Professor Gavin Barrett:

I thank the Chairman for his introduction and the kind invitation, on behalf of the joint committee, to address members today. In examining the European Commission's proposal and commenting on the Commission's response to the joint committee's reasoned opinion, I am not in any sense acting as a representative of the Commission. What members will hear is simply a third party opinion on the proposal for a Council regulation on the establishment of a European public prosecutor's office, EPPO, from someone with some knowledge of this area of the law. I hope my opinion will be of some use.

As members are aware, the idea of a public prosecutor's office at European level has been under discussion for more than 20 years and under serious discussion for at least 13 years. The European Commission published a green paper on the topic in 2001. The proposal for a European public prosecutor's office is not the only game in town, however, as regards prosecutorial co-operation at European level. Eurojust was formally established in 2002 and already co-ordinates such co-operation. We have, therefore, more than a decade of European level prosecutorial co-operation.

The prospects of going beyond current co-operation in this area by creating a more powerful European level body were boosted by the coming into force of the treaty of Lisbon at the end of 2009, in particular, Article 86 of the treaty which provides that, in order to combat crimes affecting the financial interests of the Union the Council could, by regulation, establish a European public prosecutor's office. These regulations have now appeared in the shape of the EPPO proposal. It was obvious, even from a reading of Article 86 that this proposal has considerable potential for co-operation.

The proposal must be adopted by unanimity. Ireland and the United Kingdom have an opt-out and opt-in by virtue or our protocol in thus matter and provision has also been made for the issue to be bumped up to the European Council in case of any discussion. Other aspects include the special enhanced co-operation procedure in this area. The proposal was clearly expected to give rise to potential for controversy and has done so.

The proposal to establish a European public prosecutor's office was published on 17 July last year. Since then, it has been winding its way through the European Union's legislative procedure. On the one hand, it is moving through the Council of Ministers, where it was debated in October 2013 and March 2014 without any conclusions being reached, and, on the other, it is proceeding through the European Parliament, where it has been voted on and reported on in the relevant committee. It was also debated in a plenary session in March 2014 when a resolution was passed calling for reasonably extensive amendments. That is the current position in respect of the proposal.

Apart from what is taking place in the Council and Parliament, another game or procedure is taking place simultaneously. I refer to what is occurring in national parliaments under the subsidiarity mechanism. As members will be aware, under Article 5 of the Treaty on European Union and Protocol No. 2 - the subsidiarity protocol - national parliaments get to operate the yellow and orange card procedures, in other words, they police compliance with the principle of subsidiarity.

We can come back to the procedure but essentially under Article 6, national parliaments get eight weeks to send to the presidents of the various European institutions reasoned opinions on why they consider the draft in question does not comply with subsidiarity. Each national parliament gets two votes. With 28 states, that is 56 votes in total. Generally, when reasoned opinions represent at least a third of all votes - that is 19 votes in total - the draft has to be reviewed. In other words, it gets yellow-carded. The threshold, though, as regards Justice and Home Affairs, JHA measures is lower than that. It is only a quarter. That is why the draft European Public Prosecutor's Office, EPPO regulation was regarded as having being yellow-carded even though only 18 votes were actually cost against it. It earned reasoned opinions from Cyprus, the Czech Republic, France, Hungary, Ireland, Malta, Romania, Slovenia, Sweden, Holland and the UK. This was a total of 18 votes when only 14 were needed.

Purely for the purposes of reminding ourselves, the Oireachtas submitted a reasoned opinion in October of last year. In that report, which was drafted and proposed by this committee, the Oireachtas expressed its opinion that the proposal did not comply with the principle of subsidiarity for three reasons. The first was that it considered criminal law to be primarily a national competence and the investigation and prosecution of all fraud, including that against the EU, to be primarily a duty of national authorities. Second, the committee took the view that the Commission had not adequately considered the option of strengthening existing or alternative mechanisms and had merely assumed that an EU level measure was the only way of moving forward. Third, the committee considered that more emphasis should have been placed on improving co-operation between organisations like Eurojust, the European Anti-Fraud Office, OLAF and the member states and so on. Also, the argument was made that the Commission had not demonstrated that member states were taking inadequate action against EU fraud.

The Commission confirmed that the subsidiarity control mechanism had been triggered on 6 November. It issued a communication on 27 November 2013. The reply to the Oireachtas, in particular, had two limbs to it. One was the letter sent to the Oireachtas on 14 March, the other was the communication sent on 27 November 2013. The letter was supposed to deal with matters that did not raise subsidiarity concerns at all. The view was taken that objection A, the competence objection, raised by the Oireachtas did not raise a subsidiarity issue. It was addressed nonetheless. It simply made the case that it did have competence in relation to this, that it was an area of shared competence essentially and that under Article 86 it had been given the power to adopt the European public prosecutor's initiative. There is more to the letter than that but that is the essence of it. Objections B and C in the committee's reasoned opinion were addressed more generally in the context of a communication directed at all of the parliaments in the European Union.

In the committee's communications with me, it has raised five concerns. With its permission, I will go through each of those five concerns in turn and try to address them.

The first area of concern that the committee mentioned was the decision of the Commission to place the first point of the reasoned opinion of the Oireachtas outside the scope of subsidiarity. In other words, to treat competence as not raising a subsidiarity issue at all. Our concerns here can be limited to the extent that the competence question was addressed. It just said this was not a legitimate subsidiarity question and that it does not belong in a subsidiarity review.

This raises the issue of what is subsidiarity. It would not have been too much for us to ask the Treaty drafters for a workable European-level definition of the principle that national parliaments are supposed to apply but we actually do not have that. Perhaps the reason we do not have that is that differences between the member states meant that there was never actually consensus as to what subsidiarity means. We do not have a comprehensive and authoritative, let alone universally binding, working definition of subsidiarity. All we have are Article 5 of the Treaty on European Union, TEU and Article 5 of the subsidiarity protocol which are fairly thin definitions, with the Article 5 definition stating that in order for subsidiarity to be complied with, the aims of the measure cannot be sufficiently achieved by the members states and then - a positive part - by reason of the scale or affects of the action, that it can be better achieved at Union level.

Procedural guidance is given in Article 5 of the protocol. For instance, it says that draft legislative acts need to be justified and they need detailed statements and some assessment of the proposal's financial impact and so on and so forth. It is rather detailed procedural stuff. Beyond that, that is pretty much it as regards guidance regarding the meaning of subsidiarity. No spontaneous consensus has emerged between national parliaments on what subsidiarity means. Does it include competence or not? That is the issue the committee wants to raise. Actually, the point can be argued either way.

The actual structure of the treaty provisions distinguish competence, subsidiarity and proportionality. One would expect, if that was the case, that in fact competence actually is a different issue to subsidiarity. That would be the end of the matter in that regard. Furthermore, logically, keeping subsidiarity and competence separate is more conceptually neat in the sense that if the European Union does not have any competence then it is not necessary to consider at what level that competence is going to be exercised. On the other hand, in reality, legality, subsidiarity and proportionality questions all do tend to get intermixed. Some writers on the topic feel that even theoretically they are hard enough to distinguish. One argument is that if there is no competence, then it is not possible to say that the European Union is going to be more efficient. It can therefore be said that the subsidiarity test has failed. An argument can be constructed that competence issues are subsidiarity issues. Certainly, there is at least one writer in the area, Kiiver, who actively encourages national parliaments to raise competence issues. It can be seen that the Commission does not agree with that, so the committee will collide with the Commission if it continues raising competence issues. However, maybe that is no harm. It is a matter for the committee and arguments can be raised in either direction. However, it is possible to see the way the Commission feels.

The second area of concern was the general response from the Commission. This question really relates to the substantive response of the Commission. There is the competence issue which I have already looked at. The second objection of the Oireachtas concerned inadequate consideration of alternative or existing mechanisms. In response to this, the Commission considered that in its November 2013 communication. The reasoning was fairly extensive in that regard. It stretches over approximately three pages. There are a number of interesting features to that. One of them is that it agreed that it should take into account its own impact assessment report. That was something the committee mentioned in its own report. Some states would not agree with that because impact assessment reports are not always translated. Some states object and say they cannot be used to defend a measure on subsidiarity grounds. The Commission very much takes the view it can do that. It, essentially, in relation to existing or alternative mechanisms, restated its position. It pointed out the impact assessment report, the explanatory memorandum and the accompanying legislative and financial statement of the Commission and, essentially, did not go beyond that. It basically restated its position and said that was answer enough. Interestingly enough, in terms of looking at comparative efficiency, it denied the need to look at the situation in individual member states. It argues that looking at action at the level of member states generally and that being generally inefficient was enough. It went in to some statistical detail in that regard. It looked at, in particular, statistics that had been produced by OLAF showing that national criminal proceedings were taking too long and the levels of successful prosecutions were too low. Therefore, there was a quite detailed response in that regard which relied very much on statistics. As regards the alternative mechanisms at European level, the Commission relied heavily in its communication on the inherent limitations of those mechanisms.

The Commission relied heavily in its communication on the inherent limitations of those mechanisms. Basically, it noted that the European Anti-Fraud Office, OLAF, is limited to administrative investigations, noted no prosecution is necessary after an OLAF investigation and that Europol and Eurojust have no powers to conduct or direct investigations. Basically, that was how the Commission answered the various objections. There is a little more to it than that but that is most of what it had to say on the matter. It is an extensive answer to the Oireachtas. Some of it is simply a restatement but some of it goes further into statistical detail. There is approximately three pages of justification.
Area of concern No. 3 expressed by the Oireachtas was how the Commission considers a reasoned opinion. The committee noted in its communication to me that the Commission appears to have the final say in what does or does not breach subsidiarity and, if so, asked about the benefits of issuing a reasoned opinion. It is something of an existential question: what are we doing here? Procedurally, how does the Commission consider a reasoned opinion? To a certain extent we should see things from the Commission's point of view. It has limited time and resources. Procedurally, it is not unreasonable for the Commission to seek to gather together similar responses from the various parliaments and answer them en massewith a general communication. I suppose I can understand the Commission doing that. At the same time it is important that the job be taken seriously and that adequate work be put into coming up with the response, but I am unsure of the committee's view in this regard. It is a reasonably extensive response stretching over several pages.
The question of the Commission having the final say in what does or does not breach subsidiarity was raised. Ultimately, the Commission does not have the final say in respect of what violates subsidiarity. Subsidiarity is a legal principle and its meaning, ultimately, is a matter for the Court of Justice of the European Union to decide on. Article 19 of the Treaty on European Union states that it is up to the EU Court of Justice to ensure that in the interpretation and application of the treaties the law is observed. Under Article 263 it is possible for a review action to be brought before the Court of Justice. If someone believes subsidiarity is being violated, whether a member state, an institution, or, in certain circumstances, a private person, then the matter can be litigated before the Court of Justice. Above all for the purposes of this committee, under Article 8 of Protocol No. 2, section 7(4) of the European Union Act 2009 and Seanad and Dáil Standing Orders, this committee can initiate a process requiring the Government to bring the matter before the Court of Justice. If the committee believes sufficiently strongly about the subsidiarity issue and that the Commission is wrong in this regard, then it can initiate the process of bringing the matter before the Court of Justice to get the court to consider whether the Commission was right or wrong. I am unsure how strongly the committee feels about it, but it remains an option at the end of the day.
Realistically, on the other hand, the Court of Justice has tended to be rather hesitant in being over-elaborative in its approach to subsidiarity. Realistically, the Commission has a good deal of power in deciding whether subsidiarity has been breached. This has several consequences. The committee could simply accept the Commission view and seek to influence the Commission within the parameters of that definition. As an alternative approach the committee could dispute the Commission's interpretation on the meaning of subsidiarity and, if necessary or if the committee so wishes, take that dispute as far as the Court of Justice.
The committee raised another issue about the consequences of this and set out a rather lengthy objection. It was always anticipated that the procedural consequences of objecting to a reasoned opinion or a yellow card would be relatively weak. In deploying the yellow card procedure, basically a parliament secures the entitlement to get the matter reviewed. Then it can be maintained, amended or withdrawn subsequently. In a sense the subsidiarity mechanism is narrow in that it only focuses on subsidiarity. It is weak in terms of what a parliament can get the Commission to do. However, one approach the committee could adopt in this respect is to try to compensate for the institutional weakness or the weakness of the consequences of a subsidiarity warning by trying to push the boundaries of subsidiarity. Does it include competence? Then it could put in competence objections. Does it include proportionality? Then it could put in proportionality obligations. Does it require more detailed justifications above what a parliament has received? Then the committee could ask for more detailed justifications and object if it does not get them. In other words, a parliament could try to compensate for the weakness of what it can demand from the Commission by broadening the scope of the procedure.
Committee members should ask what the benefits of issuing a reasoned opinion are. Certainly, it means the committee is forcing the political system to engage in a debate and forcing the Executive to listen and justify itself. Issues would be raised that would not be raised otherwise. Certainly, when the early warning mechanism was not in place and the Court of Justice was the only means of enforcing this procedure, issues such as those being raised by the Oireachtas simply were not raised. What is happening here is that national parliaments are carving out a role for themselves at European level.
On the other hand, let us consider the European role of every committee in the Oireachtas. The committees could have many European roles. Committees can examine secondary legislation, such as statutory instruments and determine whether they are being properly used. Committees can call a Minister to appear before them and ask him or her to be accountable for what is going on in Council meetings. Committees can ventilate issues at national level and produce reports or engage in political dialogue at European level. There are a range of things committees can do in respect of European matters. Committee members must decide for themselves where to focus their efforts at the end of the day.
I believe the subsidiarity issue is worth devoting a certain amount of time to. I am pleased that the committee issued a reasoned opinion. It will be broader because when the treaties are revised - they will be revised in due course - the subsidiarity gate will be widened. Committees will be expressly given broader powers to consider issues going beyond subsidiarity. Even now, the committee can give subsidiarity as broad a definition as it wishes and argue that these considerations need to be take into account. Were I in the position the committee is in, that is how I would seek to argue subsidiarity.
Area of concern No. 4 relates to whether there is any further recourse once the Commission makes its decision. The short answer is: yes, there is. In fact, there are several methods of recourse. First, let us not forget Protocol No. 2. Ireland has an opt-out with an opt-in in respect of all justice and home affairs matters. If the committee really does not like this particular measure, it can push for us not to opt in to it. That is the first recourse. We do not have to adopt this measure if we would rather not.
In evidence given before this committee on 16 October the relevant officials in the Department of Justice and Equality indicated that it has been decided that it would be best for Ireland for the time being not to opt in to this particular measure, but that if appropriate adjustments can be made then we might opt in afterwards. In terms of where they go from now, committee members should be aware that there is a debate to be had on whether we opt in or opt out. I do not believe there is any great difficulty, ultimately, and if appropriate adjustments can be made, for Ireland to opt in. However, the committee may take a different view in that regard and if so, it should push for Ireland not to opt in.
What else can the committee do? Ireland is taking part in the debates on the adoption of this measure, although it is not guaranteed that we will opt in to it. We are in a unique and privileged position in this regard. The committee should seek to influence the Minister. If there are particular things the committee wishes to see in this proposal members should get the Minister before the committee before she goes to Europe and indicate that they are keen to see these things in the measure in question.
If the committee really believes that this measure violates subsidiarity, notwithstanding the Commission's responses, then it should initiate the Article 8 procedure. Once the measure is adopted - the committee should be quick about it, because there is a two-month procedure - the committee could get the matter brought before the Court of Justice. The committee should note that the Oireachtas can instruct the Government to bring the matter before the Court of Justice. The committee should note further that the process of instruction begins in this committee. The committee makes a report and recommends it to the Oireachtas. There is a range of options open to the committee. The fact that the Commission has rejected the committee's opinion in this regard does not mean that it has no further recourse or that there is nothing else to do.
I will set out my view on area of concern No. 5. The committee indicated that the Croatian Parliament had stated that the Commission was giving preference to the legal rather than the political interpretation of the principle of subsidiarity and asked whether I would explain legal and political subsidiarity.

A couple of points occur in regard to this. The first is that subsidiarity is a legal principle at the end of the day. It is defined in Article 5 of the protocol. It might not be a very adequate definition, but it is a legal principle. Second, it is very vaguely defined in those provisions. As a result of that, there is an ongoing debate as to what subsidiarity actually means, and that debate is in part there because the European Court of Justice refuses to get involved. It is being driven by national parliaments at the moment, although it is a legal debate, so there is a political aspect to it. I presume that is what the Croatian parliament was getting at. What they were essentially saying in accusing the European Commission of adopting a legal approach in relation to it, was that the Commission was taking the same lenient, generous, restrained and deferential approach to what subsidiarity means as the European Court of Justice has been taking for years. The Croatians were saying that was not good enough for them, they want there to be a tougher, harder and broader definition in relation to subsidiarity