37 European Public Prosecutor's Office
| Committee's assessment
| Legally and politically important |
| Committee's decision | (a) and (c) Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs, Justice, Northern Ireland Affairs and Scottish Affairs Committees; (b) Cleared from scrutiny
|
| Document details | Proposal for a Regulation on the establishment of the European Public Prosecutor's Office (EPPO):
(a) original Commission proposal;
(b) first alternative Council text;
(c) second alternative Council text
|
| Legal base | Article 86 TFEU; EP consent; unanimity
|
| Department
Document numbers
| Home Office
(a) (35217), 12558/13 + ADDs 1-2, COM(13) 534;
(b) (36044), 9834/14, — ; (c) (36931), 9372/15,—
|
Summary and Committee's conclusions
37.1 In July 2013 the Commission proposed a Regulation to establish
a European Public Prosecutor's Office (EPPO) with the objective
of combatting fraud on the EU budget (document (a)). This provided
a supranational model for an EPPO. It would have exclusive competence
to investigate and prosecute offences against the EU's financial
interests, meaning that the relevant national authorities would
be excluded from so doing without the permission of the EPPO.
The EPPO would comprise: a central European Public Prosecutor
(EPP) assisted by Deputies. In each Member State there would be
at least one European Delegated Prosecutor (EDP). The EDPs would
carry out the investigations and prosecutions under the authority
and management of the EPP.
37.2 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 proposed Regulation in accordance with the previous Government's
Coalition Agreement. The European Union Act 2011 requires any
future participation to be sanctioned through a referendum.
37.3 As the establishment of an EPPO could adversely
affect the UK and EU bodies such as Eurojust and OLAF, the preceding
Committee had concerns about the proposal. On its recommendation,
the House agreed to issue a Reasoned Opinion. This annexed a relevant
Opinion from the Justice Committee of the Scottish Parliament.
The total number of Reasoned Opinions from national Parliaments
exceeded the "yellow card" threshold under the Subsidiarity
Protocol[ 292] but the
Commission did not withdraw the proposal. It remains under scrutiny,
not least because it has not been entirely superseded by the subsequent
texts (documents (b) and (c)).
37.4 Documents (b) and (c) are partial, alternative
Presidency texts to the original EPPO proposal (a). They are,
to some extent, revisions of the original Commission proposal
which take into account the concerns of Member States, including
those expressed by national Parliaments in Reasoned Opinions.
Document (b) was scrutinised by the preceding Committee but is
now superseded by new document (c).
37.5 New document (c) retains the new collegiate
model for an EPPO which was first innovated by document (b). At
EU level, a Central Office will comprise a College of European
Prosecutors and Deputies and its Permanent Chambers. The national
level will consist of the EDPs — national prosecutors acting
on behalf of EPPO. The College will be responsible for monitoring
the EPPO's activities and for strategic matters, including the
consistent application of prosecution policy. It also provides
for concurrent competences for an EPPO and national prosecution
services to investigate offences against the EU budget.
37.6 Specifically, document (c) contains the text
for Articles 1 to 16 but also a redrafted version of Articles
17 to 33. Recitals have not yet been negotiated and redrafted,
but Member States have made extensive suggestions in footnotes
for recitals to provide clarity on their interpretation of definitions
and key concepts or features covered in the text.
37.7 The new Government now provides its view of
the text. In summary, it reports that "broad conceptual support"
expressed by participating Member States to Articles 1-16 at the
JHA Council of 15 June. The relationship between an EPPO and non-participating
Member States (including the UK) and EU bodies such as Eurojust
and OLAF has still not been addressed. Developments on the text
at this Council meeting were also the subject of a Written Ministerial
Statement by the Home Secretary (Mrs Theresa May).[ 293]
37.8 We thank the Minister for his Explanatory
Memorandum on the new Council text, document (c).
37.9 We note that the important question of how
an EPPO will interact with other EU bodies, third countries and
non-participating Member States, has still yet to be addressed
in Council. We ask the Minister to continue to keep us informed
of developments, particularly on this significant question. We
are particularly interested in:
a) whether the relationship between the EPPO
and non-participating Member States might also be underpinned
by the principle of sincere co-operation; and
b) whether national Parliaments of non-participating
Member States will also be able to invite the European Chief Prosecutor
to appear before them—or does the understanding that "Member
State" means "participating Member State" extend
to national Parliaments in this respect?
37.10 In the meantime, we clear document (b) from
scrutiny as it has been superseded by document (c). We retain
documents (a) and (c) under scrutiny and draw this Report to the
attention of the Home Affairs, Justice, Northern Ireland Affairs
and Scottish Affairs Committees.
Full
details of the documents:
(a) Proposal for a Regulation on the establishment of a European
Public Prosecutor's Office: (35217), 12558/13 + ADDs 1-2, COM(13)
534; (b) Proposal for a Regulation on the establishment of the
European Public Prosecutor's Office — State of Play/Orientation
debate: (36044), 9834/14, —; (c) Proposal for a Council
Regulation on the establishment of a European Public Prosecutor's
Office: (36931), 9372/15, —.
Background and previous scrutiny
37.11 An account of the provisions of the original
Commission proposal (document (a)) and the Government's view is
set out in our predecessors' Fifteenth Report of 2013-14 which
also includes the draft Reasoned Opinion.[ 294]
For document (b), a similar account is set out in our Fourth Report
of 2014-15.[ 295]
37.12 We note that during the previous scrutiny of
these proposals the devolved administrations of Scotland and Northern
Ireland have been concerned about the potential impact of the
establishment of an EPPO on the independence and functions of
their own prosecutorial and investigative systems.
The current document (c)
37.13 Article 2 and Article 4 have been revised to
reflect developments in negotiations on the Directive on the fight
against fraud to the Union's financial interests by means of criminal
law (commonly known as the PIF Directive).[ 296]
37.14 Article 5 now states that EPPO practitioners
will look to the Regulation for their primary powers but where
the Regulation does not cover a matter they should use powers
available to them under national law. The principle of sincere
cooperation will now apply to competent national authorities of
participating Member States to ensure they actively assist the
EPPO. In return, footnote 6 carries a suggested recital explaining
that this principle should also apply to the EPPO. This is in
order to ensure that it informs competent national authorities
of any information it receives or finds about an offence which
is outside its legal remit.
37.15 A new Article 6a has been added to create a
reporting process. Every year the EPPO will issue a public Annual
Report which will be transmitted to the Council, the Commission,
the European Parliament and national Parliaments. The European
Chief Prosecutor will appear before the European Parliament, the
Council, and national Parliaments (at their request) once a year
to give an account of the EPPO's activities.
37.16 The Latvian Presidency has focused negotiations
on Articles 7 to 15, which deal with the internal structure of
the EPPO. The new text retains the two-tiered structure already
described. The rules on appointment and dismissal (including replacement
and substitution) in Articles 13, 14 and 15 are drafted on the
basis that the primary power to appoint and dismiss the College
should lie with the Council of Ministers, while the power to appoint
and dismiss the EDPs should lie with the College.
37.17 Section 4 on competence and jurisdiction —
Articles 17, 18 and 19 — draws on Article 4 but cannot be
settled until the PIF Directive's list of offences affecting the
financial interests of the Union are agreed. The Presidency records
that there is continuing debate on whether there should be a dynamic
or static reference to the PIF Directive, and the inclusion of
any form of ancillary offence in the EPPO Regulation.
37.18 Articles 20 to 25 (there is no Article 22)
cover reporting and basic rules on how to conduct investigations,
with Articles 26 to 29 covering investigative powers and other
measures. The text and footnotes for Articles 30 to 33 reflect
the state of play at the end of the Italian Presidency in December
2014 as they have not been rewritten during the Latvian Presidency.
The Government's view of document (c)
37.19 The Minister for Immigration (James Brokenshire)
in his Explanatory Memorandum of 30 June first outlines the provisions
of the next text (see paragraphs 37.13-37.18 of this chapter).
He then provides some overall comments on the text:
"The Government is clear that the UK will
not participate in any EPPO proposal. There is agreement among
the Member States that any reference to 'Member State' in this
text refers to a participating Member State only.
"All Member States recognise and acknowledge
that the interests of non-participating Member States must be
respected, but the negotiation have yet to consider in detail
any necessary safeguards in that respect. The final form that
an EPPO might take, and how it would interact with non-participating
Member States, remains unclear. Despite non-participation, the
Government is fully engaged in this negotiation and is constantly
reviewing the proposal. Where issues raised may impact on the
UK, we actively remind others of our concerns.
"The Government also notes that once the
PIF Directive is agreed this will clarify the criminal offences
affecting the financial interests of the Union for which the EPPO
shall have competence. We are fully engaged in the separate negotiation
of the PIF Directive."
37.20 The Minister continues to note the concerns
of the devolved administrations on the establishment of an EPPO.
He says:
"Scotland maintains policy concerns in terms
of the independence of the Lord Advocate at the head of its systems
of prosecution and investigation of crime. Northern Ireland has
similar policy concerns in terms of the independence of the DPP
for Northern Ireland at the head of the PPS for Northern Ireland.
It has also confirmed its prosecutorial and investigative functions
are separate and that prosecutors in Northern Ireland do not have
powers in relation to search, seizure, interception, surveillance,
monitoring financial transactions or covert video surveillance."
37.21 On the question of next steps, the Minister
says:
"The Latvian Presidency held an expert level
meeting on 18 and 19 June to discuss the outcome of the Council
and then handed the dossier over to the incoming Presidency, Luxembourg.
Detailed discussions on Articles 17 to 19 will start in the first
week of July."
Previous Committee Reports
(a) Nineteenth Report HC 83-xviii (2013-14), chapter
6 (23 October 2013); Fifteenth Report HC 83-xv (2013-14) chapter
1 (11 September 2013); (b) Thirty-fourth Report HC 219-xxxiii
(2014-15), chapter 11 ( 25 February 2015); Fourth Report HC 219-iv
(2014-15), chapter 6 (25 June 2014); (c) None.
292 Protocol No 2 to the EU Treaties on the application
of the principles of subsidiarity and proportionality. Back
293 HC Deb, 23 June 2015, col. 19WS (Commons written ministerial
statement). Back
294 Fifteenth Report HC 83-xv (2013-14) chapter 1 (11 September 2013). Back
295 Fourth Report HC 219-iv (2014-15), chapter 6 (25 June 2014). Back
296 (34091), 12683/12: Proposal for a Directive of the European Parliament
and of the Council on the fight against fraud to the Union's financial
interests by means of criminal law. Back
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