6 European Public Prosecutor's Office
| Committee's assessment |
Legally and politically important |
| Committee's decision | Not 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 base | Article 86 TFEU; EP consent; unanimity
|
| Department | Home 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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