11 European Public Prosecutor's Office
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; further information requested
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| Document details | Draft Regulation on the establishment of the European Public Prosecutor's Office (EPPO) —
State of Play/Orientation debate and text
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| Legal base | Article 86 TFEU; EP consent; unanimity
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| Department
Document numbers
| Home Office
(36044), 9834/14, —
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Summary and Committee's conclusions
11.1 The Commission proposes to combat fraud on the EU budget
by establishing a European Public Prosecutor's Office (EPPO) and
produced its original draft Regulation to establish an EPPO in
July 2013. The proposal is subject to a special legislative procedure
requiring the consent of the European Parliament and unanimity
in the Council. After the Council has exhausted all options for
obtaining unanimity, a group of at least nine Member States may
enter into enhanced cooperation. The UK is not participating in
the Regulation (non-participation had already been made clear
in the Coalition Agreement).[70]
11.2 The current document, a partial alternative
text to the Commission's original text, aims to reflect previous
discussions in Council and also the views of national parliaments,
including the UK, in their Reasoned Opinions (which triggered
a Yellow Card under the Subsidiarity Protocol). Endorsed at the
March 2014 JHA Council, the text adopts a collegial model for
an EPPO. A Central Office of the EPPO would consist of a College
(to which each Member State will appoint a European Prosecutor),
Permanent Chambers[71]
set up under that College, and its administrative support staff.
The decentralised level would consist of European Delegated Prosecutors
located in Member States.
11.3 The current text is also premised on concurrent
competences for the EPPO and national prosecution services to
investigate offences against the financial interests of the EU
(to be agreed in the PIF Directive[72]),
but with priority rights for the EPPO to investigate and prosecute
PIF offences.
11.4 We now report on the Minister's most recent
update, together with her views on how the proposal might progress
during the remainder of the Latvian Presidency and the next Luxembourg
Presidency.
11.5 We thank the Minister for this update.
11.6 We note that the important question of how
an EPPO will interact with other EU bodies, third countries and
non-participating Member States, to be addressed in the second
part of the text, is unlikely to be addressed before the Luxembourg
Presidency. We ask the Minister to comment, when she next writes
to us, on whether she thinks any Partial General Approach (PGA)
achieved on the first five chapters of the text will be open to
later renegotiation. We are concerned there should be sufficient
flexibility to address any detriment to the UK as a non-participating
Member State which cannot be dealt with fully in the second part
of the text. Such detriment might include undermining of the roles
and resources of Eurojust and OLAF.
11.7 In the meantime, the current document remains
under scrutiny.
Full details of
the documents: Draft Regulation on the
establishment of the European Public Prosecutor's Office —
State of Play/Orientation Debate: (36044), 9834,
—.
Background and previous scrutiny
11.8 The scrutiny we conducted on the original EPPO
proposal[73], including
our recommendations that JHA opt-in aspects of the proposal be
debated and for a Reasoned Opinion, are set out in our Fifteenth
and Nineteenth Reports of 2013-14.[74]
As Reasoned Opinions submitted by national Parliaments reached
the Yellow Card threshold, we then scrutinised the Commission's
subsequent decision to maintain (rather than amend or withdraw)
the proposal on two subsequent occasions (our Thirty-first and
Forty-fifth Reports[75])
of 2013-14.
11.9 A full account of the new text and the Government's
view of it are set out in our Fourth Report of 2014-15.[76]
Minister's letter of 12 February 2015
11.10 The Minister for Modern Slavery and Organised
Crime (Karen Bradley) updates us in her letter on the EPPO negotiations
and the Latvian Presidency's plans.
11.11 She starts by recapping developments under
the Lithuanian, Greek and Italian Presidencies, including the
introduction of the current document, the Greek Presidency text:
"The Greek Presidency established that the EPPO
should be based on a college model. Articles 1 to 19 of the Commission's
proposal were therefore redrafted and captured in document 9834/1/14.
We explained these changes in depth in our EM deposited on 11
June 2014.
"During the latter half of 2014, the Italian
Presidency revisited the thematic work which took place under
the Lithuanian and Greek Presidencies and pressed for progress
on outstanding issues relating to the internal organisation of
the EPPO."
EDPS: INVESTIGATION, PRE-TRIAL ARREST AND CROSS-BORDER
SURRENDER
11.12 The Minister informs us that there was "extensive
debate" under the Italian Presidency on the way in which
European Delegated Prosecutors (EDPs) would work with each other
in cross-border cases. This continues under the Latvian Presidency.
Highlighting how the position of non-participating Member States,
including the UK, have yet to be addressed, the Minister adds:
"In relation to cross-border investigative measures,
the Presidency's text appears to make investigation measures available
to the EPPO in a cross-border context without reference to EU
Mutual Legal Assistance measures, potentially creating a bespoke
system for participants in the EPPO, although some Member States
have advocated relying on existing EU measures. The relationship
between non-participating Member States and the EPPO is yet to
be addressed in this regard. However, a different approach is
taken in the Presidency's text in relation to pre-trial arrest
and cross-border surrender, which falls back on the use of the
European Arrest Warrant. Again, this view is not supported by
all Member States, and the relationship between non-participating
Member States and the EPPO is yet to be fully addressed. In both
instances we have been clear on the importance of addressing the
position of the UK and other non-participants in negotiations."
11.13 On the issue of the relationship between the
central Permanent Chamber and the EDPs, the Minister says the
Members States still have divergent views on "the most appropriate
setup" and that "clarity is needed in the text".
COMPETENCE AND JURISDICTION
11.14 The Minister says there has been "intense
debate" on how to "set shared competence" and how
to incorporate the principles contained in Article X laid out
in the Presidency text as described in the Minister's EM deposited
on 11 June.[77] It remains
unresolved. She adds:
"We are concerned that a lack of clarity in
relation to the competence regime could overcomplicate how practitioners
make day-to-day decisions. We continue to press for clarity in
this regard."
11.15 On jurisdiction, the Minister comments that
there is agreement that the EPPO must reflect national law and
also be consistent with the PIF Directive (in order to facilitate
the prosecutions of cross border offences).
THE LATVIAN AND LUXEMBOURG PRESIDENCIES
11.16 The Minister gives us some indication of what
the current and next Presidency are hoping to achieve on the EPPO,
again with a reference to the relationship between the EPPO and
non-participating Member States:
"The Latvians will revisit these highly contentious
issues in future meetings. They are aiming for a partial General
Approach on the first five Chapters, covering the issues above,
by the end of their Presidency. Luxembourg (the next EU Presidency)
has indicated that it hopes to work on the second half of the
text, including how an EPPO will interact with other EU bodies,
third countries and non-participating Member States."
11.17 The Minister comments:
"As and when the first half of the text remain
is agreed, we will be in a better position to fully assess implications
for non-participating Member States such as the UK."
11.18 The Minister ends her letter with a commitment
to keeping us regularly informed of developments.
Previous Committee Reports
Fourth Report HC 219-iv (2014-15), chapter 6 (25
June 2014); also see (35217), 12558/13: Nineteenth Report HC
83-xviii (2013-14), chapter 6 (23 October 2013) and Fifteenth
Report HC 83-xv (2013-14), chapter 1 (11 September 2013); (35613),
17176/13: Forty-fifth Report HC 83-xl (2013-14), chapter 10 (2
April 2014) and Thirty-first Report HC 83-xxviii (2013-14), chapter
8 (22 January 2014).
70 In any event, participation in a proposal to establish
an EPPO is controlled, both pre and post-adoption, by the "double
lock" requirements set out in section 6 of the European Union
Act 2011 - approval by Act of Parliament and a Referendum. Back
71
A Permanent Chamber is to comprise a European Chief Prosecutor,
the Deputies and all the other European Prosecutors. Each Permanent
Chamber is to be chaired by the European Chief Prosecutor or one
of the Deputies, and have two additional permanent Members. Back
72
(34091), 12683/12, COM(12) 363: Proposal for a Directive on fight
against fraud to the Union's financial interests by means of criminal
law. Back
73
(35217), 12558/13, COM(13) 534: Draft Council Regulation on the
establishment of the European Public Prosecutor's Office. Back
74
Nineteenth Report HC 83-xviii (2013-14), chapter 6 (23 October
2013) and Fifteenth Report HC 83-xv (2013-14), chapter 1 (11 September
2013). Back
75
(35613), 17176/13: Forty-fifth Report HC 83-xl (2013-14), chapter 10
(2 April 2014), Thirty-first Report HC 83-xxviii (2013-14), chapter 8
(22 January 2014). Back
76
Fourth Report HC 219-iv (2014-15), chapter 6 (25 June 2014). Back
77
The EM stated: "Article X forms part of further criteria
affecting the practical processing of a case and it should be
read alongside Article 19(2) and (3). In effect, national authorities
will inform the EPPO of all offences over a (not yet set) threshold.
At that point, all information on criminal investigation already
started at national level will go to the EPPO. On receipt, the
European Chief Prosecutor will decide within five days whether
the preponderance test laid out in Articles 18(3) to (6) with
Article 19(3) and (4) means that the EPPO will retain competence
and open its case (which takes precedence over the national case
under the right of evocation and stops further investigation at
national level), or if it will not exercise its competence and
returns the case to the national level without EPPO involvement.
At all times, as new evidence comes to light, the EPPO should
be informed and may exercise the right of evocation and take over
the case". Back
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