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

7 Reform of Eurojust



COM(13) 535

Draft Regulation on the European Union Agency for Criminal Justice Co-operation (Eurojust)
Legal baseArticle 85 TFEU; QMV; co-decision
Document originated17 July 2013
Deposited in Parliament22 July 2013
DepartmentHome Office
Basis of considerationMinister's letters of 14 and 21 October 2013
Previous Committee ReportHC 83-xv (2013-14), chapter 2 (11 September 2013)
Discussion in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested; For debate on an opt-in decision on the Floor of the House, together with the draft Regulation for a European Public Prosecutor's Office (decision reported 11 September 2013)


7.1 Eurojust was established in 2002[17] 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).

7.2 This proposal is intended to reform the EU agency Eurojust. The 2002 Council Decision was amended in 2003 and again in 2009.[18] This new proposal would repeal and replace the existing measures.

7.3 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.

7.4 On page 2 of the Draft Regulation, 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

7.5 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.

7.6 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.

7.7 It also requires that they determine arrangements for involving the European Parliament and national Parliaments in the evaluation of Eurojust's activities.

7.8 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

7.9 When we previously reported on this proposal, we asked several questions of the Government on its evidential basis and its relationship with the proposal on the European Public Prosecutor's Office (EPPO). The Minister for Security at the Home Office (James Brokenshire) responds to these in the letter below.

7.10 We also asked the Government to tell us whether, subject to the views expressed by Parliament, it was minded to opt into the proposal, and for this to be communicated before the opt-in debate on the floor of the House, which the Minister says will take place on 29 October. The Minister's response to this is in his letter of 21 October, further below.

The Minister's letter of 14 October 2013


7.11 The Minister notes that the Committee asked why the Commission has published its proposal prior to completion of an ongoing evaluation of the operation of the current measure. This is a point the UK, and other delegations, have raised during initial discussions of the proposals.

7.12 Under the Stockholm Justice and Home Affairs Work Programme, it was agreed that there should be an assessment of the implementation of the current Eurojust legislation before new legislative proposals were tabled using the Lisbon Treaty legal base. An external consultancy, GHK, was asked by the Commission to conduct a study on the strengthening of Eurojust. The result of their findings was presented orally late last year at a seminar in Brussels. Their results implied that there were gaps and a need for new legislation, but the results were questioned by the UK and some other Member States. It was noted at that meeting that the majority of delegations that took the floor considered that the current arrangements were sufficient and that any decision to give Eurojust further powers should be based on further analysis of its current functioning.

7.13 In parallel, there is also an ongoing evaluation under the EU Joint Action 97/827/JHA, which established a peer evaluation mechanism enabling Member States to assess the application and implementation, by each other, of instruments designed to combat international organised crime. The sixth round of mutual evaluations is on the practical implementation and operation of the Decisions on Eurojust and the European Judicial Network in criminal matters. This round of evaluation is expected to be completed in 2014.

7.14 Finally under the current Council Decision, Article 41a states that Eurojust's effectiveness and efficiency should be assessed by 4 June 2014. The Government states that it would have expected a report from the Commission to the relevant Council Working Group allowing for discussion on what was working and not working and how that might be addressed, including where that could involve practical action rather than legislation.

7.15 The Government has said consistently that it sees no need for the Commission to bring forward a new proposal on Eurojust at this time given that the recommendations from the peer evaluation will not be available until next year. For example, the results of the evaluation will presumably address whether or not National Members are lacking sufficient powers to achieve the objectives of Eurojust. So, the Minister says, without any sound assessment from an evaluation, it is unhelpful and generally against the spirit of subsidiarity for the Commission to be already proposing further reforms, such as additional compulsory powers for National Members.


7.16 The Government shares the Committee's concerns about the lack of a specific Impact Assessment. The Commission's own guidance says that:

"In general, Impact Assessments are necessary for the most important Commission initiatives and those which will have the most far-reaching impacts. This will be the case for all legislative proposals of the Commission's Legislative and Work Programme (CLWP) and for all non-CLWP legislative proposals which have clearly identifiable economic, social and environmental impacts (with the exception of routine implementing legislation) and for non- legislative initiatives (such as white papers, action plans, expenditure programmes, negotiating guidelines for international agreements) which define future policies."

7.17 The Commission's work programme for 2013 mentions its plan to reform Eurojust (see Annex I), so by the Commission's own guidance, an Impact Assessment for the Eurojust proposal was "necessary".

7.18 In addition, Article 5 of Protocol 2 of the TFEU states as follows:

"Draft legislative acts shall be justified with regard to the principles of subsidiarity and proportionality. Any draft legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality. This statement should contain some assessment of the proposal's financial impact...The reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators. Draft legislative acts shall take account of the need for any burden, whether financial or administrative, falling upon the Union, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved."

7.19 The Commission have said that their Impact Assessment in respect of the parallel EPPO proposal also covers the Eurojust measure. However, the Government notes that references to Eurojust in that Impact Assessment are in the context of the creation of an EPPO, not a dedicated assessment of the Eurojust reform. Accordingly, it will continue to challenge the Commission on their reasoning for failing to comply with their own guidance and it will question them about their compliance with Article 5 of Protocol 2. The absence of an Impact Assessment which provides a detailed analysis of the financial impact of the proposal and how the measure complies with the principals of subsidiarity and proportionality, taken together with the incomplete evaluation process, weakens the Commission's argument for bringing forward the proposal at this time.


7.20 The Minister notes that the Committee asked how many other Member States were concerned about the extension of powers of National Members and whether their sum amounted to a blocking minority. Following some initial discussions amongst Member States there are others who share the UK's concerns, but it is not yet clear how firm these positions are and whether there is sufficient support for a blocking minority. The Government will continue to monitor this important element of the negotiations and keep the Committee informed as the situation becomes clearer.


7.21 The Minister notes that the Committee asked for a view on whether the UK could continue to co-operate with a reformed Eurojust if it did not participate in the new proposal and rejoined the existing measures, which are themselves subject to the 2014 block opt-out decision.

7.22 As the Committee is aware, the current Eurojust legislation is included in the 35 measures that the UK will seek to rejoin as part of the 2014 decision. The Government anticipates that the negotiation on the new Eurojust legislation will be lengthy, particularly given the connection with the EPPO. It does not therefore expect this proposal to enter into force before 1 December 2014 and as a result the existing measure will remain subject to the 2014 decision.


7.23 The Minister notes that the Committee asked how the decision the Government has already taken not to participate in the EPPO proposal affects the opt-in decision on the new Eurojust proposal. Given the Commission's proposals sets out operational, management and administrative links between the EPPO and Eurojust, the UK's non-participation in the EPPO will be an important factor in consideration of the Eurojust opt-in decision.


7.24 The Minister notes that the Committee questioned the Government's doubts about whether the proposal meets the subsidiarity tests.

7.25 The creation of Eurojust in 2002 evidences the fact that the previous Government's position was that an organisation to support Member States' judicial cooperation arrangements was best met at EU level. The current Government's view is also that the current formation of Eurojust and its international coordination role is better achieved at Union level. However, the new Eurojust proposal introduces additional compulsory powers to National Members. As the Government has explained, it sees no need for such changes and it does not think that all National Members should be required to have such additional powers if such powers are incompatible with the functioning of criminal justice systems in some Member States. For example, the power to execute a Mutual Legal Assistance request for a controlled delivery or search of a house is only appropriately exercised by police officers in the UK and is not suitable for the UK National Member at Eurojust who is a prosecutor.

7.26 The Government's view is that the current powers attributed to National Members are more than sufficient to allow Eurojust to achieve its objectives as set out in Article 85 TFEU. It is also the Government's view that the EPPO proposal does not meet the subsidiarity test, so any changes made in the Eurojust proposal to adapt to the creation of the EPPO are also unlikely to meet the subsidiarity test.

Minister's letter of 21 October 2013

7.27 The Minister writes to inform us of the Government's proposed position on the opt-in decision. Pending the views of Parliament, its view is that the UK should not opt into the new Eurojust proposal at the outset of negotiations but should actively consider opting in post-adoption following a thorough review of the final agreed text. As always, Parliament will be consulted on any post-adoption opt-in decision.

7.28 The new Eurojust proposal would have substantial implications for criminal justice system arrangements within the UK, not least as a result of the extension of the powers of Eurojust National Members, and of the proposal to create a "special relationship" between Eurojust and the Commission's parallel proposal to establish an EPPO.

7.29 The Government values the UK's participation in the current Eurojust arrangements, which support and co-ordinate cross border cases. That is why it has said it will seek to rejoin the current Eurojust measures as part of the 2014 decision. But the new proposal would have significant implications for the UK's systems of law that mean the UK should not opt into it at the start of negotiations.

7.30 In addition, the Minister reminds us of the Government's longstanding position in the Coalition Agreement that we will not participate in the establishment of the EPPO.


7.31 The draft Eurojust Regulation would extend the mandatory powers of Eurojust National Members. In doing so, it would remove the discretion afforded by the current Council Decisions for Member States not to apply certain powers to their National Members where to do so would be contrary to fundamental aspects of their criminal justice systems. The UK currently exercises this discretion by not granting its National Member powers to order investigative measures, for example. However, the new proposal would extend the mandatory powers of National Members and remove any discretion. In particular, Articles 8(2) and 8(3) would require National Members to be given the power to order investigative measures (such as orders for search warrants, production orders, directed surveillance, intrusive surveillance, or property interference) and authorise and co-ordinate controlled deliveries either "in agreement" with competent authorities or without prior agreement in urgent cases. Additionally, Article 8(1) would require all National Members to be given the powers to issue and execute mutual legal assistance or mutual recognition requests themselves. This mandatory set of powers would cut across the separation of powers between police and prosecutors in England, Wales and Northern Ireland. For example, the UK National Member is from a prosecution background (which the Government believes is best suited to the role), but the responsibility for ordering investigative measures (including making an application to court) and authorising and coordinating controlled deliveries is the responsibility of law enforcement officials. The proposed new mandatory powers for Eurojust National Members would also conflict with the role of the Lord Advocate in Scotland, who has the sole ultimate responsibility for determining investigative action in Scotland. This would be undermined by the proposed powers in urgent cases. Moreover, such powers would conflict with the principle that operational decisions are best made as close to the operational level as possible.


7.32 Article 86 of the Treaty on the Functioning of the European Union (TFEU) describes the EPPO being established "from Eurojust". The Commission has interpreted this by creating operational, management and administrative links between the two bodies. 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;

·  Eurojust treating any requests for support from the EPPO as if they had been received from a national competent authority;

·  exchanging information, including personal data;

·  automatic cross-checking of data held by Eurojust and the EPPO;

·  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.

7.33 Given the UK Government's longstanding position not to participate in the establishment of an EPPO, the Government believes that participating in the Eurojust proposal at the outset of negotiations would, given the proposed interrelationship between the two bodies, risk undermining the decision not to participate in the EPPO. It cannot, at this time, know how this relationship will be defined at the end of negotiations and it would want to be sure that it would not fall under obligations in respect of the EPPO, such as to exchange data, as a consequence of participating in Eurojust.


7.34 Irrespective of whether or not the UK opts into the new Eurojust Regulation, it will take an active part in the negotiations to protect the national interest, as it will also on the EPPO. It will also want to continue to challenge the Commission's evidence base and justification for bringing forward the Eurojust proposal at this time. It will want to oppose any changes that would have the effect of reducing the influence of Member State representatives over the functioning of Eurojust, such as through the creation of an Executive Board, as contemplated in the Commission's proposal, and to seek confirmation that the opinions of Eurojust acting as a College are non-binding on Member States.

7.35 The Minister looks forward to hearing the views of the House when this matter is debated as part of the Lidington arrangements on 29 October.


7.36 We thank the Minister for both his letters and, as we have said before, strongly support the Government's concerns over the interruption of the evaluation process of the original Eurojust instrument, and over the lack of an impact assessment for the current replacement proposal. We note, however, that the Minister does not address whether the lack of an impact assessment raises a legal ground on which the replacement proposal could be challenged before the Court of Justice. We ask him to do so, focussing in particular on whether he thinks it might amount to a failure on the Commission's part to comply with an essential procedural requirement.

7.37 We take note of the Government's further justification for its view that the additional compulsory powers to be endowed on National Members breach subsidiarity. We share the sentiment of its argument, but think it is more accurately defined as questioning the proportionality of these additional powers.

7.38 We note the Government's decision not to opt into the proposal at this stage, but to carefully review its position once the proposal is adopted. The Government's reasons for doing so are:

·  its concerns about the additional powers of National Members, which if implemented in the UK would be in conflict with the separation of powers between police and prosecutors in England, Wales and Northern Ireland, and with the role of the Lord Advocate in Scotland; and

·  participating in the Eurojust proposal at the outset of negotiations would, given the proposed relationship between it and the EPPO, risk undermining the Government's decision not to participate in the EPPO.

7.39 It will be a matter for the House to decide whether it supports the Government's proposed decision, but we consider both concerns to be well-founded reasons for not opting into the proposal at this stage. In saying this, we note the Government will seek to play an active part in the negotiations with a view to amending the proposal in the national interest, and then to consider opting in after it has been adopted.

7.40 Pending the Minister's reply, and further updates on the negotiations, the proposal remains under scrutiny.

17   2002/187/JHA. Back

18   Council Decisions 2003/659/JHA and 2009/426/JHA. Back

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