terrorism
and cybercrime, including child pornography are some examples.
A common feature of all these areas of crime is that they are
committed across borders by highly mobile and flexible groups
operating in multiple jurisdictions and criminal sectors. Combating
them effectively therefore requires a coordinated pan-European
response.
"The increased cross-border dimension of
crime as well as its diversification into multi-crime activities
make it more difficult for single Member States to detect and
tackle cross-border crime, and in particular organised crime.
In this context, Eurojust's role in improving judicial cooperation
and coordination between competent judicial authorities of Member
States and assisting investigations involving third countries
remains crucial.
"Under the Lisbon Treaty, new possibilities
to enhance Eurojust's efficiency in tackling these forms of criminality
have been introduced. Article 85 of the Treaty on the Functioning
of the EU (TFEU) explicitly recognises Eurojust's mission of supporting
and strengthening coordination and cooperation between national
investigating and prosecuting authorities in relation to serious
crime affecting two or more Member States or requiring a prosecution
on common bases. It is therefore important to ensure that the
best possible use is made of Eurojust and that obstacles to its
efficient functioning are removed."
Legal base
2.5 Article 85 TFEU explicitly recognises Eurojust's
mission of supporting and strengthening coordination and cooperation
between national investigating and prosecuting authorities in
relation to serious crime affecting two or more Member States
or requiring a prosecution on common bases.
2.6 Article 85 TFEU provides for Eurojust's structure,
operation, field of action and tasks to be determined by regulations
adopted in accordance with the ordinary legislative procedure.
2.7 It also requires that they determine arrangements
for involving the European Parliament and national Parliaments
in the evaluation of Eurojust's activities.
2.8 As the legal base is contained within Title V
TFEU, the proposal triggers the JHA opt-in and the UK will therefore
have three months from the date of publication of the final language
version of the proposal to decide whether to participate. The
deadline is 21 November 2013.
Previous scrutiny
2.9 On clearing the original Council Decision establishing
Eurojust on 18 December 2001 our predecessors concluded as follows:
"We are grateful to the Minister for his
detailed Explanatory Memorandum on this subject and for his most
recent helpful letter.
"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.
"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."[83]
The document
2.10 The new proposal retains many of the core functions
of Eurojust, but also suggests reforms to the governance and management
structure of the Agency; to the powers of national members; to
its accountability to the European Parliament and national Parliaments;
and to its working arrangements with a new body, the EPPO. We
set out below the salient provisions.
ARTICLE 2 — TASKS
2.11 The tasks of Eurojust are defined as supporting
and strengthening "coordination and cooperation between national
investigating and prosecuting authorities in relation to serious
crime affecting two or more Member States, or requiring a prosecution
on common bases, on the basis of operations conducted and information
supplied by the Member States' authorities and by Europol".
2.12 In the implementation of these tasks Eurojust
is obliged to
"a) take into account any request emanating
from a competent authority of a Member State or any information
provided by any body competent by virtue of provisions adopted
within the framework of the Treaties or collected by Eurojust
itself;
"b) facilitate the execution of requests
for, and decisions on, judicial cooperation, including those based
on instruments giving effect to the principle of mutual recognition."
It can exercise its tasks at the request of the competent
authorities of the Member States or on its own initiative.
ARTICLE 3 — COMPETENCE
2.13 Eurojust's competence covers the forms of crime
listed in Annex 1. Its competence shall not, however, include
the crimes for which the European Public Prosecutor's Office is
competent.
2.14 Annex 1 crimes are listed as: organised crime;
terrorism; drug trafficking; money-laundering; corruption; crime
against the financial interests of the Union; murder, grievous
bodily injury; kidnapping, illegal restraint and hostage taking;
sexual abuse and sexual exploitation of women and children, child
pornography and solicitation of children for sexual purposes;
racism and xenophobia; organised robbery; motor vehicle crime;
swindling and fraud; racketeering and extortion; counterfeiting
and product piracy; forgery of administrative documents and trafficking
therein; forgery of money and means of payment; computer crime;
insider dealing and financial market manipulation; illegal immigrant
smuggling; trafficking in human beings; illicit trade in human
organs and tissue; illicit trafficking in hormonal substances
and other growth promoters; illicit trafficking in cultural goods,
including antiquities and works of art; illicit trafficking in
arms, ammunition and explosives; illicit trafficking in endangered
animal species; illicit trafficking in endangered plant species
and varieties; environmental crime; ship-source pollution; crime
connected with nuclear and radioactive substances; genocide, crimes
against humanity and war crimes.
2.15 Eurojust's competence also covers "related
criminal offences", defined as:
"a) criminal offences committed in order
to procure the means of perpetrating acts listed in Annex 1;
"b) criminal offences committed in order
to facilitate or carry out acts listed in Annex 1;
"c) criminal offences committed to ensure
the impunity of acts listed in Annex 1."
2.16 At the request of a Member State's competent
authority, Eurojust may also assist investigations and prosecutions
affecting only that Member State and a third country where a cooperation
agreement or arrangement establishing cooperation (pursuant to
Article 43 of the draft Regulation) has been concluded with that
third country or where in a specific case there is an essential
interest in providing such assistance.
2.17 At the request either of a Member State's competent
authority or of the Commission, Eurojust may assist investigations
and prosecutions affecting only that Member State and the EU.
ARTICLE 4 — OPERATIONAL FUNCTIONS
2.18 The operational functions of Eurojust are to:
"a) inform the competent authorities of
the Member States of investigations and prosecutions of which
it has been informed and which have repercussions at Union level
or which might affect Member States other than those directly
concerned;
"b) assist the competent authorities of
the Member States in ensuring the best possible coordination of
investigations and prosecutions;
"c) give assistance in order to improve
cooperation between the competent authorities of the Member States,
in particular on the basis of Europol's analyses;
"d) cooperate and consult with the European
Judicial Network in criminal matters, including making use of
and contributing to the improvement of the documentary database
of that European Judicial Network;
"e) provide operational, technical and financial
support to Member States' cross-border operations and investigations,
including joint investigation teams."
2.19 In the exercise of its tasks, Eurojust may ask
Member State authorities (with duly justified reasons) to:
"a) undertake an investigation or prosecution
of specific acts;
"b) accept that one of them may be in a
better position to undertake an investigation or to prosecute
specific acts;
"c) coordinate between the competent authorities
of the Member States concerned;
"d) set up a joint investigation team in
accordance with the relevant cooperation instruments;
"e) provide it with any information that
is necessary to carry out its tasks;
"f) take special investigative measures;
"g) take any other measure justified for
the investigation or prosecution."
2.20 Eurojust may also:
"a) provide Europol with opinions based
on analyses carried out by Europol;
"b) supply logistical support, including
assistance for translation, interpretation and the organisation
of coordination meetings."
2.21 Where two or more Member States cannot agree
on which of them should undertake an investigation or prosecution
following a request made under point (b) of paragraph 2.18 above,
Eurojust will issue a written opinion on the case, which is promptly
forwarded to the Member States concerned.
2.22 On the request of a competent authority Eurojust
will issue a written opinion on recurrent refusals or difficulties
concerning the execution of requests for, and decisions on, judicial
cooperation, including those based on instruments giving effect
to the principle of mutual recognition, provided it cannot be
resolved through mutual agreement between the competent national
authorities or through the involvement of the national members
concerned. The opinion shall be promptly forwarded to the Member
States concerned.
ARTICLE 5 — EXERCISE OF OPERATIONAL FUNCTIONS
2.23 Eurojust shall act through one or more of the
national members concerned when taking any of the actions referred
to in paragraphs 2.18 and 2.19 (Article 4(1) or (2)) above.
2.24 Eurojust shall act as a College:
"a) when taking any of the actions referred
to in Article 4(1) or (2):
"(i) when so requested by one or more of
the national members concerned by a case dealt with by Eurojust;
"(ii) when the case involves investigations
or prosecutions which have repercussions at Union level or which
might affect Member States other than those directly concerned;
"b) when taking any of the actions referred
to in Article 4 (3), (4) or (5);
"c) when a general question relating to
the achievement of its operational objectives is involved;
"d) when otherwise provided for in this
Regulation."
2.25 When it fulfils its tasks, Eurojust shall indicate
whether it is acting through one or more of the national members
or as a College.
ARTICLE 7 — STATUS OF NATIONAL MEMBERS
2.26 Member States second one national member —
a prosecutor, judge or police officer — to work full-time
in Eurojust. Each national member is assisted full-time by one
deputy and by an assistant, or more if needs be. Member States
grant national members the power to fulfil the tasks conferred
on them by the Eurojust Regulation. The deputy and assistant can
act on behalf of or substitute the national member.
2.27 Operational information exchanged between Eurojust
and Member States is directed through the national members. National
members contact the competent authorities of their Member State
directly.
2.28 The salaries and emoluments of the national
members, deputies and assistants are borne by their Member State
of origin.
ARTICLE 8 — POWERS OF NATIONAL MEMBERS
2.29 National members shall have the power to:
"a) facilitate or otherwise support the
issuing and execution of any mutual legal assistance or mutual
recognition request or issue and execute them themselves;
"b) contact directly and exchange information
with any national competent authority of the Member State;
"c) contact directly and exchange information
with any competent international authority, in accordance with
the international commitments of their Member State;
"d) participate in joint investigation teams
including in their setting up."
2.30 In agreement with the competent national authority
national members shall:
"a) order investigative measures;
"b) authorise and coordinate controlled
deliveries in the Member State in accordance with national legislation."
2.31 In urgent cases when timely agreement cannot
be reached, the national members "shall be competent to take
the measures referred to in paragraph 2, informing as soon as
possible the national competent authority".
ARTICLE 20 — EUROJUST NATIONAL COORDINATION
SYSTEM
2.32 Each Member State is obliged to designate one
or more national correspondents for Eurojust.
2.33 Each Member State is obliged to set up a Eurojust
national coordination system to ensure coordination of the work
carried out by:
"a) the national correspondents for Eurojust;
"b) the national correspondent for Eurojust
for terrorism matters;
"c) the national correspondent for the European
Judicial Network in criminal matters and up to three other contact
points of that European Judicial Network;
"d) national members or contact points of
the Network for Joint Investigation Teams and of the networks
set up by Decision 2002/494/JHA, Decision 2007/845/JHA and by
Decision 2008/852/JHA."
2.34 The national correspondents for Eurojust are
responsible for the functioning of the Eurojust national coordination
system.
2.35 The Eurojust national coordination system is
intended to help carry out the tasks of Eurojust within a Member
State, in particular by:
"a) ensuring that the Case Management System
referred to in Article 24 receives information related to the
Member State concerned in an efficient and reliable manner;
"b) assisting in determining whether a case
should be dealt with the assistance of Eurojust or of the European
Judicial Network;
"c) assisting the national member to identify
relevant authorities for the execution of requests for, and decisions
on, judicial cooperation, including those based on instruments
giving effect to the principle of mutual recognition;
"d) maintaining close relations with the
Europol National Unit."
ARTICLE 41 — RELATIONS WITH THE EUROPEAN PUBLIC
PROSECUTOR'S OFFICE
2.36 The Commission has interpreted the obligation
in Article 86 TFEU to establish the EPPO "from Eurojust"
by creating an "operational, administrative and management
link" between them. This includes the following:
· the
ability of the EPPO to request Eurojust or its competent national
members to use their powers under Union or national law regarding
acts of investigation that may fall outside the EPPO's scope of
competence and/or to support the transmission of EPPO requests
or decisions for Mutual Legal Assistance.
· the
ability for the EPPO to attend Eurojust College and Executive
Board meetings (Articles 12(3) and 16(7) & (8));
· Eurojust
treating any requests for support from the EPPO as if they had
been received from a national competent authority (Article 41(2);
· exchanging
information, including personal data;
· automatic
cross-checking of data held by Eurojust and the EPPO on a shared
Eurojust Information Technology (IT) platform known as the Case
Management System;
· a role
for Eurojust in "facilitating agreement" between the
EPPO and Member States that participate in the EPPO over the EPPO's
competence on "ancillary offences" — i.e. offences
linked to offences against the EU's financial interests; and
· use
by the EPPO of elements of Eurojust's administration and infrastructure.
2.37 The Eurojust and EPPO proposals as published
by the Commission would also see the EPPO have exclusive competence
for offences against the EU's financial interests (PIF offences).
ARTICLE 55 — INVOLVEMENT OF THE EUROPEAN PARLIAMENT
AND NATIONAL PARLIAMENTS
2.38 Article 55 is new, and requires Eurojust to
transmit its Annual Report to the European Parliament, which may
present observations and conclusions; and for the President of
the College to appear before the European Parliament when requested,
in particular to present its Annual Reports. The details of operational
cases should remain confidential, however.
2.39 In addition, Eurojust must transmit to the European
Parliament for information: the results of studies and strategic
projects elaborated or commissioned by Eurojust; working arrangements
concluded with third parties; and the annual report of the European
Data Protection Supervisor.
2.40 Under subsection (4) Eurojust shall transmit
all of the above information to national parliaments.
The Government's view
2.41 The Minister for Immigration at the Home Office
(Mr Mark Harper) submitted an Explanatory Memorandum on the proposal
on 7 August.
IMPACT ON UNITED KINGDOM LAW
2.42 Under this heading the Minister says that requiring
all Eurojust national members to be given powers to order investigative
measures or authorise and coordinate controlled deliveries (which
we assume to mean the transfer of certain evidence) in certain
circumstances would require changes to criminal justice systems
within the UK, particularly with regard to the separation of function
as between law enforcement and prosecutors in England, Wales and
Northern Ireland. Similarly, these proposals would also require
changes to criminal justice arrangements in Scotland, where law
enforcement has separate functions, although the prosecutor can
direct the police in relation to investigations.
FUNDAMENTAL RIGHTS ANALYSIS
2.43 It is the Government's view that this draft
Regulation engages Article 7 (respect for private and family life),
Article 8 (protection of personal data), Article 17 (right to
property), Article 42 (right to access to documents), Article
48 (presumption of innocence and right of defence) and Article
50 (right not to be tried or punished twice in criminal proceedings
for the same criminal offence) of the Charter of Fundamental Rights.
Accordingly, any engagement with these rights must be justified
in accordance with Article 52 of the Charter. The criteria for
such a justification are the following: the interference must
be provided for by law and respect the essence of the particular
right in question; and the interference must comply with the requirements
of necessity and proportionality.
2.44 The data exchange provisions in this proposal
risk interfering with rights enshrined under Article 7 (respect
for private and family life), Article 8 (protection of personal
data), Article 17 (right to property) and Article 42 (right to
access to documents) of the Charter. Some of the language in the
Eurojust proposal seems to provide scope and flexibility for
Member States to provide conditions and restrictions on the use
and processing of data provided to Eurojust, which illustrates
that there are mechanisms to restrict the use of data where the
sharing of it is not strictly necessary or proportionate. The
purpose of Eurojust's data exchange and processing powers appear
to be directly related to its general functions. However, given
that both the draft EU Data Protection Directive and Regulation
are currently under negotiation themselves, it is difficult to
assess the full implications of the data protection provisions
in the Eurojust proposal at the moment.
2.45 There is a risk that providing the national
members with mandatory powers to order investigative measures,
issue and execute MLA requests, authorise and coordinate controlled
deliveries and participate in JITs, for example, will interfere
with the private and personal property rights mentioned above
and the rights of the defence and the principle of ne
bis in idem as enshrined in Articles 48 and 50 of the Charter.
This is because the powers set out in the Eurojust proposal could,
for example, lead to an MLA request being executed by a national
member without agreement with the competent national authorities
and without sufficient regard for Charter rights. For example,
a Greek national member could, without consulting the Greek competent
national authorities, execute an MLA request from Poland for the
search and seizure of a suspect's home in relation to an offence
that he has already been convicted for, which would, of course,
not respect Article 50 of the Charter. Further analysis will therefore
need to be done on the extent of the restrictions and safeguards
in place for the exercise of these newly drafted powers and the
impact that this may have on the Charter rights of affected individuals.
Article 7(3) states that it is for the competent national authorities
to grant the national members with the relevant powers outlined
in the Regulation but there is no corresponding provision which
subjects such powers to the same conditions and restrictions that
are set out in national law. It is also arguably unnecessary and
disproportionate to grant the national members these mandatory
powers if the discretionary powers set out in the current Eurojust
measure work effectively as they are now.
2.46 It should also be noted that although Recital
8 of the proposal confirms that the Eurojust proposal respects
Charter rights, there is currently an absence of a substantive
provision within the main body of the text that states that the
activities of Eurojust and National Members should in all instances
be carried out in full respect of Charter rights.
SUBSIDIARITY
2.47 Given Eurojust is an existing EU Agency it can
be argued that the case for subsidiarity has been met. However,
the Government questions the necessity of the Commission's proposal
that all national members should have certain specified powers
without the discretion afforded by the current Council Decision,
which enables certain powers not to be applied where they would
be contrary to fundamental aspects of the criminal justice system.
POLICY IMPLICATIONS
2.48 The Government has said previously that the
current Eurojust Council Decision should be evaluated before a
new proposal is brought forward. The Government notes, however,
that the Commission has published its proposal before the ongoing
evaluation is completed, whereas that is not due to be completed
until next year.
Application of the JHA Opt-in
2.49 The
Government decision on the exercise of the opt-in in relation
to this proposal will consider whether participation in the measure
as drafted would benefit the security of the UK and its citizens
including the protection of their civil liberties and rights as
well as the extent of the impact on national criminal justice
systems. The Government has said that it sees the current Eurojust
measures as a positive model of cross-border co-operation. That
is why the Government has announced it will seek to rejoin the
current Eurojust measures as part of the decision on Protocol
36 to the Treaties (the 2014 decision). However, it is concerned
by elements of the new proposal, particularly the proposed extension
of powers of national members and what this will mean at an operational
level.
2.50 The Minister expects
this proposal will be of particularly strong interest to Parliament
and therefore, in line with the Minister for Europe's statement
of 20 January 2011, confirms the Government's commitment to offer
Government time for a debate on the opt-in decision, known as
a 'Lidington' debate.
Structure and governance of Eurojust
2.51 The Commission's proposed reforms to Eurojust's
structure do not include the creation of a Management Board with
a Director, which is the common model for EU Agencies as described
in its Communication setting out a "Common Approach"
to EU decentralised Agencies. Instead, the reforms centre on the
creation of an Executive Board, whilst retaining the current model
of a College of National Members headed by a President (elected
by the College) to oversee Eurojust's collective management and
operational responsibilities.
2.52 The Executive Board would consist of: the President
and Vice-Presidents of the College, one representative of the
Commission and one other representative of the College. This deviation
from the Common Approach is explained by the Commission on the
basis that the retention of the College is necessary for operational
functions, whilst the introduction of an Executive Board would
support the administration and overall management of the agency.
The Executive Board would have responsibility for certain administrative
decisions, such as rules relating to staff regulations, and assisting
the College with its management functions (described in Article
14), such as adoption of Eurojust's programming document and budget.
2.53 The Government notes in particular the proposal
for the Executive Board to prepare the decisions to be adopted
by the College in accordance with Article 14. When the College
takes management decisions, the Commission's proposal also foresees
two representatives of the Commission sitting on the College.
The Government will want fully to explore the Commission's rationale
for not creating a Management Board, similar to that of Europol,
and examine carefully how the Executive Board would operate in
practice. It has some concerns about whether the model proposed
is best suited to good governance. Additionally, the risk remains
that involvement of National Members in management decisions will
continue to detract them from core operational casework.
2.54 The Government also notes that the European
Public Prosecutor (EPP) will receive agendas of all Executive
Board and College meetings and is free to participate but not
vote in meetings that he or she considers of relevance to the
functioning of the EPPO. The EPP may address written opinions
to the Executive Board and the College which are to be responded
to in writing without delay. There are no corresponding provisions
for the Eurojust President to attend EPPO meetings or address
opinions to the EPP in the EPPO Regulation and the Government
questions this disparity.
Powers of national members
2.55 The
Commission proposal (Article 8) requires that all national members
shall be given certain powers. In particular, Article 8(2) and
(3) would require national members to be given the power to order
investigative measures and authorise and co-ordinate controlled
deliveries either "in agreement" with competent authorities
or without prior agreement in urgent cases. This is a significant
issue since it would remove the discretion currently available
to Member States not to grant certain powers to their national
members where to do so would, for example, be contrary to fundamental
aspects of a Member State's criminal justice system.
2.56 The mandatory power
for national members to order investigative measures and/or authorise
and co-ordinate controlled deliveries is inconsistent with the
common law systems in England, Wales and Northern Ireland. The
UK national member is a prosecutor (the Government thinks a prosecutor
is best suited to the role), but the responsibility for ordering
investigative measures (including making an application to a court)
and authorising and coordinating controlled deliveries is the
responsibility of law enforcement officials. Similarly, these
proposals are also inconsistent with criminal justice arrangements
in Scotland, where law enforcement has separate functions, although
the prosecutor can direct the police in relation to investigations.
2.57 Additionally, Article 8(1) would require all
national members to be given the powers to facilitate or otherwise
support the issuing and execution of any mutual legal assistance
or mutual recognition request, or issue and execute them themselves.
The Government will want to explore the Commission's rationale,
and evidence base, for such mandatory powers. The UK's practices
regarding the ordering of investigative measures and controlled
deliveries is established, structured, and works well. Even with
these powers in place, it is highly unlikely the UK national member
would ever wish or need to use them.
Joint Investigation Teams (JITS)
2.58 Although JITs are established under a separate
EU instrument, Eurojust has in recent years been responsible for
administering an EU JIT funding project, although that will shortly
expire. Between December 2009 and July 2013, UK applications for
JIT funding from Eurojust led to receipt of around £1.56m.
The draft Regulation includes provision for Eurojust to continue
funding JITS in Article 4(1)(e), which is welcome.
Operational functions of Eurojust
2.59 Article 23 of the proposed Regulation retains
the existing right of Eurojust not to give a reason for a request
to a Member State, other than citing "operational reasons",
where to provide more would harm essential national security interests
or would jeopardise the safety of individuals. The draft Regulation
does however lose the explicit reference to College decisions
being 'non-binding'; the Government will want to ensure in negotiations
however that College opinions are indeed non-binding.
Legal personality and capacity
2.60 The Government notes that there has been a change
in the wording of the provision which deals with the legal personality
and capacity of Eurojust. The current Eurojust instrument says
that "Eurojust shall have legal personality",
whereas the new proposal says "In each of the Member
States, Eurojust shall enjoy the most extensive legal capacity
accorded to legal persons under their laws" (Article
1 (3)). It appears this could have the effect of increasing the
legal capacity of Eurojust in some Member States. The Government
will seek full clarification on this in negotiation.
Relations with other bodies
EPPO
2.61 The Government has made clear that it will not
participate in the Commission's parallel EPPO proposal, as confirmed
in the Coalition Agreement. The draft Eurojust Regulation envisages
a "special relationship" between the EPPO and Eurojust.
The Government will want to examine the Commission's proposals
for the interaction of these two bodies very carefully during
negotiation.
2.62 The Eurojust and EPPO proposals as published
by the Commission would also give the EPPO exclusive competence
for offences against the EU's financial interests (PIF offences).
As drafted the EPPO proposals would appear to mean that Eurojust
would no longer have responsibility for PIF offences. This does
not take account, however, of the fact that the UK will not participate
and Denmark cannot participate in the EPPO, and will need to be
fully examined in negotiation.
EUROPOL
2.63 The draft Eurojust Regulation provides for the
enhancement of operational cooperation between Europol and Eurojust
(Article 40) in relation to the exchange of information within
their respective mandates. It proposes that indirect access to
Eurojust data should be granted to Europol on a "hit/no hit"
basis. Eurojust would only share information subject to the authority
granted by the Member State or law enforcement body that originally
provided the information, though such consent would be presumed
unless the Member State placed explicit restrictions on the onward
transmission of the information. The draft Regulation would
restrict searches of its information to designated employees of
Europol.
2.64 An agreement between Europol and Eurojust already
exists within the framework of the current Council Decisions governing
each organisation. The Government believes that it is sensible
for the two organisations to co-ordinate in order to avoid duplication
in their respective roles and to ensure an effective, joined up
response to the criminality affecting the UK and other Member
States.
Enhanced Parliamentary Scrutiny
2.65 In general, these proposals are in line with
the Common Approach to EU decentralised Agencies that has been
agreed by the Government. However, it would take a cautious approach
to the disclosure of classified information given the operational
sensitivity of law enforcement intelligence. The Government would
want assurances in this area.
Third Country cooperation agreements
2.66 Another key change between the Eurojust Regulation
and the current measure is to transfer the power to negotiate
third country cooperation agreements from Eurojust, relying instead
on the standard provisions in the TFEU. There is no provision
for Eurojust to negotiate agreements in its own right, as it is
currently able to do. The Government expects the Commission to
argue that this reflects the position concerning third country
negotiations following the Lisbon Treaty. Article 216 of the TFEU
states that "[t]he Union may conclude an agreement with one
or more third countries or international organisations where...
[it] is provided for in a legally binding Union act". The
Government's view, however, is that this does not prevent individual
EU Agencies such as Eurojust being given the power to negotiate
their own agreements, which may be important in supporting efforts
to cut crime.
Liaison Magistrates posted to Third Countries
2.67 The Government notes that the provisions here
are very similar to the current Eurojust measure, but given the
context of this new negotiation and the reforms to Eurojust it
will want to examine the implications carefully in negotiation.
Eurojust has yet to post a Liaison Magistrate to a third country.
Data Protection — abolition of Joint Supervisory
Body
2.68 Under the current Eurojust Council Decision,
the Joint Supervisory Body is responsible for the independent
monitoring of Eurojust's data protection compliance. The draft
proposal would abolish this body and instead make Eurojust subject
to the jurisdiction of the European Data Protection Supervisor
(EDPS). As a whole, data protection provisions in the proposal
focus on internal Eurojust policies rather than obligations on
Member States in numerous Articles between 27 and 37. References
deal with how Eurojust ensures appropriate safeguards to guarantee
data security and the responsibilities of the Agency in relation
to national supervisory authorities and the European Data Protection
Supervisor (EDPS).
2.69 The Commission's intention is to enable Eurojust
better to establish links between data already in its possession.
In the view of the Commission, the rights of individuals affected
by data processing by Eurojust will be strengthened.
2.70 The full implications of the data protection
provisions are currently unclear given that both the draft EU
Data Protection Directive and Regulation are currently under negotiation
themselves. Some of the language in the draft text seems to mirror
these data protection proposals, suggesting scope and flexibility for
Member States to provide conditions and restrictions on the use
and processing of data which they have provided to Eurojust.
However, the Government takes a cautious approach with respect
to the data protection principles in this proposal pending the
conclusion of the negotiations on the two principal EU measures
in this field.
Exchange of information with Member States and
between national members
2.71 The provisions here are almost identical to
the current Eurojust measure, and in particular retain the right
not to provide information in a particular case where it would
harm essential national security interests or jeopardise the safety
of individuals. However, the ongoing evaluation of the implementation
of the current Council Decision has shown that the working of
the current provisions is not necessarily well suited to the operational
environment. Therefore, the Government will want to ensure that
the drafting of this text is appropriate for operational partners.
IMPACT ASSESSMENT
2.72 The Government has noted that the Commission
has not published an impact assessment for their Eurojust proposal.
This is inconsistent with accepted practice and the Government
will seek an explanation from the Commission.
TIMETABLE
2.73 This proposal is expected to be presented by
the Commission at the Justice and Home Affairs Council in October
and then be discussed at working group level. The Government will
keep Parliament informed of developments.
Conclusion
2.74 The Government's views are, in summary, that
it supports Eurojust, which it considers "a positive model
of cross-border co-operation". That is why it has indicated
its intention to opt back into the existing Council Decision after
exercising the block opt-out.
2.75 It does, however, have several concerns with
the Commission's proposal. By far the most significant is the
intention in Article 8(1) and 8(3) to confer power on the "national
members" of Eurojust (national members are the senior prosecutors
or police officers that each Member State seconds to Eurojust)
to execute MLA requests, to order investigative measures, and
to authorise the transfer of evidence in "urgent cases when
timely agreement" with the relevant Member State cannot be
reached. The Minister says this would require changes to criminal
justice systems within the UK, particularly with regard to the
separation of function between police officers and prosecutors
in England, Wales and Northern Ireland. The UK national member
is a prosecutor (the Government thinks a prosecutor is best suited
to the role), but the responsibility for ordering investigative
measures (including making an application to a court) and authorising
and coordinating controlled deliveries is the responsibility of
law enforcement officials. Similarly, it would also require changes
to criminal justice arrangements in Scotland, where law enforcement
has separate functions, although the prosecutor can direct the
police in relation to investigations. It also thinks giving such
mandatory power to national members may interfere with the private
and personal property rights of individuals, their rights of the
defence, and the principle of ne bis in idem (you can only
be tried once on the same accusation). Its other concerns include
the reciprocity of relations between Eurojust and the EPPO, the
revised governance of Eurojust, its legal personality, negotiation
of third country agreements, and data protection rules.
2.76 Given Eurojust is an existing EU Agency the
Government says it can be argued that the case for subsidiarity
has been met. However, it questions the necessity of the Commission's
proposal to give new powers to national members.
2.77 We think the Government's concerns over the
proposed new powers of national members are well founded: they
would infringe a fundamental characteristic of the common law
approach to the investigation and prosecution of crime. Our predecessors'
concerns about this aspect of the original Eurojust proposal in
2001 have been shown to be prescient:
"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."[84]
2.78 We find the Government's concerns over subsidiarity
less well-founded, however, particularly given that national members
can already exercise these powers with the agreement of their
Member States under the current legislation. Whether giving such
powers to all national members is necessary is, we think, rather
a question of proportionality: if the system works well now, as
the Government says it does, it could be argued to be disproportionate
to introduce additional powers. We note in passing that the Government's
assessment of the proposal's compliance with subsidiarity is disappointingly
superficial. Unless the Government can persuade us otherwise,
we do not recommend that the House issue a Reasoned Opinion, the
deadline for which is 28 October.
2.79 We do recommend, however, that this proposal
be sent for an opt-in debate on the floor of the House together
with the EPPO proposal. In the course of that debate Members will
have to consider whether the Government would be better to opt
into the proposal because they think Eurojust will continue to
be an important agency in which the UK should fully participate,
and because it will have a better chance of amending the proposal
in the UK interest as a full participant in the negotiations.
Or whether it should opt-out, principally because of the danger
of Article 8(1) and (3) becoming EU law, and consider whether
to opt in only after the final adoption of the proposal.
2.80 In making this recommendation, we expect
the Government to comply with its previous undertakings, given
in evidence, to the Committee to inform it of its decision on
the opt-in at least a week before the date of the debate, so that
the Committee can report the Government's decision in order to
inform Members of the House before the debate.
2.81 Before that debate, we also ask the Minister
to respond to the following concerns:
· We
note that the existing Eurojust Council Decision should have been
evaluated before a new proposal was brought forward, but that
the Commission has published its proposal before the evaluation
was completed (due to be completed next year). We also note that
the Commission's proposal has been published without the benefit
of an impact assessment. We ask the Minister to provide further
detail on why the Commission has pre-empted the result of the
evaluation, and on why it has proposed legislation without an
impact assessment. We ask him to say what action the Government
intends to take in this regard, including telling us whether it
considers the lack of an impact assessment could affect the legality
of the proposal if adopted. We ask him to say whether other Member
States are concerned by what appears to be precipitate policy-making
by the Commission.
· We
would be grateful to know how many other Member States are concerned
by Article 8(1) and (3) and whether their sum may amount to a
blocking minority.
· We
note the Government's intended request to rejoin the existing
Eurojust Council Decision. We ask the Minister to say whether,
if this proposal is adopted without the participation of the UK,
he thinks the UK could continue to cooperate with the reformed
Eurojust on the basis of the existing legislation.
· We
ask the Minister to say how the Government's decision not to opt
into the EPPO proposal will affect its opt-in decision on the
Eurojust proposal (with reference to paragraphs 3.36-3.37 and
3.61-3.62 above). We are particularly keen to know whether he
thinks it would be inconsistent of the Government to opt out of
the former and into the latter, given their significant inter-relationship.
2.82 Pending replies to these questions, and the
opt-in debate, the proposal would remain under scrutiny.
81 2002/187/JHA. Back
82
Council Decisions 2003/659/JHA and 2009/426/JHA. Back
83
See headnote. Back
84
See para 3.9 above. Back
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