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European Public Prosecutor’s Office and Eurojust: ‘Love Match or Arranged Marriage’?

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The European Public Prosecutor’s Office

Abstract

The draft regulations on Eurojust and the European Public Prosecutor’s Office (EPPO) complement each other. To get a full comprehension of the relations between both proposals, they must be read and analysed simultaneously. According to those draft regulations the scope of material competence of the EPPO would in principle be seamlessly delimited, as Eurojust would not be competent for the crimes for which the EPPO is competent and vice-versa. However, provisions in both draft regulations regulate operational cooperation between the two bodies, which consists mainly of sharing information and the possibility for the EPPO to address specific requests to Eurojust. Moreover, in line with the requirement of Article 86 TFEU and for reasons of cost efficiency, the development of the EPPO as envisaged by the Commission will heavily rely on the support to be provided by Eurojust.

The author is Head of the Legal Service of Eurojust. The opinions expressed in this article are those of the author and may not be attributed to Eurojust. The author would like to thank Laura Surano, Legal Officer at Eurojust, for the fruitful exchange of views, and Jacalyn Birk, for her precious assistance.

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Notes

  1. 1.

    Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Criminal Justice Cooperation (Eurojust) (COM(2013) 535 final), 17.7.2013, referred to in this article as the ‘Eurojust proposal’.

  2. 2.

    Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office (COM(2013) 534 final, 17.7.2013, referred to in this article as the ‘EPPO proposal’. See also the Appendix to this book.

  3. 3.

    Article 3 of the EPPO proposal.

  4. 4.

    Article 41 of the Eurojust proposal and Article 57 EPPO of the proposal.

  5. 5.

    Article 41(1) of the Eurojust proposal.

  6. 6.

    Articles 12(3) and 16(7) of the Eurojust proposal.

  7. 7.

    Article 57(6) of the EPPO proposal.

  8. 8.

    Article 11(4) of the EPPO proposal.

  9. 9.

    Article 13(1) of the EPPO proposal.

  10. 10.

    Article 13(2) of the EPPO proposal.

  11. 11.

    Article 3(1) of the Eurojust proposal: ‘Eurojust’s competence shall cover the forms of crime listed in Annex 1. However, its competence shall not include the crimes for which the European Public Prosecutor’s Office is competent’.

  12. 12.

    Support provided by Eurojust to the EPPO consists among others in the determination of ancillary competence of the EPPO and responding to requests from the EPPO on specific acts, especially in the field of external relations; and a consultative role in issues of indictment and prosecution.

  13. 13.

    Articles 2–5 of the Eurojust proposal.

  14. 14.

    See infra, Sect. 6.3.2.2.

  15. 15.

    Proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union’s financial interest by means of criminal law (COM (2012) 363 final) (2012/0193 (COD)), 11.7.2012.

  16. 16.

    See supra, n. 11.

  17. 17.

    These provisions will be dealt with in the paragraphs hereafter.

  18. 18.

    Article 28(2) of the EPPO proposal.

  19. 19.

    Article 28(3) of the EPPO proposal.

  20. 20.

    See recital 5 of the Eurojust proposal: ‘Whilst the European Public Prosecutor’s Office should have exclusive competence to investigate and prosecute crimes affecting the Union’s financial interests, Eurojust should be able to support national authorities when they are investigating and prosecuting these forms of crime in accordance with the Regulation establishing the European Public Prosecutor’s Office’.

  21. 21.

    Article 13(2) of the EPPO proposal.

  22. 22.

    Such change could be made in Articles 2–5 of the Eurojust proposal, which determine Eurojust’s tasks, competence, operational functions and the way they are exercised,

  23. 23.

    Article 13(1) of the EPPO proposal.

  24. 24.

    Conclusions of the conference organised by the Lithuanian Presidency in cooperation with the European Commission and the Academy of European Law ‘European Public Prosecutor’s Office: A Constructive Approach towards the Legal Framework’ (Vilnius, 16–17 September 2013), Doc. Council 13863/1, 13–14 October 2013, p. 9.

  25. 25.

    Article 13(1) of the EPPO proposal.

  26. 26.

    Articles 13(2) and 13(3) of the EPPO proposal.

  27. 27.

    Article 5(2) of the Eurojust proposal.

  28. 28.

    Article 56 of the EPPO proposal.

  29. 29.

    Article 15(1) of the EPPO proposal.

  30. 30.

    Article 21(1) of the EPPO proposal.

  31. 31.

    Article 41(4) of the Eurojust proposal and Article 57(4) EPPO proposal.

  32. 32.

    Article 57(2)(e) of the EPPO proposal.

  33. 33.

    Article 8 of the European Union’s Charter of Fundamental Rights.

  34. 34.

    Article 37(5) of the EPPO proposal; Article 27(5) of the Eurojust proposal.

  35. 35.

    Regulation (EC) 45/2001 of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ L 8, 12.01.2001, p. 1.

  36. 36.

    Council of Europe Convention of 28.1.1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data.

  37. 37.

    Article 28 of the Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA (COM (2013) 173 final), 27.3.2013, hereinafter the ‘Europol proposal’.

  38. 38.

    In accordance with Article 2(o) of the Europol proposal.

  39. 39.

    It should be mentioned that the Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (OJ L 350/60, 30.12.2008) regulates the protection of personal data in the field of police and judicial cooperation in criminal matters and is for the time being only applicable to the transfer of data between competent authorities in the Member States.

  40. 40.

    Article 24(8) of the Eurojust proposal provides that ‘The provisions on access to the Case Management System and the temporary work files shall apply mutatis mutandis to the European Public Prosecutor's Office. However, the information entered into the Case Management System, temporary work files and the index by the European Public Prosecutor's Office shall not be available for access at the national level’.

  41. 41.

    ‘Better protection of the Union’s financial interests: Setting up the European Public Prosecutor’s Office and reforming Eurojust’ (COM (2013) 532 final, 17.7.2013).

  42. 42.

    Article 41(5) of the Eurojust proposal mirroring Article 57(3) of the EPPO proposal.

  43. 43.

    Such obligations are provided for e.g. in Article 13 of the Eurojust decision, a provision that is further reinforced by Article 21 of the Eurojust proposal. That provision enumerates situations in which national authorities are obliged to inform Eurojust, even if they do not require assistance from Eurojust, such as the emergence of serious cases in which at least three Member States are involved or the setting up of joint investigation teams or organising controlled deliveries affecting three countries (comprising at least two Member States).

  44. 44.

    See Article 40 of the Eurojust proposal and Article 27 of the Europol proposal.

  45. 45.

    Article 57(2)(b) of the EPPO proposal: ‘requesting Eurojust or its competent national member(s) to participate in the coordination of specific acts of investigation regarding specific aspects which may fall outside the material or territorial competence of the European Public Prosecutor’s Office;’

  46. 46.

    Article 57(2)(d) of the EPPO proposal: ‘requesting Eurojust or its competent national member(s) to use the powers attributed to them by Union legislation or national law regarding specific acts of investigation which may fall outside the material or territorial competence of the European Public Prosecutor’s Office’.

  47. 47.

    Article 57(2)(f) of the EPPO proposal: ‘requesting Eurojust or its competent national member(s) to provide support in the transmission of its decisions or requests for mutual legal assistance to, and execution in, States members of Eurojust but not taking part in the establishment of the European Public Prosecutor’s Office or third countries’. Actually, while referring to ‘States members of Eurojust but not taking part in the establishment of the EPPO’, this appears to be the single one provision in the EPPO proposal implying that the EPPO might be established on the basis of an ‘enhanced cooperation’ framework.

  48. 48.

    Remarks by President Barroso on the Commission's proposals for the 2014–2020 Multi-Annual Financial Framework on 29 June 2011. SPEECH/11/487 http://europa.eu/rapid/press-release_SPEECH-11-487_en.htm.

  49. 49.

    See the Multiannual Financial Framework adopted on 2 December 2013: the Heading ‘Global Europe’ covers all external action (‘foreign policy’) by the EU such as development assistance or humanitarian aid. The total amount indicated is at 2011 prices and, in addition to the EUR 58.704 billion designated for Global Europe in the Multiannual Financial Framework, includes the EUR 34.276 billion for the European Development Fund, outside the EU budget.

  50. 50.

    Article 61 of the EPPO proposal and Article 45 of the Eurojust proposal.

  51. 51.

    Articles 66(5) (on transitional arrangements) of the Eurojust proposal.

  52. 52.

    Articles 42(2) and 42(3) of the Eurojust proposal; Articles 61(2) and 61(3) of the EPPO proposal.

  53. 53.

    Article 45(1) in fine of the Eurojust proposal; Article 61(1) in fine of the EPPO proposal.

  54. 54.

    Article 43(2) of the Eurojust proposal; Article 59(2) of the EPPO proposal.

  55. 55.

    Article 59(1) of the EPPO proposal.

  56. 56.

    Article 59(3) of the EPPO proposal.

  57. 57.

    Article 59(4) of the EPPO proposal.

  58. 58.

    Article 41(2) of the Eurojust proposal.

  59. 59.

    See Conclusions of Workshop IV of the seminar, ‘The new Eurojust Proposal: an Improvement in the fight against cross-border crime?’ (The Hague, 14–15 October 2013), Doc. Council 17188/1/13 REV 1, 4 December 2013, p. 39.

  60. 60.

    Articles 5(1) and 5(2) of the Eurojust proposal.

  61. 61.

    This question is already raised in Sect. 6.2.

  62. 62.

    Articles 27–29 of the EPPO proposal.

  63. 63.

    Article 27(5) of the EPPO proposal.

  64. 64.

    Article 57(2)(e) of the EPPO proposal.

  65. 65.

    See Sect. 6.3.2.2.

  66. 66.

    Subject to implementation of Article 59 of the EPPO proposal, i.e. the recognition of the EPPO as competent authority under an international agreement or alteration of such agreement.

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Authors and Affiliations

  1. Eurojust, The Hague, The Netherlands

    Catherine Deboyser

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Editors and Affiliations

  1. EU Law, T.M.C. Asser Instituut, The Hague, The Netherlands

    L. H. Erkelens

  2. EU Law, T.M.C. Asser Instituut, The Hague, The Netherlands

    A.W.H. Meij

  3. EU Law, T.M.C. Asser Instituut, The Hague, The Netherlands

    M. Pawlik

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Deboyser, C. (2015). European Public Prosecutor’s Office and Eurojust: ‘Love Match or Arranged Marriage’?. 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_6

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