Memorandum by EUROJUST
PROVISIONS ON EUROJUST AND THE CREATION OF
A EUROPEAN PUBLIC PROSECUTOR
SUMMARY
The substantive provisions on Eurojust in the
Lisbon Treaty are unlikely to have a significant impact on its
operations.
By contrast, the Treaty's procedural provisions,
especially in light of proposed amendments to the Eurojust Decision,
will have a significant impact on Eurojust's structure and operations
in the medium and longer term.
The Treaty possibility of establishing a European
Public Prosecutor's Office "from Eurojust" will focus
debate on whether Eurojust is an alternative or precursor of the
EPPO.
The substantive provisions of the Treaty of Lisbon
and Eurojust
The substantive Lisbon Treaty provisions on
Eurojust (Article 69D) are similar to but differ from those proposed
in the Constitutional Treaty. It is not possible to say that the
provisions point unequivocally in one direction.
At first sight, the Lisbon Treaty extends Eurojust's
mission by comparison with the proposals in the Constitutional
Treaty. The Constitutional Treaty (Article III-174.1) described
Eurojust's mission as supporting co-ordination between national
prosecuting authorities, while Lisbon Treaty (Article 69D.1)
puts the mission in terms of co-ordination between both investigating
and prosecuting authorities.
This difference is repeated in the description
of Eurojust's tasks. The Constitutional Treaty provided for the
initiation and coordination of criminal prosecutions, (Article
III-174.2). By contrast, the Lisbon Treaty refers to both investigation
and prosecution when describing the tasks of Eurojust. These tasks
may include the initiation of criminal investigations as
well as proposing the initiation of prosecutions, and the co-ordination
of investigations and prosecutions (Article 69D.2).
However, the impact of these changes in themselves
is unlikely to be significant. First, the Lisbon Treaty reiterates
that Eurojust acts on the basis of operations and information
from the authorities of Member States and Europol (Article 69D.1).
The initiation of criminal investigations thus continues
to depend not only in practice but by Treaty provision on prior
investigations by national authorities and Europol.
Second, the existing Treaty on European Union
Article 31.2(b) already refers to Eurojust's role in supporting
criminal investigations in cases of serious cross-border
crime. In this context, the wording of the Lisbon Treaty does
not represent a significant change to the current position.
It is also worth noting that the Lisbon Treaty's
reference to "proposing the initiation of prosecutions"
(Article 69D.1a) marks a dilution of the position in the Constitutional
Treaty. There it was proposed that the tasks of Eurojust should
include, without other qualification, the initiation and
co-ordination of criminal prosecutions.
THE INDIRECT
IMPACT OF
THE LISBON
TREATY AND
EUROJUST
By contrast with substantive provisions, the
move to first pillar procedures is more important for the future
development of Eurojust, and also less predictable (see the variety
of MS responses in the attached summarised questionnaire, not
printed with this report, on the future of Eurojust). Qualified
majority voting, the extended jurisdiction of the European Court
of Justice, the greater role for the Commission and the European
Parliament etc, will probably lead to changes in Eurojust's structure,
operation, field of action and tasks. Whether the UK accepts such
changes is, of course, a different matter.
The amendments to the Eurojust Decision, currently
under discussion (see attached, not printed with this report),
give an indication of the changes which, if not adopted under
current procedures, may well be brought forward under the Lisbon
Treaty. They include provision for common tenure and minimum powers
for Eurojust prosecutors, an "Emergency Cell for Co-ordination"
to respond in urgent cases, the appointment of liaison magistrates
in third countries, improved information flows between Eurojust
and Member States, etc. It is not appropriate to consider these
amendments in detail here, but an example may assist.
A set of minimum powers for Eurojust national
members is likely to be established. This is against the background
that, in terms of cases registered, Eurojust has grown dramatically
in the five years of its existence. More than 1000 cases were
registered in 2007 (with the UK last year as the member state
making most use of Eurojust), which represents a five-fold increase
over 2002. This increasing caseload could suggest that Eurojust
operates successfully with the current distribution of powers
among national members.
However, it could equally be seen as illustrating
the need to build on success and to secure more effective and
pro-active co-operation. Here, a move towards common powers for
Eurojust prosecutors is likely to gather momentum under the Lisbon
Treaty. An example is the power to make requests for mutual legal
assistance. Members of an organisation dedicated to improving
MLA between EU states should presumably have the ability to issue
requests for such assistance (at least in urgent situations).
For example, drug traffickers are about to transport heroin across
6 Member States to dealers in France or the UK. Judicial authorisation
from each member state is necessary for intrusive surveillance
during the operation, and each MS has differing legislation on
the topic. In this type of urgent situation, it makes sense for
prosecutors at Eurojust, directly advised by their colleagues
of the legal requirements in each jurisdiction, to formulate and
issue such requests, without the delays involved in transmitting
the request for issue by their home authority.
Other suggested powers may be more controversial.
One is the proposal in Article 9a.2 that a national prosecutor
appointed to Eurojust should be able to issue orders for search
and seizure. This draws on the model of a prosecutor or examining
magistrate who directs the police. (The proposal recognises that
"constitutional rules" in some MS might make this amendment
difficult, and suggests that the Eurojust prosecutor should be
empowered to request the measure in such circumstances, see proposed
Article 9a.6). This type of change, if not accepted under current
arrangements, may advance under the new procedural arrangements
in the Lisbon Treaty.
THE REFORM
TREATY AND
THE EUROPEAN
PUBLIC PROSECUTOR'S
OFFICE.
The question of common minimum powers for Eurojust
prosecutors has links to the possible establishment of the European
Public Prosecutor's Office. As the Treaty provides that the EPPO
may be established "from Eurojust" (Article 69E), one
impact of the Treaty will be to focus debate on what Eurojust
should be in the future. There is an important qualification,
that Eurojust's remit is far wider than that envisaged for the
EPPO. The Lisbon Treaty provides that the EPPO's role would first
be to combat crimes affecting the financial interests of the Union
(Article 69E.1) Eurojust's tasks include this, but the mission
extends generally to serious crime affecting two or more MS. Nevertheless,
although arguments may not be directly expressed in terms of Eurojust
as alternative or precursor of the EPPO, the underlying debate
will take this form. Does Eurojust's success make an EPPO more
or less likely?
Aspects of the debate are foreshadowed in that
around amended powers in the Eurojust Decision. If Eurojust is
to have a strictly co-ordinating role, common minimum powers may
not be necessary. If a co-ordinating role in urgent cases requires
the exercise at Eurojust of prosecutorial powers which are available
in some national jurisdictions (such as authorization of controlled
deliveries, proposed Article 9a.2), then common minimum powers
may be required. Given the variety of powers held by prosecutors
in MS, it is not possible to predict the outcome of this debate.
4 February 2008
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