14. ESTABLISHMENT OF A EUROPEAN PROSECUTOR
|Green Paper on criminal law protection of the financial interests of the Community and the establishment of a European Prosecutor.
|Basis of consideration:||EM of 16 January 2002; Minister's letters of 19 March and 24 June 2002
|Previous Committee Report:||HC 152 -xix (2001-02), paragraph 5 (13 February 2002)
|Discussed in Council:||28 February/1 March 2002
|Committee's assessment:||Legally and politically important
14.1 The proposal by the Commission to establish a European
Public Prosecutor aims to improve the protection of the Community's
financial interests through effective enforcement. The Commission
presented an outline of its proposal at the Nice Intergovernmental
Conference in 2000,
but this contribution was not then taken up by the European Council.
The European Council at Laeken in 2001 asked the Council to examine
the present Green Paper "taking account of the diversity
of legal systems and traditions" of Member States.
14.2 The Commission gave a presentation of its proposals
to the Justice and Home Affairs Council on 28 February and 1 March.
The Council held a short discussion in which they noted several
difficulties of a practical and constitutional order, and 'considered
that the time had not come to take such a radical decision'.
It also appears that
only one Member State spoke in favour of the Commission's proposals
at that Council.
14.3 We considered the Green Paper proposals in detail
on 13 February. We did not think that any sufficient case had
been made out for the Commission's proposals, and agreed with
the Government that the establishment of Eurojust made these proposals
unnecessary. We identified a number of concerns of principle,
such as the ready assumption by the Commission that the function
of prosecuting offences should be combined with that of investigation,
the notion that the European Public Prosecutor would have the
power to commit a person for trial, and to determine the Member
States in which the trial is to be held and the creation of differing
standards of criminal responsibility for fraud according to whether
or not the offence concerns the Community's financial interests.
We were particularly concerned that the proposals had the effect
of putting the prosecution function completely beyond the reach
of democratic accountability.
14.4 We asked the Minister to send us a copy of his proposed
response to the Green Paper so that we could consider whether
to contribute further comments and whether the matter should be
debated. In his letter of 19 March the Parliamentary Under-Secretary
of State at the Home Office (Mr Bob Ainsworth) undertook to send
a copy of the Government's proposed reply. The Minister also agreed
with us that views should be sought from Scotland and Northern
Ireland, having regard to the different organisation of prosecution
functions in the various parts of the United Kingdom.
The Minister's letter
14.5 In his letter of 24 June the Minister attaches a
copy of his proposed reply to the Commission Green Paper. The
Minister comments that in his response he maintains the line that
the Government remains unconvinced of the need for, or desirability
of, a European Public Prosecutor.
14.6 The response to the Green Paper concentrates on
issues of principle, rather than responding to the various detailed
questions the Commission poses as to how the office of a European
Public Prosecutor might be set up. The Minister's response points
out that these questions are based on a presumption that the establishment
of a European Public Prosecutor has been agreed, whereas the United
Kingdom remains 'unconvinced
that creating an EPP would be necessary or desirable'.
14.7 The response makes the following comments of principle
on the proposals:
"They appear to conflict with the subsidiarity
principle, since they would have a major impact on Member States'
laws and procedures without clear justification to show that the
new arrangements are necessary and that they would bring added
"The lack of accountability of the EPP to
any national law officers or to Parliament. The Green Paper proposal
fails to address crucial issues of transparency and accountability;
"Creating a European Public Prosecutor on
a First Pillar basis
such as Article 280 is incompatible with the balance currently
found in the Treaties whereby the application of criminal law
should, like the maintenance of law and order and national security,
remain reserved to Member States."
14.8 The Minister also points out that the effective
prosecution of fraud within the Community can be achieved by other
means such as by improvements in co-operation between the Member
States and the development of bodies such as Eurojust, and that
such co-operation "is most likely to be effective if it takes
into account the differing structures of the national criminal
justice systems, rather than seeking to impose a uniform European
14.9 The response also identifies a number of practical
concerns raised by the proposals, examples of which are described
"We are concerned that the EPP's remit would
oblige it to give priority to prosecution rather than other measures
which can be more effective in protecting EU financial interests:
for example, disrupting the activities of those involved in fraud,
seizing illicitly trafficked goods before they reach the market,
or negotiating out of court settlements to have the amounts illegally
obtained repaid without the costs and risk of a prosecution. An
EPP attempting to concentrate effort on mounting credible prosecutions
would divert national authorities from selecting the best strategy
to achieve the key objective of protecting Community funds.
"Another practical difficulty in the EPP proposals
is that they mainly focus on co-operation within the EU. Major
frauds affecting EU financial interests are usually transnational
and involve third countries. As the Green paper acknowledges the
EPP would need to rely on mutual legal assistance requests by
Member States. It is unlikely that the EPP would be more successful
than individual Member States in securing co-operation from third
"Further practical difficulties may arise
from the proposal for mutual admissibility of evidence. Although
we support the principle of mutual recognition and welcome the
fact that the Green Paper makes use of this concept, we have serious
doubts about applying it just to one type of offence. The proposals
in paragraph 18.104.22.168 of the Green Paper could lead to two almost
identical fraud cases being tried in one jurisdiction, but applying
different rules of evidence because one case related to EU fraud
but the other did not. Such differential treatment would be difficult
to justify, and might even create bad publicity for the EU."
14.10 The Minister concludes by observing that these
practical difficulties underscore the Government's concerns that
to create the European Public Prosecutor without clear and convincing
justification would be in breach of the subsidiarity principle,
and that the Government remains unconvinced that the Green Paper
proposals would achieve the result of securing better protection
of EU financial interests.
14.11 We thank the Minister for showing us the draft
response to the Green Paper. We strongly support the points which
are made, in particular the references to the proposal amounting
to a breach of the principle of subsidiarity.
14.12 We continue to believe that this proposal is
impractical and that it raises serious issues of principle. We
see no reason for creating an institution at EU level, which will
have the effect, on the one hand, of diluting the responsibility
of Member States to deal with fraud and, on the other, of putting
the function of criminal prosecutions beyond the reach of democratic
14.13 We agree with the Government that the rules
of evidence should not vary simply because of differences in the
source of funds which are the object of fraud. In addition to
creating 'bad publicity' for the EU, we believe that basing the
rules of evidence on such factors is likely to lead to injustice.
14.14 As the Green Paper has now served its purpose
of eliciting views and is effectively spent, we are content to
clear the document having seen the Government's proposed reply.
COM(2000) 608 (see also COM(2000) 34). Back
Quotidien Europe No. 8162 of 2 March 2002. Back
Written Answer by the then Parliamentary Under- Secretary of State
at the Home Office: Official Report, 15 March 2002, col.1259W. Back
it seems, most other Member States. Back
under the EC Treaty. An amendment to the EC Treaty would be necessary
in any event. Back