Select Committee on European Scrutiny Sixth Report


SIXTH REPORT

The European Scrutiny Committee has made further progress in the matter referred to it and has agreed to the following Report:—

EUROPEAN JUDICIAL COOPERATION UNIT (EUROJUST)

(a)

(22455)

7408/2/01

(b)

(22559)

7408/3/01

(c)

(22590)

7408/4/01

(d)

(22729)

11685/2/01

(e)

(22761)

11685/3/01

(f)

(22788)

11685/4/01



Draft Council Decision setting up Eurojust.


Draft Council Decision setting up Eurojust.


Draft Council Decision setting up Eurojust.


Draft Council Decision establishing Eurojust.


Draft Council Decision establishing Eurojust.


Draft Council Decision establishing Eurojust.

Legal base: Articles 31 and 34(2)(c) EU; consultation; unanimity
Department: Home Office
Basis of consideration: EMs of 2 July, 22 October and 12 November 2001, and Minister's letter of 5 October 2001
Previous Committee Report: HC 152-i (2001-02), paragraph 8 (18 July 2001)
To be discussed in Council: December 2001
Committee's assessment: Legally and politically important
Committee's decision: (a) to (e) Cleared

(f) Not cleared; further information requested

Background

  1.1  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.[1] We considered further versions of the proposal on 18 July[2] and 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. We were particularly concerned with three issues, namely the nature and composition of the body which would supervise data-processing by Eurojust, the role of the Commission and its anti-fraud body (OLAF), and whether the material competence of Eurojust was to extend to fraud and corruption generally or only to those offences which affect the European Communities' financial interests.

  1.2  The version of the proposal which we examined on 18 July (document (a)) has been superseded by new versions (documents (b) to (f)). Documents (b) to (d) were the subject of an Explanatory Memorandum of 22 October. The current version is document (f) and is the subject of an Explanatory Memorandum of 12 November, which also describes the changes which were contained in document (e).

The revised Eurojust proposal

  1.3  The proposal as it stands in document (f) is the version which reflects the outcome of the Justice and Home Affairs Council of 27 and 28 September as well as the results of discussions on the data protection regime for Eurojust.

  1.4  A number of detailed amendments have been made to the text, the most significant of which appear to be the following.

  1.5  Article 4(2) (which allows a Member State to request the assistance of Eurojust in relation to investigations and prosecutions involving only that Member State and a third State) has been amended so as to permit such requests only where an agreement pursuant to Article 16b[3] has been made with that State, or where "in a specific case there is an essential interest in providing the assistance of Eurojust".

  1.6  The provisions of Article 7b dealing with the role of the Commission are substantially unchanged. Article 7b(1) provides:

      "The Commission shall be fully involved in the work of Eurojust, [in accordance] with Article 36(2) of the Treaty.[4] It shall participate in that work in those areas within its competence."

  1.7  In relation to this provision, the Justice and Home Affairs Council of 27 and 29 September approved the following statement:

      "Eurojust's rules of procedure shall establish the arrangements enabling the Commission to participate in the work of Eurojust in those areas within its competence."

  1.8  In relation to the work of Eurojust in the coordination of investigations and prosecutions, Article 7b(2) provides that "the Commission may be invited to provide its expertise". Article 7b(3) provides that for the purpose of "enhancing cooperation between Eurojust and the Commission", Eurojust "may agree on the necessary practical arrangements with the Commission".

  1.9  Article 8 (which deal with national correspondents) has been amended, requiring Member States to appoint "as a matter of high priority" a national correspondent for terrorism matters.

  1.10  A number of detailed amendments have been made to the data protection provisions in Articles 10 to 15b. The scope of Article 10(1) has been amended to make clear that it (and thus the data processing and protection provisions) apply to structured manual files as well as to automated data. Article 10c has been amended to make clear that the Data Protection Officer (who is to be a member of the staff of Eurojust) will work under the direct authority of Eurojust as a College. The Data Protection Officer is to have access to all data processed by Eurojust and to all Eurojust premises (Article 10c(3)). If he finds that processing has taken place which is not in accordance with the Council Decision, he is to inform the College of Eurojust (Article 10c(4)(i)), and is to refer the matter to the joint supervisory body if Eurojust has not taken action (Article 10c(4)(ii)).

  1.11  A number of revisions have been made to Article 15a which provides for the Joint Supervisory Body. Each Member State is to appoint a judge, or a person "holding an equivalent office giving him sufficient independence" for a period of not less than 18 months. The JSB is to be composed of three permanent members, and one or more ad hoc judges (Article 15a(2)and (4)). The role of the JSB is to hear appeals from refusals of requests for subject access, or for correction or deletion of personal data and to "carry out controls in accordance with Article 13(1)".[5] The JSB is also to have a consultative role in relation to data protection provisions in agreements with Europol and third countries and Eurojust (Article 16a(1) and (6)).

  1.12  A number of amendments have been made to the provisions (in Article 16(4) and (5)) governing the relationship between Eurojust and the European Anti-Fraud Office (OLAF). Article 16(4) provides for Eurojust to establish and maintain close cooperation with OLAF, and for OLAF to contribute to the work of Eurojust to coordinate investigations and prosecutions regarding the protection of the financial interest of the Communities, either on the initiative of Eurojust, or at the request of OLAF "where the competent national authorities concerned do not oppose such participation'.[6] On the exchange of information with OLAF, Article 16(5) provides that Member States are to ensure that their national members of Eurojust shall be regarded as competent authorities of the Member States solely for the purposes of Regulation No. 1073/99 and No. 1074/99 of 25 May 1999.[7]

  1.13  A number of amendments of detail have been made to Article 18a and b dealing, respectively, with the post of Administrative Director and the staff of Eurojust.

The Government's views

  1.14  In his Explanatory Memorandum of 12 November the Parliamentary Under-Secretary of State at the Home Office (Bob Ainsworth) provides a detailed review of the amendments which have been made to produce the latest document (document (f)). The Minister explains that the Government can support the amendments which have been made to Articles 4(2), 7b, 8, 9(1) and 9(2).

  1.15  On Article 10, the Minister comments that these changes are welcome, as the scope of application of the data protection provisions now includes both automated data and that retained manually in structured files. The Minister also explains that the Government accepts the amendments to Article 10c, 12, 13a, 18(2)a and 18a and b.

  1.16  Of the remaining Articles, the Minister comments substantively on Articles 15 and 16. On Article 15, the Minister comments that the changes are welcome, since they provide a clear statement of the applicable data protection principles. On the role and composition of the Joint Supervisory Board, the Minister comments as follows:

      "The new formulation of Article 15a has attracted significant support and appears to offer an acceptable solution to those Member States who previously had difficulties over separation of powers. On that basis, the Government is minded to support Article 15a, while noting the continuing debate about whether three members is a sufficiently large permanent membership for the JSB. The Government's own view is that this is a practical and flexible solution, but recognises that other Member States have serious difficulties with anything less than one for one membership on the JSB. The Government welcomes the consultative role the JSB has been given when Eurojust draws up co-operation agreements."

  1.17  On the question of cooperation between OLAF and Eurojust, the Minister comments in these terms:

"The principal outstanding difficulty with Article 16 concerns Article 16.5. The proposal in that paragraph is intended to ensure that OLAF can exchange personal data with Eurojust when necessary, however this is achieved by the Member States conferring particular powers on their national members. This blurs the distinction between activities which national members carry out as judicial officers of their own Member State (Article 7.3 in particular refers) and those they carry out for and on behalf of Eurojust (Article 6a and 6b in particular refer). The Government would prefer a solution that allows OLAF to recognise Eurojust itself as a competent authority solely for the purpose of data exchange and solely to resolve this particular legal difficulty."

Conclusion

  1.18  We are grateful to the Minister for his efforts to keep us informed of the course of negotiations on this measure. Of the issues we raised on this measure, we note that the question of whether the competence of Eurojust is to extend to fraud generally, or only that affecting the European Communities' financial interests, is still under discussion and is linked to the question of the broadening of the competence of Europol.

  1.19  We agree with the Minister that the proposed arrangements for a Joint Supervisory Board, and for data protection generally, represent an acceptable and practical solution.

  1.20  Nevertheless, we remain concerned over the vagueness in the way the relationship between the Commission and Eurojust is described. We note that Article 7b(1) now refers to the Commission being fully 'involved' in the work of Eurojust, whereas Article 36(2) EU refers to the Commission being fully 'associated' with the work under Title VI. Article 7b(1) goes on to state that the Commission 'shall participate in that work in those areas within its competence'. The use of so many different terms to describe the same relationship seems to us to invite difficulties in practice.

  1.21  It seems to us that neither the Commission nor the anti-fraud office (OLAF) has any competence in relation to prosecution decisions, and that neither should participate in decisions taken within Eurojust relating to such matters. We ask the Minister if he is satisfied that the present Decision could not lead to the Commission taking any part in prosecution decisions taken in relation to law enforcement in the United Kingdom.

  1.22  We ask the Minister to keep us informed of progress on resolving the question of the exchange of data between the anti-fraud office and Eurojust.

  1.23  Since they have now been superseded, we are content to clear documents (a) to (e), but we shall hold the current version (document (f)) under scrutiny pending the Minister's reply.





EXECUTION OF ORDERS FREEZING ASSETS OR EVIDENCE

(a)

(22593)

10912/01


(b)

(22771)

12445/01



Draft Council Framework Decision on the execution in the European Union of orders freezing assets or evidence.


Draft Council Framework Decision on the execution in the European Union of orders freezing assets or evidence.

Legal base: Article 34 (2)(b) EU; consultation; unanimity
Document originated: (b) 5 October 2001
Deposited in Parliament: (b) 23 October 2001
Department: Home Office
Basis of consideration: (b) EM of 2 November and Minister's letter of 1 November 2001
Previous Committee Report: (a) HC 152-ii (2001-02), paragraph 5 (17 October 2001)

(b) None

To be discussed in Council: December 2001
Committee's assessment: Legally and politically important
Committee's decision: (a) Cleared

(b) Not cleared; further information requested

Background

  2.1  This proposal is based on the principle of mutual recognition and enforcement of pre-trial orders so as to enable competent authorities quickly to secure evidence and to seize assets situated in other EU Member States and which are easily movable. The previous Committee considered this draft Framework Decision on 28 March, and we considered it on 17 October. We asked the Minister for a reply to the questions raised on this proposal by the previous Committee, and we raised a number of additional questions. We raised in particular the question of the material scope of the proposal which, being limited to a number of listed offences, appeared to us to be narrower than the proposal for a European arrest warrant, which applied to any offence carrying a sentence of twelve months' imprisonment.

  2.2  The Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) replied in a letter of 1 November, and has submitted an Explanatory Memorandum to cover the revised proposal (document (b)).

The revised proposal

  2.3  Document (b) is a revised version of the document (document (a)) we considered on 17 October. As before, the draft Framework Decision sets out a mechanism for orders made in one Member State freezing assets or evidence to be recognised and enforced in another Member State with the minimum of formality. The revised version contains a number of detailed changes.

  2.4  Article 1, dealing with definitions, continues to refer to a "judicial authority" or a "competent judicial authority" as the authority which makes a "freezing order"(i.e. any measure 'in order provisionally to prevent the destruction, transformation, moving, transfer or disposal of assets that could be subject to confiscation by the issuing State or material that could constitute evidence').

  2.5  A "judicial authority" is not defined in the revised proposal (nor was it defined in document (a)). However, document (b) indicates that the expression "judicial authority" is to be understood "in the same way as under the 1959 European Convention on mutual assistance in criminal matters". The 1959 Convention does not define "judicial authority", but Article 24 of that Convention permits Contracting States to make a declaration defining what authorities it will, for the purposes of the Convention, deem to be judicial authorities[8].

  2.6  It now appears from document (b) that, although the majority of Member States agree that "judicial authority" should be understood in the above way, several Member States have called for the introduction of rules ensuring that the judicial authority issuing the freezing order is independent from the investigating authorities. One Member State has referred to the declarations made by some Member States under the 1959 Convention and considers that freezing orders issued by police authorities should not be covered. On the other hand, it appears that several Member States do not agree with this approach and point out that any police authority is under judicial control and that any freezing order could be appealed under Article 9 of the proposal.

  2.7  Article 2 sets out the list of offences in respect of which a freezing order may be made and recognised under the proposal. It is substantially unchanged from the earlier version, save that it now applies to counterfeiting of currency generally and not simply to counterfeiting of the euro. The list includes (as before) 'laundering of the proceeds of crime', but there is not yet agreement on the question of whether the crime which leads to the proceeds in question[9] is to be any crime or only a crime listed in Article 2.

  2.8  No substantial change has been made to the remaining Articles. Article 9 (appeals) has been slightly amended to require the issuing State to ensure that any time limits for exercising the right of appeal are applied in a way that guarantees the possibility of an effective legal remedy for the person concerned. We understood from document (a) that consideration was to have been given to including the principle of ne bis in idem [10] as an additional ground of appeal, with a proposal that an appeal be available in the executing state where the freezing order seeks confiscation in circumstances where such confiscation could not be obtained as a final order under arrangements between Member States for mutual legal assistance. It is not apparent that this has been given any consideration.

The Government's views

  2.9  In his letter of 1 November, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) replies to the questions we and the previous Committee raised on the earlier versions of the proposal in the following terms:

"In relation to the definition of 'evidence' under Article 1 there has been no further consideration of this concept. There has however been discussion as to establishing sufficient grounds for non execution, particularly where evidence would be inadmissible because of an immunity or privilege under the law of the executing state (Article 6.1(b)). On the wider question however we would generally regard 'evidence' for this purpose as including material which would have been inadmissible in the executing state. This follows our current practice with regard to requests for mutual legal assistance.

"As regards Article 9(3) of the framework decision, this does allow for the issuing state to submit arguments where an appeal is lodged in an executing state, but does not provide for an explicit right to intervene. Whether such a right will exist will depend on the national law of the executing state as provided for in Article 9.1.

"With regards to your question about Article 10, you will have noted in the Explanatory Memorandum that the UK considers that this Article should be extended to cover, for instance, cases where the issuing state has made some other mistake or has been tardy or negligent, and that whatever Member State was in default should be liable. As for whether the injured party should have to commence proceedings to recover damages from the executing state, in our view the wording of the second paragraph of Article 10 is flexible. 'Any action' will cover, but not be limited to, the commencement of proceedings and could amount for instance just to a letter of request for compensation.

"Finally, you have also observed that the scope of offences under the instrument is narrower than that proposed for the European Arrest Warrant. As Article 2 of the Explanatory Memorandum outlines, the UK strongly favours a wider approach to the range of offences to which the asset-freezing measure will apply than is currently the case. However there has been a lack of support from other Member States for an approach based for example on minimum sentences and in the interests of concluding this agreement speedily, we have acquiesced for the time being to a 'generic' list of offences. However this issue has still to be finally decided upon by the Council and it is likely that discussion here will deal with the scope of offences in both instruments taking account of discussions at the JHA Council on 16 October and at the Article 36 committee meeting on 22-23 October on the scope of the European Arrest Warrant Framework Decision."

  2.10  In his Explanatory Memorandum of 2 November the Minister describes the amendments which have been made to the original proposal. On the list of offences in Article 2 the Minister comments as follows:

"The UK considered that the instrument did not cover a sufficient range of offences relating to orders freezing evidence and offences [under] (l) —(q) now reflects this although these remain unagreed proposals. The revision is an improvement on the original text but the UK remains of the view that the instrument should have the widest possible scope. The Council has now been asked to examine the question of the range of offences in the instrument, and this may be considered in conjunction with the scope of offences in the instrument on the European Arrest Warrant.

"The UK sees difficulties in the approach (suggested by some Member States and still reflected in the preamble) based on only using offences where there are harmonised EU definitions. This would limit the applicability of the instrument for such offences as murder, fraud (outside of that affecting the Community's budget) where no wider EU definition exists, and corruption (the EU definition does not include corruption of public officials outside the EU). Such a system would be little different to the mutual legal assistance system currently practised."

  2.11  In relation to Article 4 (which provides for automatic recognition of a freezing order) the Minister had pointed out in his previous Explanatory Memorandum that the UK was proposing a number of safeguards to ensure common minimum standards. The Minister comments as follows on the present version:

"At the working group the UK had proposed a number of safeguards relating to individual rights in the text — whilst not undertaking a qualitative assessment of the decision of the issuing state. Many of these were not accepted, it being argued strongly that it was not for the UK to prescribe what should be in another Member States' legislation. The current Articles 9(4) and 9(5) (together with the new paragraph 5a in the draft certificate) reflect revised UK proposals which are still under negotiation."

Conclusion

  2.12  We are grateful to the Minister for his helpful reply to the questions raised by the previous Committee and by us. We note his view that it is not necessary under Article 10 for an injured party to have commenced proceedings in order to recover compensation from the executing state, and that it would be sufficient if such a person has merely requested compensation.

  2.13  We note and applaud the Minister's efforts to secure fair and accessible rights of appeal for those affected by freezing orders, and we look forward to an account of the outcome of these efforts.

  2.14  We are very concerned that an ambiguity should have arisen at this late stage over the meaning of 'judicial authority'. We had understood that this term would be understood in its natural and ordinary meaning, so that orders made by police authorities would not qualify for recognition and enforcement under the proposal. We consider that it should be put beyond doubt, either by means of an agreed definition or by a system of declarations as under Article 24 of the 1959 European Convention, that the only orders covered by the proposal are those made by courts or judicial authorities properly so called. We therefore ask the Minister for his assurance that the proposal will not require or permit freezing orders to be executed in this country unless they have been made by a court or authority which was 'judicial' in the sense commonly understood in this country.

  2.15  Whilst we are content to clear document (a) on the grounds that it has been superseded, we shall hold document (b) under scrutiny pending the Minister's reply to this important question of principle.


1  (21897) 14052/00 (21972) 14900/00 (22273) 7408/01; see HC 28-vi (2000-01), paragraph 2 (14 February 2001), HC 28-xi (2000-01), paragraph 3 (4 April 2001) and HC 28-xiii (2000-01), paragraph 2 (2 May 2001). Back

2  (22273) 7408/01 (22870) 7408/1/01 (22455) 7408/2/01; see headnote to this paragraph. Back

3  Article 16b permits Eurojust to disclose information to third countries, with the agreement of the Member State which submitted the information, and provided - in the case of personal data- that Eurojust has made an agreement with the third country under which the latter ensures a standard of data protection equivalent to the Council of Europe Convention of 1981 (No 108) on data protection.  Back

4   Article 36(2) EU provides "The Commission shall be fully associated with the work in the areas referred to in this Title" (Police and judicial cooperation in criminal matters). Back

5  The meaning of this is not clear, since Article 13(1) refers only to the obligation of confidentiality owed by national members and staff of Eurojust. The JSB would also hear applications to it by the Data Protection Officer under Article 10c(4)(ii). Back

6  The meaning of this apparently circular provision seems to be that OLAF is to contribute to the coordinating work of Eurojust, provided there is no objection from a competent national authority. Some delegations appear to prefer a simpler formulation "Eurojust and OLAF shall cooperate regularly and closely by exchanging information in areas relating to their competence".  Back

7  OJ No. L 136, 31.5.99, p.1, p.8. Article 10 of these Regulations provides for the forwarding of information from OLAF to the competent authorities of the Member States.  Back

8  It is therefore open to State B to declare that it will only regard certain of State A's judicial authorities as a judicial authority for the purposes of the Convention. State B is not therefore obliged to accept the classification made by State A. The draft Framework Decision does not provide for any declarations of the kind provided for in Article 24 of the 1959 Convention.  Back

9  Sometimes referred to as the 'predicate' offence. Back

10  i.e. the avoidance of double jeopardy. Back


 
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