Abstract
The legislative proposal of the European Commission on the establishment of the European Public Prosecutor’s Office (EPPO) gives rise to questions concerning fundamental principles of European law as well as issues of practicability. Reflecting on the current situation of the criminal law systems and taking into consideration opportunities and risks of this project, this article considers some of the controversial issues from a practitioner’s perspective. Pleading for a pragmatic approach, it emphasises the need for an independent office which should have positive effects on the position of the national prosecution offices. With regard to the options for the structure of this new European body a modification of the proposal is suggested. Collegial elements should be built into this Office, including the creation of chambers. Underlining the necessity of a close cooperation between European and national authorities, an exclusive competence of EPPO is rejected for reasons of practicability as well as subsidiarity and proportionality. In order to achieve a more suitable and flexible solution, the Office should be endowed with concurring competences having a right of evocation. Finally, some other issues are touched upon, such as the protection of individual rights, the determination of jurisdiction and the question of judicial review, suggesting that additional competences of the European Court of Justice are needed.
The author is a Senior Public Prosecutor at the Office of the Federal Public Prosecutor General in Karlsruhe, Germany. This article reflects his personal opinion and not that of his office.
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Notes
- 1.
Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office of July 17, 2013 COM (2013) 534 final. Hereafter EPPO proposal. See also the Appendix to this book.
- 2.
See: Explanatory Memorandum to the EPPO proposal, p. 2.
- 3.
See: Article 25(1) of the EPPO proposal.
- 4.
Article 5(1) TEU.
- 5.
Article 5(2) TEU.
- 6.
See: Article 5 of the EPPO proposal.
- 7.
See: Articles 8, 9 and 10 of the EPPO proposal.
- 8.
Recital 10 of the proposal calls for ‘institutional safeguards to ensure its independence’.
- 9.
See: Article 8(4) of EPPO proposal.
- 10.
In this context, the issue of immunity as regulated in Article 19 of the EPPO proposal is of practical importance. Since the need to apply for a lifting of the immunity could hamper the speed and the success of the investigation, the establishment of a new European body with investigative powers like the EPPO should give rise to the question whether it is not time to abolish the existing immunity for EU servants.
- 11.
Recital 11 of the EPPO proposal.
- 12.
See: Article 5(3) of the EPPO proposal.
- 13.
This is also stressed in recital 8 of the EPPO proposal.
- 14.
See: Articles 18(2), 18(5) and 18(6) of the EPPO proposal.
- 15.
See: Article 6(4) and 6(5) of the EPPO proposal. See also: internal rules of procedure in Article 7.
- 16.
Article 7 of the EPPO proposal does not entirely fulfil this condition.
- 17.
Recital 12 of the EPPO proposal.
- 18.
EPPO will exert a strong influence on the practice of the national authorities in the handling of e.g. comparable national tax evasion cases or white-collar crimes.
- 19.
E.g. the European Public Prosecutor and his deputies or a certain quantum of national members could have the right to initiate proposals, subject to subsequent confirmation by the College.
- 20.
Article 26(4) of the European Convention on Human Rights: ‘There shall sit as an ex-officio member of the Chamber and the Grand Chamber the judge elected in respect of the High Contracting Party concerned. If there is none or if that judge is unable to sit, a person chosen by the President of the Court from a list submitted in advance by that Party shall sit in the capacity of judge’.
- 21.
This issue cannot be elaborated here in more detail, because a number of questions are related to national administrative law.
- 22.
See Article 3 of the proposal for a Directive on the fight against fraud to the Union’s financial interests by means of criminal law, COM (2012) 363 final of 11 July 2012.
- 23.
Marta Pawlik and Andre Klip scrutinise these issues precisely and in a rather convincing way in Chap. 11 in this book.
- 24.
See recital 21 of the EPPO proposal.
- 25.
See Article 13(1) of the EPPO proposal.
- 26.
According to Article 17 and recital 23 of the EPPO proposal, national authorities shall maintain a competence to take any urgent measures necessary to ensure effective investigation and prosecution.
- 27.
Should the EPPO be put in place in the framework of enhanced cooperation between some of the Member States, this aspect would gain even more importance.
- 28.
Article 5.3. TEU provides:
‘Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol’.
- 29.
Article 27 of the EPPO proposal.
- 30.
The procedural law is widely left to the Member States. Article 32 of the proposal refers to certain guarantees of the suspect, while all procedural rights under the respective national law remain applicable.
- 31.
Article 36 of the EPPO proposal.
- 32.
See Introduction in Chap. 1 of this book.
- 33.
It should be noted, however, that the number of participating Member States will be of great importance for EPPO’s capability to achieve real improvements in the protection of the EU’s financial interests. If the number of participating Member States is insufficient, there may arise concerns with regard to the principle of subsidiarity.
- 34.
See Article 16(2) in conjunction with Articles 18(5), 18(6) and recital 9 of the EPPO proposal.
- 35.
Article 5(4) TEU.
- 36.
Recital 6 of the EPPO proposal alleges, that the impact on the legal order and the institutional structures of the Member States be ‘the least intrusive possible’. This may be questioned considering the limited elements of a collegial system and the stipulation of an exclusive competence of EPPO.
- 37.
See Article 26(3) of the EPPO proposal in regard to the execution of investigative measures.
- 38.
This aspect is expressly stated in recitals 18 and 29 of the EPPO proposal.
- 39.
See Articles 26 and 32 of the EPPO proposal.
- 40.
Article 26(2) of the EPPO proposal is ambiguous. Nor it is clear whether Article 32(5) or recital 19 of the proposal could support a different opinion. Article 11(3) of the proposal does not seem to be sufficiently clear either.
- 41.
Article 26(1) of the EPPO proposal.
- 42.
Article 27 of the EPPO proposal.
- 43.
Article 27(4) a of the EPPO proposal.
- 44.
Article 27(4) c of the EPPO proposal.
- 45.
Article 27(4) d of the EPPO proposal. It should be noted that the concept of ‘direct victim’ is rather unclear. Since the EPPO will be established to protect the financial interests of the European Union, who should be regarded as a ‘direct’ victim. Consequently, who would be an ‘indirect’ victim?
- 46.
Article 36 of the EPPO proposal.
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Lohse, K.M. (2015). The European Public Prosecutor: Issues of Conferral, Subsidiarity and Proportionality. In: Erkelens, L., Meij, A., Pawlik, M. (eds) The European Public Prosecutor’s Office. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-035-0_10
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