Mr. David Fennell:

The Commission has published a proposal for a regulation on Eurojust, which seeks, inter alia, to harmonise the status and powers of national members. The draft, as it stands, is problematic for Ireland. To provide a brief background to Eurojust, the organisation was established in 2002 to facilitate co-ordination and co-operation between national investigation and prosecution authorities in dealing with cross-border crime. Each member state appoints a national member, assisted by deputy and assistant members. Reflecting the prevailing civil law ethos of most member states, most national members are investigating judges and prosecutors. Ireland has a national member assigned by the Director of Public Prosecutions, essentially on a part-time basis, who does not exercise any investigative powers and operates more as a contact point and liaison officer.

Article 8 of the draft regulation provides that national members "shall" have certain powers, namely, to facilitate and support the issuing and execution of mutual legal assistance requests; to contact directly and exchange information with competent national and international bodies; to participate in joint investigation teams; to order investigative measures in urgent cases when timely agreement cannot be reached; and to authorise and co-ordinate controlled deliveries, for example, drugs and weapons, in urgent cases when timely agreement cannot be reached.

In the previous Eurojust decision, member states could decide not to confer certain powers on their national members. This was done to accommodate Ireland and the United Kingdom, mindful of the differences between the common and civil law systems. No such exemption is provided in the proposal which, as a regulation, is directly applicable. The powers contained in Article 8 are incompatible with those exercised by an officer of the Director of Public Prosecutions. For instance, the national member will be required to be able to order investigative measures. The draft regulation, as it stands, is based on the investigating prosecutor civil law model and presents significant difficulties to common law states. The powers in question are exercised by a range of entities in the Irish system, namely, courts, prosecutors and gardaí. For instance, only a judge can order an investigative measure such as a house search. Even in such circumstances, a judge is permitting a search rather directing that a house be searched.

In the circumstances, it has been decided that it would be best for Ireland not to exercise an opt-in under Protocol 21. However, subject to the necessary changes being made, especially in respect of Article 8, we are hopeful Ireland will be in a position to opt in after adoption, subject to the adopted instrument being consistent with Irish law in practice. Ireland will fully participate in the negotiations and actively explore and pursue the possibility of amending the problematic sections of the draft regulation to ascertain whether it can be changed to fit Irish law in practice.