MIME-Version: 1.0 Content-Location: file:///C:/5C635F65/ARTICLE69E.htm Content-Transfer-Encoding: quoted-printable Content-Type: text/html; charset="us-ascii" [ARTICLE 69E]

FIGHTING CROSS-BORDER CRIME:

TREATY CREATES ROLE OF EUROPEAN PUBLIC PROSECUTOR =

TO COMBAT CRIMES AGAINST THE UNION

 [ARTICLE 69E]

 

 

AMENDMENT TO: Treaty of Lisbon amending the Treaty on European Union and t= he Treaty establishing the European Community (Lisbon, 13 December 2007)<= /span>

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Policy Area:

Treaty= on the Functioning of the European Union, Part Three Policies and Internal Act= ions of the Union, Title IV – Area of Freedom, security and Justice, Chapt= er 4 – Judicial cooperation in criminal matters, Article 69E

 

Amendment:

Clause= 2, page 1, line 12, after ‘excluding’ insert –

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‘= ;(i) Article 2, paragraph 67, inserted Chapter 4 and Ar= ticles 69A to 69E TEC (TFEU) relating to judicial cooperation in criminal matters;= and

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(ii)’.

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Lisb= on Treaty: =

“JUDICIAL COOPERATION IN CRIMINAL MATTERS

ARTICLE 69 E

1. In order to combat crimes affecting the financial interests of the Union, the Council, by = means of regulations adopted in accordance with a special legislative procedure, = may establish a European Public Prosecutor's Office from E= urojust. The Council shall act unanimously after obtaining the consent of the Europe= an Parliament.

In the absence of unanimity, a group of at least nine Me= mber States may request that the draft regulation be referred to the European Council. In that case, the procedure in the Council shall be suspended. Aft= er discussion, and in case of a consensus, the European Council shall, within = four months of this suspension, refer the draft back to the Council for adoption= .

Within the same timeframe, in case of disagreement, and = if at least nine Member States wish to establish enhanced cooperation on the b= asis of the draft regulation concerned, they shall notify the European Parliamen= t, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation re= ferred to in Article 10(2) of the Treaty on European Union and Article 280 D(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices i= n, offences against the Union's financial interests, as determined by the regu= lation provided for in paragraph 1. It shall exercise the functions of prosecutor = in the competent courts of the Member States in relation to such offences.

3. The regulations referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rule= s 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 it in the performance of its functions.=

4. The European Council may, at the same time or subsequently, adopt a decision amending paragraph 1 in order to extend t= he powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as reg= ards the perpetrators of, and accomplices in, serious crimes affecting more than= one Member State. The European Council shall = act unanimously after obtaining the consent of the European Parliament and after consulting the Commission."”

 

Consolidated Treaty Article(s):

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Expl= anation:

The Lisbon Treaty provides for the creation of a European Public Prosecutor’s Office (EPPO) from Eurojust, to combat crimes affecting the financial interests of the Union. It is not clear = what they precisely mean “from Eurojust.”= ; The establishment of the European Public Prosecutor requires unanimity in the Council and consent of the European Parliament. However, the veto of one or more Member States will not be enough to stop the creation of the European Public Prosecutor. Hence, if the Council has not reached the required unani= mity a group of at least nine Member States, it may request that the draft regulation establishing the European Public Prosecutor be referred to the European Council and the procedure will be temporarily suspended. The European Council would decide by consensus and in case of agreement the draft goes back to the Council for adoption. This provision introduces another “enhanced cooperation mechanism.” If the European Council is unable to find an agreement within four months, and if at least nine Member States wish to establish ‘enhanced cooperation’, on the basis of the draft regulation in question, a notification to the European Parliament, the Council= and the European Commission will be enough. According to this provision, the normally required authorisation is “deemed to be granted.” Therefore, there is no need to go through the proced= ure mentioned in Article 280 D TFEU – in this way, the enhanced cooperation is already fast-forwarded. The non participati= ng States cannot prevent the others from going ahead with further integration.=

 

The EPPO will have extensive powers. The European Public Prosecutor’s Off= ice will be a judicial body in charge of investigating, with the power to ord= er national police forces to initiate investigations. He will assemble all the evidence in favour or against the accused and will = be responsible for conducting and coordinating prosecutions. His jurisdiction will prevail over the jurisdiction of the Member States enforcement authorities. Moreove= r, he will have the power to bring to judgment perpetrators, and accomplices, = of offences against the Union’s finan= cial interests. Article 69E (2) expressly states “It shall exercise the function= s of prosecutor in the competent courts of the Member States in relation to such offences.” He will ultimately decide the country in which the trial w= ill take place. Obviously, the Prosecutor will be a powerful actor in the Union area of judicial cooperation in criminal matters. <= /o:p>

 

The EPPO will not be accountable to the UK Parliament and it is not completely clear how the EPPO will operate. According to Article 69E (3), the regulati= on establishing the EPPO will set out “the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functi= ons, the rules of procedure applicable to its activities, as well as those gover= ning the admissibility of evidence, and the rules applicable to the judicial rev= iew of procedural measures taken by it in the performance of its functions.R= 21; The EPPO activities will be subject to review by t= he European Court of Justice. However, it is not clear yet if his actions and which act= ions will be subject to review by a national judge. Nevertheless, the EPPO will = not be accountable to the UK Parliament.

 

Moreover, the Lisbon Treaty provides = for the extension of powers of the EPPO to include “serious crimes having a cross-border dimension.” Article 69E p= rovides that “The European Council may, at the same time or subsequently, adopt a decision amending paragraph 1 in= order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordin= gly paragraph 2 as regards the perpetrators of, and accomplices in, serious cri= mes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission." There is no real universally recognised need to create a European Public Prosecutor´s Office as Eur= ojust already contributes to the fight against fraud providing for closer coopera= tion with OLAF (European Antifraud Office) and national law enforcement agencies= . But Eurojust is not an acceptable benchmark for UK auth= orities either. Furthermore, both are unnecessary – it must be left to volunt= ary cooperation between the Member States to decide on their own enhanced cooperative rules to decide on.

 

The creation of such a post has been made in complete disregard of the different legal systems within the EU, especially the common law system in the UK.  It is likely to have a severe impa= ct on Member States criminal justice systems.