7 European Investigation Order
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18918/11
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| Draft Directive on the European Investigation Order in criminal matters — Text agreed as general approach
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| Legal base | Article 82(1)(a) TFEU
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| Department | Home Office
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| Basis of consideration
| Minister's letter of 5 July 2013
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| Previous Committee Reports
| HC 86-xxxv (2012-13), chapter 15 (13 March 2013)
See also: HC 428-xliii (2010-12), chapter 9 (7 December 2011); HC 428-xxxii (2010-12), chapter 10 (6 July 2011); also see (32800) (31678) 9288/10:- HC 428-xxix (2010-12), chapter 8 (8 June 2011); also see: (31678) 9288/10- HC 428-xxviii (2010-12), chapter 5 (24 May 2011); HC 428-xx (2010-11), chapter 3 (16 March 2011); HC 428-xi (2010-11), chapter 11 (15 December 2010)
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| Discussion in Council
| No date set |
| Committee's assessment
| Legally and politically important
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| Committee's decision
| For debate in European Committee B; further information requested
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Background
7.1 The draft Directive is an initiative of Belgium,
Bulgaria, Estonia, Spain, Austria, Slovenia and Sweden acting
under Article 76(b) TFEU (under which a quarter or more of Member
States can propose legislation in the field of judicial cooperation
in criminal matters and police cooperation). Its objective is
to create a single instrument, the European Investigation Order
(EIO), for obtaining evidence located in another Member State
in the framework of criminal proceedings. Currently judicial or
law enforcement authorities have to use two different regimes:
mutual legal assistance (MLA) on the one hand, and mutual recognition
on the other. MLA is regulated by a number of legal instruments,[18]
the most important of which is the 2000 EU MLA Convention, and
may be used for all cases, irrespective of the type of investigative
measure or the type of evidence concerned. Mutual recognition,
on the other hand, is limited to areas covered by one of the two
instruments currently adopted in the EU: the Framework Decision
on the execution in the European Union of orders freezing property
or evidence,[19]
and the Framework Decision on the European evidence warrant (EEW)
for the purpose of obtaining objects, documents and data for use
in proceedings in criminal matters.[20]
The EEW has not yet come into force.
Previous scrutiny
7.2 The Committee first considered the draft Directive
on the EIO in March 2011. On 22 January of this year the Minister
for Immigration at the Home Office (Mr Mark Harper) wrote with
an update on the first reading negotiations with the European
Parliament (EP). He explained that the EP adopted its amendments
to the EIO in May 2012. This formed the basis of its position
going into the trilogue negotiations. However, the negotiations
were put on hold because the EP suspended co-operation on this
(and four other dossiers) due to disagreements regarding the Schengen
Evaluation Mechanism. They began again on 14 November. He drew
our attention to the following EP amendments:
· Article 2 —
the proposed definition of "executing authority" as
a "judicial authority", which was unworkable for the
UK as national executing authorities are generally the police.
The Government was therefore seeking to defend the existing Council
text on this issue;
· Articles 5/5a —
the proposed amendments on proportionality, which showed there
was support for a stronger proportionality check. This amendment
created a clear requirement for the issuing State to consider
whether the request was proportionate, and now contained a consultation
mechanism which could be triggered by the executing State, and
which may lead to the withdrawal of the request. Although the
Government would have preferred proportionality to constitute
a ground for refusal, the practical effect of this proposal was
close to the UK's negotiating aims; and
· Article 10—
this remained one of the most contentious provisions. The EP
proposed that the dual criminality requirement—that the
investigation concerned activity which was recognised as a crime
in both States—be a general ground for refusal for all coercive
and non-coercive measures, but not for the list of 32 offences
(the same exception list that is found in the Framework Decision
on the European Arrest Warrant (EAW)). In maintaining the list
of exceptions, the EP amendments did not go as far as the Government
had hoped (it had hoped to achieve a full dual criminality refusal
ground without any exceptions). The Minister reported that there
was no appetite to drop the list approach in either the EP or
the Council: a full dual criminality test was not considered to
be important from a practical perspective and to be a step backwards
in cooperation. There were also fears that a full dual criminality
refusal ground could make it easier to execute an EAW than an
EIO. Given the advanced stage of negotiations, the Minister thought
the Government was unlikely to achieve any significant changes
on this point at the trilogue stage, although it was continuing
to lobby on the issue.
7.3 In addition to these amendments, the EP had suggested
a number of other amendments that were attractive to the UK, for
example including a human rights ground of refusal and a wider
ground of refusal based on territoriality.
7.4 The Minister concluded by saying the Government
would continue to work with Member States and MEPs to pursue UK
objectives on the EIO, and that he would report back as negotiations
progressed.
7.5 In response, we welcomed the proposed strengthening
of the proportionality test and the addition of human rights breaches
as a ground for refusing an EIO, and trusted the Council would
succeed in restoring the definition of executing authority in
Article 2.
The Minister's letter of 5 July 2013
7.6 The Minister explains that four trilogues took
place under the Irish Presidency, the most recent on 11 June.
These discussions were generally favourable to the UK position.
Although a full consolidated text has not yet been published,
the following Articles have been agreed in principle (he attaches
the draft revised text of these Articles):
· Article 4 (Types of
procedure for which the EIO can be issued);
· Article 5 (Content
and form of the EIO);
· Article 6 (Transmission
of the EIO);
· Article 7 (EIO related
to an earlier EIO);
· Article 8 (Recognition
and execution);
· Article 11 (Deadlines
for recognition or execution);
· Article 14 (Grounds
for postponement of recognition or execution);
· Article 16 (Criminal
liability regarding officials); and
· Article 17 (Civil
liability regarding officials).
7.7 Most of these are non-contentious clauses, the
Minister says, and the Government was content with the agreed
General Approach text. Discussions have also taken place on Articles
2, 5a, 9 and 10, to which his letter of 22 January also referred:
· Article 2 (Definitions
of Executing/Issuing authorities) — there were concerns
about the approach the EP was taking in terms of defining an 'executing
authority'. However, the definition now looks likely to cover
the UK's system of using a "central authority" to receive,
accede to, and ensure the execution of EIOs;
· Article 5a (Conditions
for Issuing and Transmitting an EIO) — it also appears
likely that there will be a mechanism to allow an executing authority
to return an EIO that it considers disproportionate, so that the
issuing authority can consider withdrawing the request; and
· Article 9 and Article
10 (Recourse to different types of investigative measure /
Grounds for non-recognition or non-execution) — the
EP remains in favour of a ground for refusal on human/fundamental
rights grounds and a clause that ensures that Member States are
not obliged to carry out search and seizure where this is not
possible in a comparable domestic case. The Government is supportive
of a human/fundamental rights refusal ground and is considering
the proposals regarding search and seizure. However, negotiations
on these clauses remain challenging.
7.8 The Minister concludes by saying that, overall,
progress was made under the Irish Presidency. Difficult discussions
on grounds for refusal remain, but he is optimistic that negotiations
will be concluded during the Lithuanian Presidency. Again, he
undertakes to keep us updated on developments during these negotiations.
Conclusion
7.9 We thank the Minister for his letter.
7.10 We understand that negotiations are nearing
an end. We therefore recommend the draft Directive be debated
in European Committee A as soon as possible, so that the Government
is fully aware of opinions within the House on the European Investigation
Order before it agrees to its adoption.
7.11 We ask for the following information to be
provided to us at least a week before the debate, so that we can
report it to the House before the debate takes place.
7.12 From the attachment to the Minister's letter
we see that Article 4 (which is agreed) provides as follows:
"Article 4 —Types
of procedure for which the EIO can be issued
"a) with respect
to criminal proceedings brought by, or that may be brought before,
a judicial authority in respect of a criminal offence under the
national law of the issuing State;
"b) in proceedings
brought by administrative authorities in respect of acts which
are punishable under the national law of the issuing state by
virtue of being infringements of the rules of law and where the
decision may give rise to proceedings before a court having jurisdiction,
in particular, in criminal matters;
"c) in proceedings
brought by judicial authorities in respect of acts which are punishable
under the national law of the issuing state by virtue of being
infringements of the rules of law, and where the decision may
give rise to proceedings before a court having jurisdiction, in
particular, in criminal matters, and
"d) in connection
with proceedings referred to in points (a), (b), and (c) which
relate to offences or infringements for which a legal person may
be held liable or punished in the issuing state."
7.13 Paragraph a) of Article 4 states that an
EIO can be issued in criminal proceedings brought by,
or that may be brought before, judicial authorities in respect
of a criminal offence in the issuing State. Paragraphs b) and
c) refer to proceedings brought by administrative authorities
and by judicial authorities for what appear to be petty
criminal and civil offences. In the UK, criminal proceedings are
not brought by "judicial authorities" (literally interpreted)
but are brought before "judicial authorities". We ask
the Minister to explain the meaning of judicial authorities,
a judicial authority, and administrative authorities
as used in Article 4, and list the national proceedings to
which Article 4 could apply.
7.14 In addition, we ask the Minister for a consolidated
text of the draft EIO Directive to be deposited as soon as one
is available. This should be accompanied by an explanation (in
a letter or Supplementary Explanatory Memorandum) of how each
Article is consistent with or will change national practice and
procedure, of the overall policy implications of the UK agreeing
to the adoption of the Directive, and of the consequential effect
of the Directive, once adopted, on pre-Lisbon JHA measures falling
within the Government's block opt-out.
18 Council of Europe Convention on mutual assistance
in criminal matters 1959, supplemented by its additional protocol
of 1978 and the second additional protocol of 2001; the Benelux
Treaty of 1962; the Schengen Implementing Convention of 1990;
and the Convention on mutual assistance between the Member States
of the EU of 2000. Many provisions of the 2000 Convention are
similar to those of the second additional protocol of 2001 to
the 1959 Convention, which some of the Member States also ratified,
and the additional protocol from 2001. Bilateral Treaties also
exist. Back
19
2003/577/JHA: OJ No. L 196, 22.07.03, p.45. Back
20
2008/978/JHA: OJ No. L 350, 30.12.08, p.72. Back
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