On the face of it Corpus Juris represents
a proposed new EU-wide criminal code for the prosecution of fraud
against the EU budget.
Many - seeing it from this restricted light
- have welcomed the proposal, viewing it as a long overdue determination
to crack down on the large, and growing, volume of EU fraud and
providing the detailed judicial mechanisms with which to do so.
In fact, those actually aware of the detail
of the Corpus Juris, until recently, were few. The original seminar
launching the proposal was held in Spain in April 1997 before
a selected audience of what the EU likes to call 'jurists'. Other
restricted seminars for those with direct interest have followed.
In Dublin, on 8th June 1997, such a meeting was hosted by the
Irish Association for the Protection of the Financial Interests
of the European Communities.
According to a press statement from the
Irish Association's president, Mr Justice Carney, the most radical
of the "Corpus Juris" proposals is Article 18, which
he revealed: "provides that for the purpose of the investigation,
prosecution, trial and execution of sentence concerning the newly
created European budgetary crimes the territory of the member
states of the union shall constitute a single legal area".
This is indeed the case. And therefore,
for the first time, the judicial jurisdiction of the EU would
not only be that of the supreme authority to whom national courts
defer when seeking interpretive legal guidance. The EU would become
the actual, and single, prosecuting authority in cases of suspected
budget fraud, with the right, through its agents, both to conduct
investigations into its suspicions AND conduct trials within all
member countries according to its OWN rules of law as described
in Corpus Juris.
When one recognises this, several issues
unfold. With the introduction of Corpus Juris, procedures of investigation
and the conduct of trials in such cases would no longer be those
originally of the member state in which they took place. National
law would no longer be subject to the EU 'merely' in the manner
of interpretation of laws originating in Brussels. In fact, procedures
according to native national law would no longer run within a
member state where individuals or organisations were to be investigated
and prosecuted, within that state, for EU fraud.
There is also an additional fear. Namely,
that Corpus Juris - by which member states "shall constitute
a single legal area" - may not merely be intended for application
in cases of EU budget fraud, but could be the first step towards
introducing a single system of criminal justice that applied to
ALL criminal proceedings within the EU. Could such fears be justified?
The answer can be found by quoting directly from the original
seminar on budget fraud/Corpus Juris held in San Sebastian, Spain:
"the objectives of the Seminar are
twofold; firstly, it seeks to call the attention of jurists in
general to the need for effective protection of the Community
budget, particularly in connection with fraud against subsidies;
and secondly, the organisers wish to make known the content of
the CORPUS JURIS for protection of these financial interests,
which has been conceived as the embryo of a future European Criminal
Code."
This description of Corpus Juris is unequivocal.
The proposals for conducting investigations and prosecutions to
protect the EU's financial interests have been conceived as the
precursor for an EU-wide Criminal Code! [J.S.]
THE FOLLOWING ASSESSMENT is from
Torquil Dick-Erikson
"Corpus Juris" is a plan
prepared by the EU Commission (XXth DG) at the request of the
European Parliament, to tackle fraud affecting the EU budget.
It will set up a European Public Prosecutor, on the continental
inquisitorial model, who will have over-riding jurisdiction throughout
Europe, to instruct national judges to issue arrest warrants against
suspects, have these held in custody for indefinite periods pending
investigation (or transported to other countries in Europe), with
no obligation to produce prosecution evidence and no right to
a public hearing during this time.
The cases are then to be tried by special
courts, consisting of professional judges and "excluding
simple jurors and lay magistrates". They will be empowered
to hand down sentences of up to seven years. Our rights of Habeas
Corpus and Trial by Jury are thereby to be overruled.
It is the expressed intention of the EU
Commission, and of the President of the EU Parliament Don Gil
Robles, for this system to be an "embryo European criminal
code", later to be extended to all kinds of crime. On November
8th and 9th 1998 an Inter-Parliamentary Conference was held in
Strasbourg, where the Corpus Juris project was put forward for
informal consideration. 14 Member States expressed general agreement
with the idea. Britain, represented by Lord Goodhart and Mr Humphrey
Malins, did not. (Details of this conference can be obtained from
the Law Society's office in Brussels).
However, Article 209a of the Amsterdam Treaty,
which specifically invokes newly created budgetary crimes, enables
Corpus Juris to be introduced as a measure "to counter fraud
affecting the financial interests of the Community".
Chapter 8 Section(d) Article 209a states
that the Community and Member States shall counter such fraud
and illegal activities "through measures to be taken in accordance
with this Article". Member States are required to "coordinate
their action" against such fraud; and the Council to adopt
the necessary measures "with a view to affording effective
and equivalent protection in the Member States". These measures
are to be adopted in accordance with "the procedure referred
to in article 189b" which involves co-decision with the EU
Parliament and provides for NO NATIONAL VETO.
Article 209a does, however, include an ambivalent
one-line statement that such measures "shall not concern
the application of national criminal law and the national administration
of justice". In correspondence with MPs during the Amsterdam
treaty debate the Foreign &Commonwealth Office revealed that
it was relying entirely on this ineffectual "safeguard"
to stop Corpus Juris being steamrollered in. But in his report
to the EU Parliament, filed on 11 February 1998, the Rapporteur
of that Parliament's "Committee on Civil Liberties and Internal
Affairs", M. Bontempi, describes directly how they intend
to circumvent this statement.
In all events, if the matter is disputed
it will be sent for adjudication by the European Court of Justice,
where Britain has no national veto. Following the final ratification
of the Amsterdam Treaty by all member states, the EU will be able
to immediately invoke Article 209a and put forward Corpus Juris
as a "measure against fraud". Britain will say "No".
But HMG will face a stark alternative: either accept supinely,
and have our ancient rights and liberties taken from us and trashed;
or tear up the Treaty of Rome. No other option will be available.
