Friday, 9 May 2008

EU TFEU: Eurojust

Eurojust – the European Union’s Judicial Cooperation Unit – is given clearer and extended powers to support investigations of serious cross-border crime. The Treaty of Lisbon promises more effective legislation by the ordinary legislative procedure (co-decision), and it proffers the promise of better scrutiny by the European Parliament and national parliaments.

But are the member states deliberately circumscribing the scope of action for Eurojust?


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Article 85 of the Treaty on the Functioning of the European Union (TFEU) forms the basis for Eurojust, which has the mission to support national investigating and prosecuting authorities. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 107), with the location of the provision added from the table of equivalences (page 460 to 463):

Part Three ‘Policies and internal actions of the Union’

Title V TFEU ‘Area of freedom, security and justice’

Chapter 4 ‘Judicial cooperation in criminal matters’

Article 85 TFEU
(ex Article 31 TEU)

1. Eurojust's mission shall be to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol.

In this context, the European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Eurojust's structure, operation, field of action and tasks. These tasks may include:

(a) the initiation of criminal investigations, as well as proposing the initiation of prosecutions conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union;

(b) the coordination of investigations and prosecutions referred to in point (a);

(c) the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network.

These regulations shall also determine arrangements for involving the European Parliament and national Parliaments in the evaluation of Eurojust's activities.

2. In the prosecutions referred to in paragraph 1, and without prejudice to Article 86, formal acts of judicial procedure shall be carried out by the competent national officials.

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In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):

“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”

The IGC 2007 then presented the wording of Article 69d TFEU (ToL) as above (OJ 17.12.2007 C 306/65). In the Council’s consolidated version this was to become Article 85 TFEU. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.

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It gives us some indication of how much more clear and precise the Lisbon Treaty provisions are, when this is the third Article we deal with that builds on the current Article 31 of the Treaty on European Union (TEU).

The first paragraph of Article 31 TEU offers the general scope for EU action on judicial cooperation in criminal matters, and the second paragraph deals more specifically with Eurojust.

Article 31 TEU is found in the latest consolidated version of the current treaties, in OJ 29.12.2006 C 321 E/25:

Article 31 TFEU

1. Common action on judicial cooperation in criminal matters shall include:

(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;

(b) facilitating extradition between Member States;

(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;

(d) preventing conflicts of jurisdiction between Member States;

(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.

2. The Council shall encourage cooperation through Eurojust by:

(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;

(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;

(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.

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The European Convention proposed the following Article III-173 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):

Article III-174 Draft Constitution

1. Eurojust's mission shall be to support and strengthen coordination and cooperation between national prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol.

2. European laws shall determine Eurojust's structure, workings, scope of action and tasks. Those tasks may include:

(a) the initiation and coordination of criminal prosecutions conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union;

(b) the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network.

European laws shall also determine arrangements for involving the European Parliament and Member States' national Parliaments in the evaluation of Eurojust's activities.

3. In the prosecutions referred to in this Article, and without prejudice to Article III-175, formal acts of judicial procedure shall be carried out by the competent national officials.

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The IGC 2004 closely scrutinised the draft and made a number of minor changes in Article III-273 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/120–121):

Article III-273 Constitution

1. Eurojust's mission shall be to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol.

In this context, European laws shall determine Eurojust's structure, operation, field of action and tasks. Those tasks may include:

(a) the initiation of criminal investigations, as well as proposing the initiation of prosecutions, conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union;

(b) the coordination of investigations and prosecutions referred to in point (a);

(c) the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network.

European laws shall also determine arrangements for involving the European Parliament and national Parliaments in the evaluation of Eurojust's activities.

2. In the prosecutions referred to in paragraph 1, and without prejudice to Article III-274, formal acts of judicial procedure shall be carried out by the competent national officials.

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Compared to the current Article 31 TEU, the European Convention judiciously enlarged the scope of Eurojust’s activities and introduced the ordinary legislative procedure, giving the directly elected European Parliament the right to co-decision and enhancing transparency.

Among the minor changes by the IGC 2004 the main one was that the initiation of ‘criminal investigations’ was added.

The Treaty of Lisbon took over the text of the Constitutional Treaty with the modifications caused by general terminological differences.

In conclusion, the principal clarifications and procedures follow from the work of the European Convention about five years ago.

But let us look at what others have commented on and concluded.

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United Kingdom

In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers gave the following description of what was to become Article 69d TFEU (ToL), Article 85 TFEU (page 18):

“The voting procedure is QMV and co-decision, a change from the present unanimity and consultation.”

The JHA analysis and other Statewatch analyses are available through:

http://www.statewatch.org/euconstitution.htm


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The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) offered a brief background note on Eurojust (European Judicial Cooperation Unit) before giving the following assessment (page 42), followed by two pages of discussion:

“Its remit and powers would be substantially increased by Article 69B. Article 69D(1) sets out its “mission”, which is to support and strengthen coordination and cooperation between national prosecuting authorities “in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases”. Lisbon, like the Constitution, extends Eurojust’s mission to include investigating authorities. The Article provides that regulations adopted by the OLP will determine its structure, workings, scope of action and tasks, …”

The Library Research Paper 07/86 is available at:

http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf

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The Foreign and Commonwealth Office (FCO) presents a convenient short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 85 TFEU, Article 69d TFEU (ToL) in the original Lisbon Treaty:

“Draws on Article 31(2) TEU. Co-decision for regulations on Eurojust’s structure, operation, field of action and tasks.”

The FCO comparative table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

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The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139). Under ‘Eurojust and a European Public Prosecutor’ the Committee treated the extended competences of Eurojust, enhanced accountability and procedural changes (pages 149–151), and it concluded:

“6.196. There are already moves to reform Eurojust and to grant it a greater role in enhancing cooperation between national authorities. New Article 85 may facilitate more ambitious developments in the longer term.”

The report is accessible at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf

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Sweden

The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, sees the establishment of Eurojust in 2002 and the opportunities offered by the Lisbon Treaty in a positive light (pages 321–323, with the quote from page 322):

”Genom inrättandet år 2002 av åklagarkontoret Eurojust har det europeiska åklagarsamarbetet fått en välkommen förstärkning. Lissabonfördraget innebär att Eurojusts arbetsuppgifter tydliggörs och att möjligheter till en vidareutveckling av Eurojustsamarbetet införs.”

The consultation paper ’Lissabonfördraget’ is available at:

http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf

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Finland

The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) offers, in the customary Nordic manner, a detailed description of Article 69d TFEU (ToL), renumbered Article 85 TFEU on pages 201–202. (For a local lawyer entering uncharted waters, the government bill is often the next tool of reference after the text of a statute.)

The bill is available at:

http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf

The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), presents the same remarks on pages 204–205.

The ratification bill in Swedish can be accessed at:

http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf

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The Treaty of Lisbon extends and clarifies the scope of action of Eurojust, and it moves to
‘Community’ procedures, to be known as the ordinary legislative procedure: qualified majority voting in the Council and co-decision by the European Parliament.

The Lisbon Treaty also holds out the hope of improved scrutiny by the European Parliament and national parliaments.

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There is a joint declaration attached to the Lisbon Treaty (page 439 in the Council’s consolidated version):

27. Declaration on Article 85(1), second subparagraph, of the Treaty on the Functioning of the European Union

The Conference considers that the regulations referred to in the second subparagraph of Article 85(1) of the Treaty on the Functioning of the European Union should take into account national rules and practices relating to the initiation of criminal investigations.

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Additional information about the European Union’s Judicial Cooperation Unit can be found through the Eurojust web site:

http://eurojust.europa.eu/

The basic acts of secondary legislation are:

Council decision of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime (2002/187/JHA), OJ 6.3.2002 L 63/1

Council decision 2003/659/JHA of 18 June 2003 amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime, OJ 29.9.2003 L 245/44

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The European Commission has pushed for the member states to transpose the powers of the national members of Europol effectively, and to beef up their powers and guarantee continuity, as seen in the Communication from the Commission to the Council and the European Palriament on the role of Eurojust and the European Judicial Network in the fight against organised crime and terrorism in the European Union, Brussels 23.10.2007, COM(2007) 644 final:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0644:FIN:EN:PDF

The Council has dealt with an initiative by fourteen member states with the stated purpose to strengthen Eurojust by amending the Decisions. See:

Initiative of the Kingdom of Belgium, the Czech Republic, the Republic of Estonia, the Kingdom of Spain, the French Republic, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic and the Kingdom of Sweden with a view to adopting a Council Decision of … on the strengthening of Eurojust and amending Decision 2002/187/JHA (OJ 27.2.2008 C 54/4)

The Justice and Home Affairs Council 18 April 2008 (document 8397/08; page 17) adopted a general approach on the subject and decided to continue to work on the proposal.

In bureaucratic jargon ‘strengthening’ may mean anything until dissected, so here is an interesting EUobserver news item worth further study by interested parties, namely ‘EU states muscle in on bloc’s judicial body’, by Renata Goldirova (although the main thrust seems to be the European public prosecutor):

http://euobserver.com/22/26082

According to the 6 May 2008 story, the Commission has dropped its plans to strengthen Eurojust after being wrong-footed by a group of 14 member states, their proposal being seen as a move to put a lid on anything too ambitious by the Commission.


Ralf Grahn


P.S. Good tidings: The Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union have been published in the Official Journal of the European Union, OJ 9.5.2008 C 115/1. Great!