35 Amendments of Birgit SIPPEL related to 2013/0255(APP)
Amendment 2 #
Motion for a resolution
Citation 5 a (new)
Citation 5 a (new)
– having regard to Articles 2, 6 and 7 of the Treaty on European Union and the Charter of Fundamental Rights of the European Union,
Amendment 5 #
Motion for a resolution
Citation 6 b (new)
Citation 6 b (new)
– having regard to the European Convention on Human Rights,
Amendment 7 #
Motion for a resolution
Citation 7 a (new)
Citation 7 a (new)
– having regard to the opinion of the European Parliament Legal Service on the establishment of a European Public Prosecutor (D(2013)64737),
Amendment 9 #
– having regard to the letter of Morten Kjaerum, Director of the Fundamental Rights Agency, to President Martin Schulz on the request for opinion on fundamental rights aspects in relation to proposed European Public Prosecutor’s Office of 14 January 2014,
Amendment 13 #
Motion for a resolution
Recital A
Recital A
A. whereas crime – in particular organised crime – is increasingly taking on a cross-border dimension andthe EU has set itself the task of developing an area of freedom, security and justice, and whereas, pursuant to Article 6 of the Treaty on European Union, it respects human rights and fundamental freedoms, thereby taking on positive obligations which it must meet in order to honour that commitment and whereas in the case of fraud against the financial interests of the EU the only effective response can come from the EU, giving added value to the joint efforts of all the Member States;
Amendment 17 #
Motion for a resolution
Recital A a (new)
Recital A a (new)
Aa. whereas no harmonized European criminal law exists yet;
Amendment 21 #
Motion for a resolution
Recital D
Recital D
D. whereas respect for the rule of law as enshrined in the Treaties must be athe guiding principle for all European legislation, especially in matters relating to justice and protection of fundamental human rights, and without prejudice to the principles of proportionality and subsidiarity;
Amendment 23 #
Motion for a resolution
Recital D a (new)
Recital D a (new)
Da. whereas 14 national parliamentary chambers from 11 Member States have triggered the yellow card mechanism in relation to the Commission proposal and whereas the Commission has decided to maintain the proposal on 27 November 2013, nevertheless stating that it would take due account of the reasoned opinions of the national parliamentary chambers during the legislative process;
Amendment 25 #
Motion for a resolution
Recital D b (new)
Recital D b (new)
Db. whereas Article 86 (1) TFEU requires unanimity within the Council in order to establish a European Public Prosecutor and whereas it seems very unlikely that this unanimity will be reached and that therefore it seems more likely that some Member States will establish a European Public Prosecutor by means of enhanced cooperation which would require the Commission to present a new proposal;
Amendment 26 #
I. General principles
Amendment 29 #
Motion for a resolution
Paragraph 1
Paragraph 1
1. ConsidersVery much acknowledges the general intention of the Commission proposal to be a further step towards the establishment of a European criminal justice area; finds it however inconsistent to establish harmonised rules on a European Public Prosecutor’s Office and to have differing rules on procedural and defence rights in the Member States;
Amendment 32 #
Motion for a resolution
Paragraph 1 a (new)
Paragraph 1 a (new)
Amendment 39 #
Motion for a resolution
Paragraph 3
Paragraph 3
3. Calls on the European legislator, considering that the consistency of overall EU action in the field of justice is vital for its effectiveness, to deal with this proposal in the light of others that are closely linked to it, such as the proposal for a directive on the fight against fraud to the Union’s financial interests by means of criminal law and the proposal for a regulation on the European Union Agency for Criminal Justice Cooperation (Eurojust), as well as the on-going legislative work in the field of procedural rights in order to be able to ensure that it is fully compatible and consistently implemented;
Amendment 40 #
Motion for a resolution
Paragraph 4 – introductory part
Paragraph 4 – introductory part
4. Calls on the Council, emphasising the greatest respect for the rule of law,Emphasises that the powers and practice of the European Public Prosecutors Office must respect the body of fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and the constitutional traditions of the Member States; therefore calls on the Council to take due account of the following general recommendations:
Amendment 46 #
Motion for a resolution
Paragraph 4 – point ii
Paragraph 4 – point ii
(ii) the scope of the competence of the EPPO should be precisely determined, to enable the criminal acts that fall within that scope to be identified beforehand. The European Parliament suggests that the definitions set out in Article 13 of the Commission proposal, concerning ancillary competence, should be carefully reviewed as they exceed in its current drafting the limits of the scope of Article 86(1) to (3) TFEU; this should be done in a way to ensure that the powers of the European Public Prosecutor’s Office extend to offences other than those affecting the Union’s financial interests only where cumulatively: - One particular set of facts simultaneously constitutes both offences affecting the Union’s financial interests and other offence(s); and - the offence(s) affecting the Union’s financial interest is/ are predominant and the other(s) is/are merely ancillary; and - the further prosecution and punishment of the other offence(s) would no longer be possible if they were not prosecuted and brought to judgment together with the offence(s) affecting the Union’s financial interests;
Amendment 65 #
Motion for a resolution
Paragraph 4 – point iv
Paragraph 4 – point iv
(iv) the admissibility of evidence and its assessment are key elements in the ascertainment of guilt. The relevant rules must therefore be clear and uniform throughout the area covered by the European Public Prosecutor’s Office and should fully comply with personal defence safeguards and all the rights guaranteed by the Charter of Fundamental Rights of the European Union;
Amendment 75 #
Motion for a resolution
Paragraph 4 – point v
Paragraph 4 – point v
(v) all decisions taken by the European Public Prosecutor should be subject to legal challenge before a superior court. In this regard, decisions taken centrally by the Public Prosecutor, as described in Articles 27, 28 and 29 concerning competence, dismissal of cases or transactions, should logically be subject to appeal before the Court of Justice; notes that Article 27(4) of the proposal represents a disproportionate interference with defence rights under Article 48(2) of the Charter;
Amendment 76 #
Motion for a resolution
Paragraph 4 – point v a (new)
Paragraph 4 – point v a (new)
(va) the provisions as set out in Article 36(1) of the proposal raise serious concerns about legality in respect of the circumvention of the Union courts’ jurisdiction as defined in Articles 263, 265 and 268 TFEU and disproportionately interfere with the right to an effective judicial remedy under Article 47(1) of the Charter;
Amendment 77 #
Motion for a resolution
Paragraph 4 – point v b (new)
Paragraph 4 – point v b (new)
(vb) the dismissal grounds as set out in Article 28 of the proposal would profit from further specification, in particular that after the dismissal of a case relating to minor offences, the national prosecution authorities are not prevented from further investigating and prosecuting the case should they be allowed to under their laws; and that, where a lack of relevant evidence cannot be foreseeably be remedied by further proportionate investigative steps, dismissal is mandatory;
Amendment 78 #
Motion for a resolution
Paragraph 4 – point v c (new)
Paragraph 4 – point v c (new)
(vc) arbitrary administration of justice has to be avoided under all circumstances; thus, the condition of “proper administration of justice” as a ground for transaction as set out in Article 29(1) of the proposal should be replaced by more specific criteria. Transaction should in particular be excluded as of the time of the indictment, and in any event in cases which can be dismissed under Article 28 of the proposal as well as in serious cases;
Amendment 87 #
Motion for a resolution
Paragraph 5 – point i
Paragraph 5 – point i
(i) all the activities of the European Public Prosecutor’s Office should meet the highest standards with regard to the rights of defence which means that mere minimum standards are not offering an adequate level of protection given that the establishment of a European Public Prosecutor will mean the Europeanization of law enforcement in the field of fight against crimes against the interests of the European Union and that, respecting the principle of the rule of law, such a proposal does only make sense if there is a subsequent harmonisation of defence rights at the highest level. It should be noted that not even the Roadmap concerning safeguards in criminal proceedings, adopted by the Council on 30 November 2009, has not[…] yet been completed and that the proposal merely refers to the national legal systems for all issues relating to the right to remain silent, the principle of innocence, the right to legal aid and to investigations for the defence;
Amendment 93 #
(iii) the prosecution should reconcile legal certainty with the protection of personal data; tection of personal data has to be duly taken into account at all stages of the prosecution, which means that the following general principles have to be respected. Data has to be: (a) processed lawfully, fairly and in a transparent and verifiable manner in relation to the data subject; (b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes; (c) adequate, relevant, and limited to the minimum necessary in relation to the purposes for which they are processed; they shall only be processed if, and as long as, the purposes could not be fulfilled by processing information that does not involve personal data; (d) accurate and kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay; (e) kept in a form which permits identification of data subjects for no longer than it is necessary for the purposes for which the personal data are processed; (f) processed under the responsibility and liability of the controller, who shall ensure and be able to demonstrate compliance with all data protection provisions; (g) processed in a way that effectively allows the data subject to exercise his or her rights; (h) processed in a way that protects against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures; (i) processed by only those duly authorised staff of the competent authorities who need them for the performance of their tasks;
Amendment 113 #
Motion for a resolution
Subheading after paragraph 7 (new)
Subheading after paragraph 7 (new)
II. Legislative recommendations
Amendment 114 #
Motion for a resolution
Paragraph 7 a (new)
Paragraph 7 a (new)
7a. In accordance with the above, calls the Council to incorporate the following modifications in the text of the proposal:
Amendment 115 #
(22) Offences against the Union’s financial interests are often closely connected to other offences. In the interest of procedural efficiency and t[…] To avoid a possible breach of the principle ne bis in idem, the competence of European Public Prosecutor’s Office should also cover offences which are not technically defined under national law as offences affecting the Union’s financial interests where their constituent facts are identical and inextricably linked with those of the offences affecting the financial interests of the Union. In such mixed cases, where the offence affecting the Union’s financial interests is preponderdominant, the competence of the European Public Prosecutor’s Office should be exercised after consultation with the competent authorities of the Member State concerned. Preponderance should be established on the basis of criteria such as the offences’ financial impact for the Union, for national budgets, the number of victims or other circumstances related to the offences’ gravity, or the applicable penalties.
Amendment 116 #
Motion for a resolution
Paragraph 7 a – Modification 2 (new)
Paragraph 7 a – Modification 2 (new)
Proposal for a regulation
Recital 46
Recital 46
(46) The general rules of transparency applicable to Union agencies should also apply to the European Public Prosecutor’s Office but only with regard to its administrative tasks so as not to jeopardise in any manner the requirement of confidentiality in its operational work. In the same manner, administrative inquiries conducted by the European Ombudsman should respect the requirement of confidentiality of the European Public Prosecutor’s Office.
Amendment 117 #
Motion for a resolution
Paragraph 7 a – Modification 3 (new)
Paragraph 7 a – Modification 3 (new)
Proposal for a regulation
Article 13 – paragraphs 1 to 4
Article 13 – paragraphs 1 to 4
1. Where the offences referred to in Article 12 are inextricably linked with criminal offences other than those referred to in Article 12 and their joint investigation and prosecution are in the interest of a good administration of justice the European Public Prosecutor’s Offthe European Public Prosecutor’s Office shall also be competent for those other criminal offences provided that the offences referred to in Article shall also be competent for12 are predominant and those other criminal offences are ancillary, uander the conditions that the offences referred to in Article 12 are preponderant provided that the following cumulative conditions are met: - one particular set of facts simultaneously constitutes both offences affecting the Union’s financial interests and other offence(s); and - the offence(s) affecting the Union’s financial interest is/ are predominant and the other(s) is/are merely ancillary; and - the ofurther criminal offences are based on identical facprosecution and punishment of the other offence(s) would no longer be possible if they were not prosecuted and brought to judgment together with the offence(s) affecting the Union’s financial interests. If those conditions are not met, the Member State that is competent for the other offences shall also be competent for the offences referred to in Article 12. 2. The European Public Prosecutor’s Office and the national prosecution authorities shall consult each other in order to determine which authority has competence pursuant to paragraph 1. Where appropriate to facilitate the determination of such competence Eurojust may be associated in accordance with Article 57. 3. In case of disagreement between the European Public Prosecutor’s Office and the national prosecution authorities over competence pursuant to in paragraph 1, the national judicial authority competent to decide on the attribution of competences concerning prosecution at national level shall decide on ancillary competence. 4. The determination of competence pursuant to this Article shall notmay be subject to review by the trial court as determined pursuant to Article 27 (4) of the proposal, of its own motion.
Amendment 118 #
Motion for a resolution
Paragraph 7 a – Modification 4 (new)
Paragraph 7 a – Modification 4 (new)
Proposal for a regulation
Article 27 – paragraphs 1 to 5
Article 27 – paragraphs 1 to 5
1. The European Public Prosecutor and the European Delegated Prosecutors shall have the same powers as national public prosecutors in respect of prosecution and bringing a case to judgement, in particular the power to present trial pleas, participate in evidence taking and exercise the available remedies. 2. When the competent European Delegated Prosecutor considers the investigation to be completed, he/she shall submit a summary of the case with a draft indictment and the list of evidence to the European Public Prosecutor for review. Where he/she does not instruct to dismiss the case pursuant to Article 28 or where, upon his/her instruction to offer a transaction under Article 29, such offer was not accepted, the European Public Prosecutor shall instruct the European Delegated Prosecutor to bring the case before the competent national court with an indictment, or refer it back for further investigations. The European Public Prosecutor may also bring the case to the competent national court himself/herself. 3. The indictment submitted to the competent national court shall list the evidence to be adduced in trial. 4. The European Public Prosecutor shall choose, in close consultation with the European Delegated Prosecutor submitting the case and bearing in mind the proper administration of justice, the jurisdiction of trial and determine the competent national court taking into accounton the basis of the following criteria: a) the place where the offence, or in case of several offences, the majority of the offences was committed; b) the place where the accused person has his/her habitual residence; c) the place where the evidence is located; d) the place where the direct victims have their habitual residence. 5. Where necessary for the purposes of recovery, administrative follow-up or monitoring, the European Public Prosecutor shall notify the competent national authorities, the interested persons and the relevant Union institutions, bodies, agencies of the indictment.
Amendment 119 #
Motion for a resolution
Paragraph 7 a – Modification 5 (new)
Paragraph 7 a – Modification 5 (new)
Proposal for a regulation
Article 28 – paragraphs 1 to 4
Article 28 – paragraphs 1 to 4
1. The European Public Prosecutor shall dismiss the case where prosecution has become impossible on account of any of the following grounds: a) death of the suspected person; b) the conduct subject to investigation does not amount to a criminal offence; c) amnesty or immunity granted to the suspect; d) expiry of the national statutory limitation to prosecute; e) the suspected person has already been finally acquitted or convicted of the same facts within the Union or the case has been dealt with in accordance with Article 29. 2. The European Public Prosecutor may dismiss the case on any of the following grounds: a); f) following a full, comprehensive and proportionate investigation by the European Public Prosecutor’s Office, there is a lack of relevant evidence. 2. The European Public Prosecutor may dismiss the case if the offence is a minor offence according to national law implementing Directive 2013/XX/EU on the fight against fraud to the Union’s financial interests by means of criminal law; b) lack of relevant evidence. 3. The European Public Prosecutor’s Office may refer cases dismissed by it to OLAF or to the competent national administrative or judicial authorities for recovery, other administrative follow-up or monitoring. 4. Where the investigation was initiated on the basis of information provided by the injured party, the European Public Prosecutor’s Office shall inform that party thereof.
Amendment 120 #
Motion for a resolution
Paragraph 7 a – Modification 6 (new)
Paragraph 7 a – Modification 6 (new)
Proposal for a regulation
Article 29 – paragraphs 1 to 3
Article 29 – paragraphs 1 to 3
1. Where the case is cannot be dismissed and it would serve the purpose of proper administration of justiceunder Article 28 […] and where an imprisonment penalty would be disproportionate even if the conduct were fully proven at trial, the European Public Prosecutor’s Office may, after the damage has been compensated, propose to the suspected person to pay a lump-sum fine which, once paid, entails the final dismissal of the case (transaction). If the suspected person agrees, he/she shall pay the lump sum fine to the Union. 2. The European Public Prosecutor’s Office shall supervise the collection of the financial payment involved in the transaction. 3. Where the transaction is accepted and paid by the suspected person, the European Public Prosecutor shall finally dismiss the case and officially notify the competent national law enforcement and judicial authorities and shall inform the relevant Union institutions, bodies, agencies thereof. 4. The dismissal referred to in paragraph 3 shall not be subject to judicial review.
Amendment 121 #
Motion for a resolution
Paragraph 7 a – Modification 7 (new)
Paragraph 7 a – Modification 7 (new)
Proposal for a regulation
Article 30 – paragraphs 1 to 2
Article 30 – paragraphs 1 to 2
1. Evidence presented by the European Public Prosecutor’s Office to the trial court, where the court considers that its admission would not adversely affect the fairness of the procedure or the rights of defence as enshrined in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, shall be admitted in the trial without any validation or similar legal process even if the national law of the Member State where the court is located provides for different rules on the collection or presentation of such evidence. 2. Once the evidence is admitted, the competence of national courts to assess freely the evidence presented by the European Public Prosecutor’s Office at trial shall not be affected.
Amendment 122 #
Motion for a resolution
Paragraph 7 a – Modification 8 (new)
Paragraph 7 a – Modification 8 (new)
Proposal for a regulation
Article 33 – paragraphs 1 to 2
Article 33 – paragraphs 1 to 2
1. The suspect and accused person involved in the proceedings of the European Public Prosecutor’s Office shall have, in accordance with national law, the right to remain silent when questioned, in relation to the facts that he/she is suspected of having committed, and shall be informed that he/she is not obliged to incriminate himself/herself. 2. The suspect and accused person shall be presumed innocent until proven guilty according to national law.
Amendment 123 #
Motion for a resolution
Paragraph 7 a – Modification 9 (new)
Paragraph 7 a – Modification 9 (new)
Proposal for a regulation
Article 34
Article 34
Any person suspected or accused of an offence within the scope of the competence of the European Public Prosecutor’s Office shall have, in accordance with national law, the right to be given legal assistance free or partially free of charge by national authorities if he/she has insufficient means to pay for it.
Amendment 124 #
Motion for a resolution
Paragraph 7 a – Modification 10 (new)
Paragraph 7 a – Modification 10 (new)
Proposal for a regulation
Article 36
Article 36
1. When adopting procedural measures in the performance of its functionsFor the purposes of judicial review, the European Public Prosecutor’s Office shall be considered asto be a national authority for the purpose of judicial review. 2. Where provisions of national law are rendered applicable by this Regulation, such provisions shin respect of all procedural measures which it adopts in the course of its prosecution function before the competent trial court. For all not be considered as provisions of Union law for the purpose of Article 267 of thher acts or omissions of the European Public Prosecutor’s Office, it shall be Treatgarded as a Union body.
Amendment 125 #
Motion for a resolution
Paragraph 7 a – Modification 11 (new)
Paragraph 7 a – Modification 11 (new)
Proposal for a regulation
Article 68
Article 68
The administrative activities of the European Public Prosecutor’s Office shall be subject to the inquiries of the European Ombudsman in relation to instances of maladministration in accordance with Article 228 of the Treaty.