Assembly/AU/11 (XIII) Annex II Page 23   38. In so far as the indictment of sitting state officials is concerned, there is disregard for immunities enjoyed by state officials under international law. Consequently, any such indictment severely constrains the capacity of African states to discharge the functions of statehood on the international plane. IV.2 European concerns 39. It is apparent to the independent experts appointed by the EU that Member States of the EU, like African states, view the exercise of universal jurisdiction as an essential weapon in the fight against impunity for serious crimes of international concern. They appear to consider the exercise of universal jurisdiction as an important measure of last resort which is necessary to ensure that perpetrators of serious crimes of international concern do not go unpunished whenever the state where the crime has allegedly been committed and the state(s) of nationality of the suspect and victims are manifestly unwilling or unable to prosecute. 40. The independent experts appointed by the EU understand the concern expressed by AU Member States. In their view, however, these concerns should not be overstated. Criminal proceedings initiated against African state officials on the basis of universal jurisdiction represent only a part of the total number of exercises of universal jurisdiction by EU Member States. Proceedings have been instituted or sought against nationals, whether officials or otherwise, from states of most other regions of the world.171 Moreover, those proceedings which have resulted in an actual indictment, let alone trial and conviction, remain an exception. In many cases, proceedings have been discontinued out of respect for the immunities accorded state officials by international law. 41. The independent experts appointed by the EU believe it is crucial to emphasize the attachment of the various national legal traditions within the EU to the cardinal constitutional principle of the independence of the judiciary. They believe that any measures proposed to address the concerns of AU Member States regarding the exercise of universal jurisdiction by EU Member States must take as a starting point the non-negotiable character of this principle. 42. It is also crucial to appreciate that the EU’s competence in matters of criminal jurisdiction is limited. Within the EU, the exercise of jurisdiction in matters of criminal law is to a large extent a subject- matter falling under the respective national competences of the 27 Member States of the Union. Any measures proposed to meet the concerns expressed by AU Member States over the exercise of universal jurisdiction by EU Member States must be premised on an understanding of the limited competence of the Union in this regard.                                                              171 See above, section II.2. Version 31 March 09(FINAL)