Behind Corpus Juris

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.