Select Committee on European Union Sixteenth Report


Article 17:[Substantive criminal law]

The European Parliament and the Council, in accordance with the legislative procedure, may adopt framework laws containing minimum rules concerning the definition of incriminations and sanctions:

-  in the areas of particularly serious crime with cross-border dimensions resulting from the nature or impact of the offences or of a special need to prosecute them jointly. These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. The Council, on the basis of developments in crime and acting unanimously after obtaining the assent of the European Parliament, may identify other areas of crime that meet the criteria specified in this indent;

-  in areas of crime affecting a common interest which is the subject of a Union policy, if criminal sanctions prove essential to ensure the effective implementation of that policy.

Explanatory note

"This draft article implements a very significant recommendation by the Working Group, aiming to define more precisely the Union's competence in the area of approximation of national rules of substantive criminal law. Indeed, a more rigorous delimitation of competences seems necessary in order to make the general decision-making rules (qualified majority and codecision) applicable in this sector.

In accordance with the report, the draft ensures a better delimitation of competences by enshrining two fundamental criteria set out on page 10 of the report (paragraphs "aa": particularly serious crime with cross-border dimensions and "bb": crime affecting a common interest which is the subject of a Union policy) and by a list of areas of crime. As proposed by the report, the list gives an exhaustive definition of the areas of particularly serious and cross-border crime, within the meaning of criterion "aa" in the report, but the Council will be able, according to developments, and acting unanimously after obtaining Parliament's assent, to identify other areas of crime that fulfil this criterion, so that the Union can react to such developments without having to change the Treaty.

The list proposed above draws on Articles 29 and 31(e) of the current TEU and in the conclusions of the Tampere European Council (see paragraph 48). It should be stressed that certain types of crime, such as terrorism in particular, do indeed have a cross-border dimension in the meaning of this Article even where the way in which the act is perpetrated only concerns a single Member State, since there is undeniably a "special need to prosecute them jointly". We would also stress that, in accordance with the Working Group's report (see page 12), this list applies only in the framework of approximation of national laws; police and judicial cooperation, including the action of Europol and Eurojust (see Articles 13 to 15), may cover additional areas of crime.

The second indent ("crime affecting a common interest which is the subject of a Union policy"), makes it possible to cover several areas in which there is already either an acquis adopted by virtue of Article 31 of the current TEU, or negotiations under way or plans for the near future. The following in particular are covered in this way: fraud affecting the financial interests of the Union, counterfeiting of the euro, facilitation of unauthorised entry and residence, counterfeiting and piracy of products, environmental crime, and also racism and xenophobia (given that Article 13 TEC allows the Community to take action to combat discrimination based on racial or ethnic origin). Because of the existence of this second criterion, it is unnecessary to add all these areas of crime to the list given in the first indent. Moreover, the second indent takes account of the fact that the Union has to define minimum rules for certain crimes, independently of whether or not they are of a cross-border nature, such as for example the counterfeiting of the euro or fraud affecting the financial interests of the Union."

COMMENTARY

55.  Article 17 provides the legal base for the adoption of EU measures containing minimum rules concerning the definition of "incriminations and sanctions". Similar powers have existed since Maastricht. The major changes are twofold. First, the "legislative procedure" (ie co-decision and QMV) would apply. Second, EU action would be permitted in two cases: (a) "particularly serious crime with cross-border dimensions" as defined by reference to an exhaustive list including drug trafficking, money laundering and terrorism; and (b) crimes affecting a common interest which is the subject of EU policy (such as fraud). This second category is potentially quite broad and, as the Praesidium's Explanatory note indicates, is intended at least to cover the current acquis. The Praesidium make special reference to the current (and controversial) proposal for a Council framework decision on combating racism and xenophobia.

56.  As the Praesidium's Explanatory note also states, the list (Article 17, first indent) applies only in relation to approximation measures. So there can be police and judicial cooperation (including Europol and Eurojust) on offences which have not been harmonised. The potential difficulties arising from this lack of congruence may be acute, for example, in relation to the exchange of data and the remit of Europol and Eurojust. It also causes problems with the European Arrest Warrant. We have argued that the definitions used in EU criminal law approximation measures should also be used to define the offences listed in the Warrant.[46] This would improve legal certainty and aid consistency, as between Member States, in the application of the Warrant.

Article 18:[Crime prevention]

The European Parliament and the Council, in accordance with the legislative procedure, may adopt laws and framework laws to promote and support the action of Member States in the field of crime prevention, excluding any approximation of Member States' legislative and regulatory provisions not permitted by other provisions in the Constitution.

Explanatory note

"Draft article based on the recommendation on page 12 of the Working Group's report:

("… it is important that the new Treaty also reflects more clearly the pivotal role of crime prevention, which is mentioned in Article 29 TEU but is not included in the specific legal bases of Articles 30 and 31 TEU. The Group recommends that a specific legal base now be included in the Treaty. This legal base should be limited to incentive and supporting measures for the prevention of crime ...")."

COMMENTARY

57.  A significant step towards the prioritisation of action on crime prevention in the EU was made at the Tampere European Council (October 1999), where the European Council called for the integration of crime prevention aspects into actions against crime and the development of common priorities in crime prevention in the external and internal EU policy which must be taken into account in the preparation of new legislation.[47] Article 18 takes this commitment a step further, by providing for a specific legal base for the adoption of EU crime prevention measures. Being a new area of competence, EU action is only supporting and excludes approximation of legislation. That is welcome. However, the Article should be amended so as to ensure that Union action can be taken only where there are cross-border implications.

Article 19:[Eurojust]

1.  Eurojust's mission shall be to ensure coordination and cooperation between national

prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a joint prosecution, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol.

2.  The European Parliament and the Council, in accordance with the legislative procedure, shall determine Eurojust's structure, workings, scope of action and tasks. Those tasks may include:

-  the initiation and coordination of criminal prosecutions conducted by competent national authorities;

-  the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network;

-  appropriate supervision of Europol's operational activities.

The law referred to in the preceding subparagraph shall also determine arrangements for involving the European Parliament and national parliaments in the development of Eurojust's activities.

3.  In the prosecutions referred to in this Article, and without prejudice to the following Article, formal acts of judicial procedure shall be adopted by the competent national officials.

Explanatory note

"The draft article is based on Article 31 TEU, as amended by the Treaty of Nice, and is in line with the detailed proposals contained in the Group's final report (page 19). The wording "appropriate supervision of Europol's operational activities" does not imply overall supervision by Eurojust of all Europol's activities, but takes account of the fact that, in most of the Member States' legal systems, the police authorities do not conduct criminal investigation activities in an entirely autonomous manner, but under the instructions or supervision of judges, magistrates or public prosecutors."

COMMENTARY

58.  Eurojust (a judicial cooperation unit comprising senior lawyers, magistrates, prosecutors, judges and other legal experts seconded from Member States, located in the Hague alongside Europol) was set up[48] in order to help co-ordinate the investigation and prosecution of serious cross-border crime. Eurojust's competence mirrors that of Europol and also covers trafficking in human beings, terrorism, the protection of the euro, "computer crime", the protection of the European Communities' financial interests, the laundering of the proceeds of crime and, participation in a criminal organisation.

59.  Article 19 is based on Article 31(2) TEU as amended by the Treaty of Nice but envisages a substantial increase in the remit and powers of Eurojust. First, Article 19(1) defines the mandate of Eurojust as covering 'serious crime affecting two or more Member States or requiring a joint prosecution'. This is a considerable extension of Eurojust's mandate, as currently (as briefly described above) it is competent to act only in relation to specifically enumerated offences. It would be broader than the current mandate of Europol (see Article 22 below). It is not clear what is meant by 'serious crime affecting two or more Member States', but it would seem to differ, and be more extensive in scope, than the definition of "particularly serious crime with cross-border dimensions" in Article 17. We question whether Eurojust should be given such an open-ended brief.[49] The current approach, and that of the new Article 17, is preferable, not least having regard to the additional powers (considered in the next paragraph) which Eurojust would have. Member States should determine, by a list, those crimes with whose investigation and prosecution Eurojust should be entrusted.

60.  Second, it is expressly contemplated that Eurojust would be given the power to initiate criminal prosecutions (though "formal acts of judicial procedure" would be adopted by competent national officials—Article 19(3)). Currently Eurojust has the power to request that a Member State undertakes an investigation, but the Member State is not obliged to act. Second, Eurojust could be tasked to supervise Europol's operational activities, thus subordinating Europol to Eurojust. This would not be objectionable and mirrors the regime in some Member States whereby police activity may be subject to the control of the prosecuting authority. It is unclear, however, whether this new supervisory role is intended to compensate for lack of supervision by the courts, since Europol, as an EU agency, will presumably become subject to review by the Community courts.


46   Combating Racism and Xenophobia-Defining Criminal Offences in the EU (29th Report, Session 2001-02, HL Paper 162). See also correspondence between Lord Grenfell and Lord Filkin, 19 December 2002 and 10 January 2003, which can be downloaded from www.parliament.uk/parliamentary-committees/lords-s-comm-e/cwm-e.cfm Back

47   Presidency Conclusions, paragraph 41. Back

48   Council Decision of February 28, 2002. [2002] OJ L 63/1. Eurojust was preceded by Pro-Eurojust, established by Council Decision of 14 December 2000, [2000] OJ L 324/2, which started work in March 2001. Back

49   Initial drafts of the Decision to establish Eurojust extended its mandate to 'serious crime, particularly when it is organised, involving two or more Member States'. The lack of clarity of such wording was criticised by the Committee. See correspondence between Lord Tordoff and Barbara Roche MP, 16 December 2001 and 15 February 2001, published in Correspondence with Ministers (18th Report, Session 2001-02, HL Paper 99). Back


 
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