Select Committee on European Scrutiny First Report


EUROPEAN JUDICIAL COOPERATION UNIT (EUROJUST)


(a)
(22273)
7408/01

(b)
(22370)
7408/1/01
REV 1

(c)
(22455)
7408/2/01
REV 2


Draft Council Decision setting up Eurojust.



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: EM of 2 July 2001
Previous Committee Report: HC 28-xiii (2000-01), paragraph 2 (2 May 2001)
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: (a) and (b) Cleared
(c) Not cleared; further information requested

Background

8.1  The previous Committee considered a number of documents relating to the establishment of a European judicial cooperation unit, Eurojust, on 14 February, 4 April and 2 May 2001. On 2 May we considered a reply by the then Minister of State at the Home Office (Mrs Barbara Roche) to the points we had raised on 4 April. The Committee held the then current version of the draft Decision (document (a)) under scrutiny pending further information from the Minister on the progress of the negotiations.

8.2  The Committee 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. In her letter of 19 April the Minister stated that requests from Eurojust did not bind prosecution discretions and that the requirement to provide reasons for declining to follow a request was intended to ensure that requests were given "serious consideration", but that the final decision in each case was for the competent national authority and that authority alone. The Committee found this an important and helpful clarification, but reserved the right to return to the issue in the light of further negotiations on the proposal. The Committee also asked the Minister to keep it informed of the progress of negotiations, notably as to the data and information protection regime which was to apply to Eurojust.

The Government's views

8.3  In his Explanatory Memorandum of 2 July the Parliamentary-Under Secretary at the Home Office (Mr Robert Ainsworth) explains that the latest consolidated version of the proposal is contained in 7408/2/01 (document (c)), and describes the changes which have been made to the previous versions (documents (a) and (b)). The Minister explains that Article 10 to 15 of the previous versions have been completely recast as a consequence of a number of informal 'Friends of the Presidency' meetings to consider the data protection regime for Eurojust.

8.4  The Minister describes the changes to the data protection regime as follows:

    "Article 10 has been renamed 'Processing of Personal Data' and sets out the general provisions and principles governing Eurojust's processing of personal data.

    "A new Article 10(a) ('Restrictions on the Processing of Personal Data') has been added, which sets out the types of personal data that can be processed by automated means by Eurojust. The intention is to limit the amount of data processed while not being too restrictive (cf. Article 10(a).3).

    "A new Article 10(b) ('Index of Investigations') has been added. The intention is that the index will enable Eurojust to keep track of the cases it handles and essentially it will be a work management tool. There is a reference to temporary work files in Article 10(b).2, but no further clarification of data protection provisions specific only to such files. Consequently, the provisions of Articles 10 and 10(a) would apply.

    "A new Article 10(c) ('Data Protection Officer') has been added, creating the post of Data Protection Officer who will be responsible for overseeing the way in which Eurojust processes data.

    "Article 11 is now entitled 'Access to personal data' and has been expanded considerably. It deals with subject access to data and consequently the content of the original Article 11 has been moved to Article 12, which deals with confidentiality. Article 11 sets out the terms on which subject access can be sought, the exemptions that apply and the procedure for dealing with such requests.

    "Article 12 ('Confidentiality') has been expanded from the original version and now sets out not only the requirement for confidentiality but also the requirement that data should be protected from unauthorised access.

    "A paragraph has been added to the original Article 13 to provide a subject with the right to ask for correction or deletion of incorrect data held on him.

    "Article 15.2 in document 7408/01 has been moved to become Article 10.2 in the current text because it deals with a general provision rather than data security alone, which is a subset of data protection. Article 15.3 in document 7408/01 has been moved to become Article 12.3 in the current text for similar reasons.

    "A new Article 15(a) ('Joint supervisory body') has been added. The Joint supervisory body (JSB) will be responsible for ensuring that Eurojust processes personal data in accordance with the provisions set out in the Decision. Currently, the Article contains paragraph 3(a), which is an attempt to deal with the difficulty that some Member States have with a judicial organisation being overseen by an administrative organisation, but it should be noted that Article 15(a).3(a) has not been discussed yet in the Working Group.

    "The intention behind the new Article 15(b) is to provide for compensation for individuals who suffer any damage caused as a result of legal or factual errors in data stored or processed by Eurojust."

8.5  The Minister makes the following comments on the changes to the data protection regime:

    "Considering Articles 10 to 15(b) together as the data protection regime for Eurojust, the Government believes that the changes to earlier versions are a considerable improvement. The UK has contributed fully to the series of informal meetings that resulted in the re-drafting of the data protection regime. During those meetings the UK sought to ensure that each of the key principles contained in the draft Resolution on the personal data protection rules in instruments under the Third Pillar of the EU was included in Eurojust's data protection regime. This has led to significant improvements such as rights of subject access, the creation of a data protection officer and the creation of a data protection supervisory body for Eurojust. The Government supports these improvements.

    "Further work will take place on the detail of the changes to the data protection regime. A continuing problem that will need to be resolved is how the supervisory body will be constituted. A number of Member States have difficulties of principle with judicial activity taking place at Eurojust and being supervised by an administrative body. Those Member States have not been persuaded by the argument, supported by the Government, that the supervisory body would only be checking data processing and not judicial activity, and see the issue as one of separation of powers. The Government has not reached a final position on the possible solution proposed at Article 15(a).3(a), which would see the President of the European Court of Justice appointing a person who exercises judicial authority in one of the Member States acting as final arbiter in disputed cases."

8.6  The Minister explains that Article 16(1) has been expanded to set out what might be included in a co-operation agreement between Eurojust and Europol[11] and that Article 16(3) to (5) now deal with the relationship between the Eurojust and the Commission, and the latter's anti-fraud office (OLAF). The Minister comments that the Government supports the additions to Article 16(1). On the new paragraphs 3 to 5 of Article 16 dealing with the Eurojust/Commission relationship, the Minister observes that the intention was to describe the relationship in such a way as to allow the Commission to contribute its general expertise to Eurojust in areas such as interpretation of Community law and protection of the EC's finances with a more detailed and specialised relationship between OLAF and Eurojust. The Minister makes the following additional comments:

    "In the Government's view this attempt is moving in the right direction but has not yet been wholly successful. The last sentence of both Article 16.3 and 4 are so vague as to leave unclear what is permitted. The general phrasing of Article 16.5 also lacks precision. The Government will endeavour to obtain changes to the text to make the meaning clearer. As stated in earlier Home Office EMs, the intention will be to ensure the Commission and OLAF are not able to take on roles in national investigations and prosecutions that they do not have at present. The Government can support the minor changes to the remaining paragraphs of Article 16."

8.7  In relation to Article 18 (organisation and operation of Eurojust) the Minister explains:

    "Article 18.1 has been changed and now states that "(T)he College is responsible for the organisation and operation of Eurojust" rather than the earlier version, which stated that "Eurojust shall be managed by a President". Article 18.2 now states that the election of the President and up to two Vice-Presidents will be submitted to the Council for agreement. Article 18.3 now proposes a term of three years for the President, with re-election allowed once and 18.4 now makes provision for a Eurojust Secretariat, distinct from the national members, with a Head of Secretariat responsible for day to day administration under the authority of the President. An alternative proposal for 18.5 has been proposed but not yet discussed."

8.8  The Minister comments that, although the changes to Article 18 improve the earlier text, "the detail still requires further consideration". The Minister comments that giving responsibility for the organisation and operation of Eurojust to the college rather than to the President is the "most noticeable improvement", but that this tends to obscure the precise roles and responsibilities of the President, which will need to examined and clarified.

Conclusion

8.9  We thank the Minister for his helpful and informative Explanatory Memorandum. We note that a number of issues remain to be considered and we look forward to further information from the Minister in this regard.

8.10  We note that the principal development has been the inclusion of provisions on data protection, a matter to which we had earlier drawn attention. We welcome the inclusion of provisions on subject access, including the right to seek amendment, correction and deletion. We note the discussion on the nature and composition of a supervisory body. We agree with the Government's view that such a body need only be concerned with checking data-processing activity and need not interfere in any way with judicial or quasi-judicial functions, so that we see no objection of principle to supervision by an administrative authority. We shall look forward to the Minister's account of how this question is to be resolved.

8.11  We also agree that the Commission and the anti-fraud body (OLAF) should not be enabled, as a result of the Eurojust proposal, to take on roles in national investigations and prosecutions which they do not have at present. We agree with the criticism of the vagueness of the provisions of Article 16. For example, it is by no means clear to us what is meant by stating in Article 16(3) that the Commission may participate in the "general matters of EUROJUST in the areas falling within its competence".

8.12  Since they have now been superseded, we are content to clear documents (a) and (b). We shall hold the current version (document (c)) under scrutiny, pending further information from the Minister on the issues of data protection, relationship with the Commission and the rules of procedure of Eurojust. We would also be grateful if the Minister would keep us informed of progress on the question whether the material competence of Eurojust is to extend to fraud and corruption generally, or only to those offences which affect the European Communities' financial interests.



11  Article 16(1) also provides that the essential elements of such cooperation are to be determined by an agreement approved by the Council. Back


 
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