Article 20:[European Public Prosecutor's
Office]
1. With a view to combating serious crimes having a cross-border dimension, as well as illegal activities affecting the interests of the Union, the Council, acting unanimously after obtaining the assent of the European Parliament, may adopt a European law creating a European Public Prosecutor's Office within Eurojust. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment the perpetrators, and their accomplices, of serious crimes affecting several Member States and of offences against the Union's financial interests, as determined by the law provided for in the following paragraph. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.
2. The law referred to in the preceding paragraph shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by the European Public Prosecutor's Office in the exercise of its functions.
Explanatory note
"Through this proposed Article submitted to the Convention, the Praesidium intends to draw the consequences of a rich debate which was first held within the Working Group (which, on this point alone among the questions under its remit, made no consensual recommendation) and then in the Convention plenary on 6 December 2002.
The provision proposed by the Praesidium would introduce a legal basis enabling the Council, acting unanimously and after obtaining the assent of the European Parliament, to establish a European Public Prosecutor's Office if it deems this to be appropriate, but without necessarily involving any obligation to do so. The provisions of paragraph 1, second and third sentences, and of paragraph 2 would therefore become applicable only if the Council were to take such a decision. These proposals would, in addition, deliberately leave the legislator considerable leeway as to any concrete formulation, if appropriate, of the arrangements for setting up the Public Prosecutor's Office (i.e. its structure, workings, tasks and powers), by merely indicating in the Constitution only the essential details of such arrangements. In particular, the phrase "within Eurojust" aims to allow the legislator the necessary flexibility to define the structural and functional relations between the Public Prosecutor's Office and Eurojust that it would deem appropriate."
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COMMENTARY
61. This Article, establishing a European
Public Prosecutor's Office, is a surprising and undesirable inclusion
in the new Treaty. It is surprising because there was no agreement
in Working Group XI that such a provision was needed.[50]
It is clearly controversial, hence the reference to the "rich
debate" in the Praesidium's Explanatory note. There is no
doubt that more could be done to ensure that effective action
is taken against fraud within the Union. But the European Public
Prosecutor (EPP) is not a realistic and practical way forward.[51]
Eurojust could make a significant contribution to the fight against
fraud, particularly through a close cooperation with other agencies
and especially with OLAF (the EU's anti-fraud organisation). The
benefits of creating another body and in particular an EPP, whose
existence and processes could cut across national criminal laws
and procedure and which might not be accountable to democratically
elected representatives, have yet to be clearly and convincingly
demonstrated. We recommend the deletion of Article 20.
Chapter 4: Police cooperation
Article 21:[Cooperation with regard
to internal security]
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1. The Union shall establish cooperation involving all the Member States' authorities with responsibility for internal security, including police, customs and other specialised services in relation to the prevention, detection and investigation of criminal offences.
2. To this end, the European Parliament and the Council, in accordance with the legislative procedure, shall adopt laws and framework laws concerning:
- the collection, storage, processing, analysis and exchange of relevant information;
- the training and exchange of staff, equipment and research;
- any other measure not referred to in the following paragraph, that encourages cooperation between the authorities referred to in this Article.
3. The Council may unanimously adopt laws and framework laws concerning operational cooperation between the authorities referred to in this Article. It shall act after consulting the European Parliament.
Explanatory note
"The proposed wording essentially stems from the existing Article 30(1) of the TEU, although it has been shortened. The scope is limited to police cooperation and is therefore different from that of Article 4 of this title, which covers all of the subject matter covered by the area of freedom, security and justice.
With regard to the decision-making procedure, the draft takes into account, through the differentiation made between the second and third paragraphs, the report of the Working Group, which recommends switching to the qualified majority and codecision rule in the area of police cooperation "except rules concerning the exercise of operational powers of national police authorities, of joint investigative teams or of law enforcement authorities on the territory of another Member State" (see page 14 of the report).
Article 30 of the existing TEU provides that the exchange of information between national services and to Europol shall be carried out "subject to appropriate provisions on the protection of personal data". On this basis, data protection provisions have been included in the various 3rd pillar instruments which may affect personal data. It would therefore have been possible to include an explicit reference to this topic, in order to create a legal basis for maintaining and developing such provisions.
However, with the merger of the pillars, it seems more logical to bring in general arrangements for the protection of personal data, covering both the current Community arrangements (viz. "data protection" Directive 95/46 based on Article 95 TEC for action by Member States, and Article 286 TEC for action by the institutions) and action under the existing 3rd pillar, without it being necessary to devote a specific legal basis in this chapter to data protection. A new general article on the protection of personal data will therefore be proposed in the Title on "The democratic life of the Union" in Part One of the Constitution. This Article should not only include the existing Article 286 TEC on the action of Union institutions and bodies, but also lay down a legal basis for the adoption of rules on the processing of personal data by the authorities of the Member States when acting within the ambit of Union law. It would of course be possible for the legislator to use this new general legal basis for the adoption of specific data protection rules geared to the police sector."
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COMMENTARY
62. This provision is based on Article 30(1)
TEU and applies the general principles set out in draft Article
31 in the field of police cooperation. A major innovation is the
application of the "legislative procedure" (co-decision
and QMV) in police cooperation. This could be problematic as EU
competence under Article 21 is potentially very broad. Article
21(2) would enable the adoption of 'any other measure' which encourages
police cooperation. The wording is vague and could lead to extensive
EU competence in police matters. We recommend the deletion
of the third indent of Article 21(2).
63. The "legislative procedure" would
not, however, apply in the adoption of legislation concerning
"operational cooperation" between national law enforcement
authorities (Article 21(3)). In view of the sensitivity of police
operations and their link to the exercise of national sovereignty,
EU measures in the field would be adopted by unanimity, with the
European Parliament being consulted.
64. A striking feature of Article 21—and
of the whole chapter on police cooperation—is the absence
of any data protection safeguards in the text. This is acknowledged
in the Explanatory notes, where it is stated that general data
protection provisions, covering the whole Treaty, will be included
in the Title on 'the democratic life of the Union'. In view of
the vast amounts of data that may be collected, analysed and exchanged
under the police cooperation chapter, we believe that adequate
data protection safeguards are essential and should be clearly
reflected in the Constitutional Treaty. This is something to which
we will return when the Praesidium publishes its proposals on
data protection.
Article 22:[Europol]
| 1. Europol's mission is to support and strengthen action by the Member States' police authorities and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy.
2. The European Parliament and the Council, in accordance with the legislative procedure, shall determine Europol's structure, operation, field of action and tasks. These tasks may include:
- the collection, storage, processing, analysis and exchange of information forwarded by the authorities of the Member States or third countries or bodies;
- the coordination, organisation and implementation of investigative and operational actions carried out jointly with the Member States' services or in the context of joint investigative teams.
The law referred to in the previous paragraph also lays down the procedures for scrutiny of Europol's activities by the European Parliament, together with the national parliaments.
3. Any operational action by Europol must be carried out in liaison with and in agreement with the services of the Member State(s) whose territory is concerned. The application of coercive measures is the exclusive responsibility of the competent national authorities.
Explanatory note
"This draft article turns the Working Group's recommendations on Europol (see final report, pages 14, 18 and 23) into article form. In accordance with those recommendations, the first paragraph aims only to enshrine Europol's general mission. However, Europol's structure, operating rules, specific areas of action and tasks will now be defined by the law (which will replace the existing Europol Convention) rather than by detailed provisions of the Treaty itself (see existing Article 30(2) TEU). In paragraph 2, the Treaty confines itself to indicating the potential competences which could be conferred upon Europol by the legislator to the extent that it deems opportune. In any case, the legislator would still have to keep within with the limits on Europol's potential competences unequivocally set out in paragraph 3, guaranteeing that the Member States will always keep control of any operational action by Europol in the field and that they will have exclusive responsibility for applying any coercive measures. Lastly, this article should be implemented by the legislative procedure (codecision), with the Council acting by a qualified majority, as stated in the Working Group report (see page 13:
"Improving the effectiveness of Europol and Eurojust is crucial to European police and judicial cooperation and should therefore in principle be possible by qualified majority voting and codecision; this should be the case for any possible extension of Europol's and Eurojust's scope of action to new types of crime, for all rules on their organisation and management, and for any extension of their existing powers.")"
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COMMENTARY
65. Europol (the European Police Office, based
in the Hague) is the agency responsible for supporting the EU
Member States in combating serious organised crime by collating
and analysing intelligence provided by national authorities. It
was established by the 1995 Third Pillar Europol Convention, which
came into force on 1 October 1998. Europol started its full activities
on 1 July 1999, although it had been operating on a limited basis
in the form of the Europol Drugs Unit since 1994. Article 30(2)
TEU and the Europol Convention itself provide legal bases for
the adoption of further measures developing Europol's role—a
Protocol inter alia enabling Europol officers to take part
in joint investigation teams being the most recent example.[52]
66. Article 22 introduces a number of changes
to the existing legislative framework. A potentially far-reaching
development concerns the extension of Europol's mandate, in Article
22(1), to cover 'serious crime affecting two or more Member States,
terrorism and forms of crime which affect a common interest covered
by a Union policy' (wording similar to Eurojust's proposed mandate—see
Article 19 above). The proposal to extend Europol's remit to 'serious
crime' is not new, but was put forward in 2002 by the Danish Presidency
in its proposals to amend the Europol Convention. The Committee
strongly criticised such extension as being detrimental to legal
certainty, potentially leading to significant differences of interpretation
of what constitutes 'serious crime' among national authorities,
and leaving the interpretation of the term—and hence the
delimitation of Europol's remit—to Europol itself, and ultimately
the Court of Justice.[53]
We welcomed the abandonment, in the course of negotiations, of
the reference to 'serious international crime' in favour of a
definition which is similar to Article 2 of the Europol Convention
and is based on specifically enumerated offences. The re-introduction
of 'serious crime' in Article 22 is a matter of concern and somewhat
surprising in view of the "general approach" reached
in the Council[54]
not to extend Europol's remit in these terms.
67. Another major change is made by Article 22(2),
which would apply the legislative procedure to the adoption of
rules determining Europol's structure, operation, field of action
and tasks (currently unanimity is required). As the Praesidium's
Explanatory note indicates, the Treaty aims to leave the definition
of all these aspects to secondary legislation, rather than the
Europol Convention as such. Such a move is understandable in view
of the inflexibility of the Convention as a legal instrument,
any amendment requiring fresh ratification by national parliaments.
68. It is important to note that Article 22(2)
does not contain an exhaustive list of Europol tasks, but merely
indicates areas of action. This could lead to a significant extension
of Europol powers without democratic supervision. A defined
exhaustive list would be preferable (possibly set out in a Protocol
annexed to the new Treaty). The only restriction on Europol
is contained in paragraph 3, which enables operational action
but precludes Europol officers from applying 'coercive measures',
the latter being the exclusive responsibility of the competent
national authorities.
69. A welcome step is the establishment in Article
22(2) of a legal base for the adoption of measures which will
enable the scrutiny of Europol's activities by the European Parliament
and national parliaments. As we have said above (see comments
on Article 31), the Committee strongly supports enhancing the
accountability of Europol and has recommended the creation of
a joint scrutiny committee of members of national parliaments
and the European Parliament.[55]
Article 23:[Operations on the territory
of another Member State]
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The Council, acting unanimously, shall adopt laws and framework laws laying down the conditions and limitations under which the competent authorities of the Member States referred to in Articles 13 and 15 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. It shall take its decision following consultation of the European Parliament.
Explanatory note
"This draft article uses the legal basis of the existing Article 32 TEU. It refers only to national authorities since Europol's corresponding powers are covered by the legal basis in Article 22. As recommended by the Group in point v on page 14 of its final report, unlike in the usual legislative procedure, Council unanimity and consultation of the European Parliament are provided for. Of course, neither this article, not the other articles under this Title, aim to prevent those Member States which so desire from concluding bilateral agreements providing for closer cooperation between their respective authorities."
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COMMENTARY
70. First, it appears that there is a drafting
error. The Article refers to the authorities "referred to
in Articles 13 and 15" (the principle of solidarity and judicial
cooperation in criminal matters—see above). The reference
should, we believe, be to Articles 15 and 21.
71. Article 23, which is based on Article 32
TEU, provides for the adoption of European laws and framework
laws enabling the operation of police (and customs and other specialised
enforcement) authorities of one Member State in the territory
of another Member State. The Article refers to national authorities
and not joint investigation teams. Unanimity (and consultation
of the Parliament) displaces the "legislative procedure"
(co-decision and QMV).
50 The report records that the Group was divided on
this issue, though a significant number of members favoured exploring
the idea of extending the powers of Eurojust and providing a legal
base in the Treaty for the creation, by unanimity, of a European
Public Prosecutor's Office. Doc CONV 426/02, at p 20. Back
51
See our Report Prosecuting Fraud on the Communities' Finances-the
Corpus Juris (9th Report, Session 1998-99, HL Paper 62). Back
52
Protocol amending the Convention on the establishment of a European
Police Office and the Protocol on the privileges and immunities
of Europol, the members of its organs, the deputy directors and
the employees of Europol, [2002] OJ C 312/2. Back
53
Europol's Role in Fighting Crime (5th Report, Session 2002-03,
HL Paper 43). Back
54
Justice and Home Affairs Council, 19 December 2002. Back
55
See footnote 53. Back
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