Proposal for a Council Regulation amending Regulation (Euratom, ECSC, EEC) No 549/69 determining the categories of officials and other servants of the European Communities to whom the provisions of Article 12, the second paragraph of Article 13 and Article 14 of the Protocol on the Privileges and Immunities of the Communities apply
Date: 2008-05-23
Institutions: European Commission
Subjects: European official, Protocol (EU), regulations for civil servants, servant (EU)

EN 

EN 

   EN 

 
 
COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 23.5.2008 
COM(2008)305 final 

2008/0102 (CNS) 

Proposal for a 

COUNCIL REGULATION 

amending Regulation (Euratom, ECSC, EEC) No 549/69 determining the categories of 
officials and other servants of the European Communities to whom the provisions of 
Article 12, the second paragraph of Article 13 and Article 14 of the Protocol on the 
Privileges and Immunities of the Communities apply  

(presented by the Commission) 

EN 

   EN 

 
 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

Council  Decision  […]  establishing  the  European  Police  Office  (EUROPOL 
Decision), under which EUROPOL is to be funded from the Community budget, will 
apply  from  1 January  2010  or  from  the  date  of  application  of  the  proposed 
amendment to Council Regulation (Euratom, ECSC, EEC) No 549/69 whichever is 
the latest date.  

In order to ensure that the EUROPOL Decision is applied from 1 January 2010, the 
amendment  to  Council  Regulation  No  549/69  clarifying  that  immunity  from  legal 
proceedings  does  not  apply  to  EUROPOL  staff  participating  in  joint  investigation 
teams, needs to be adopted in good time. 

•  General context 

During  the  preparation  of  the  EUROPOL  Decision  the  issue  of  immunities  of 
EUROPOL staff participating in joint investigation teams was discussed in depth.  

The  Council  Conclusions  of  12-13  June  2007  on  replacing  the  EUROPOL 
Convention by a Council Decision stated that 'EUROPOL would be funded from the 
Community  budget  as  from  1  January  2010  provided  that  satisfactory  solutions  are 
found  on  the  following  three  outstanding  issues:  1.  the  lifting  of  immunity  for 
EUROPOL  officials  when  participating  in  operational  activities,  especially  Joint 
Investigation Teams (JITs), ….'. 

Following  the  discussions  in  the  Council  on  this  issue,  the  Commission  agreed  on 
20 February 2008, that it would submit a proposal to amend Regulation No 549/69 
with a view to clarifying the scope of jurisdictional immunities. 

•  Existing provisions in the area of the proposal 

–  Protocol on the Privileges and Immunities of the European Communities (1965), 
in  particular  its  Chapter  V  (Articles  12  –  16),  which  specifies  immunities  and 
privileges that officials and other servants of the European Communities enjoy in 
the territories of the Member States. According to Article 16 of the Protocol the 
Council shall, acting on a proposal from the Commission and after consulting the 
other  institutions  concerned,  determine  the  categories  of  officials  and  other 
servants  of  the  Communities  to  whom  the  provisions  of  Article  12,  the  second 
paragraph of Article 13, and Article 14 shall apply, in whole or in part. 

–  Council Act of 18 December1997 drawing up, on the basis of Article K3 of the 
Treaty on European Union, the Convention on mutual assistance and cooperation 
between customs administrations. 

–  Council  Regulation  (Euratom,  ECSC,  EEC)  No  549/69  of  25  March  1969 
determining  the  categories  of  officials  and  other  servants  of  the  European 

EN 

2 

   EN 

 
Communities  to  whom  the  provisions  of  Article  12,  the  second  paragraph  of 
Article 13 and Article 14 of the Protocol on the Privileges and Immunities of the 
Communities apply, as amended. 

–  Council  Act  of  29  May  2000  establishing  in  accordance  with  Article  34  of  the 
Treaty  on  European  Union  the  Convention  on  Mutual  Assistance  in  Criminal 
Matters between the Member States of the European Union. 

–  Council Framework Decision of 13 June 2002 on joint investigation teams. 

•  Consistency with the other policies and objectives of the Union 

Not applicable. 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

Not relevant. 

•  Collection and use of expertise 

There was no need for external expertise. 

•  Impact assessment 

The  proposed  amendment  corresponds  to  the  request  that  immunity  from  legal 
proceedings (Article 12 (a) of the Protocol on the Privileges and Immunities) should 
not apply in respect of EUROPOL staff placed at the disposal of a joint investigation 
team in respect of official acts required to be undertaken in fulfilment of operational 
tasks set out in Article 6 of the Council Decision […] establishing EUROPOL. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

To  propose  an  amendment  clarifying  that  EUROPOL  staff  participating  in  joint 
investigation teams do not enjoy immunity from legal proceedings. 

•  Legal basis 

Article 16 of the Protocol on the Privileges and Immunities 

•  Subsidiarity principle 

The  proposal  falls  under  the  exclusive  competence  of  the  Community.  The 
subsidiarity principle therefore does not apply. 

•  Proportionality principle 

EN 

3 

   EN 

 
The  proposal  is  consistent  with  the  principle  of  proportionality  for  the  following 
reason: 

Article 16 of the Protocol on the Privileges and Immunities provides that the Council 
shall,  acting  on  a  proposal  from  the  Commission  and  after  consulting  the  other 
institutions concerned, determine the categories of officials and other servants of the 
Communities to whom the provisions of Article 12, the second paragraph of Article 
13,  and  Article  14  shall  apply,  in  whole  or  in  part.  There  are  no  other,  less  far-
reaching means of achieving the objectives of this proposal. 

•  Choice of instruments 

Proposed instrument: regulation. 

Other means would not be adequate for the following reason(s). 

The proposal concerns the amendment of an existing instrument. 

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

EN 

4 

   EN 

 
2008/0102 (CNS) 

Proposal for a 

COUNCIL REGULATION 

amending Regulation (Euratom, ECSC, EEC) No 549/69 determining the categories of 
officials and other servants of the European Communities to whom the provisions of 
Article 12, the second paragraph of Article 13 and Article 14 of the Protocol on the 
Privileges and Immunities of the Communities apply  

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
291 thereof, 

Having  regard  to  the  Protocol  on  the  Privileges  and  Immunities  of  the  European 
Communities, and in particular Article 16 thereof, 

Having regard to the proposal from the Commission1, 

Having regard to the opinion of the European Parliament2, 

Having regard to the opinion of the Court of Justice3, 

Having regard to the opinion of the Court of Auditors4, 

Whereas: 

(1) 

According  to  Article  6  of  Council  Decision  [the  decision  establishing  Europol]5 
EUROPOL  staff  may  participate  in  a  support  capacity  in  joint  investigation  teams 
created by and at the initiative of two or more Member States provided those teams are 
investigating  criminal  offences  for  which  Europol  is  competent.  These  joint 
investigation  teams  are  headed  by  a  team leader  representing  the  competent  national 
authority participating in criminal investigations from the Member State in which the 
team  operates.  During  the  operation  of  a  joint  investigation  team,  EUROPOL  staff 
shall, with respect to offences committed against or by them, be subject to the national 
law  of  the  Member  State  of  operation  applicable  to  persons  with  comparable 
functions. 

1 
2 
3 
4 
5 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
See page ... of this Official Journal. 

EN 

5 

   EN 

 
                                                 
(2)  When  the  possibility  for  Europol  officials  to  participate  in  joint  investigation  teams 
was introduced by the Protocol amending the Europol Convention6, it was considered 
that,  given  the  specificities  of  the  participation  of  Europol  officials  in  joint 
investigation teams created by Member States in the context of criminal investigations 
falling under the competence of Europol, Europol officials should not enjoy immunity 
from  legal  proceedings  in  respect  of  official  acts  undertaken  when  participating  in 
those teams. 

(3) 

The  privileges  and  immunities  that  the  Protocol  on  the  Privileges  and  Immunities  of 
the European Communities grants, solely in the interests of the Communities, to their 
officials  and  agents,  have  a  purely  functional  character,  in  that  they  are  intended  to 
avoid  any  interference  with  the  functioning  and  independence  of  the  Communities. 
Given that Council Decision [the decision establishing Europol] does not change the 
specificities  of  the  participation  of  Europol  staff  in  joint  investigation  teams,  its 
adoption should  not  extend  immunity from jurisdiction to Europol  staff participating 
in  such  teams.  Therefore  Regulation  (Euratom,  ECSC,  EEC)  No  549/697  should  be 
amended  in  order  to  clarify,  in  the  context  of  that  Decision,  and  exclusively  for  the 
purpose  of  its  application,  the  scope  of  immunity  of  Europol  staff  placed  at  the 
disposal of a joint investigation team, 

HAS ADOPTED THIS REGULATION: 

Article 1 

The following Article 1a is inserted in Regulation (Euratom, ECSC, EEC) No 549/69: 

'Article 1a 

Article 12 (a) of the Protocol on the Privileges and Immunities of the Communities shall not 
apply  to  EUROPOL  staff  placed  at  the  disposal  of  a  joint  investigation  team  in  respect  of 
official acts required to be undertaken in fulfilment of the tasks set out in Article 6 of Council 
Decision [the decision establishing Europol].' 

Article 2 

This Regulation shall enter into force on the twentieth day following that of its publication in 
the  Official  Journal  of  the  European  Union  [publication  on  the  same  day  as  the  decision 
establishing Europol]. 

It shall apply from 1 January 2010. 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

6 
7 

OJ C 312, 16.12.2002, p. 1. 
OJ L 74, 27.3.1969, p. 1. Regulation as last amended by Regulation (EC, Euratom) No 1749/2002 (OJ 
L 264, 2.10.2002, p. 13). 

EN 

6 

   EN 

 
                                                 
Done at Brussels, […] 

For the Council 
The President 
[…] 

EN 

7 

   EN