7 Reform of Eurojust
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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 | Minister's letters of 14 and 21 October 2013
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| Previous Committee Report | HC 83-xv (2013-14), chapter 2 (11 September 2013)
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| Discussion in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not 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)
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Background
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
EVALUATION
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.
IMPACT ASSESSMENT
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.
EXTENDING THE POWERS OF NATIONAL MEMBERS
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.
CONTINUED CO-OPERATION WITH A REFORMED EUROJUST
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.
INTERACTION BETWEEN THE EUROJUST OPT-IN DECISION
AND THE EPPO
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.
SUBSIDIARITY
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.
POWERS OF EUROJUST NATIONAL MEMBERS
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.
RELATIONSHIP WITH THE EPPO
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.
WIDER PRIORITIES
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.
Conclusion
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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