Documents considered by the Committee on 25 November 2015 - European Scrutiny Contents

6 European Public Prosecutor's Office

Committee's assessment Legally and politically important
Committee's decisionNot cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee, Justice Committee, Northern Ireland Affairs Committee and Scottish Affairs Committee
Document details(a) Original Commission proposal for the establishment of the European Public Prosecutor's Office (EPPO); (b) Alternative Council text
Legal baseArticle 86 TFEU; EP consent; unanimity
DepartmentHome Office
Document Numbers(a) (35217), 12558/13 + ADDs 1-2 COM(13) 534;

(b) (36931), 9372/15 —

Summary and Committee's conclusions

6.1 In 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.

6.2 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.

6.3 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[26] but the Commission did not withdraw the proposal. It remains under scrutiny, not least because it has not been entirely superseded by the subsequent text (document (b)).

6.4 Document (b) is a partial, alternative Presidency text to the original EPPO proposal (a). It is, to some extent, a revision of the original Commission proposal which takes into account the concerns of Member States, including those expressed by national parliaments in Reasoned Opinions. It provides an alternative, collegiate model for an EPPO. 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 services to investigate offences against the EU budget.

6.5 The Government now reports on an unsuccessful attempt to agree a Partial General Approach (PGA) at the 8-9 October JHA Council and how the Presidency now intends to proceed in the negotiations.

6.6 We thank the Minister for his update and for sight of the proposed text for the Partial General Approach that the Presidency unsuccessfully sought at the October JHA Council.

6.7 We understand from the Minister that the Presidency may now instead seek agreement on those Articles governing the competence of the EPPO and its exercise, basic rules on investigations, transactions and judicial review. We therefore note that 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 in Council, but remind the Minister of our interest for the purpose of his future updates.

6.8 We also note that the Commission Work Programme says that "in 2016 it will be important that the co-legislators move forward on the European Public Prosecutor's Office". Once progress on the text is sufficiently advanced, we ask the Minister to also include in his updates whether it is moving in a direction that is likely to be acceptable to the European Parliament (EP). We ask him to bear in mind the current conditions set out by the EP in its Interim Resolution of 29 April 2015[27] which it describes as "essential" for it giving its consent to the proposal.

6.9 In the meantime, we will retain the documents under scrutiny. We draw them and this chapter to the attention of Home Affairs, Justice, Northern Ireland Affairs and Scottish Affairs Committees.

Full details of the documents: (a) Proposal for a Regulation on the establishment of the European Public Prosecutor's Office: (35217), 12558/13 + ADDs 1-2, COM(13) 534; (b) Proposal for a Regulation on the establishment of a European Public Prosecutor's Office: (36931), 9372/15, —.

Background and previous scrutiny

6.10 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.[28] For document (b), a similar account is set out in our Report of 21 July 2015.[29]

6.11 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 Minister's letter of 16 November 2015

6.12 The Minister for Immigration (James Brokenshire) writes to update us on negotiations on a new draft of the Council text, attached to his letter, presented by the Luxembourg Presidency at the 8-9 October Justice and Home Affairs Council. He reports that at that meeting:

·  The Presidency sought, but was unable to secure agreement to a Partial General Approach (PGA) on Articles 24-33 and 35 of the text;

·  The PGA text covered areas which were sensitive for participating Member States and sought to achieve a balance between those who want to retain national control over those areas, and others who want a "centrally-led EPPO";

·  The proposed PGA consisted of two categories of rules covering: (a) investigation measures, cross-border investigation and evidence (Articles 25, 26, 27 and 31) and (b) lifting of privileges and immunities protected under national law, investigation, confiscation, prosecution at national courts and procedural rights of accused and suspects (Articles 24, 28, 28a, 29, 30, 32, 33 and 35);

·  The main reason for the failure of the PGA was the lack of agreement about the appropriate balance of competence between the EPPO and Member States:

—  Malta, Ireland, Cyprus, Slovenia and Portugal sought clearer references to respect for national laws;

—  The Netherlands was prevented by its Parliament from supporting the PGA;

—  France, Italy, Bulgaria and the Commission all opposed in different ways a dilution of the text and weakening of the EPPO proposition;

·  The UK expressed concern that the EPPO should respect UK competence and not exceed the Treaties; and

·  The Presidency concluded that Justice Ministers "had expressed broad support in principle" for the text, but that it would now regard the PGA Articles as "frozen" and press on possible agreement on Articles 17-23, 34, 36 and 37 in the second half of the Presidency.

6.13 The Minister undertakes to provide us with regular updates on the negotiations.

Previous Committee Reports

(a) First Report HC 342-i (2015-16), chapter 37 (21 July 2015); 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) First Report HC 342-i (2015-16), chapter 37 (21 July 2015)

26   Protocol No 2 to the EU Treaties on the application of the principles of subsidiarity and proportionality. In the case of ASFJ (Area of Freedom, Security and Justice) proposals (formerly Justice and Home Affairs), the threshold is a quarter of all votes allocated to the national parliaments. This is currently set at 14 (out of a total possible of 56 votes). For other proposals, the threshold is one third (currently, 19 votes). Back

27   Interim resolution adopted by the European Parliament- 2013/0255 (APP)  Back

28   Fifteenth Report HC 83-xv (2013-14), chapter 1 (11 September 2013). Back

29   First Report HC 342-i (2015-16), chapter 37 (21 July 2015). Back

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Prepared 4 December 2015