Legally and politically important
Cleared from scrutiny; further information requested
(a) Proposed Council Regulation on the establishment of a European Public Prosecutor’s Office (the 2013 original Commission proposal); (b) Proposal for a Council Regulation on the establishment of a European Public Prosecutor’s Office (the 2015 Presidency text)
(a) and (b) Article 86 TFEU; EP consent; unanimity
(a) (35217), 12558/13 + ADDs 1–2, COM(13) 534; (b) (36931), 9372/15,—
17.1The two texts under scrutiny sought at different times in the negotiations of the proposed Regulation to establish a European Public Prosecutor’s Office (EPPO) to investigate and prosecute fraud and other criminal offences in relation to EU funds. However, the texts differed in the nature of the models they proposed and the extent to which they would oust the competence of national authorities. This chapter concerns the adoption on 12 October by twenty Member States, participating in enhanced cooperation, of text of the proposed Regulation, following the European Parliament’s consent.
17.2The UK’s long established position is not to participate in the EPPO to preserve the autotomy of its prosecuting and investigative authorities. Despite having opted out of the proposal, concerns lingered in the UK before the Referendum about the impact of an EPPO on the remit and resources of Eurojust and OLAF or in creating indirect obligations on non-participating Member States. It may yet be important for any post-Brexit cooperation between the UK and the EU in the Justice and Home Affairs field to put these concerns beyond doubt. That is why we have retained these texts under scrutiny until now.
17.3More information about the two texts appears at paragraphs 17.10–17.11 below. But, in summary, the first text (a) is the initial Commission proposal for a supranational model for an EPPO, with the EU having exclusive competence to investigate and prosecute. When opposed, both by way of a subsidiarity “yellow card” raised by national Parliaments/chambers and in 2015 by Member States in Council, the relevant Council Presidency put forward its own text (b) for consideration. This is based on a Collegiate Model, with concurrent EU and national competences in this criminal law field.
17.4In December 2016, negotiations on document (b) reached a critical stage. In default of unanimous support in the Council required by Article 86 TFEU, the Presidency concluded that the latest text should be put to the European Council to seek agreement to move forward under “enhanced cooperation” provisions. These require the support of at least nine Member States, but as the Presidency noted, the December text already had the support of a majority of Member States.
17.5The previous Government wrote to the previous Committee in February to update it on the latest discussions in Council and the prospect of an enhanced cooperation. However, it said little about the UK’s position after Brexit either in relation to an EPPO or Eurojust, except that it would remain closely engaged regarding any impacts on Eurojust for as long as the UK was a contributing partner to the EU. In response, the previous Committee considered that, despite the decisions not to opt into the EPPO and the proposed Directive on the fight against fraud to the Union’s financial interest by means of criminal law (the PIF Directive), the UK as a non-participating Member State could still be affected by an EPPO, depending on the provisions in the enhanced cooperation proposal. The EPPO might even be relevant if the UK was to cooperate with the EU after Brexit in the area of criminal justice. In its Report of 1 March the previous Committee said:
“Once the final outcome of enhanced cooperation on EPPO is known, we would be interested to learn from the Minister what, if any, future co-operation might be attractive to the UK after Brexit with Eurojust and even with an EPPO in terms of legal assistance on cross-border criminal matters, specifically fraud”.
17.6The Government has now written to update the Committee on the final adoption of the enhanced cooperation text (b), to reiterate the Government’s position in relation to an EPPO and to note how the Commission President, in his State of the Union address, had questioned whether the remit of the EPPO could be extended in future to the fight against terrorism. This report chapter also includes a Government letter of 21 March which the previous Committee had already considered but not yet reported to the House.
17.7We thank the Minister of State for Policing and Fire Service at the Home Office (Nick Hurd) for his letter of 1 November 2017.
17.8In the Minister’s letter, he states that the UK is leaving the EU and that the Government is not considering any post-adoption opt-in in relation to the adopted EPPO Regulation before Brexit. Any future participation in an EPPO is in any event subject to a referendum requirement in the European Union Act 2011. In addition, the Minister tells us that “The EU legislation establishing the EPPO cannot and does not impose any obligation on states other than those participating in the EPPO. As such, we consider that this EPPO Regulation will not have a significant impact on the UK”. He also tells us that the EPPO will not be able to become operational in terms of its investigative or prosecutorial functions until three years after the Regulation’s adoption. Taking all of this into account, we are now content to clear documents (a) and (b) from scrutiny.
17.9However, we would be interested in any further comments from the Minister that there is nothing in the following provisions of the adopted Regulation that could adversely affect in any way the UK’s current participation in JHA measures or its ability to cooperate with the EU in such matters after Brexit:
a)Article 33 on Pre-Trial Arrest and Cross-Border Surrender, in terms of the UK responding to any European Arrest Warrant arising out of activities of a European Delegated Prosecutor;
b)Article 100 on “Relations with Eurojust”;
c)Article 101 on “Relations with OLAF”;
d)Article 102 on “Relations with Europol”;
e)Article 104 on “Relations with third countries and international organisations”;
f)Article 105 on “Relations with Member States of the European Union which do not participate in the enhanced cooperation on the establishment of the EPPO” (see also Recital 110); and
g)the reference in the Recitals to possible future extension of the EPPO remit, for example, to cross-border terrorism as mentioned in the State of the Union address.
(a) Proposed Council Regulation on the establishment of a European Public Prosecutor’s Office: (35217), + ADDs 1–2, COM (13) 534; (b) Proposal for a Council Regulation on the establishment of a European Public Prosecutor’s Office—Policy Debate: (36931), .
17.10As part of the original 2013 Commission supranational model for an EPPO proposed in (a), the EPPO would have had exclusive competence to investigate and prosecute offences concerning, preventing national authorities from doing so. It would have comprised: a central European Public Prosecutor (EPP) assisted by Deputies. In each Member State there would have been at least one European Delegated Prosecutor (EDP). The EDPs would have carried out the investigations and prosecutions under the authority and management of the EPP.
17.11The alternative 2015 Presidency text (b) simply revised (a) in the light of the Reasoned Opinions by adopting a collegiate model for an EPPO. This provided for concurrent national and EU competences to investigate and prosecute fraud. At EU level, a Central Office would comprise of a College of European Prosecutors and Deputies and its Permanent Chambers. The national level would consist of EDPs—national prosecutors acting on behalf of the EPPO. The College would be responsible for monitoring the EPPO’s activities and for strategic matters, including the consistent application of prosecution policy.
17.12This text carries forward the collegiate model for an EPPO set out in document (b), with concurrent competences for the EU and participating Member States, as described in paragraph 17.11.
17.13As limited by Article 86(1) TFEU, the scope of this text remains to investigate and prosecute offences in the PIF Directive. However, the recitals to the proposal also refer to the power set out in Article 86(4) TFEU for the European Council to extend competence by unanimity and with the consent of the European Parliament to include serious crimes having a cross-border dimension. The Commission President’s State of the Union speech referred to the ambition to extend the EPPO’s remit in future to include cross-border crimes relating to terrorism.
17.14Article 100 provides that:
17.15Article 101 provides that OLAF should not open any administrative investigations parallel to an investigation conducted by the EPPO into the same facts, though it can start an “own initiative” investigation in close consultation with the EPPO. The EPPO can provide information to OLAF in cases where the EPPO is not investigating.
17.16Article 102 provides that the EPPO shall have a close relationship with Europol and conclude a working arrangement for that cooperation.
17.172. For the purposes of its investigations the EPPO should be able to obtain, on request, any relevant information held by Europol, concerning any offence within its competence. Europol can also be asked to provide analytical support to a specific EPPO investigation.
17.18In addition to the provision in Article 100 on operational cooperation with third countries already cooperating with Eurojust, Article 104 sets out the basis for cooperation between the EPPO and third countries, including strategic exchange of information and secondment of liaison officers to the EPPO.
17.19Article 105 refers to relations with non-participating Member States like the UK. It provides:
“(1) The working arrangements referred to in Article 99(3) with the authorities of Member States of the European Union which do not participate in enhanced cooperation on the establishment of the EPPO may in particular, concern the exchange of strategic information and the secondment of liaison officers to the EPPO.
“(2) The EPPO may designate, in agreement with the competent authorities concerned, contact points in the Member States of the European Union which do not participate in enhanced cooperation on the establishment of the EPPO in order to facilitate cooperation in line with the EPPO’s needs.
“(3) In the absence of a legal instrument relating to cooperation in criminal matters and surrender between the EPPO and the competent authorities of the Member States of the European Union which do not participate in enhanced cooperation on the establishment of the EPPO, the Member States shall notify the EPPO as a competent authority for the purpose of implementation of the applicable Union acts on judicial cooperation in criminal matters in respect of cases falling within the competence of the EPPO, in their relations with Member States of the European Union which do not participate in enhanced cooperation on the establishment of the EPPO.”
17.20There has always been some concern in the UK about obligations being placed on non-participating Member States by an EPPO Regulation. However, “Member State” is defined in the Article 2(1) Regulation as a “Member State which participates in enhanced cooperation on the establishment of the EPPO”. Also Recital (110) refers to non-participating Member States not being bound by this Regulation.
17.21Recital 110 also adds that the Commission should, if appropriate, submit proposals in order to ensure effective judicial cooperation in criminal matters between the EPPO and non-participating Member States, particularly relating to judicial cooperation in criminal matters and surrender “fully respecting the EU acquis in this field as well as the duty of sincere cooperation”. Article 33 provides for Pre-Trial Arrest and Cross-border surrender. When the Commission’s supranational model for an EPPO was first published, there was some concern that the UK, although a non-participating Member State, might still be required to comply with a European Arrest Warrant (EAW) issued by the EPPO. Article 33 (2) provides that any EAW could be issued either by an EDP or by the competent authorities of a participating Member State:
“Where it is necessary to arrest and surrender a person who is not present in the Member State in which the handling European Delegated Prosecutor is located, the latter shall issue or request the competent authority of that Member State to issue a European Arrest Warrant in accordance with Council Framework Decision 2002/584/JHA (1).”
17.22In accordance with Article 332 TFEU, expenditure resulting from the implementation of the EPPO will be borne by the participating Member States.
17.23The previous Minister of State for Policing and the Fire Service (Brandon Lewis) at the Home Office said he was writing in response to the Committee’s Report of 1 March. He reiterated the Government’s position that it would not seek to participate in an EPPO. He added:
“The Committee rightly points out that the impact of an EPPO on the UK, as either a non-participating Member State or third country, is dependent on a number of different factors, which will not be known until negotiations on the instrument are concluded. The UK will continue to play an active role in negotiations where our interests as a non-participating Member State or third country could be affected.”
17.24Whilst stressing that the timescales for agreement of any EPPO under enhanced cooperation were unclear, he committed to providing the Committee with a response to its question about what, if any, future cooperation might be attractive to the UK after EU exist with Eurojust and EPPO in terms of legal assistance on cross-border criminal matters, specifically fraud.
17.25The current Minister of State for Policing and the Fire Service at the Home Office (Nick Hurd) says:
“I am writing to inform the Committee of the formal adoption of the Council Regulation implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office. Following the General Approach that was reached on the text at the June Justice and Home Affairs Council, the European Parliament gave its consent to the setting up of the EPPO on 4th October. The Regulation was then formally adopted at the 13th October JHA Council meeting by those Member States participating in the enhanced cooperation process.
“Twenty Member States are currently participating in the EPPO under enhanced cooperation: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Germany, Greece, Spain, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Portugal, Romania, Slovenia and Slovakia. Denmark, Hungary, Ireland, Malta, Poland, The Netherlands and Sweden are not currently participating.
“The UK Government has always been clear that we will not participate in the EPPO Regulation, and we will not consider a post-adoption opt-in. The EU legislation establishing the EPPO cannot and does not impose any obligation on states other than those participating in the EPPO. As such, we consider that this EPPO Regulation will not have a significant impact on the UK.
“The date on which the EPPO will assume its investigative and prosecutorial tasks will be set by the Commission on the basis of a proposal from the European Chief Prosecutor once the EPPO has been set up. This date will not be earlier than three years after the entry into force of the Regulation.
“The Committee should note that Juncker, in his State of the Union address on 13th September, set out that he saw “a strong case for tasking the new European Public Prosecutor with prosecuting cross-border terrorist crimes”. This received some support from participating Member States at the October JHA Council and it has now been added to the Commission’s 2018 work programme. They plan to issue an initiative in Q3 2018 (during the Austrian Presidency of the EU) to extend the European Public Prosecutor’s Office to include the fight against terrorism.”
(a) and (b) Thirty third Report, HC 71–xxxi (2016–17), (1 March 2017); Tenth Report HC 342–x (2015–16), (25 November 2015); First Report HC 342–i (2015–16), (21 July 2015); (a) Nineteenth Report HC 83–xviii (2013–14), (23 October 2013); Fifteenth Report HC 83–xv (2013–14), (11 September 2013).
184 As set out in the proposed Directive on the fight against fraud to the Union’s financial interest by means of criminal law (the PIF Directive). The proposal was adopted by the Council on 5 July 2017: Directive (EU) .The Directive harmonises the definition of “fraud on the budget” offences (fraud, corruption, money laundering and misappropriation) as well as the penalties and statutes of limitations for such offences. The UK did not opt into the proposal before its adoption, not least because of its inclusion of some cross-border VAT fraud and the Government is not considering a post adoption opt-in: Thirty third Report, HC 71–xxxi (1 March 2017), (2016–17).
185 See the . Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Germany, Greece, Spain, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Portugal, Romania, Slovenia and Slovakia participate.
186 implementing enhanced cooperation on the establishment of the EPPO.
187 In accordance with the 2010 Coalition Agreement. Also the EU Act 2011 requires any future participation to be sanctioned through a referendum. The debate concerning the UK’s intention to not opt into the EPPO proposal was held on 28 October 2013.
188 Eurojust is an EU agency, comprised of one senior judge or prosecutor per Member State, tasked with supporting judicial coordination and cooperation between national authorities to combat terrorism and serious organised crime affecting more than one Member State.
189 OLAF is an administrative (non-judicial) body already investigating fraud against the EU budget, corruption and serious misconduct with the European institutions and develops anti-fraud policy for the European Commission (see OLAF’s website).
190 The Commission received 14 Reasoned Opinions from the national parliaments/chambers of 11 Member States, representing 18 out of a total possible 56 votes. For JHA proposals, 14 votes are required to raise a Yellow Card.
191 See further the Council Press Release of
192 Directive (EU) on the fight against fraud to the Union’s financial interest by means of criminal law (EU).
193 See letter of 1 November, referred to in paragraph 17.27
194 See the given by Commission President Jean-Claude Juncker. Article 86(4) TFEU provides: “The European Council may, at the same time or subsequently, adopt a decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor’s Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission”.
195 `Council Regulation (EU) implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (EPPO).
196 See the given by Commission President Jean-Claude Juncker.
15 December 2017