Documents considered by the Committee on 23 October 2013 - European Scrutiny Committee Contents

6 European Public Prosecutor's Office




COM(13) 532




+ ADDS 1-2

COM(13) 534

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)

Legal base(a) —

(b) Article 86 TFEU; EP consent; unanimity

DepartmentHome Office
Basis of considerationMinister's letter of 14 October 2013
Previous Committee ReportHC 83-xv (2013-14) chapter 1 (11 September 2013)
Discussion in CouncilDiscussed at October JHA Council
Committee's assessmentLegally and politically important
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)


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.


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".


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."


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."


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."


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."


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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Prepared 30 October 2013