Report from the Commission on the Legal Transposition of the Council Decision of 28 February 2002 Setting up Eurojust with a View to Reinforcing the Fight Against Serious Crime {SEC(2004)884}
Date: 2004-07-06
Institutions: European Commission
Subjects: EU law - national law, Eurojust, fight against crime, national implementing measure, terrorism

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 06.07.2004 
COM(2004)457 final 

REPORT FROM THE COMMISSION 

On the Legal Transposition of the Council Decision of 28 February 2002 Setting up 
Eurojust with a View to Reinforcing the Fight Against Serious Crime 

{SEC(2004)884} 

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1. 

INTRODUCTION 

According to Article 31(2) TEU as amended by the Treaty of Nice, the Council shall 
encourage  cooperation  through  Eurojust,  particularly  by  enabling  it  to  facilitate 
proper coordination between national prosecuting authorities. Eurojust is an essential 
element of the area of freedom, security and justice (Article 29 TEU). 

Eurojust  was  set  up  as  a  body  of  the  European  Union  by  Council  Decision  of  28 
February  20021  (hereafter:  “the  Eurojust  Decision”)  in  order  to  stimulate  and 
improve the coordination of criminal investigations and prosecutions in the Member 
States,  to  improve  cooperation  between  the  competent  national  authorities  and  to 
support the latter.  

The Eurojust Decision as such does not aim at an approximation of national laws – 
unlike a framework decision according to Article 34(2)(b) of the Treaty on European 
Union (TEU). However, it may be necessary for some Member States to amend their 
national law to bring it into conformity with the Decision. According to Article 42 of 
the Eurojust Decision this is to be done “at the earliest opportunity and in any case 
no later than 6 September 2003”.  

Both the European Council and the Council have, on several occasions, repeated the 
important  role  Eurojust  plays  in  the  fight  against  terrorism.  An  example  is  the 
Council  Decision  of  19  December  2002,  which  provides  for  national  terrorism 
correspondents to Eurojust.2  

Following the terrorist attacks of 11 March 2004 in Spain, the European Council of 
25  March  2004  again  highlighted  the  crucial  role  of  Eurojust  in  its  Declaration  on 
combating  terrorism.  It  urged  Member  States  to  take  any  measures  that  remain 
necessary to fully implement the Eurojust Decision by June 2004 and called on them 
“to ensure that the optimum and most effective use is made of existing EU bodies, in 
particular  Europol  and  Eurojust,  to  promote  cooperation  in  the  fight  against 
terrorism” and that Eurojust “is used to the maximum extent” for this purpose.3 Apart 
from the specific area of the fight against terrorism, Eurojust is an essential backup 
for  the  application  of  many  general  EU  instruments  on  judicial  cooperation,  as 
particularly  reflected  in  Article  16  of  the  Framework  Decision  on  the  European 
Arrest Warrant.4  

It follows from Articles 41 and 42 of the Eurojust Decision that there is no general 
rule applicable to all Member States saying which provisions are to be transposed by 
national legislation, in what manner and to what extent. It is up to the Member States 
to examine their national law to identify possible problems of application and to take 
the necessary measures. Some might need to adopt specific legislation on Eurojust, 
while for others it might suffice to adapt certain provisions in their laws on judicial 
cooperation and/or data protection, or indeed not need to take any legislative steps. 

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OJ L 63, 6.3.2002, p. 1. 
OJ L 16, 22.1.2003, p. 68. 
Council document 7906/04 JAI 100, p. 4 ff., 16.  
OJ L 190, 18.7.2002, p. 1. 

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When  adopting  the  Eurojust  Decision,  the  Council  assumed  that,  in  principle,  the 
measures  necessary  for  its  sound application were to be taken immediately.  This is 
clear from the above mentioned context, particularly from the Council’s conclusions 
on  the  events  of  11  September  2001,  according  to  which  Eurojust  should  “become 
operational at the beginning of 2002”.  

Such an interpretation also follows clearly from the wording of Articles 42 and 41(2) 
of  the  Decision:  by  way  of  exception,  Article  41(2)  allowed  Member  States 
temporarily to suspend the application of certain provisions until 6 September 2003 
at  the  latest,  by  issuing  a  declaration  in  case  of  an  incompatibility  between  the 
national  law  and  the  Eurojust  Decision.  In  the  absence  of  such  a  declaration,  the 
Eurojust Decision was to be fully applied from its entry into force, i.e. from 6 March 
2002. Consequently, a Member State which has not issued a declaration according to 
Article  41(2)  of  the  Decision,  but  nevertheless  has  kept  incompatible  national  law 
provisions, would be in breach of the Decision and the TEU since 6 March 2002. 

The  declarations  according  to  Article  41(2)  of  the  Eurojust  Decision  are,  therefore, 
an  important  indicator  for  a  Member  State’s  need  to  adapt  its  national  legislation, 
although  the  fact  that  a  Member  State  has  not  issued  such  a  declaration  does  not 
allow  to  conclude  that  there  is  no  need  for  legislative  measures.  However,  not  all 
Member  States  who  need  to  bring  their  national  law  into  conformity  with  the 
Eurojust Decision have issued such a declaration.  

2. 

PURPOSE OF THE REPORT AND METHOD OF EVALUATION 

Although  the  Commission  is  not  required  to  publish  a  report  on  the  Decision’s 
transposition, it has decided to do so, since a considerable number of Member States 
need to adapt national law provisions and since Eurojust plays a very important role 
for  criminal  justice  both  within  the  EU  and  for  judicial  cooperation  with  third 
countries. 

In June 2003, the Commission requested the Member States to provide the relevant 
information.  Reminder  letters  were  sent  in  December  2003.  Most  Member  States, 
though unfortunately not all, have replied to those letters. The evaluation is mainly 
based on these replies and on the declarations according to Article 41(2). In addition, 
the Commission has taken into account informal information collected by the Italian 
judicial ministry, who had sent a questionnaire to the Member States within a project 
financed under the EU framework programme on police and judicial cooperation in 
criminal matters (AGIS).5 

Thus, the Commission only supposes that legislative measures are necessary where a 
Member  States’  responsible  authorities  have  stated  so,  unless  there  are  clear 
indications for such a need. However, national legislation (primary and/or secondary) 
can  also  be  desirable  in  the  interest  of  transparency  and  certainty  of  the  law,  as 
Eurojust can only work properly if there are clear-cut and unambiguous rules.  

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Project n° 189/2003 (“Powers of the Eurojust National Members”) of the AGIS programme, which was 
established by Council Decision of 22.7.2002, OJ L 203, 1.8.2002, p. 5. 

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According  to  the  information  available,  three  Member  States  (AT,  DE,  FR)  have 
adopted  legislation  on  Eurojust  after  the  expiry  of  the  deadline  for  transposition  in 
Article 42 of the Decision.6 The report takes into account any Member State reply or 
other information which reached the Commission by 31 March 2004. However, the 
report does not examine the situation in the new Member States. 

3. 

CONCLUSIONS 

The state of implementation of the Eurojust Decision  is far from satisfying. By the 
end of the deadline (September 2003), only one Member State (PT) had passed the 
complete  legislation  necessary  to  comply  with  the  Eurojust  Decision.  Although  by 
April 2004, three more Member States have adopted the relevant laws (AT, DE, FR), 
in five Member States there is no implementing legislation as necessary according to 
their  national  law  (BE,  EL,  ES,  IT,  LU).  At  least  in  one  of  these,  not  even  a 
government  bill  has  been  presented  to  the  national  Parliament  by  the  time  of  the 
drafting of the report (March/April 2004). Since Finland has only implemented part 
of the Decision, on the whole six Member States still need to bring their national law 
into  conformity  with  the  Decision.  Given  the  central  role  and  high  importance  of 
Eurojust both in the fight against terrorism and in cooperation in criminal matters in 
general, and the various declarations by the European Council and the Council, this 
is disappointing.  

The  remaining  Member  States  concluded  that  they  did  not  need  to  amend  their 
national law. The Commission has no reason to question these conclusions, although 
the  long  time  needed  in  some  Member  States  to  examine  the  need  for  legislation 
shows  that  the  legal  situation  is  not  always  entirely  clear.  Moreover,  a  smooth 
operation  of  Eurojust  and  its  cooperation  with  national  authorities  can  only  be 
achieved  through  transparent,  clear-cut  rules  guaranteeing  the  certainty  of  the  law. 
Even  where  legislation  is  not  indispensable,  it  might  thus  be  preferable  to  have 
guidelines or circulars clarifying certain essential issues. However, only one Member 
State (SE) has communicated to the Commission such an act, a decree by the Chief 
Public Prosecutor. On this basis, it is difficult to get an overall picture and to carry 
out a thorough evaluation. Future experience will have to show whether the existing 
rules  in  the  Member  States  will  suffice  to  give  full  effect  to  the  Eurojust  Decision 
and to make Eurojust an efficient and effective tool. 

A  crucial  issue  to  be  looked  at  in  further  detail  in  the  future  is  the  exchange  of 
information  between  the  competent  national  authorities  and  Eurojust.  As  outlined 
above, it is currently not yet entirely clear whether the measures taken by Member 
States up to now will fully ensure that the Eurojust national members receive all the 
information  which  is  needed  to  carry  out  their  tasks  and  responsibilities.  The 
information  flow  should  work  smoothly  and,  in  urgent  cases,  sufficiently  rapidly. 
Therefore,  the  Commission  would  like  to  draw  the  Member  States’  particular 
attention  to  the  implementation  of  Articles  9(4)  and  13(1)  of  the  Decision  on  the 
national members’ access to information on investigations and prosecutions. 

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By end of March 2004, Germany informed the Commission that a political agreement on its national 
law had been found by the Reconciliation Committee of the two Houses of Parliament (see press release 
n°  52/2004  of  the  Bundesrat  of  31.3.2004).  Thus,  although  the  German  law  was  not  yet  formally 
adopted at that time, its contents could be taken into account in this report. 

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The  Commission  would  also  like  to  encourage  Member  States  to  confer  on  their 
Eurojust  national  members  the  judicial  and/or  investigative  powers  that  are  usually 
conferred  on  a  prosecutor,  judge  or  police  officer  of  equivalent  competence  under 
their  national  law.  Although  Article  9(3)  leaves  the  exact  scope  of  these  powers  to 
the Member States (apart from the question of access to information), they should be 
of  such  nature  that  Eurojust  can  carry  out  its  tasks  and  that  the  objectives  of  the 
Decision  can  be  met.  An  excessive  disparity  or  lack  of  consistency  of  the  national 
members’ powers can harm the effectiveness and credibility of Eurojust and hamper 
its  cooperation  with  the  national  authorities.  Therefore,  further  attention  should  be 
given to the issue of consistency and compatibility of the members’ national powers.  

Since  1  May  2004,  the  new  Member  States  are  also  obliged  to  take  all  necessary 
steps to implement the Eurojust Decision. The Commission will consider whether to 
publish a follow-up report including the new Member States in due time. In view of 
the  foregoing,  the  Commission  invites  all  Member  States  to  ensure  a  rapid  and 
complete  transposition  of  the  Eurojust  Decision  and  to  inform  it  of  any  measures 
taken, particularly on the issues outlined above.  

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