Proposal for a Regulation on the establishment of the European Public Prosecutor's Office - Relations with third countries and international organisations - Hoofdinhoud

Council of the European Union Brussels, 6 July 2016

PUBLIC

(OR. en)

10831/16

Interinstitutional File:

2013/0255 (APP) i LIMITE

EPPO 19 EUROJUST 95 CATS 54 FIN 422 COPEN 230 GAF 43 CSC 210

NOTE

From: Presidency

To: Delegations

No. prev. doc.: 9799/16

Subject: Proposal for a Regulation on the establishment of the European Public

Prosecutor's Office - Relations with third countries and international organisations

DOCUMENT PARTIALLY ACCESSIBLE TO THE PUBLIC (20.10.2016)

Following the Council meeting of 9-10 June 2016 (see the consolidated version of the Regulation in document 10830/16), there only remains one issue from the original Commission proposal that has not yet been the subject of an in-depth discussions, namely the issue of relations with third countries and international organisations (Article 59 in the original Commission proposal).

The Presidency proposes to start the COPEN meeting of 19-20 July 2016 with an examination of this issue. The background to the examination is set out in the document in Annex to this note, which also includes a suggested draft wording of Article 59, based on earlier preliminary discussions in Council.

___________________ ANNEX

RELATIONS WITH THIRD COUNTRIES AND INTERNATIONAL ORGANISATIONS

• 1. 

  WORKING ARRANGEMENTS BETWEEN EPPO AND THIRD COUNTRIES' AUTHORITIES/INTERNATIONAL ORGANISATIONS

  • Working or administrative arrangements between EPPO and third countries' authorities or international organisations cannot create rights and obligations on suspects such as those which usually stem from international agreements with regard to legal assistance in criminal matters and extradition. However, such arrangements may be concluded if they contain commitments of an administrative nature such as commitments on the exchange of strategic information.

  • In the France v. Commission case C-327/91, the Court considered that "Article 228 [now 218 TFEU] constitutes, as regards the conclusion of treaties, an autonomous general provision, in that it confers specific powers on the [Union] institutions" (in

this case the Council) 1 and even though the Commission has the power, internally, to

take measures of application in a particular field which is covered by an agreement, that internal power is not such as to alter the allocation of powers between the Union institutions with regard to the conclusion of international agreements, which is

determined by Article 218 TFEU 2 . Therefore, even though the Commission concluded a cooperation agreement on its behalf 3 (and not on behalf of the Union)

with a third country, in a field where the Commission had internal powers

(application of competition law), that agreement was declared void by the Court 4 .

1 Case C-327/91, France v. Commission, point 28.

2 Case C-327/91, point 41.

3 Case C-327/91, point 2.

4 Case C-327/91, point 43.

• If however, working/administrative arrangements for practical cooperation are concluded between a Union institution (e.g. the Commission) or a Union body - like EPPO - with the competent authorities of a third country or international

organisation, then that Union institution or body may conclude such an instrument itself, by virtue of the principle of administrative autonomy as referred to in Article 335 TFEU. Naturally, in such case the working/administrative arrangements may only be concluded by the EU institution or body on its own behalf, and not on behalf of the EU and should relate to administrative cooperation.

• The Common Approach on decentralised agencies 5 specifies that the agencies should

"operate within their mandate and the existing institutional framework, and that they are not seen as representing the EU position to an outside audience or as committing the EU to international obligations".

• In the light of the above, EPPO may conclude working arrangements with respect to administrative cooperation with the competent authorities of third countries and

international organisations. However, the only possibility to create legally binding commitments going beyond working arrangements and covering mutual legal assistance and extradition between EPPO and the competent authorities of third countries or international organisations, is through international agreements to be concluded between the Union and the third country or international organisation concerned, under the conditions set out below.

5 Annex to the Joint Statement of the European Parliament, the Council of the European

Union and the European Common on decentralised agencies signed on 19.7.2012.

• 2. 

  INTERNATIONAL AGREEMENTS ON JUDICIAL COOPERATION BINDING EPPO WITH THIRD COUNTRIES OR INTERNATIONAL ORGANISATIONS

2.1 Existing international agreements to which the Member States of the Union are contracting parties but the Union is not

• For existing international agreements to which the Union is not a party, for example, the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters

and its Protocols (the "1959 MLA Convention"), the Member States of the Union should, where permitted under those international agreements, notify the other contracting parties that EPPO is the competent (judicial) authority as the legal successor of the national (judicial) authority with respect to PIF offences for which EPPO is competent.

• Indeed EPPO is a Union body which "…exercises the functions of prosecutor in the competent courts of the Member States in relation to such offences" (Article 86

TFEU). For the purposes of those international agreements and in relation to PIF offences for which EPPO is competent, EPPO should therefore be deemed to be a judicial authority exercising competences which the Member States participating in the EPPO have transmitted to the European Union, since the EPPO will be the legal successor of national prosecutors in the competent courts of the Member States in cases where EPPO is competent. Article 59(4) of the Commission Proposal already foresees this possibility of EPPO recognised as a competent authority. This could for example be the case under Article 24 of the 1959 MLA Convention as amended by

its Second Additional Protocol 6 . Furthermore, the Member States participating in

EPPO should also notify to the Secretary General of the Council of Europe, the declaration provided for in Article 15(6) of the 1959 MLA Convention whereby requests for mutual assistance may be addressed directly between the judicial authorities (including EPPO notified as a competent judicial authority) without transiting through the Ministries of Justice.

6 Article 24 of the 1959 MLA Convention as amended by its Second Additional Protocol

provides that "any State shall at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by means of a declaration addressed to the Secretary General of the Council of Europe, define what authorities it will, for the purpose of the Convention, deem judicial authorities. It subsequently may, at ay time and in the same manner, change the terms of its declaration".

• As regards the 1957 Council of Europe Convention on Extradition (the "Extradition Convention"), it should be noted that its Fourth Additional Protocol which allows

States to designate another competent authority than the Ministry of Justice for the

submission of extradition requests 7 , has only been ratified by 4 States. Prior to

notifying EPPO as a competent authority for extradition requests, the full ratification of this Fourth Additional Protocol would be required. This would also entail political

and legal consequences on the way extradition is dealt with at national level.

• In the event that third countries which are contracting parties to those international agreements notified counter-declarations disagreeing to the declarations of

participating Member States about EPPO as a competent judicial authority, another solution would be necessary for obtaining EPPO's recognition by the other contracting parties. This would entail amending the agreements, on the initiative of the participating Member States or ensuring that the Union accedes to those international agreements for the purpose limited to cooperation between EPPO and third countries. Such an accession should be authorised by the Council on the basis of Articles 218 and 86 TFEU (Protocols 21 and 22 would then apply). As regards the accession by the Union to the Extradition Convention, this would require common accord in the Council of Europe, the ratification of its Fourth Additional Protocol and the adaptation of national laws on extradition.

7 Article 12(1) of the Extradition Convention as amended by its Fourth Additional Protocol

provides: "the request shall be in writing. It shall be submitted by the Ministry of Justice or other competent authority of the requested Party. A State wishing to designate another competent authority than the Ministry of Justice shall notify the Secretary General of the Council of Europe of its competent authority at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, as well as of any subsequent changes relating to its competent authority".

• Allowing European Delegated Prosecutors ("EDPs") to cooperate with third

countries on the basis of the "double hat" principle 8 and therefore to exercise their

powers as national prosecutors under national law, would raise some difficulties.

DELETED

8 Article 12(3) of the draft EPPO Regulation provides: "The European Delegated Prosecutors

may also exercise functions as national prosecutors, to the extent that this does not prevent them from fulfilling their obligations under this Regulation. They shall inform the supervising European Prosecutor of such functions. In the event that a European Delegated Prosecutor at any given moment is unable to fulfil his/her tasks as European Delegated Prosecutors because of such other commitments, he/she shall notify the supervising European Prosecutor, who shall consult with the competent national prosecution authorities in order to determine whether priority should be given to their functions deriving from this Regulation. The European Prosecutor may propose to the Permanent Chamber to reallocate the case in accordance with Article 23(3) and (4)."

• For existing international agreements to which the Union is a party for matters falling within the Union's competence, such as the United Nations Convention

against corruption ("UNCAC") 9 which contains provisions notably on asset freezing

and mutual legal assistance, EPPO should be considered as a competent authority with regard to matters falling within the competence of EPPO. A notification should

be made by the Union to the Secretary General of the United Nations to that effect 10 .

As regards the provisions on extradition contained in those Conventions to which the Union has acceded, the same problem of requests which currently must transit through Ministries of Justice as the one outlined for the Council of Europe Extradition Convention, would arise.

• Since Article 216(2) TFEU provides that "agreements concluded by the Union are binding upon the institutions of the Union and on its Member States" and EPPO is a body of the Union having legal personality, a specific provision should be introduced in the EPPO Regulation - following the model of Article 61(1)(b) of the Commission Proposal as regards international agreements on the transfer of personal data - with a view to making international agreements containing provisions on mutual legal

assistance and extradition which would be concluded by the Union binding upon EPPO. For these purposes, Article 59(3) of the Commission Proposal should be redrafted as follows: "3. International agreements concluded by the Union in accordance with Article 218 of the Treaty with one or more third countries regarding the cooperation between the European Public Prosecutor's Office and the competent authorities of these third countries with regard to legal assistance in criminal matters and extradition in cases falling under the competence of the European Public Prosecutor's Office, shall be binding on the latter".

9 Council Decision 2008/801/EC i of 25 September 2008 on the conclusion, on behalf of the

European Community, of the United Nations Convention against Corruption, OJ L 287 p. 1 of 29.10.2008.

10 See e.g. Articles 46(13) and 67(3) of UNCAC.

• Furthermore, it should be noted that only the Commission may submit recommendations to the Council for the negotiation of international agreements pursuant to Article 218(3) TFEU. Since this power is provided for in primary law, it should not be repeated in the EPPO Regulation.

• Finally, EPPO, depending on its operational needs, could suggest the Commission to submit recommendations for the negotiation of international agreements. However,

such a suggestion cannot be introduced as a compulsory step in the procedure for the

negotiation of international agreements, since only the Commission under Article

218(3) TFEU has the power to submit a recommendation to the Council in this

regard. Instead, a Recital with no binding effect and referring to this possibility for

EPPO to express its operational needs could be introduced drawing inspiration from

Recital 35 of the Europol Regulation 11 .

11 Recital 35 of Europol Regulation (EU) 2016/794: "…Where the Management Board

identifies an operational need for cooperation with a third country or an international organisation, it should be able to suggest to the Council that the latter draw the attention of the Commission to the need for an adequacy decision or for a recommendation for the opening of negotiations on an international agreement as referred to above."

RELEVANT PROVISIONS OF THE DRAFT EPPO REGULATION

Article 59 Relations with third countries and international organisations

• 1. 

  The European Public Prosecutor’s Office may establish working arrangements with the entities referred to in Article 56(2a) with the authorities of third countries and international organisations may. Such working arrangements may, in particular, concern the exchange of strategic information and the secondment of liaison officers to the European Public Prosecutor’s Office.

• 2. 

  The European Public Prosecutor’s Office may designate, in agreement with the competent authorities concerned, contact points in third countries in order to facilitate cooperation in line with the European Public Prosecutor's operational needs.

• 3. 

  International agreements concluded by the Union in accordance with Article 218 of the Treaty

[…] with one or more third countries regarding the cooperation between the European Public

Prosecutor's Office and the competent authorities of these third countries with regard to legal assistance in criminal matters and extradition in cases falling under the competence of the European Public Prosecutor's Office, shall be binding on the latter.

• 4. 

  Concerning the criminal offences within its material competence, the Member States shall recognise and, where applicable, notify the European Public Prosecutor’s Office as a competent authority for the purpose of the implementation of their international agreements on legal assistance in criminal matters and extradition. In any case, the Member States shall alter those international agreements or the Union shall accede to such agreements with respect to matters falling within its competence, in order to ensure in either case that the European Public Prosecutor's Office can exercise its functions on the basis of such agreements when it assumes its tasks in accordance with Article 75(2).

New Recital

"Where the College identifies an operational need for cooperation with a third country or an international organisation, it should be able to suggest to the Council that the latter draw the attention of the Commission to the need for an adequacy decision or for a recommendation for the opening of negotiations on an international agreement."

____________________

Met de EU Monitor volgt u alle Europese dossiers die voor u van belang zijn en bent u op de hoogte van alles wat er speelt in die dossiers. Helaas kunnen wij geen nieuwe gebruikers aansluiten, deze dienst zal over enige tijd de werkzaamheden staken.

De EU Monitor is ook beschikbaar in het Engels.