6 European Public Prosecutor's Office
| (a)
(35214)
12551/13
COM(13) 532
(b)
(35217)
12558/13
+ ADDS 1-2
COM(13) 534
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Commission Communication: Better protection of the Union's financial interests: Setting up the European Public Prosecutor's Office and reforming Eurojust
Draft Regulation on the establishment of the European Public Prosecutor's Office (EPPO)
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| Legal base | (a) —
(b) Article 86 TFEU; EP consent; unanimity
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| Department | Home Office
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| Basis of consideration | Minister's letter of 14 October 2013
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| Previous Committee Report | HC 83-xv (2013-14) chapter 1 (11 September 2013)
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| Discussion in Council | Discussed at October JHA Council
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| Committee's assessment | Legally and politically important
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| Committee's decision | (a) Not cleared; further information requested;
(b) Not cleared; further information requested; for debate on an opt-in decision on the Floor of the House, together with the draft Regulation on reforming Eurojust (decision reported 11 September 2013)
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Background
6.1 We considered these documents, the Communication
on better protection of the Union's financial interests (document
(a)) and the proposal for a Regulation establishing the European
Public Prosecutor's Office (EPPO) (document(b)) in our previous
Report under reference.[16]
6.2 For the purposes of this Report, we recall that
the Government has already indicated in the Coalition Agreement
that it will not be participating in the proposed EPPO Regulation.
Furthermore, that participation in a proposal to establish an
EPPO (whether pre or post-adoption) is "double-locked"
by means of two control mechanisms set out in section 6(1) and
(3) of the European Union Act 2011 — approval by Act of
Parliament and a Referendum.
6.3 In the conclusions to our Report of 11 September,
we considered that document (b) breached the subsidiarity principle
in the manner outlined in the draft Reasoned Opinion annexed to
that Report. We therefore recommended that the Reasoned Opinion
be sent to the Presidents of the EU Institutions before 28 October
2013 (the expiry of the eight-week deadline following a debate
on the floor of the House (which was subsequently scheduled for
Tuesday 22 October). We also recommended that the consequences
of the Government's opt-in decision in relation to document (b)
be debated on the floor of the House, together with the Eurojust
proposal (the date of this debate is expected to be Tuesday 29
October). Finally, we asked the Government to respond to the following
questions prior to those debates taking place:
a) We questioned how the Minister intended to
proceed with challenging the use of the Article 86 TFEU legal
base to legislate for criminal procedural rights which fall within
Article 82(2) TFEU and to enable the EPPO to request Eurojust
to investigate offences outside its remit. We asked whether the
Government would be prepared to make a challenge to the ECJ in
the absence of a successful resolution of this point.
b) Given our continuing concern about EU competence
in respect of international agreement, we said that we were particularly
troubled by the prospect of EPPO powers in relation to Third Country
Agreements. We therefore asked whether the Minister would be looking
to negotiate the removal of these provisions from the proposal.
c) We said that whilst we supported the Minister
on the stance he is taking to ensure that non-participating Member
States and their taxpayers do not subsidise the EPPO, we wanted
to know what the Minister proposes to do if a successful outcome
is not achieved.
d) We asked the Minister whether he thought the
EPPO proposal goes far enough in recognising the need for accountability
of the EPPO to national parliaments, particularly considering
the Commission's decision that for some purposes the EPPO is to
be regarded as a "national authority".
e) Noting that the conviction rate of 23.1% for
EU fraud cases referred to the UK by the European Anti-Fraud
Office (OLAF) between 2006-11 was low compared with many other
Member States, we asked the Minister to explain why this was and
what action was being taken to address any shortcomings.
The Minister's letter
6.4 The Parliamentary Under-Secretary of State for
Crime and Security (James Brokenshire) writes to respond to our
questions in advance of the recommended debates.
LEGAL BASE
6.5 The Minister says that in challenging the use
of the Article 86 TFEU legal bases to legislate for Article 82(2)
TFEU procedural rights, the Government will start by questioning
why the Commission has proposed "sweeping investigative powers"
for the EPPO in the first place and whether such an approach is
necessary or proportionate. He comments that if, alternatively,
those powers remained with Member States' policing and judicial
authorities, there would be a reduced need for "a set of
minimum procedural rights". Where additional rights are needed,
the Government would seek to ensure that they would only be adopted
on the correct basis of Article 82(2) TFEU.
6.6 He continues:
"Moreover, under the Article 86 legal base the
EPPO should not have competence to act outside of 'PIF offences'.
Therefore, in my view, it should not have the ability to make
requests of Eurojust to investigate offences outside of the 'PIF
offences' definition. We will raise these points during negotiation
in due course."
6.7 The possibility of a legal challenge by the Government
will be assessed "once the Council's direction of travel
is clearer".
THIRD COUNTRY AGREEMENTS
6.8 As concerns the effect of the EPPO proposal on
Third Country Agreements, the Minister says that the consequences
need to be considered for both participating and non-participating
Member States, adding:
"For example, we will want to clarify what is
meant by the provision concerning the amendment of existing agreements
which participating Member States have with third countries so
that the EPPO is recognised as a competent authority for the offences
within its competence. It would seem surprising if Member States
were expected unilaterally to make changes to such external agreements
which are normally bilateral or multilateral. The third countries
concerned may also not be content to recognise the EPPO in the
same way as Member State authorities.
Secondly, we will want to ensure that any scope for
the EPPO to have its own arrangements with third countries or
other international organisations (which is something other Agencies
have, such as Europol and Eurojust) fully respects the Treaty
restrictions on the external competence of the Union and does
not prejudicially affect the UK's interests. We will seek clarity
on these issues before determining our preferred course of action."
FUNDING THE EPPO
6.9 The Minister is clear that the UK, as a non-participating
State, and its taxpayers should not contribute financially towards
the EPPO, either directly or through Eurojust. He continues:
"We will seek to protect our rights as a non-participating
Member State in a Title V TFEU measure under Article 2 of Protocol
21. If the EPPO measure becomes an enhanced cooperation measure,
then Article 332 TFEU makes clear that expenditure resulting from
the implementation of the measure shall be borne by the participating
Member States, unless agreed otherwise."
DEMOCRATIC ACCOUNTABILITY
6.10 Noting a similarity between the Commission's
approach to the democratic accountability of the EPPO and the
model in the Common Approach and the Roadmap on the follow-up
to the Common Approach on EU decentralised Agencies, the Minister
concurs with Committee's concerns about the sufficiency of the
approach:
"In negotiation we will want the Commission
to justify its approach to democratic accountability in order
to determine whether the proposal as drafted is sufficient from
our perspective of a non-participating Member State. The Government
would also welcome any further views from the Committee on this
point."
UK CONVICTION RATE — EU BUDGET FRAUD CASES
6.11 The Minister says that the Commission's presentation
of the data on conviction rates is neither "helpful or meaningful".
He comments:
"The conviction percentage rate for the UK derives
from a caseload of 13 cases that had received a judicial decision,
where nine were dismissed before trial, one received an acquittal
and three resulted in a conviction. The Commission present this
as a 23% conviction rate, but that percentage includes cases dismissed
before trial. Cases would be dismissed only if there were a good
reason to do so. In fact, of the cases taken to trial, the proportion
of cases that resulted in a conviction would be 75%. This is
just one reason why using bald percentages to compare outcomes
is unhelpful since it can produce unreliable, meaningless or even
misleading results.
Other factors mean percentages of convictions are
not a helpful proxy to rely upon. For example in some Member States
the number of cases involved is extremely small and so it is not
useful to make sweeping comparisons between the conviction rates."
6.12 He also considers that "securing strong
evidence from OLAF's investigations" is more relevant to
the "a realistic prospect of a conviction where the public
interest is best served by a prosecution". He adds that:
"Recent internal reorganisation and the reform
to its governing legislation are intended to improve the effectiveness
of OLAF's role in this regard. For example, under the recent reforms,
OLAF is permitted to conclude administrative arrangements with
competent authorities in Member States in order to facilitate
practical cooperation and exchange of information on technical
and operational matters, without creating any additional legal
obligations."
Conclusion
6.13 We thank the Minister for his prompt response
to our questions.
6.14 We are satisfied
with much of his response and, in any case, there will be opportunity
for further discussion of the relevant issues in the course of
both debates. However, we infer from the response to our question
about conviction rates, that the Minister might not consider that
there are any shortcomings in the UK approach to prosecuting such
cases. We consider it unlikely that there is no room for improvement
and would welcome the Minister's further thoughts on this particular
issue, given the prominence that the Government gives to the need
for EU budgetary restraint in times of economic difficulties.
6.15 In the meantime, the documents remain under
scrutiny.
16 See headnote. Back
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