Select Committee on European Scrutiny Eleventh Report



EUROPEAN JUDICIAL COOPERATION UNIT (EUROJUST)

(a)

(21897)

14052/00

(b)

(21972)

14900/00


Draft Council Decision setting up EUROJUST.


Draft Council Decision setting up EUROJUST.

Legal base: Articles 31 and 34(2)(c) EU; consultation; unanimity
Department: Home Office
Basis of consideration: Minister's letters of 20 and 29 March 2001
Previous Committee Report: HC 28-vi (2000-01), paragraph 2 (14 February 2001)
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: Not cleared; further information requested

Background

3.1  We considered a number of documents relating to the establishment of a European judicial cooperation unit, Eurojust, on 14 February 2001. We held the current versions of the proposal under scrutiny, pending a reply by the Minister of State at the Home Office (Mrs Barbara Roche) to the points we had raised.

3.2  We considered that a key aspect of the Eurojust proposals was the effect the creation of the unit might have on the discretions vested by national law in the prosecuting authorities. We were concerned that a requirement on a prosecuting authority to account to Eurojust for its reasons for not complying with a request to prosecute suggested that the unit was intended to have some influence over prosecuting decisions, and we asked the Minister to explain why it was thought necessary to include this requirement. We also looked forward to an account by the Minister of how her concerns about the data protection regime had been met.

The Minister's letters

3.3  The Minister's letter of 20 March replies to a number of questions from our sister committee in the House of Lords, and comments on submissions on the Eurojust proposals made by JUSTICE.[3] Certain passages of the letter are relevant to our concerns, notably in relation to the powers of Eurojust. JUSTICE had referred to Eurojust as having a "quasi-judicial role", and had commented that:

"Even though the request to investigate or prosecute is to be non-binding, it will undoubtedly be highly persuasive and difficult to decline in practice."

3.4  The Minister replies to this comment as follows:

"The Government does not believe this concern has been borne out by the discussions that have taken place. The majority of Member States have agreed that Eurojust should not have any "powers" in addition to those that are set out in Articles 6, Y and Z of document EUROJUST 21. The Government believes that the proposals contained in those Articles provide the basis for a viable modus operandi for Eurojust, which takes due account of the primacy of the national competent authorities.

"It is probably worth making the point that while JUSTICE's submission refers to Eurojust making 'decisions', it is clear from discussions that Eurojust will be making recommendations rather than decisions. It will be able to ask competent authorities in the Member States to do certain things, but it will not be able to insist. Eurojust can ask for reasons if a Member State declines to act on one of its recommendations, but that is as far as its 'powers' extend in this regard. The main functions for Eurojust will be to facilitate co-ordination and co-operation, but without any formal decision making powers."

3.5  On the question of data protection, the Minister acknowledges that data protection issues have not received detailed consideration, but indicates that the Government's concerns have been registered in general terms during the negotiations. The Minister notes the concern expressed by our sister committee in the House of Lords that during negotiations data protection issues appear to be left to the last minute and to produce unsatisfactory text, and responds as follows:

"The Government believes it has been reasonable to defer detailed consideration of the data protection regime until a clearer picture of Eurojust's activities emerged. The Government believes it would be appropriate to schedule data protection discussions soon and will make appropriate representations to the Presidency."

3.6  The Explanatory Memorandum of 21 December had commented on the role of the Commission in Eurojust, and the Minister comments further on this issue as follows:

"The Government is clear that while it is right that the Commission should be fully associated with the work of Eurojust in accordance with Article 36(2) TEU,[4] it should not have the same status as that accorded to Member States. The Commission should not be able to take on a role in national investigations and prosecutions that it does not have at present. The Government believes the main point of contact is likely to be between Eurojust and the Commission's anti-fraud office, OLAF, although the Commission may also have valuable experience to contribute in areas such as financing and the development of policy recommendations based on the experience gained by Eurojust. Further consideration will need to be given to Article 16.3 in Eurojust 19 to ensure that it accurately and adequately captures the Eurojust/Commission relationship."

3.7  The Minister's letter of 29 March addresses our concern about the need for any provision requiring a national prosecuting authority to account to Eurojust for its reasons for not complying with a request to prosecute or to co-ordinate prosecutions with those of another Member State. On this question, the Minister comments as follows:

"The Government considers that while Member States should be under no obligation to act on a request from Eurojust, Eurojust should be entitled to reasons for any decision not to act on such a request. This is consistent with the Government's view that Eurojust should not direct national authorities and appears to be a balanced solution. These requests will be made only in order to deliver Eurojust's objectives, namely to facilitate co-ordination and co-operation of serious cases involving two or more Member States."

Conclusion

3.8  We are grateful to the Minister for copying to us her letter of 20 March, and for her letter of 29 March. We note the Government's intention to make representations to the Presidency on the question of data protection, and we look forward to an account of the outcome of these representations.

3.9  We also note the Government's indication that further consideration will need to be given to an adequate and accurate description of the relationship between Eurojust and the Commission. In this connection, we agree with the Government's view that the Commission should not be able to take on a role in national investigations and prosecutions that it does not have at present.

3.10  We are grateful to the Minister for her answer to our question on the requirement imposed on a prosecuting authority in a Member State to account to Eurojust for its reasons for not complying with a request to prosecute or to co-ordinate prosecutions with those in another Member State. However, we remain concerned that these provisions indicate that Eurojust is indeed intended to have some degree of influence over prosecution discretions. In this regard, we agree with the comment made by JUSTICE that Eurojust requests will be difficult to decline in practice. We note the Minister's assertion that Eurojust should be entitled to reasons for any decision not to act on its requests, but it is not self-evident why this should be so, or how this accords with the normal policy and practice on giving reasons for prosecution decisions. We also note the Minister's comment that the provision appears to be a balanced solution, but the Minister does not explain the considerations which have been taken into account in achieving such a balance.

3.11  We therefore ask the Minister to explain more fully the degree of influence which Eurojust is intended to exercise over national prosecution decisions. If Eurojust is to have such influence, we ask the Minister to explain more fully the considerations which make this desirable.

3.12  In the meantime, we shall hold the documents under scrutiny.


3   The British Section of the International Commission of Jurists. Back

4   Article 36(2)EU provides: " The Commission shall be fully associated with the work in the areas referred to in this Title". Back


 
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