Explanatory Memorandum to COM(2013)535 - EU Agency for Criminal Justice Cooperation (Eurojust) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2013)535 - EU Agency for Criminal Justice Cooperation (Eurojust). |
|---|---|
| source | COM(2013)535  |
| date | 17-07-2013 |
Eurojust was set up by Council Decision 2002/187/JHA to reinforce the fight against serious organised crime in the European Union. Ever since, Eurojust has facilitated coordination and cooperation between national investigative and prosecutorial authorities in dealing with cases affecting various Member States. It has helped to build mutual trust and to bridge the EU's wide variety of legal systems and traditions. By rapidly solving legal problems, and identifying competent authorities in other countries, Eurojust has facilitated the execution of requests for cooperation and mutual recognition instruments. These years have witnessed the continued growth of the organisation into what is now a central player in judicial cooperation in criminal matters.
The fight against organised crime and the disruption of criminal organisations remain a daily challenge. Regretfully, the past decade has seen an explosion of cross-border crime. Drug trafficking, trafficking in human beings, terrorism and cybercrime, including child pornography are some examples. A common feature of all these areas of crime is that they are committed across borders by highly mobile and flexible groups operating in multiple jurisdictions and criminal sectors. Combatting them effectively therefore requires a coordinated pan-european response.
The increased cross-border dimension of crime as well as its diversification into multi-crime activities make it more difficult for single Member States to detect and tackle cross-border crime, and in particular organised crime. In this context, Eurojust's role in improving judicial cooperation and coordination between competent judicial authorities of Member States and assisting investigations involving third countries remains crucial.
Under the Lisbon Treaty, new possibilities to enhance Eurojust's efficiency in tackling these forms of criminality have been introduced. Article 85 of the Treaty on the Functioning of the EU (TFEU) explicitly recognises Eurojust's mission of supporting and strenghtening 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. It is therefore important to ensure that the best possible use is made of Eurojust and that obstacles to its efficient functioning are removed.[2]
In 2008 a wide reform of the Eurojust Decision was put into place in order to strengthen Eurojust.[3] The transposition deadline was 4 June 2011. The correct implementation of the Decision as amended is important, but should not prevent progress in addressing new challenges and improving Eurojust's functioning whilst maintaining those aspects that strengthened its operational effectiveness.
Article 85 TFEU also provides for Eurojust's structure, operation, field of action and tasks to be determined by regulations adopted in accordance with the ordinary legislative procedure. It also requires that they determine arrangements for involving the European Parliament and national Parliaments in the evaluation of Eurojust's activities.
In addition, following the Commission Communication 'European agencies: the way forward' i, the European Parliament, the Council and the Commission agreed to launch an inter-institutional dialogue in order to improve the coherence, effectiveness and work of decentralised agencies, leading to the creation of an Inter-Institutional Working Group (IIWG) in March 2009. It addressed a number of key issues, including the role and position of the agencies in the EU's institutional landscape, their creation, structure and operation, funding, budgetary, supervision and management issues.
This work led to the Common Approach on EU decentralised agencies, endorsed by the European Parliament, the Council and the Commission in July 2012, which is destined to be taken into account in the context of all their future decisions concerning EU decentralised agencies, following a case by case analysis.
This proposal for a Regulation takes all these elements into consideration and provides a single and renovated legal framework for a new Agency for Criminal Justice Cooperation (Eurojust) which is the legal successor of Eurojust as established by Council Decision 2002/187/JHA.
Whilst maintaining those elements that have proved efficient in the management and operation of Eurojust, the Regulation modernises its legal framework and streamlines its functioning and structure in line with the Lisbon Treaty and the requirements of the Common Approach, as far as its nature allows.
Since the proposal for this Regulation is adopted at the same time as the proposal for a Regulation establishing the European Public Prosecutor's Office, provisions have been included to ensure that this Office is set up from Eurojust as required under Article 86 TFEU, and that Eurojust can support it.
Contents
- RESULTS OF CONSULTATIONS
- BUDGETARY IMPLICATION
- WITH INTERESTED PARTIES
- 3. PROPOSAL
- 3.1. The legal basis
- 3.2. Subsidiarity and proportionality
- 3.3. Explanation of the proposal by chapters
- 3.3.1. Chapter I Objectives and tasks
- 3.3.2. Chapter II: Structure and organisation of Eurojust
- 3.3.3. Chapter III: Operational matters
- 3.3.4. Chapter IV: Processing of Information
- 3.3.5. Chapter V: Relations with partners
- 3.3.6. Chapter VI Financial provisions
- 3.3.7. Chapter VII Staff provisions
- 3.3.8. Chapter VIII Evaluation and Reporting
- 3.3.9. Chapter IX General and final provisions
In order to prepare this Regulation, the Commission has consulted specialist stakeholders on a number of occasions. The objective of the proposal is, largely, to use the opportunity offered by the Lisbon Treaty to modernise Eurojust by giving it an improved management structure that reduces the administrative burden currently placed on the College and allows it to focus on its core mission.
On 18 October 2012 the Commission organised a consultative meeting with Member State experts, representatives of the Council Secretariat, the European Parliament and Eurojust to discuss issues related to a possible reform under Article 85 TFUE. The issues included strengthened governance, parliamentary involvement at European and national level and possible additional powers, as well as links with the development of the European Public Prosecutor's Office (EPPO). The meeting generally supported improving Eurojust's governance structure and efficiency.
Eurojust has also participated directly in the consultation process and provided its input through contributions and meetings with the Commission. In addition, discussions on the reform have taken place in the framework of different Seminars such as the Strategic Seminar 'Eurojust and the Lisbon Treaty. Towards more effective action' (Bruges 20-22 September 2010) and the Eurojust-ERA Conference “10 Years of Eurojust: Operational Achievements and Future Challenges”, which took place in The Hague on 12 and 13 November 2012. In addition, Eurojust's future was discussed at the special informal meeting of the Council at the occasion of Eurojust's tenth anniversary, in February 2012.
The views of stakeholders were also collected through the 'Study on the strengthening of Eurojust' i, ordered by the Commission, which provided a good overview of the existing issues and presented several policy alternatives to address these.
Article 85 TFEU provides the legal basis for the proposal. It prescribes the use of a Regulation.
There is a need for EU action because the measures foreseen have an intrinsic EU dimension, as they imply the creation of an entity whose mission is to support and strengthen coordination and cooperation between national judicial authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases. This objective can only be achieved at Union level, in accordance with the subsidiarity principle.
In accordance with the principle of proportionality, this Regulation does not go beyond what is necessary in order to achieve this objective.
The main objectives of the proposals are:
· to increase Eurojust's efficiency through providing it with a new governance structure;
· to improve Eurojust's operational effectiveness through homogeneously defining the status and powers of National Members;
· to provide for a role for the European Parliament and national Parliaments in the evaluation of Eurojust's activities in line with the Lisbon Treaty;
· to bring Eurojust's legal framework in line with the Common Approach, whilst fully respecting its special role regarding the coordination of on-going criminal investigations;
· to ensure that Eurojust can cooperate closely with the European Public Prosecutor's Office, once this is established.
This chapter regulates the setting up of the European Union Agency for Criminal Justice Cooperation (Eurojust) as the legal successor of Eurojust as established by Council Decision 2002/187/JHA. It also defines its tasks and competence. The latter is autonomously defined in the draft Regulation by means of an Annex.
This chapter contains some of the main elements of the reform.
Section II is devoted to Eurojust's national members. The reform maintains their link to their Member State of origin but at the same time explicitly lists the operational powers they shall all have. This will allow them to cooperate with each other and with national authorities in a more effective way.
Sections III, IV and V set up the new structure of Eurojust by respectively regulating the College, the Executive Board and the Administrative Director. Eurojust's governance is improved by clearly distinguishing between two compositions of the College, depending on whether it exercises operational or management functions. The former refer to the core business of Eurojust in supporting and coordinating national investigations. The latter are related for example to the adoption of the agency's work programme, annual budget or the Annual report. A new organ, the Executive Board, is set up to prepare the College's management decisions and to directly assume some administrative tasks. The Commission is represented in the College when it exercises its management functions and in the Executive Board. Finally, the appointment procedure, responsibilities and tasks of the Administrative Director are clearly spelled out.
This introduces a double degree of governance as foreseen in the Common Approach whilst maintaining Eurojust's special nature and safeguarding its independence. It is also cost- effective, and contributes to Eurojust's efficiency, as national members will be assisted in budgetary and administrative matters, which will allow them to focus on their operational tasks.
This chapter maintains existing mechanisms for the operational effectiveness of Eurojust, including the On-call Coordination (OCC), the Eurojust National Coordination System (ENCS), the exchanges of information and follow-up to Eurojust's requests. The architecture of the Eurojust Case Management System remains the same.
This chapter contains a reference to Regulation 45/2001 i as the applicable regime for the processing of all personal data at Eurojust. In addition, the Regulation particularises and complements Regulation 45/2001 as far as operational personal data are concerned, respecting the specificity of judicial cooperation activities while taking into account the need for consistency and compatibility with the relevant data protection principles. Restrictions on the processing of personal data continue to be possible.
The chapter also aligns the provisions on the rights of the data subjects with Regulation 45/2001 and takes into account the standards of protection foreseen in the data protection reform package, adopted by the Commission in January 2012. Furthermore, the chapter foresees an important change in the supervision mechanism. It establishes the responsibilities of the European Data Protection Supervisor (EDPS) as regards the monitoring of all personal data processing at Eurojust. The EDPS will take over the tasks of the Joint Supervisory Body established under the Eurojust Council Decision.
This chapter reflects the importance of partnership and cooperation between Eurojust and other EU institutions, bodies and agencies in the fight against crime. This includes firstly the relations with the Secretariats of the European Judicial Network, the Joint Investigation Teams Expert Network and the Genocide Network, which are hosted by Eurojust. It also includes a specific provision on relations with the European Public Prosecutor's Office.
Secondly, cooperation with Europol is particularly important, especially as regards its role in supplying information to Eurojust in line with Article 85 TFEU. A specific provision has been introduced to spell out the privileged relationship between the two agencies in order to increase their effectiveness in combating serious forms of international crime within their competence. This includes a mechanism for cross-checking of their respective information systems and the ensuing exchange of data. Practical details will be settled by means of an agreement.
Links with third countries are very frequently detected in serious and organised crime cases, which makes close cooperation with such countries crucial. The Lisbon Treaty has changed the way in which the European Union conducts its external relations, and these changes also affect the agencies. As a consequence, agencies will no longer be able to negotiate international agreements themselves – such agreements will have to be established in accordance with Article 218 TFEU. However, Eurojust will be able to conclude working arrangements to enhance cooperation with competent authorities of third countries, including by exchanging information. The validity of pre-existing international agreements is maintained.
These provisions aim to modernise Eurojust's budget, its establishment and implementation, presentation of accounts and discharge provisions.
These provisions reflect the principles of the Common Approach while respecting Eurojust's specificities. Eurojust's hybrid nature and the importance of the operational link between national desks and their Member States of origin explain that salaries and emoluments of such staff are borne by the Member States. Eurojust's Administrative Director is still appointed by the College of Eurojust but on the basis of a shortlist drawn up by the Commission, following an open and transparent selection procedure. This respects the autonomy of the agency whilst guaranteeing a rigorous evaluation of candidates. A similar procedure is foreseen for dismissal of the Administrative Director.
This chapter aligns Eurojust's legal framework with the increased democratic legitimacy of Eurojust required by the Lisbon Treaty. It spells out the involvement of the European Parliament and national parliaments in the evaluation of Eurojust's activities. This is done in a cost-effective way, on the basis of Eurojust's Annual Report, whilst preserving Eurojust's operational independence. A periodic overall evaluation of Eurojust in line with the Common Approach is also provided.
This chapter contains provisions to align the Eurojust Regulation with the Common Approach, as well as those related to the entry into force of the Regulation.
There are no cost implications of the governance reform ("management board" back to back with the College) and there are no new tasks foreseen for Eurojust in this proposal, other than supporting the European Public Prosecutor's Office, which will be done on a zero cost basis.