Select Committee on European Communities Ninth Report


CORPUS JURIS introducing penal provisions for the purpose of the financial interests of the European Union


Article 1—Fraud in the Community Budget

  1.  Fraud affecting the budget of the European Communities constitutes a criminal offence, both in the area of expenditure and in the area of receipts, when one of the following acts has been carried out either intentionally or by recklessness or by gross negligence:

    (a)  in connection with a grant or subsidy or the settlement of a fiscal debt, presenting the competent authority with declarations which in important respects are incomplete, imprecise, or based on false documents, in such a way as to risk harm to the Community budget;

    (b)  in the same context, omitting to provide information to the competent authorities in breach of a requirement to provide such information;

    (c)  diverting Community funds (subsidies or grants) obtained legally.

  2.  Any person who corrects or completes a false declaration, or withdraws an application made on the basis of false documents, or who informs the authorities about facts that he has omitted to reveal, before the act has been discovered by these authorities, is not punishable.

Article 2—Market-rigging

  To rig the market when a decision is being made as to who shall be awarded a contract constitutes a criminal fraud where this is liable to harm the financial interests of the Communities. The fraud consists of a secret agreement between competitors over offers or threats or promises towards competitors, or deceiving them, or colluding with the official responsible for the decision.

Article 3—Corruption

  1.  For the purposes of the present text the term official covers any official whether "European" or "national".

  A "European official" means:

    (a)  any person who is an official or an agent employed under contract as understood by the Staff Regulations;

    (b)  any person placed at the disposal of the European Communities by Member States or by any public or private organisation, who exercises functions equivalent to those exercised by officials or other agents of the European Communities.

  The expression "national official" is interpreted by reference to the meaning of "official" or "public officer" under the national law of the Member State where the person in question holds this title for the purposes of applicaton of its criminal law.

  2.  Acts of passive and active corruption are criminal offences if they harm or might harm the financial interests of the European Communities.

  3.  Passive corruption is where an official solicits or accepts, directly or via a third person, for himself or a third person, any offer, promise or other advantage of whatever nature:

    (a)  in order to carry out an official act or act relating to his duties, in breach of his official obligations;

    (b)  in order not to carry out an official act or act relating to his duties, which he is officially required to perform.

  4.  Active corruption means where any person makes or gives, directly, or via a third person, any offer, promise or any other advantage, of whatever nature, to an official, in his own interest or in the interest of a third person:

    (a)  to induce him to carry out an official act or act in relation to his duties, in such a way as to contravene his official duties;

    (b)  to induce him not to carry out an official act or act relating to his duties which his official duties require him to carry out.

Article 4—Abuse of office

  1.  A Community official commits a criminal offence:

    (a)  if he makes a decision on the award of a subsidy, grant or an exemption from duty in favour of a person who clearly has no right to it;

    (b)  if he intervenes, directly or indirectly, in the awarding of subsidies, grants or exemption from duty in relation to any business or operation in which he has some personal interest.

  2.  The penalty is increased when the damage caused is greater than 100,000 ECUs.

Article 5—Misappropriation of funds

  1.  It is a criminal offence for Community officials to commit a breach of trust in administering funds from the Community budget. The offence is committed when a Community official formally authorised to allocate funds from the Community budget, or to contract out requirements on behalf of the Community abuses his powers by harming those interests entrusted to him.

  2.  The penalty is increased when the damage caused amounts to more than 100,000 ECUs.

Article 6—Disclosure of secrets pertaining to one's office

  1.  It is a criminal offence for an official improperly to reveal secrets pertaining to his office, when the secret concerns information acquired in, or by virtue of his professional activity, particularly when monitoring receipts or awarding grants and subsidies.

  2.  This provision is not applicable in cases where the law, or a regulation, imposes or authorises disclosure of the secret, or if there is the consent of the person who is guardian of the secret.

Article 7—Money laundering and receiving

  1.  It is a criminal offence to launder the fruits or the profits of offences described in Articles 1 to 6.

    Laundering means:

    (a)  the conversion or transfer of goods resulting from any of the criminal activities mentioned in the previous paragraph or participation in such activity with the aim of concealing or disguising the illicit origins of the said goods or of helping any person involved in this activity to escape the legal consequences of his acts;

    (b) the concealing or disguising of the nature, origin, site, placing, disposal, movements or the real ownership of goods or rights resulting from any criminal activity mentioned in the previous paragraph, or participation in such an activity.

  2.  It is a criminal offence to receive products or profits from the offences set out in Articles 1 to 6.

  Receiving means the acquisition, keeping or use of goods from any of the criminal activities mentioned in the previous paragraph or participation in such an activity.

Article 8—Conspiracy

  1.  A conspiracy which harms the Community budget constitutes a criminal offence.

  2.  A conspiracy is when two or more persons work together, setting up the necessary organisation, with a view to carrying out one or more of the offences set out in Articles 1 to 7.

Article 9—Penalties

  1.  The principal penalties, common to all offences set out in Articles 1 to 8, are as follows:

    (a)  for natural persons, a custodial sentence for a maximum of five years and/or a fine of up to one million ECUs, which may be raised to five times the amount involved in the offence;

    (b)  for organizations, legal supervision for a maximum of five years and/or a fine of up to one million ECUs, which may be raised to five times the amount involved in the offence;

    (c)  confiscation of the instruments, fruits and profits of the offence;

    (d)  publication of the conviction.

  2.  Additional penalties for the same offences are as follows:

    (a)  for an offence under Article 1, exclusion from future subsidies for five years at most;

    (b)  for an offence under Article 2, exclusion from future contracts for five years at most;

    (c)  for offences under Articles 3 to 6, a ban from Community and national public office for up to five years.

Article 10—Mens rea

  All the offences set out above (Articles 1 to 8) require intention or fraud, with the exception of Community fraud (Article 1) for which recklessness or gross negligence is sufficient.

Article 11—Error

  1.  Mistake about the essential elements of the offence excludes fraud; but recklessness and gross negligence may nevertheless be sanctioned in the case of Community fraud (see above, Article 1).

  2.  Mistake about the existence of a legal prohibition or its interpretation excludes liability if it would have inevitably been committed by a careful, sensible person. If the mistake was avoidable, the penalty will be reduced, which means that the judge may not impose the maximum penalty (see above, Article 9).

Article 12—Individual criminal liability

  1.  Any person may be held responsible for the offences defined above (Articles 1-8) as a principal offender, inciter or accomplice:

    (a)  as principal offender, if he commits the incriminating facts or participates, as co-offender, in committing the offence;

    (b)  as an inciter if he, by means of a bribe, promise, threat, order, abuse of authority or power provokes the offence or gives instructions for it to be committed;

    (c)  as an accomplice if he knowingly, by providing assistance, facilitates the preparation or the commission of the offence.

Article 13—Criminal liability of the head of a business

  1.  If one of the offences defined above (Articles 1 to 8) has been committed for the benefit of a business by a person subject to their authority, the head of the business is also criminally liable, and any other person with powers of decision or control within the business, if he has knowingly given orders, allowed the offence to be committed or omitted to exercise the necessary supervision.

  2.  The delegation of powers and criminal liability is only valid as a defence if it is partial, precise and specific, if it corresponds to a structure necessary for the running of the business and if the delegatees are really in a position to be able to fulfil the functions delegated to them. Such delegation does not exclude the general responsibilities of monitoring, supervision and selection of personnel, and does not include matters proper to the head of the business such as general organisation of work within the business.

Article 14—Criminal liability of organisations

  1.  The offences defined above in Articles 1-8 may be committed by corporations, and also by other organisations which are recognised by law as competent to hold property in their own name, provided the offence is committed for the benefit of the organisation by some organ or representative of the organisation, or any person acting in its name and having power, whether by law or merely in fact, to make decisions.

  2.  Where it arises, the criminal liability of an organisation does not exclude that of any natural person as author, inciter or accomplice to the same offence.

Article 15—Extent of the Penalty

  The penalties applicable to the offences set out above (Articles 1-8) are to be imposed in accordance with the seriousness of the act, the fault of the offender and the extent of his participation in the offence. In particular the previous life of the accused, any previous offences, his character, his motives, his economic and social situation, and his efforts to make amends for the damage caused will all be taken into account.

Article 16—Aggravating circumstances

  1.  The following constitute aggravating circumstances:

    (a)  the fraudulent result sought is achieved;

    (b)  the amount of the fraud or profit sought through the offence exceeds 200,000 ECUs;

    (c)  the offence is carried out in the context of a conspiracy.

  2.  Where aggravating circumstances exist, a custodial sentence (or as the case may be, placing under legal supervision) is mandatory, and the maximum length of the penalty incurred is increased to seven years.

Article 17—Penalties incurred in the case of concurrent offences

  1.  Where one person is liable for several offences as defined above (Articles 1 to 8), a single penalty shall be applied, determined on the basis of the penalty which would have been incurred for the most serious offence, and increased by up to three times that amount: a penalty determined in this way shall not exceed the sum of the penalties which could have been inflicted separately for each offence.

  2.  When a single act constitutes a criminal offence under both Community regulations and national laws, only Community regulations are to be applied.

  3.  In all other cases of concurrent offences, the competent authority must, in determining the penalty, take into account penalties already imposed for the same act.


Article 18—Status and structure of the European Public Prosecutor (EPP)

  1.  For the purposes of investigation, prosecution, trial and execution of sentences concerning the offences set out above (Articles 1 to 8), the territory of the Member States of the Union constitutes a single legal area.

  2.  The EPP is an authority of the European Community, responsible for investigation, prosecution, committal to trial, presenting the prosecution case at trial and the execution of sentences concerning the offences defined above (Articles 1 to 8). It is independent as regards both national authorities and Community institutions.

  3.  The EPP consists of a European Director of Public Prosecution (EDPP) whose offices are based in Brussels and European delegated Public Prosecutors (EDelPP) whose offices are based in the capital of each Member State, or any other town where the competent court sits on application of Article 26.

  4.  The EPP is indivisible and interdependent:

    (a)  indivisibility implies that any act undertaken by one of its members is taken as done by the EPP: that all acts which fall within the competence of the EPP (particularly powers of investigation as set out under Article 20) may be undertaken by any one of its members; and that, with the agreement of the EDPP, or in emergencies where he retrospectively approves, any of the EDelPPs may exercise his duties on the territory of any of the Member States, in collaboration with the offices of the EDelPP in that Member State;

    (b)  interdependence requires, on the part of the different EDelPPs, an obligation to assist each other.

  5.  National Public Prosecutors (NPP) are also under a duty to assist the EPP.

Article 19—Seisin of the EPP and opening of proceedings

  1.  The EPP must be informed of all acts which could constitute one of the offences defined above (Articles 1 to 8), by the national authorities (police, public prosecutors, juges d'instruction, agents of national administrations such as tax or Customs authorities) or by the competent Community body, the Commission's Anti-Fraud Unit (UCLAF). It may also be informed by denunciation from any citizen or by a complaint from the Commission. National authorities must seise the European Prosecution Service at latest when the suspect is formally "under investigation" under Article 29(2), or when coercive measures are employed, particularly arrest, searches and seizures or when a person's telephone is to be tapped.

  2.  If an investigation conducted by a national authority reveals that one of the offences above has been committed (Articles 1 to 8), the dossier must be immediately submitted to the EPP.

  3.  However the EPP learns about the facts, it may become officially seised either by the national authorities or by acting on its own initiative.

  4.  The decision to prosecute, which means opening an investigation, may be taken by the EPP whatever the sum of the fraud involved. The EPP, bound by the legality principle, must bring a prosecution if it appears that one of the offences (Articles 1 to 8) has been committed. It may, however, by a decision with special grounds communicated immediately to the person who has informed it, or denounced it to its officials or laid a complaint:

    (a)  either refer offences which are not serious or which affect principally national interests to the national authorities;

    (b)  or drop the case, if the accused, having admitted guilt, has made amends for the damage caused and, as the case may be, returned funds received illegally;

    (c)  or grant an authorisation for settlement to a national authority which has applied for it, according to the conditions set out below (Article 22(2b)).

Article 20—Powers of investigation of the EPP

  1.  In order to discover the truth and to bring the case to a point where it may be tried, the EPP conducts investigations into the offences defined above (Articles 1 to 8) looking for evidence of innocence as well as for evidence of guilt (a charge et a decharge). Its powers are divided between the European Director of Public Prosecutions (EDPP), the European Delegated Public Prosecutors (EDelPP) and, as may be, national authorities appointed for this purpose, according to the following rules.

  2.  The EDPP's own powers include:

    (a)  overseeing investigations and their delegation to one or more EDelPP, in accordance with the conditions and restrictions set out below (Article 20(3));

    (b)  the coordination of investigations undertaken by the EDelPP as well as by national police forces and competent national administrations and, as may be, UCLAF; this coordination may take the form of oral or written recommendations to the relevant authorities;

    (c)  the right to call in cases where the investigation reveals that they concern in whole or in part offences defined above (Articles 1 to 8).

  3.  All the following powers may either be exercised by the EDPP or delegated to EDelPP, where there is an investigation into offences set out in Articles 1 to 8:

    (a)  questioning of the suspect, under conditions which respect his rights as set out below (Article 29);

    (b)  collection of documents and/or computer-held information necessary for the investigation and, if need be, visits to the scene of the offence;

    (c)  request addressed to the judge to order an expert enquiry under the conditions set out below (Article 31);

    (d)  searches, seizures and telephone tapping ordered in accordance with the rule below (Article 25), on authorisation from a judge or with his subsequent permission, and undertaken with respect for the rights of the accused (Article 31);

    (e)  hearings of witnesses who agree to cooperate with the law and, as may be, witnesses obliged to appear in accordance with the conditions below (Article 25);

    (f)  notification of charges to the accused, with respect for the rights set out below (Article 29);

    (g)  to make requests for a person's remand in custody or remand on bail subject to conditions, for a period of up to 6 months, renewable for 3 months, where there are reasonable grounds to suspect that the accused has committed one of the offences defined above (Articles 1 to 8) or good reasons for believing it necessary to stop him from committing such an offence or from fleeing after committing it: this order, in writing and giving reasons, must be addressed to the competent national legal authorities in accordance with the rules below (Articles 24 and 25), the execution of the measures being organised in the country where the arrest was made.

  4.  Powers delegated to the EDelPP may be partially subdelegated (limited ratione materiae et ratione temporis) to a national authority (prosecuting authority, police, or any other competent administration such as the tax or customs authorities) who will be bound to respect all the rules contained in this European Corpus.

Article 21—Closure of the preparatory stage

  1.  When he considers investigations to be completed, the EDelPP decides, under the authority of the EDPP, either to make a decision not to prosecute, or to bring the case to court.

  2.  The decision not to prosecute is notified to the European Commission, to the accused, and to any body or person who informed the EPP, denounced the offence to its officials or brought a complaint, as defined above (Article 19(4)).

  3.  The decision to bring the case to court, notified under the same conditions as non-prosecution (Article 21(2)), includes the name and address of the accused, a description of the acts and the offence so committed, and also states where the case is to be tried. It passes into the control of the competent national legal authority in accordance with the rules set out below (Article 25) which, after establishing the lawfulness of the proceedings, seises the court with jurisdiction and sends a summons to the accused stating the date and the time he is to appear.

Article 22—Bringing and terminating a prosecution

  1.  For the offences set out above (Articles 1 to 8), the EPP prosecutes at the court of trial (selected as indicated hereafter, Article 26), according to the laws in the relevant state. The national prosecuting party may if appropriate prosecute with him, if national interests are also under threat. In such a case, notices and summons are also addressed to the national prosecuting party and the dossier is sent out to it in good time.

  2.  For the same offences, the prosecution is extinguished (ruling out any national pardon or amnesty) on the death of the defendant (or if it concerns a group, the dissolution of the group), or by expiry of the limitation period or by settlement:

    (a)  there is a limitation period of five years, calculated from the day when the offence was committed if within this time there has been no investigation or prosecution: if investigation or prosecution have taken place, the offence is only time-barred from five years after the last act of investigation or prosecution. In all cases, notification of the charges to the suspect interrupts the limitation period;

    (b)  settlement is ruled out in the case of repeated offences, where arms or forgery were used, or if the sum involved is 50,000 ECUs or more. In other cases, it may be proposed by the national authorities to the EPP, both for cases under national jurisdiction (cf Article 19(4a)), and cases under European jurisdiction, according to the following conditions: the defendant freely admits his guilt, the authorities have sufficient evidence of guilt to justify commital to trial, the decision to come to a settlement is made publicly, and the agreement concluded respects the principle of proportionality. In the case of refusal, the EPP must, if there are grounds, call in the case.

Article 23—Execution of sentences

  1.  When a conviction becomes definitive, it is immediately communicated by the EPP to the authorities of the Member State which is appointed as the place of execution of the decision: certain penalties such as confiscation, removal of rights or publication of the conviction may be carried out in one or more places other than the place of imprisonment. The EPP is responsible, alongside the competent national authority, for ordering and overseeing the implementation of the sentence if this is not automatic. In principle, execution of the penalties is governed by the laws in force in the Member State appointed as place of execution of the sentence. However, the EPP oversees the application of the following common rules across the whole territory of the States of the European Union:

    (a)  any period spent in custody by the accused on account of the same acts, in any State and at any point of the procedure, is deducted from the custodial sentence pronounced by the court of judgment;

    (b)  no person may be prosecuted or criminally convicted in a Member State by reason of one of the offences defined above (Article 1 to 8) for which he has already been either acquitted, or convicted by a definitive judgment, in any of the Member States of the European Union;

    (c)  any sentencing decision relating to one of the offences outlined above (Articles 1 to 8) must take into account in determining the penalty the rules set out above (Article 17) on concurrent offences.

  2. The EPP may, if there are grounds, authorise a transfer if a convicted person with a custodial sentence asks to be imprisoned in a Member State other than the one named by the conviction.

Article 24—Competence ratione loci

  1.  In the single legal area as defined in Article 18(1), competence ratione loci is exercised according to the following rules:

    (a)  members of the EPP appointed by the EDPP to bring prosecutions and conduct investigations into cases in accordance with the conditions set out above (Article 18 et seq) have competence across the entire territory of the European Union (cf Article 18(4a));

    (b)  a European warrant for arrest, issued on the instructions of the EPP by a national judge (cf Article 20(2e)) is valid across the whole territory; any person arrested thus may be transferred to the territory of a State where he is required to be (during the preparatory stage or at trial);

    (c)  judgments relating to the offences set out above made by the courts of any of the Member States are valid across the whole territory of the Union.

  2.  If investigations require legal cooperation of any kind from a third state, the EPP requests the national authorities of the principal country where investigations are taking place to apply to the third state concerned, following the procedure laid down by the national and international legal instruments in force.

Article 25—Preparatory stage

  1.  The preparatory stage of proceedings, opened with regard to the offences defined above (Articles 1 to 8), lasts from the initial investigations conducted by the EPP until the decision to commit the case to trial (above article 21(3)). Throughout this stage, judicial control is exercised by an independent and impartial judge, the "judge of freedoms", appointed by each Member State from the court where the EDelPP is based. This judge is also competent to rule on whether the Commission is entitled to constitute itself a "partie civile" (cf Article 30) and also to order, as needed, measures to preserve matters or things which are the subject of the case, when the necessity for this cannot be seriously disputed, and when such measures are necessary to preserve civil interests and proportional to them.

  2.  During the course of an investigation into the offences set out above (Articles 1 to 8), the coercive measures listed under Article 20(3) are admissible. However, any measure restricting rights and fundamental freedoms recognised by the European Convention on Human Rights which is taken at this stage and which affects a witness or the accused must first be authorised by the judge of freedoms, who checks that the measure is lawful and regular as well as that the principles of necessity and proportionality are respected: however, an a posteriori authorisation in the following 48 hours is allowed in an emergency, particularly where clues might disappear, where the offence is in the process of being committed, or where there is a risk that the suspect will escape from the law.

  3.  At the end of the preparatory stage, if he decides to commit the case to trial (cf Article 21(1 & 3)), the EDPP submits this decision to the judge of freedoms who checks the lawfulness of all the proceedings, excludes if necessary any evidence obtained in breach of the rules below (Article 32) and seises the court of trial according to the rules set out hereafter (Article 26).

Article 26—Judgment stage

  1.  The offences set out above (Articles 1 to 8), are tried by national, independent and impartial courts, appointed by each Member State according to the rules on competence ratione materiae of the national law, sitting at the centres where the EDelPP is based. The courts must consist of professional judges, specialising wherever possible in economic and financial matters, and not simple jurors or lay magistrates.

  2.  Each case is judged in the Member State which seems appropriate in the interests of efficient administration of justice, any conflict of jurisdiction being settled according to the rules set out hereafter (Article 28). The principle criteria for the choice are the following:

    (a)  the State where the greater part of the evidence is found;

    (b)  the State of residence or of nationality of the accused (or the principal persons accused);

    (c)  the State where the economic impact of the offence is the greatest.

  3.  On application of the general rule on the subsidiarity of national law (Article 35), national courts must refer to the rules in the European corpus and, if there is a lacuna, apply the national law. They are bound in all cases to give grounds for the penalty by reference to circumstances pertaining to the particular case, applying the rules set out above (Articles 15 to 17).

Article 27—Appeal to national courts

  1.  Any conviction pronounced against a person declared guilty of one of the offences set out above (Articles 1 to 8) must be subject to appeal by the convicted person leading to the case being retried, in law and in fact, by a higher court of the State where the conviction was pronounced at first instance: the higher court must apply, as the court of first instance, the rules set out in the European corpus and, in the case of a lacuna, must apply national law.

  2.  In the case of total or partial acquittal, appeal is also open to the EPP as a prosecuting party: the Commission may be joined to it, as partie civile, on the basis of civil interests only.

  3.  In the case of appeal by the convicted person alone, the court seised may not pronounce a stiffer penalty.

Article 28—Appeal to the European Court of Justice (ECJ)

  1.  The Court of Justice has jurisdiction to rule on offences as defined above (Articles 1 to 8) in three cases:

    (a)  preliminary questions on the interpretation of the corpus and any application measures;

    (b)  on the request of a Member State or the Commission on any dispute concerning the application of the corpus;

    (c)  on the request of the EPP or a national legal authority on conflicts of jurisdiction regarding application of the rules on the principle of European territoriality, concerning both the public prosecution services (Articles 18 and 24) and the exercise of judicial control by national courts (Articles 25 to 27).

  2.  When a question of interpretation is raised or a conflict of jurisdiction brought before a court of one of the Member States, this court may, if it considers that a decision on this point is necessary in order to give its judgment, call on the Court of Justice to rule on the issue.

  3.  When an issue or conflict such as this is raised in a case pending before a national court whose decisions are not subject to appeal in national law, this court is bound to seise the Court of Justice.

Article 29—Rights of the accused

  1.  In any proceedings brought for an offence as set out above (Articles 1 to 8), the accused enjoys the rights of the defence guaranteed by Article 6 of the European Convention on Human Rights and Article 10 of the UN International Covenant on civil and political rights.

  2.  A person may not be heard as a witness but must be treated as accused from the point when any step is taken establishing, denouncing or revealing the existence of clear and consistent evidence of guilt and, at the latest, from the first questioning by an authority aware of the existence of such evidence.

  3.  From the time of his first questioning, the accused has the right to know the content of the charges against him, the right to be assisted by a defence lawyer of his choice, and, if necessary, an interpreter. He has the right to remain silent.

Article 30—Rights of the Commission as partie civile

  1.  Where the Community is the victim of damage directly caused by one of the offences set out above (Articles 1 to 8), the European Commission may constitute itself partie civile before the competent judge, either at the preparatory stage, or at the opening of the trial. It may ask the judge to take preservation measures and, as the case may be, order compensation for the damage.

  2.  Once the partie civile is declared admissible, the Commission is entitled to the rights and prerogatives of a party to the proceedings: receiving the dossier, notification of procedural steps, assistance by a lawyer, presence at the hearing, participation in the administering of the evidence, exercise of the right to appeal as far as its civil interests are concerned (cf Article 27).

Article 31—Burden of proof

  1.  Any person accused of one of the offences set out above (Articles 1 to 8) is presumed innocent until his guilt has been established legally by a final judgment which has acquired the authority of res judicata.

  2.  Subject to the obligation to produce certain documents which may be required under national or Community law, no person is obliged to actively contribute, directly or indirectly, in establishing his own guilt.

Article 32—Admissible evidence

  1.  In Member States of the European Union, the following evidence is admitted:

    (a)  testimony, either direct, or presented at the trial via an audio-visual link if the witness is in another Member State, or recorded by the EPP in the form of a "European deposition". For the latter, the witness must be examined before a judge, the defence lawyer must be present and allowed to put questions, and the operation must be recorded on video;

    (b)  questioning of the accused, either direct or recorded by the EPP in the form of a "European interrogation report". For the latter the questioning must take place before a judge, that the accused must be assisted by a defence lawyer of his choice (who has received the dossier in good time and at the latest 48 hours before the questioning) and, if necessary, by an interpreter: in addition, the operation must be recorded on video;

    (c)  statements made by the accused, outside the interrogations previously mentioned, as long as they have been made before the competent authority (EPP or judge), and that the accused has first been informed of his right to silence and his right to be assisted by a defence lawyer of his choice and that the statements have been recorded in some way;

    (d)  documents presented by an official accountant, appointed by the competent court from individuals or corporations appearing on a European list approved by the Member States on the proposal of the EPP, either during the preparatory stage, or at the beginning of the trial;

    (e)  documents that the accused has been required to produce in a preliminary administrative investigation, unless such an obligation is accompanied by criminal sanctions.

  2.  These provisions do not exclude the validity of other forms of evidence considered as admissible under the national law in force in the State of the court of judgment.

Article 33—Exclusion of evidence illegally obtained

  1.  In proceedings for one of the offences set out above (Articles 1 to 8) evidence must be excluded if it was obtained by Community or national agents either in violation of the fundamental rights enshrined in the ECHR, or in violation of the European rules set out above (Articles 31 and 32), or in violation of applicable national law without being justified by the European rules previously set out.

  2.  The national law applicable to determine whether the evidence has been obtained legally or illegally must be the law of the country where the evidence was obtained. When evidence has been obtained legally in this sense, it should not be possible to oppose the use of this evidence because it was obtained in a way that would have been illegal in the country of use. But it should always be possible to object to the use of such evidence, even where it was obtained in accordance with the law of the country where it was obtained. If it has nevertheless violated rights enshrined in the ECHR or the European rules (Articles 31 and 32).

Article 34—Publicity and secrecy

  1.  Investigations carried out under the authority of the EPP are secret and authorities participating in these investigations are bound to respect the rule of professional secrecy.

  2.  Hearings before the judge of freedoms may be published if all parties consent to it, unless publicity would be likely either to harm either the smooth running of the investigation, or to damage the interests of a third party, or endanger public order or morals. In any case, the media are banned from publishing information at this stage relating to the evidence.

  3.  The judgment must be given publicly, but access to the court may be denied to the press and the public, during all or part of the proceedings, under the conditions stipulated in Article 6(1) ECHR. Publicity may include recording and broadcasting the proceedings audiovisually if the national law of the State concerned allows it and under the conditions which it imposes.

Article 35—Subsidiarity of national law with regard to the European corpus

  The corpus of rules set out above concerning both substantive law (Articles 1 to 17) and procedure (Articles 18 to 34) applies across all the territory of Member States of the European Union. Where there is a lacuna in the corpus, the law applied is that of the place where the offence is prosecuted, committed to trial or, as the case may be, where the sentence is carried out.

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1999