European Commission European Anti-Fraud Office (Unit A) Rue Joseph II 30 B-1049 Brussels

Transcription

1 Ministry of Justice EU-enheten European Commission European Anti-Fraud Office (Unit A) Rue Joseph II 30 B-1049 Brussels Sweden's comments on the European Commission's Green Paper on criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor Please find enclosed Sweden's opinion on the European Commission's Green Paper on criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor (COM (2001) 715 final). General considerations Sweden welcomes the Commission's Green Paper as a valuable contribution to the discussion on the future of the European judicial area. The proposal to establish a European Public Prosecutor outlined in the Green Paper is ambitious and far-reaching and raises a number of questions of principle as regards police cooperation and judicial cooperation in criminal matters within the European Union which merit further comment. By way of introduction, it can be said that there are strong reasons for continuing to expand police cooperation and judicial cooperation in criminal matters within the EU. Cross-border crime is increasing and taking ever more intractable forms. Investigations have shown that European citizens give high priority to measures to prevent and combat crime. Moreover, enlargement is sure to involve new challenges for the Union in this area too. Against this background, Sweden is essentially in favour of measures to strengthen police and judicial cooperation. However, the action we take must be tailored to the problems we are trying to solve. The measures must involve an effective use of the Union's resources and be likely to succeed. The subsidiarity principle must be taken into account. As regards the practical proposals the Commission is now tabling, the first point to make is that the extent of crime against the Community's financial interests, at least in Sweden, seems to be relatively modest. The statistics on the cases of irregularity reported to the Commission in 2000 show that the

2 2 total amount involved was SEK 25.4 million spread over 65 cases. The statistics for the last few years indicate rather that crime is falling. It has been learned from the Swedish Economic Crimes Bureau (Ekobrottsmyndigheten), which since 1 March 2001 has been responsible for criminal investigations into suspected EU fraud, that there are currently 16 cases under investigation. Only one of these is considered to have links with another EU country. The Swedish Economic Crimes Bureau does not consider that investigation and prosecution of the crimes in question presents any great problem. Most of the cases were confined to Sweden and in the few cases which had international ramifications the Bureau felt that cooperation with foreign authorities had worked well. While from the Swedish point of view, crime against the Community's financial interests would appear to be a relatively minor problem, it is clear from the Green Paper that the situation regarding the scale of such crime at European level is rather different. The Commission has also given a detailed description in the Green Paper of the problems that can arise in the investigation and prosecution of crime and illustrated it with a number of practical examples. Against this background, and considering the special nature of the crime in question, directed as it is against the Union's common resources and therefore against a common and legitimate European interest, Sweden agrees with the Commission's view that this is an area where there is a need for effective and forceful measures. The question is what form these measures should take. It is now a generally accepted tenet of criminal justice policy that, when it comes to combating a certain type of crime, at national or international level, the possibilities for crime-prevention measures should be considered. The Green Paper completely overlooks this aspect of protecting the Community's financial interests. This is not an appropriate occasion for an in-depth discussion of the many possibilities which could have been considered in the Green Paper in connection with, for example, tightening up procedures and making changes to the systems of contributions and collection discussed here. Sweden takes the view, however, that when new structures for combating crime are discussed it should be within the context of a broader criminal justice policy initiative in which the question of preventive measures is also considered. This is particularly important in an area like this one, where large economic transactions are being conducted across national borders and where the temptation to dishonestly line one's pockets must be judged to be comparatively great. The question of the establishment of a European Public Prosecutor must be seen against the background of the steady growth of intergovernmental cooperation within the EU's third pillar. This cooperation has grown in importance in recent years and thanks to the Tampere Summit in 1999 resulted in a very comprehensive legislative programme which is now being implemented. Several legal instruments have already been adopted with the

3 aim of approximating the criminal law of the Member States and improving the possibilities for judicial cooperation within the Union. Further legislative proposals are also in the pipeline. As legislation has improved, new bodies have been set up to improve the effectiveness of the fight against crime. Within the third pillar this involves cooperation between prosecutors via Eurojust and the European Judicial Network. Added to this is the restructuring of the activities of the European Anti-Fraud Office, OLAF. None of these bodies has yet had an opportunity to show its full potential. What is more, it will soon be possible to set up joint investigation teams for operational activities in individual cases with a cross-border dimension. Eurojust especially is in the early stages of construction and will very soon start recruiting staff and will move to permanent premises. Once it is firmly established, Eurojust will have every chance of functioning as an effective coordination centre for criminal investigations with international ramifications and will be able to request Member States' authorities to initiate enquiries, set up joint investigation teams or bring a prosecution. Like other Member States, Sweden has high hopes of Eurojust cooperation, which will, of course, specifically include crime against the Community's financial interests. Our experiences so far of cooperation within Pro Eurojust and Eurojust have also been favourable. It is difficult, however, in the present situation to comment on how cooperation within Eurojust will develop in future and what further measures, if any, will need to be considered. In this connection it should also be pointed out that there may be grounds in future for considering other ways of improving OLAF's ability to help ensure that crime both in Member States and in Community institutions is investigated and prosecuted. OLAF's legal officers should, for example, be given a stronger position within OLAF with responsibility for ensuring that national investigations are instigated and carried out and prosecutions brought. In this respect in particular it should be possible to take account of OLAF's links with Eurojust, for example in making use of the various coordination or lobbying facilities offered by this body. The Commission's Green Paper has also been presented at a time when judicial cooperation is in full expansion. It is obvious that the present reforms will lead to improvements in conditions for combating various kinds of crime, including that directed against the Community's financial interests. At the same time it is too soon to draw any conclusions as to the results that can actually be achieved in terms of reducing the scale of crime as a whole within the Union. Experience suggests that there will still be work to do at European level even after the new reform programme has been implemented. It is to be hoped, however, that it will be more a matter of additional measures in specific, limited areas. 3

4 Sweden does not therefore wish to rule out the possibility that in future it will prove necessary to introduce further measures to also cover the area of fraud affecting the Community's financial interests. What form these measures should take cannot, however, be predicted with any certainty at this point. As already mentioned, one possibility would be to develop further activities within and cooperation between Eurojust and OLAF. It cannot at the moment be ruled out, however, that there will prove to be a need for a special European prosecutor. Sweden accordingly feels that it would be valuable for the continuing discussions if the Commission were to continue its work on studying what would be needed for the establishment of such an authority and submit a report on the subject in accordance with the instructions of the Nice European Council. Comments on certain questions raised in the Green Paper The proposals presented by the Commission in its Green Paper relate to a large number of questions in a variety of areas. Many of these cannot be answered without a more detailed and tangible basis on which to form an opinion. Taking as a basis statements made in the Green Paper, Sweden would nevertheless like, in conclusion, to make a number of more specific remarks as a basis for future study on the question of a European prosecutor. These comments do not, of course, imply a Swedish position, beyond what is stated above, on the question of whether or not a European prosecutor should be established. A fundamental aspect of guiding importance for future work is the Treaty arrangements. The Commission proposes in the Green Paper that the European prosecutor and the necessary secondary legislation should be established under the first pillar in accordance with a new Article 280a of the EC Treaty. This provision represents a significant departure in principle from the hitherto intergovernmental nature of EU cooperation in criminal matters, and the terms of Article 28 of the EC Treaty to the effect that measures to counter fraud affecting the financial interests of the Community should not concern the application of national criminal law or the national administration of justice. The Commission does not explain in detail why the European prosecutor should be established under the first pillar. Sweden would like the future work to include a study of ways of establishing a European prosecutor on an intergovernmental basis. Sweden is not prepared to adopt a final position at this stage on where in the EC or EU Treaty or in what way a European prosecutor could be regulated. This is a question which should be included in the more comprehensive discussions on the future of cooperation in criminal matters which have now begun in preparation for the next intergovernmental conference. The Commission is presenting a comprehensive harmonisation of definitions of offences which will be at least as far-reaching, and drafted in accordance with the Commission's proposal for a Directive on the criminal- 4

5 5 law protection of the Community's financial interests (COM (2001) 272), i.e. common definitions of fraud, corruption and money laundering. It is also stated that other forms of offences should also be harmonised, such as market-rigging, conspiracy, abuse of office and disclosure of secrets pertaining to one's office. First of all it should be pointed out that Sweden does not share the Commission's opinion that the legal basis already exists for approximating the Member States' criminal law within the first pillar. Under Article 280 of the EC Treaty, the Community does indeed have the power to promulgate legal acts to combat fraud, but the last sentence of Article 280(4) explicitly excludes criminal law from this legislative power. It can also be inferred that the first pillar does not include the power to make criminal law from the fact that cooperation in the field of criminal law is dealt with in a very comprehensive way in Title VI of the EU Treaty, the so-called third pillar. The legal instruments negotiated within the framework of intergovernmental cooperation (the Fraud Convention and the three Protocols to it) seem, as far as one can tell at the present time, to constitute an adequate basis for the harmonisation of definitions of offences in the case of crime affecting the Community's financial interests. The Green Paper contained nothing to suggest that there was a need to broaden these definitions. The important thing in Sweden's view is for all Member States to accede immediately to the existing instruments. It is also open to question whether there are sufficient grounds for introducing the additional common definitions of offences raised in the Green Paper. In any case, a more detailed analysis is required of the need for these definitions of offences and what form they should take. It is not clear, for example, what is meant by market-rigging, conspiracy and disclosure of secrets pertaining to one's office. One of the principles on which the proposals in the Green Paper are based is that the principle of mutual recognition should continue to apply for as long as possible. Expressed simply, supervision of any measures which may arise will rest with a judge of freedoms who will apply the law of the country in which he or she is located, regardless of where in the Union the criminal investigation takes place. With this solution the Commission has given the principle of mutual recognition a very broad significance. The proposals go further than was intended when the principle was incorporated in the conclusions of the European Council meeting in Tampere and further than the way in which it was subsequently applied in Union legislation. Added to this is the fact that it is nevertheless apparent from the Green Paper that the activities of a European prosecutor would to a large extent have to be based on a procedural criminal law which is the same in all Member States. It can already be seen from the existing data that the Commission proposal in this area would mean major changes in the national systems for the investigation and prosecution of crime. The continuing study may answer the question of whether it is possible or justified to create the conditions for

6 the European prosecutor's activity in the radical way proposed by the Commission and what other solutions are possible. Sweden will return below to one or two more specific problems connected with the question of mutual recognition. The question of the Deputy European Public Prosecutors' powers and how they fit into the national authority structures must be given further careful consideration together with the question of the distribution of tasks in relation to the national public prosecutors. One of the problems mentioned by the Commission in the Green Paper is the so-called "hybrid" cases and how to deal with them. One aspect which is not considered at all in this connection is that in many cases the subsidies which can be the subject of fraud consist of both Community resources and national resources and could therefore be said to fall within the jurisdiction both of a Deputy European Public Prosecutor and of a national public prosecutor. This causes a greater problem than the Green Paper implies. A solution must be agreed for such cases. Sweden agrees with the Commission that the European prosecutor's duty of prosecution must be absolute, but that there should be certain possibilities for preventing charges being brought. However, Sweden would like to point out the problem which could arise from Sweden's point of view in relation to the proposed exceptions, based on out-of-court settlements with those suspected of a crime, which would allow them to escape prosecution. This kind of rule is alien to the Swedish legal tradition and does not occur in Swedish law. The parts in question of the Green Paper highlight certain other questions which have not been dealt with by the Commission at all. Sweden would therefore like a study to be made of what options a national prosecutor will have to launch an investigation when the European prosecutor has decided against it. Consideration must also be given to what extent administrative sanctions imposed, such as demands for repayment of amounts wrongly paid or suspension of the right to apply for a grant for a certain period, decided at national level without the involvement of the prosecutor, will be able to influence the question of whether to launch a preliminary investigation or the handling of the case in other respects. As regards the admissibility of evidence, the Commission proposes that evidence lawfully gathered in one Member State must be accepted by the courts of the other Member States in accordance with the principle of mutual recognition. Conversely, evidence that has not been lawfully gathered in a Member State must be dismissed by the court which has to try the case. Swedish law in this respect is based on a very old and, for us, fundamental principle of free consideration of evidence, which means that there are no formal rules on the rejection of unlawfully gathered evidence. Instead, the value to be placed on certain evidence is assessed as part of the proceedings themselves. The Commission's proposal therefore includes an element which is foreign to Sweden's legal tradition. This problem could be solved by providing for a reference to national rules in this respect. 6

7 7 A complex question which requires further thought is the review of investigation measures carried out under the control of the European prosecutor. The Commission suggests that an independent court, after reviewing coercive acts for legality and proportionality, should approve all the measures taken by the European Public Prosecutor involving a restriction of fundamental rights. The proposal means that the European prosecutor will be able to apply to a court in one Member State and implementation will then be possible throughout the Union in accordance with the principle of mutual recognition. The court that approves the proceedings under national law - need not even be located in the country in which the investigation was primarily conducted. As stated earlier, the Commission in this way gives the principle of mutual assistance a very broad significance in the Green Paper and the proposals in this connection also raise questions of judicial guarantee. Against this background - and pending more detailed information from the Commission on this matter Sweden recommends that the European Prosecutor should have to apply to a court in the country in which he wants the measures to be carried out. Finally, the Swedish authorities would like to comment on the review of committals. The Commission presents two alternative proposals as to who should be entrusted with this review; a Community committals court or the national courts. It should be pointed out in this respect that Sweden opted for another solution whereby it is the prosecutor who decides whether a case will be brought and the suspect can ask for this decision to be reviewed by a higher prosecutor. Sweden has positive experience of this system, which we believe meets the judicial guarantee requirement, and we can see no reason why we should need to relinquish it for a certain type of crime. The Member States' national provisions should apply instead.