8
Evidence Session No. 4 Heard in Public Questions 44 - 50
Baroness Corston (Chairman)
Lord Dykes
Viscount Eccles
Lord Elystan-Morgan
Lord Hodgson of Astley Abbotts
Baroness O’Loan
Lord Rowlands
Lord Stoneham of Droxford
Ms Michѐle Coninsx, President of Eurojust
Q44 The Chairman: Ms Coninsx?
Ms Michèle Coninsx: Good afternoon.
The Chairman: Good afternoon. Thank you so much for giving us your time. We are very grateful.
Perhaps I could just explain that this is the fourth session of evidence in the Committee’s inquiry into the ramifications of the EPPO—the European Public Prosecutor’s Office— proposal for the non-participating member states, such as the United Kingdom. The session is open to the public, and a webcast of the session goes out live as an audio transmission and is subsequently accessible via the parliamentary website. A verbatim transcript will be taken of your evidence and it will be put on the parliamentary website, but a few days after the evidence session you will be sent a copy of the transcript to check for accuracy. We would be grateful if you could advise us of any corrections as soon as possible. If, after this session, you want to clarify or amplify any points that are made during your evidence, or if you have any additional points to make, we would welcome any supplementary written evidence.
I will take the first question. We are, as I say, conscious of the time available and are grateful to you. We are very conscious that Eurojust’s structure is what could be described as collegiate, whereas the Commission proposal would confer exclusive competence on the EPPO for crimes against the financial interests of the European Union. On the other hand, the Greek presidency is suggesting a more collegiate approach, in that the competence would be shared between the prosecutor and the member state. What is your view of these two proposals?
Ms Michèle Coninsx: Thanks a lot, Madam Chairman, Baroness Corston, for this opportunity. Based on 12 years’ experience at Eurojust, being a model based on a college, I can assure you that in the European Union the fight against serious cross-border crime, including the fight against offences against the financial interests of the EU, can be fought only in close co-operation with the member states, having the full trust of the member states and being engaged in constant connection and links with the member states. That is exactly the way we have been working in the past 12 years at Eurojust. Eurojust is composed of all 28 national members, but all of us have clear links with the national judicial authorities, and we are constantly making bridges with those national authorities.
That is also the spirit in which the Lisbon treaty has seen daylight. The European Union should be based on trust and the mutual recognition of EU instruments and bodies engaged in fostering that trust and mutual recognition.
Since 2002 and the first Council decision on Eurojust, we have been going through a revision of this Council decision, which was meant to gradually harmonise the powers of national members, to strive for a streamlined information exchange and to set up in member states the famous Eurojust national co-ordination systems—all meant to ensure that those bridges were made between the college of Eurojust and the member states. Why was that needed and why is it still needed? Because the European Union is, in reality, not one area of security, freedom and justice; it is still today a collection of 30 different legal systems and 24 different languages. So you should constantly make the effort to build trust, to get engaged in conversation, to get the right information in a timely manner and to share it with all involved.
Eurojust, right from the start, was meant to be and still is a horizontally set-up system. It is an intergovernmental system and it has the full trust of the member states. That trust shown in our casework shows that more and more each year we have an increasing caseload. That is a good sign, because it means that gradually year after year the national authorities are entrusting Eurojust with the work of co-ordinator and facilitator of judicial co-operation.
The set-up of the EPPO has been articulated in the proposal as a purely vertical, hierarchical set-up by, initially, a central office that will link up and work, essentially, with the European delegated prosecutors in the member states. So the bulk of the work, the real investigations and the trial cases in court will take place in the member states. There is also in this set-up a clear need for trusted links between the central office and the member states.
In the recent Greek presidency proposal—it has changed between March and April; there were two papers—a collegiate model is proposed, which is somewhere between the chief European public prosecutor and the European delegated prosecutors, playing a role in dealing with the strategic guidance of the EPPO. In addition, there will be a chamber. That is one part, which is linked to the structure. Another part of the debate concentrates on the competence of the EPPO—competence as proposed by the Commission being exclusive and, as proposed by the Greek presidency, to be shared with the member states.
Regardless of the eventual structure, the problems and solutions offered by Eurojust and accountable through Eurojust in a horizontal set-up, an intergovernmental set-up, will still exist. We are still working with 30 different legal systems and 24 different languages, so whatever structure and competence are chosen, ultimately you will have to work on trust, build bridges and a solid information exchange between the member states, and constantly communicate in a timely manner with the experts in the member states. It works. We at Eurojust have proved our effectiveness. We have seen that the service offered by Eurojust was being appreciated, so why change something that has been highly valued by member states? Is this meant to be a positive change? It must be, because only when it will lead to more results, more effect, will it prove its added value.
The Chairman: Thank you very much. Lord Dykes.
Q45 Lord Dykes: Thank you very much, Madame Président, for answering these points today and doing this link-up. We appreciate it.
You referred obliquely to the danger of an excessive workload, particularly if the EPPO has exclusive jurisdiction—these matters are still being debated. In view of the marvellous work done by Eurojust, in my view, what is your impression of the level of criminality perpetrated against the EU’s finances that will fall within the EPPO’s jurisdiction zone?
Ms Michèle Coninsx: Based on our experience, which of course reflects the cases brought to Eurojust’s attention via requests for assistance by the judicial authorities of the member states, we have a fragmentary view of what is really meant to be PIF activity, PIF offences committed at EU level. In our annual report, there is a comparison between the figures in 2012 and 2013 related to PIF cases. We saw 27 cases in 2012 and 31 cases in 2013. We had five co-ordination meetings in 2012 and eight in 2013. In matters of joint investigation teams, we had one related to PIF offences in 2012 and one in 2013, so you cannot say that the only European judicial body engaged in the fight against PIF crimes has so far been confronted with a huge number of requests in relation to facilitation of judicial co-operation and co-ordination related to PIF matters.
PIF offences appear to be rarely standalone; they are mainly associated with fraud, with organised crime and falsifying other administrative documents, so it is difficult to say to what extent, if an EPPO is to be established, PIF crimes will lead to an immense, excessive workload. There is also the link between PIF offences and ancillary-connected offences, which has been underlined in the proposal of the EPPO by the Commission, with a distinct role for Eurojust in determining to what extent a PIF offence should be considered as such and taken up by the EPPO as being part of a PIF offence—because of the link that can be extrapolated and the preponderance of the PIF character of the offence.
That is an interesting point, because we see in Article 85 of the Treaty on the Functioning of the European Union, which is important for Eurojust’s future, that Eurojust’s full potential for resolving and preventing conflicts of jurisdiction issues has not been taken on board. Because of the exclusive competence of the EPPO in PIF crimes and the exclusion of Eurojust in dealing with PIF crimes in the context of the EPPO, this role might become difficult.
There is another side of reality that is ongoing: the PIF directive is currently being discussed. Once the PIF directive has been adopted, there will be a need for implementation. That will take three years. The risk that national authorities will have implementation at different stages at different phases is quite realistic. That means that at that moment we will have an approach that we call in French “une approche à géométrie variable”, so there will be different points of view and application of the PIF offence. The substantive competence of the EPPO depends on that, because the offence as such will be determined in a separate directive. The importance of the PIF directive is immense, but with some consequences once it has been adopted. We should wait for things to come and see what will be in the final directive and to what extent implementation will take place. If exclusive competence is given to the EPPO, what work it will entail is difficult to foresee.
We in Eurojust are dealing with a whole range of criminal activity. PIF offences represent 5% of the whole range of criminal activity being dealt with by Eurojust. Precise figures and statistics do not exist in a lot of member states because of the complexity of the issue: the links with connected crimes. These are not standalone points, and there is a need for a clear definition. Before we know what PIF crimes really represent, it is difficult to have a clear-cut opinion on what will crystallise as the workload of the EPPO.
The Chairman: Thank you. Given what you have said about the EPPO’s workload, would you suggest, given your experience, that its potential workload would be a threat to its existence?
Ms Michèle Coninsx: In any case, Article 86 of the Treaty on the Functioning of the European Union makes explicit reference to Eurojust, Europol and the member states. On the basis of the proposal for the regulation on the EPPO, all of these different entities are mentioned, which have a specific role to play. Whatever the final choice will be, the EPPO must be integrated into the existing landscape, taking on board what is available in the member states—the knowledge and expertise at the level of the European delegated prosecutors. It will have to take on board the administrative and investigative expertise of OLAF and the intelligence-gathering and analytical competences of Europol, and on top of that it will have to make proper use of the available skills, expertise and experience of Eurojust.
It is about sharing all that experience and those competences. Whatever happens, we know, based on the impact assessment of the Commission, that the role and competence of Eurojust will not be affected by the establishment of the EPPO. We will have to continue, and we are very keen and happy to do so, to deliver services to the member states. The EPPO is not alone in this exercise; there are a lot of players who are essential for the success of the EPPO. Support should be given to each of them in full partnership and synergy as strongly as possible.
Q46 Lord Elystan-Morgan: Madam President, I would like to ask you this question, if I may. What impact will the creation of the EPPO have on the resources available to Eurojust? If I may put a question within a question, my understanding—I will be corrected on that, of course, if I am wrong—is that the Commission has made it clear that if the office of the EPPO is to be established, it would have to be within the existing budget of Eurojust. If that be the case, it would appear to many of us, therefore, that the prospects of any practical impact of an EPPO would be strangled at birth.
Ms Michèle Coninsx: Thank you very much for that question. It was a concern of Eurojust prior to the submission of the proposal for an EPPO regulation by the Commission. We are grateful for having had an opportunity to share that with the Commission through our contribution. We are constantly positive in contributing to the success of the EPPO with not only administrative but functional support—experience, good practices and knowledge—but we constantly insisted that this support should be balanced and proportionate and should not put in danger the crucial role and service rendered by Eurojust to all the member states.
I started my responses by saying that everything is based on trust. It would be to the detriment of Eurojust’s good image to stop the good services because another service is put on our shoulders, with the same group, resources and budget. When we read about the zero-cost approach—we are prosecutors, not mathematicians, and perhaps not so good at calculating—we need to consider that in the context of the financial crisis from now until 2018, Eurojust is considered as an organisation at cruising speed and not having new tasks while having to comply with a reduction of staff every year of 2% imposed on all the agencies. That means, in the next five years, a reduction of 10%.
The other thing, and this is the reality, is that we have seen over the last 10 years—2003 to 2013—a constant increase in requests and workload of approximately 6%. Over 10 years, that is an increase in our work of approximately 60%.
Now, on top of doing more with less, with our current tasks and role, we have to be engaged in tasks that we consider to be new and important. To do this with the same staff, to share resources on the basis of an agreement that has to be determined after the regulation sees daylight, is not giving us the guarantee or assurance that this support to the EPPO will not put in danger the services to be rendered to the member states in the overall fight against organised and serious crime and terrorism.
In addition, the financial crisis has a perverse effect. We are not only confronted with more cases, more requests to deal with, we also see that those cases become very complex.
Further, there are new crime phenomena. Four or five years ago we did not speak of maritime piracy; today it is part of our daily lives at Eurojust. Cybercrime is taking extensive forms. The effect of the Arab spring and the situation in Africa is certainly having an effect on crime at EU level.
That means that in the current situation Eurojust will already have to deliver more with less. If, on top of that, we receive new tasks and have to do them with the same budget, if we have to offer supplementary support to the EPPO, not being a mathematician, I have some doubts about the zero-cost approach. I hope that this fear will not become reality, because then we will need a magician, not only prosecutors, which is exactly what we are.
Lord Elystan-Morgan: Whilst well appreciating the necessity of looking at any added gross expenditure against the historical pattern of expenditure, is there not, however, this aspect to be considered? If, in fact, this system works, it should mean a substantial saving in net terms to the Commission. In other words, there will be persons who might otherwise have committed serious fraud who will be dissuaded from committing those frauds. There will be successful prosecutions that in many cases—not all, but many—will lead to substantial recoveries being made. There could be a financial incentive of itself for the Commission in relation to an EPPO. Does that make sense to you?
Ms Michèle Coninsx: That is what we are all striving for. Whatever will finally be established, it must drive for more effectiveness in fighting an important area of crime, the so-called PIF offences. That is, so to say, a reduced area of crime that might indeed result in a loss of revenue and if well taken care of, well investigated, well prosecuted lead to tangible convictions and good asset recovery. Then, it is an absolute gain, hence it is important to strive for effectiveness of resources and to share resources.
Q47 Lord Rowlands: I am still not clear how independent Eurojust would be if the Commission’s current proposals went through. For example, first, your role would be diminished, because the EPPO would take over some of your responsibilities. Secondly, it takes on considerable new power to instruct national members to pursue certain inquiries. Therefore I am not quite clear, if the Commission’s proposals went ahead, how independent Eurojust would be.
Ms Michèle Coninsx: If an EPPO is to be established it will initially focus on the fight against PIF offences. Eurojust is supposed to be, and will be, engaged in the fight against crime of all types. That is already a huge difference. It is good to think that in accordance with Article 86 of the Treaty on the Functioning of the European Union the EPPO can be established on the basis of unanimity, but I think we have to be realistic. Unanimity will most probably not be reached. That is the reason why, after the yellow card procedure, the Commission decided to continue on the basis of enhanced co-operation. In the context of enhanced co-operation and PIF offences being disconnected from connected crimes, the link between PIF offences and ancillary offences and the link with non-EU countries, hence the need to continue coordination between participating and non-participating countries will ask for even more involvement from Eurojust rather than less. The role of Eurojust in making the EPPO a success will be, so to say, even larger and more relevant.
Lord Rowlands: I am not quite clear whether Eurojust and you at the moment do or do not support the current Commission proposals. Are you a critic of those proposals?
Ms Michèle Coninsx: I have to be very honest and say that immediately after the Treaty on the Functioning of the European Union saw daylight in December 2009, we started to reflect on Articles 85 and 86. On this basis two proposals for regulations were submitted as a whole package together, because they have to be consulted on and dealt with in a synchronised and simultaneous way. What happens under Article 86 will have an impact on the implementation of Article 85 and vice versa.
We have continued this reflection through the establishment of a task force at Eurojust. That task force has constantly focused since that point in time, through ongoing conferences, to support efforts made by the Commission prior to 17 July 2013, when the proposal for the regulation was submitted. Between 2010 and 2013, we organised a lot of conferences and meetings. In the last years, we met on a regular basis with the highest level of the judiciary in the EU. The Consultative Forum of the Prosecutors General and Directors of Public Prosecution met at the premises of Eurojust, and we are engaged in reflecting on what it will mean if an EPPO is established, how we can make a success out of the EPPO. That is exactly what we have been doing. We do not ask whether we are pro or con, whether we believe or not; we constantly ask ourselves how we can contribute to making a success story out of the EPPO.
In other words, we know that we will focus on the fight against PIF offences. How can we together make that fight effective, leading to good convictions, deterrence and full recovery? That is what we continue to do, reuniting the institutional representatives, the academics and the experts from all the member states. We contributed in writing prior to the submission of the draft regulation—you received those written contributions. We have contributed as a college, composed of 28 representatives from different legal systems and with different languages, but we managed each time we contributed to have an alignment between the prosecutors and to make a contribution based on a majority of the interventions made by the members of the college. Not all the concerns of national members were reflected at all times, but our contributions were based on and reflected the majority. That is quite revealing: we managed to do so because our only intention was to verify how we can contribute effectively to legislative work, whenever needed or asked. We continue to do so whenever we are asked by the Council or the European Parliament.
Q48 Baroness O’Loan: Madame President, will it be straightforward to distinguish between states that participate in both the EPPO and Eurojust and those, like the United Kingdom, which co-operate with Eurojust alone? Will the states that do not participate in the EPPO face disadvantage in Eurojust? You have spoken a little about the impact, but could you tell us how you will protect the position of states that do not participate in the EPPO?
Ms Michèle Coninsx: In the fight against organised crime, including the fight against PIF offences, we will in that context have to contribute towards the success of the EPPO, but we also have to offer the services of facilitating judicial co-operation and co-ordination to the non-participating countries, and we will, if possible, continue to do so. Because there is a link between those offences and connected crimes, because a criminal offence might be defined in one country as a national offence or in others as an EU fraud offence, there are lots of scenarios in which Eurojust will be a service provider, a facilitator, for the participating and the non-participating countries. That is the only way forward, so I do not think there will be, so to say, any disadvantage for anybody involved. We have a common goal, which is to find a more effective way forward based on trust, so to say.
Q49 Lord Hodgson of Astley Abbotts: I want to go back to the whole approach to the question of fraud. Preventing fraud is not about structures; it is, above all, about will and emphasis. The treaty imposes an obligation on both the Commission and the member states to fight fraud. Reading between the lines of the OLAF annual reports, there appears to be a certain lack of emphasis and readiness to carry through the fight against fraud to the end. If the EPPO is in existence, will that not encourage those participating member states to say, “It is no longer our problem. It is up to the EPPO. We can just let it get on with it”? Will the non-participating member states have any interest in that being followed through as well?
Ms Michèle Coninsx: I acknowledge that the Commission and OLAF said on multiple occasions that prosecutions were not always well led in the member states in relation to EU fraud because of the different rate of success and the low rate of convictions. Protection of EU interests was not always guaranteed at an equal level, but if you look into the Treaty on the Functioning of the European Union you see that the responsibility lies on both, member states and the EU, so it is a shared burden. As the Commission's proposals are outlined now, they clearly show that there is a constant need to work together between member states and the central European level. Prosecutions, investigations and court cases will definitely take place in member states, so there must never be a reason not to be active in this fight. On the contrary, it must encourage all member states, participating or non-participating, to be engaged and to strive for an effective fight against PIF offences.
Lord Hodgson of Astley Abbotts: In your view of how the EPPO will operate, do you see the EPPO naming and shaming national Governments who have not offered sufficient collaboration and support for its activities?
Ms Michèle Coninsx: I think that the naming and shaming process might have some effect, but it is about encouraging the not so good students to do better and to use the good examples to be followed by the not so good students, rather than singling out member states. Ultimately, we will need the relevant and necessary support from all the players, and that means all the member states, whether participating or non-participating countries.
I think there is a real need to build trust with all member states, not with one, two, nine or more participating in the EPPO. A new fraud scheme might engage participating as well as non-participating and non-EU countries. A lot of examples that we have been thinking about and that have been part of our experience showed very clearly that PIF crimes taking place only in one country or being a standalone offence are quite exceptional. Often, we have PIF crimes committed by networks that are operational across borders, so it is essential that the building of trust, the co-operation of all players, continues to be good and effective.
Lord Hodgson of Astley Abbotts: Could I ask one more quick question? You have been working at Eurojust for a number of years; you have a very distinguished legal career, as your CV, which we have in front of us, shows us. Is two structures the best way to do it?
Ms Michèle Coninsx: The future will show us. We will see. It is a choice made by the legislators. There was a choice whether to opt for an improvement of Eurojust on the basis of Article 85, empowering Eurojust more, stepping up the fight, the co-ordination and co-operation role, giving new powers to Eurojust and enabling Eurojust to prevent and resolve conflicts of jurisdiction. A decision was made by the legislators not to opt for that but to go for a vertical set-up—an additional entity based on Article 86. That is now being discussed at different levels, and we will see after 24 May what extent and kind of changes we can expect and what the overall position will be, but negotiations will continue. The upcoming presidency will take over, so we have to follow up all the negotiations in a detailed way and with a lot of attention and see whether that will be the ultimate response. The future will tell us.
We should avoid not having clear legal texts, duplication of effort and impunity. If whatever is decided avoids duplication and leads to certainty, legal clarity and no impunity, then we are blessed.
Q50 Lord Rowlands: May I just return to one particular power that the Commission proposes for the EPPO? That is the right of the EPPO to instruct its national members to pursue an investigation independent of whether that national member or the national authorities support or approve it? What do you think about that? Do you find that offensive to the concept of Eurojust?
Ms Michèle Coninsx: That is part of the vertical set-up. One will decide on initiation of an investigation, prosecution and the final bringing to judgment. That is what is so innovative. In any case, from exclusive competence there is currently a shift to shared competences. You can discuss both competences and a lot of structures. All those issues will have a lot of consequences, but this is the way it is. Exclusive competences do not exclude the fact—I have said this already—that you need to liaise with the member states, because those who are operational, the European delegated prosecutors, are operating in the member states. They are running investigations and prosecutions and bringing cases to judgment. They will be double-headed, and it should be clear what they can do, what the priority is in cases of exclusive competence, what there is in the case of shared competences. It is too soon to have a clear view on that final choice.
The Chairman: Madame President, thank you very much for sharing your valuable time with us today. It has been extremely useful to us. Your evidence is obviously based on your comprehensive experience of law and your experience in Eurojust. We are naturally very concerned about the impact of the EPPO on non-participating member states like the United Kingdom, and we are very grateful to you for helping us today. Thank you.
Ms Michèle Coninsx: Thank you very much indeed. Have a nice afternoon.
The Chairman: Good afternoon.