EUROPEAN JUDICIAL COOPERATION UNIT (EUROJUST)
Draft Council Decision setting up Eurojust.
Draft Council Decision setting up Eurojust.
Draft Council Decision setting up Eurojust.
||Articles 31 and 34(2)(c) EU; consultation; unanimity
|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|
||Legally and politically important
||(a) and (b) Cleared
(c) Not cleared; further information requested
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
"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
"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
"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
"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:
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
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.
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'
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