European Public Prosecutor?s Office - A New Beginning?

Author:Ovidiu-Horia Maican
Position:University Lecturer, Ph. D, Academy of Economic Studies, Law Department, Bucharest, Romania
Pages:82-97
SUMMARY

The adoption of the Council Regulation 2017/1939 (entered into force on 20 November 2017) implementing enhanced cooperation on the establishment of the European Public Prosecutor's Office‘ (the EPPO) is a turning point in the development of the European Union as an Area of Freedom, Security and Justice, by setting - up of the first european investigating and prosecuting authority. The structure and functioning of the new authority, together with the limited scope of its competence make the EPPO as an authority whose legal environment largely builds on the national legal systems. The founding of the new investigative body is far from fully eradicating in itself the various difficulties of judicial cooperation in criminal matters. Its implementation strongly is putting into evidence the crucial necesity to foster mutual legal understanding and mutual trust that the experience showed is not achieved yet among the member states.

 
CONTENT
82 OVIDIU-HORIA MAICAN
European Public Prosecutor‘s Office - A New Beginning ?
Ovidiu-Horia MAICAN,
University Lecturer, Ph. D, Academy of Economic Studies, Law Department,
Bucharest, Romania, ovidiuszm@yahoo.com
Abstract
The adoption of the Council Regulation 2017/1939 (entered into force on 20
November 2017) implementing enhanced cooperation on the establishment of the
European Public Prosecutor's Office‘ (the EPPO) is a turning point in the development
of the European Union as an Area of Freedom, Security and Justice, by setting - up of the
first european investigating and prosecuting authority.
The structure and functioning of the new authority, together with the limited scope
of its competence make the EPPO as an authority whose legal environment largely builds
on the national legal systems.
The founding of the new investigative body is far from fully eradicating in itself the
various difficulties of judicial cooperation in criminal matters.
Its implementation strongly is putting into evidence the crucial necesity to foster
mutual legal understanding and mutual trust that the experience showed is not achieved
yet among the member states.
Keywords: European Public Prosecutior Office, criminal investigations, European
Union financial interests, fraud
Introduction
The European Public Prosecutor's Office is an independent European
prosecution service responsible for investigating, prosecuting and bringing to
justice the perpetrators of, and accomplices to, criminal offences affecting the
financial interests of the European Union..
The EPPO is guided by the principles of rule of law and proportionality in all
its activities.
National legislation is enforced to the extent of a matter not regulated by the
Regulation.
If nothing else is not stipulated in the Regulation, the applicable national law
shall be the law of the member state whose european delegated prosecutor is
handling the case.
Where a matter is governed by both national law and the regulation,
european legislation is stronger.
Law Review vol. X, issue 2, July-Decembre 2019, pp. 82-97
European Public Prosecutor‘s Office - A New Beginning ? 83
The competent national authorities have the obligation to assist and
support the investigations and prosecutions of the EPPO. Every action, policy or
procedure must be guided by the principle of sincere cooperation.
1. General Aspects
The question of whether or not the EU truly wants the EPPO to warranty
more advantageous safety of its financial interests cannot be dealt with in depth
in this contribution; however, two points want to be made. First, the numbers.,
The Commission argues that a huge quantity of EU money is yearly misplaced or
diverted because of fraud.
Article 86 TFEU requires that the Regulation on the EPPO is adopted with a
different legislative technique in which the Council acts unanimously after
obtaining the consent of the European Parliament. As in all the occasions where
the consent of the latter is critical for an act to be adopted, the “two
establishments perpetually negotiate to agree a common text”; in the case of the
EPPO, the Parliament has issued three resolutions in order to direct the
negotiations of the Council, calling on it to put into effect some adjustments of
the text. Always conceived as a physique aimed at the protection of the EU
budget, the EPPO will be ready with regard to “criminal offences affecting the
monetary pastimes of the Union”. However, some argued and nevertheless argue
that the Office need to be given different competences beyond the restricted
sphere of PIF offences. 1
Article 86(4) TFEU states that the cloth competence of the EPPO may want
to be broadened to consist of different types of “serious crime having a cross-
border dimension”, however this requires the unanimous choice of the European
Council.
However, the boundaries of the cloth competence of the EPPO will be set out
by means of country wide laws. The draft Regulation does no longer outline PIF
offences however refers to a Directive to be adopted via the Council and the
European Parliament, the so-called ‘PIF Directive’. The Commission tabled the
thought in July 2012 and eventually, after extra than 4 years of negotiations, an
settlement has been found.2
Moreover, it has been lengthy discussed whether or not VAT frauds be
protected in the textual content of the Directive and, therefore, whether or not
they need to fall inside the competence of the EPPO. The compromise located in
the Council is that the most serious forms of such fraud have to be included in
1 See F. Giuffrida., The European Public Prosecuror s Office : King Without kinfdom ? CEPS
Research Report nr2017 /03“s : p 8.
2 See F. Giuffrida, Op Cit., p 9.
84 OVIDIU-HORIA MAICAN
the Directive, particularly VAT frauds which are linked with the territory of two
or more member states and contain complete damages of at least 10 million Euro.
Moreover, the Office shall also be equipped for the offence of taking part in a
criminal organisation, when the focus of such a crook organisation is to commit
any of the crimes affecting the financial pursuits of the EU provided in the
aforementioned Directive. However, no longer only the concept of the ‘focus’ of
the criminal pastime is quite difficult to grasp. The Regulation also states that the
participation in a criminal corporation has to be understood “as defined in
Framework Decision 2008/841/JHA, as applied in countrywide law”. This
Framework Decision used to be meant to limit the diversity of country wide
legislation on organised crime, however it failed in accomplishing this goal; its
have an impact on on national regulation has been certainly very limited, as
acknowledged through the Commission in its current Report on the
implementation of the Framework Decision. 3
2. EPPO in European Union documents
The text of Article 86 TFEU in its ambiguity and relying on the interpretation
carried out appears to allow the development of “different” EU criminal models.
It seems to have been this (hybrid) perception of the criminal model that has been
expressed on the EPPO Proposal.
In article 86 (1) TFEU, it is provided the opportunity of the Council to set up
the EPPO. In paragraph 2 of this Article, it is “determined” the scope of
competences of the EPPO, “offences towards the Union's monetary interests, as
decided by the legislation supplied for in paragraph 1”. The nucleus of the
EPPO's competences remains confined to the offences in opposition to the
Union's monetary interests. In addition, as accredited in the text of the
Constitutional Treaty, in accordance with article 86 (4) TFEU. 4
The Treaty offers two areas of material scope of competence of the EPPO.
The first is bearing on to the “offences towards the Union's economic interests”
(paragraphs 1 and 2 of article 86 TFEU). The second is related to “serious crime
having a cross-border dimension” (paragraph four of article 86 TFEU). The
closing textual content of article 86 TFEU comprised, in a way, the two areas of
crime, synthesizing the two current understandings of “added value” of EPPO.
These two understandings are reflected, in a positive way, on the reasoned
opinion submitted, inside the framework of Protocol No 2 on the software of the
concepts of subsidiarity and proportionality, by using the countrywide
3 See F. Giuffrida, Op Cit., p 10.
4 See M. Santos The definition of the comoetence rationae materiae of the European Public Prosecuror
Office and the substantive legality principle – The way forward, Portuguese Law Review, Nr. 1/ 2016,
p 65.
European Public Prosecutor‘s Office - A New Beginning ? 85
Parliaments and interviewees of countrywide and supranational practitioners, as
well as in literature.
But if the material scope of the EPPO`s would be defined with the aid of
reference to the directive and its country wide imposing legislation, this would
suggest that the EPPO would be provided with specific definitions of criminal
sorts of crime inside its competence, in accordance to the range of Member States
participating in this European body. cases”.
Secondly, it is important to realize that the expression “crimes affecting the
economic pastimes of the union” is “an self sufficient notion of EU regulation
that as to be interpreted independently and uniformly at some stage in the EU. 5
Besides, in accordance to the different widespread of procedural safeguards
and judicial review among the Member States, “EU residents and economic
operators have a imperative proper following from the proper to a truthful trial
to recognize which prosecuting authority (national or European) is in cost of the
case”, which requires that “the applicable law be foreseeable” In spite of the
ambiguity of the textual content of article 86 TFEU, “(...) we can now not
conclude that the legislator has deliberately excluded considerable
harmonization from the phrasing under Article 86”. It is essential to have a set of
offenses and sanctions, which are prescribed via a regulation, which correspond
to “the autonomous definition of PIF in EU law”, and “[t]his law should be part
of one of the regulations based totally on Article 86 TFEU”. Only with this
viewpoint, it is viable to reach a set of offenses and sanctions which will respect
the major legality principle and to that extent with the European Convention on
Human Rights and the Charter of Fundamental Rights of the European Union.6
The thought of a European Public Prosecutor has been part of educational and
policy discussions on developing the European system of justice. Although there
are no genuine figures about how a lot money is misplaced thru crime in
opposition to the EU budget, it has been argued that the current device of the
protection of the economic interests of the EU does not make certain the
sufficient detection and investigation of these offences. Against this background,
after nearly 15 years of scholarly and policy reflection, in July 2013, the EU
Commission its notion to set up the European Public Prosecutor’s Office.
The perception that the economic resources of the European Communities
are no longer covered properly commenced to emerge in the Nineteen Eighties at
European level.
The gradual enlargement of supranational competences and the increasing
value of the EEC (EU) price range both in revenue and expenditure contributed
5 See M. Santos Portuguese Law Review, Op Cit., p 76.
6 See M. Santos Portuguese Law Review, Op Cit., p 77.
86 OVIDIU-HORIA MAICAN
to such grasp and known as for attention at the political level to the protection of
the Community’s financial pursuits specially towards fraud.7
Even in lack of reliable facts and massive discrepancies in the more than a
few estimates, the above-mentioned numbers virtually point out that there is an
“enforcement gap” in the protection of the financial activity of the EU. Although
Member States have not denied the existence of the problem, they traditionally
have disagreed as to the solution that should be adopted; i.e. “how” must this
“enforcement gap” be crammed and “who” have to do it.
The Treaty lays down obligations in relation to the protection and the
enforcement of the EU budget. Accordingly, art. 325 TFEU – as properly as its
predecessor art. 280 TEC – prescribes that the EU and its Member States “shall”
take deterrent and fantastic measures to counter fraud and different illegal things
to do affecting the EU’s economic interests, the Member States “shall” coordinate
their movements to protect the equal interests,8 the EU legislature “shall” adopt
the critical legislative measures for each preventing and warfare such misconduct
and the Commission “shall” periodically document both to the Council and the
European Parliament on the state of their implementation.8
In distinction to the language of art. 325 TFEU, art. 86 TFEU stipulates a
tentative prison basis. The Council “may” adopt a regulation setting up the EPPO
according to a special legislative procedure. This optionally available criminal
basis is the end result of the compromise between the supporting, the hesitating
and the opposing Member States and shows the lack of a frequent understanding
on the need and the core aspects of the EPPO. In fact, by rendering art. 86 TFEU
optional, the drafters of the Treaty delegated the assessment of the want for an
EPPO to the Member States and made it challenge to eventual future political
momentum.
3. Structure of the Office
The EPPO is organised into central and decentralised levels. The central
Office is composed of the College, the Permanent Chambers, the European Chief
Prosecutor, his(her) deputies, the European Prosecutors (EP), and the
Administrative Director, whereas the European Delegated Prosecutors (EDPs)
operate at the decentralised level. 9
7 K. Ligeti, A Marleta, The European Public Prosecutor’s Office: what role for OLAF in the future?
In: Đurđević Z, Ivičevic Karas E (eds) European criminal procedure law in service of protection of
European Union financial interests: state of play and challenges. Croatian Association of European
Criminal Law, Zagreb., p 54.
8 K. Ligeti, A Marleta, Op Cit., p 55.
9 See F. Giuffrida, Op Cit., p 12.
European Public Prosecutor‘s Office - A New Beginning ? 87
The EDPs are country wide prosecutors who are simultaneously members of
the EPPO. As a consequence, when they are no longer dealing with crimes inside
the competence of the EPPO, they proceed to lift out their ordinary tasks: this
extraordinary reputation is commonly referred to as ‘double hat’, which means
that when EDPs wear the countrywide hat they continue to be national
prosecutors for all intents and purposes, whereas when they put on the European
hat they have to observe instructions from the central Office.
The EDPs play a central function in the EPPO: they carry out the investi-
gations under the path of the central Office and put in practice in their member
country the decisions taken at the EU level via the Permanent Chambers.
At the other give up of the spectrum, the College is the management body of
the Office and is composed of the European Chief Prosecutor and one European
Prosecutor per member state.
It has no operational powers in character cases and it offers solely with
strategic things and regular issues.
It adopts the price range of the Office and units up the Permanent Chambers. 10
The Permanent Chambers shall have three members, the chair and two
everlasting members.
The inner guidelines of procedure, to be adopted by way of the College, will
specify how many Chambers have to be established. The same internal
guidelines “shall make certain an equal distribution of workload on the
groundwork of a machine of random allocation of instances and shall, in terrific
cases, provide for approaches allowing…for deviations from the precept of
random allocation upon selection with the aid of the European Chief Prose-
cutor”. The Chambers are concept to be the beating heart of the EPPO, on the
grounds that they undertake the most relevant operational choices of the Office,
which need to be because of this enacted through the European Delegated
Prosecutors.
However, the Regulation adds some other layer between the Chambers and
the EDPs, namely the supervising European Prosecutor, who supervises the
activities of the EDPs and can supply instructions to them in a precise case. He is
one of the European Prosecutors of the College, and extra precisely the one from
the same member nation of the supervised European Delegated Prosecutor.
Reasons of effectivity therefore underpin the unusual function of the supervising
European Prosecutors “as liaisons and channels of statistics between the
Permanent Chambers and the European Delegated Prosecutors in their
respective Member States of origin”: the criminal structures of member states
“still vary to a tremendous degree, and it is clear that only a prosecutor with his
heritage in a given felony system will be able to recognize exactly what move-
ments are most suitable and efficient in that given state”.
10 See F. Giuffrida, Op Cit., p 13.
88 OVIDIU-HORIA MAICAN
Moreover, in the final version of the draft Regulation a in addition electricity
has been attributed to the supervising European Prosecutor: where the national
law gives that an act of a prosecutor can be reviewed within the structure of the
public prosecutor’s office, the evaluate of an act of an EDP shall be reviewed
through the supervising European Prosecutor.
The complex internal hierarchy of the EPPO is coupled with the exterior
independence of the Office.11
As a consequence, the participants of the EPPO ought to no longer take
instructions from people external to the Office itself, from EU our bodies or from
member states. The EPPO shall be responsible to the Council, the Commission
and the European Parliament, which have therefore the strength to follow to the
Court of Justice with a view to the elimination of the European Chief Prosecutor
and of the European Prosecutors under sure circumstances. The EPPO shall
additionally transmit to each of these institutions, as well as to the national
parliaments, an annual report. The experience of Eurojust suggests that such a
report is an instrument with very restrained practical relevance, when you
consider that “the work and overall performance of Eurojust solely formally
reaches the political degrees of the Council and important contrast or political
debate on this topic is no longer held”. In addition, the European Chief
Prosecutor shall appear once a year earlier than the European Parliament and
earlier than the Council, and before national parliaments at their request, to give
an account of the standard things to do of the EPPO. 12
Therefore, notwithstanding the applicable embedding of the EPPO in
national systems, its accountability has been lifted at the European level. Such a
decision, as well as that on the independence of the Office, has raised worries in
these international locations where the prosecution authorities are hierarchically
subordinate to the Ministry of Justice, which is in turn in charge for their
activities (such as in the Netherlands).
Investigations are carried out through the EDP who is competent on the
foundation of the above-mentioned rules, below the course of the Permanent
Chamber and the supervision of the capable European Prosecutor. However,
there are two exceptions to this rule (the case can be allotted to another European
Delegated Prosecutor in the identical member state, if the equipped EDP can't
function the investigations or does no longer comply with the directions of the
Chamber or of the European Prosecutor, and in the most serious cases, the
supervising European Prosecutor can decide to behavior the investigations
himself.13
11 See F. Giuffrida, Op Cit., p 16.
12 See F. Giuffrida, Op Cit., p 16.
13 See F. Giuffrida, Op Cit., p 18.
European Public Prosecutor‘s Office - A New Beginning ? 89
The EDP can order the investigative measures which are accessible to
prosecutors beneath country wide law in comparable national cases. In addition,
member states shall make sure that the EDPs can request some investigative
measures expressly listed in article 25(1) of the draft Regulation (such as looking
premises or intercepting digital communications), at least in cases where the
offence below investigation is punishablby a most penalty of at least four years of
imprisonment. The strategies and the modalities for taking the measures shall be
ruled by using countrywide law, however the draft Regulation introduces
similarly requirements, when you consider that all the measures may be ordered
solely the place “there are practical grounds to accept as true with that the
particular measure in question would possibly supply information or proof
beneficial to the investigation, and the place there is no less intrusive measure
handy which ought to gain the equal objective”.
In any case, the costs of the measures to be adopted have to be paid with the
aid of country wide authorities, except an fairly highly-priced investigative
measure is necessary. In similarâ circumstances, the European Delegated
Prosecutors may also consult the Permanent Chamber on whether the fee of the
investigative measure could partly be met by way of the EPPO.14
4. Procedural aspects
Cross-border investigations. In cross-border cases, the usual rule is that the
EDP coping with the case assigns the execution of an investigative measure to the
EDP of the member state in which the measure needs to be achieved (the
‘assisting EDP’). In some circumstances (such as when the mission is incomplete
or when the requested measure does now not exist underneath national law), the
supporting EDP has to inform his supervising European prosecutor and the EDP
handling the case in order to resolve the hassle bilaterally. If they can't agree, the
Permanent Chamber is referred to as in to determine whether or not and by
means of when the assigned or every other measure shall be undertaken by the
helping EDP.15
4. Pre-trial arrest. If the EDP has to arrest anyone in his(her) member state,
(s)he applies national law. If the individual is placed in any other member state,
the EDP shall trouble a European Arrest Warrant (EAW).
When the EDP investigating the case considers the investigations complete,
he submits a document to the supervising European Prosecutor. The report
consists of each a precis of the case and a draft choice on what is deemed to be
suitable (dismiss a case or convey it to prosecution, etc.). Next, the supervising
14 See F. Giuffrida, Op Cit., p 18.
15 See F. Giuffrida, Op Cit., p 19.
90 OVIDIU-HORIA MAICAN
European Prosecutor has to ahead these files to the in a position Permanent
Chamber, if integral accompanied by means of hispersonal assessment. In
principle, the Chamber is no longer sure both by using the draft choice of the
EDP or through the evaluation of the supervising European Prosecutor, on the
grounds that it can undertake its personal review of the case before taking a
ultimate selection or giving in addition instructions to the EDP.16
In principle, the ready member kingdom is that of the EDP coping with the
case. However, the Permanent Chamber can decide that it is extra fantastic for
the prosecution to be launched in another member state, on the groundwork of
the equal criteria to be taken into account when figuring out the EDP capable to
lift out the investigations. The issue of the preference of forum is one of the most
debated, due to the fact at the EU degree there are no binding guidelines on
conflicts of jurisdiction. However, the Regulation solely states that the ready
forum is chosen by using the Permanent Chamber, without any structure of
judicial control at the EU level, however the strong criticism of many authors and
experts.17
The choice of the Permanent Chamber may want to also lead to the dismissal
of the case, specifically in instances of: demise or madness of the suspect or
accused person, amnesty or immunity granted to him, winding up of the suspect
or accused criminal person, expiry of the country wide statutory predicament to
prosecute, ne bis in idem, and lack of applicable evidence. The Regulation makes
clear that such a selection of the Chamber has to be adopted when the
prosecution has come to be impossible “pursuant to the law of the Member
State” of the EDP dealing with the case. This implies that all the grounds for
refusal have to be interpreted according to country wide law. When the death or
the madness of the suspect or accused individual is introduced to the fore, as
well as the winding up of the suspect or accused felony person, it is apparent that
the prosecution becomes not possible and that the Permanent Chamber has to
disregard the case; the differences amongst legal systems should no longer be
relevant.18
As some distance as the rights of the defendant are concerned.
Article 35 of the Regulation presents three extraordinary ranges of
protection. First, suspects and accused individuals shall have the procedural
rights available to them below the relevant countrywide law, inclusive of the
opportunity to existing evidence, to request the appointment of specialists or
expert examination and listening to of witnesses, and to request the EPPO to
obtain such measures on behalf of the defence. 19
16 See F. Giuffrida, Op Cit., p 25.
17 See F. Giuffrida, Op Cit., p 26.
18 See F. Giuffrida, Op Cit., p 26.
19 See F. Giuffrida, Op Cit., p 30.
European Public Prosecutor‘s Office - A New Beginning ? 91
In order to mood comparable consequences, the Regulation affords formore
levels of safety .
First, the things to do of the Office shall be carried out “in full compliance
with the rights of suspects and accused folks enshrined in the Charter of
Fundamental Rights of the European Union, which include the proper to a
honest trial and the rights of defence”. Among others, the proper to ne bis in
idem deserves precise attention, considering the establishment of the EPPO may
want to pose dangers of double prosecution each at the countrywide and at the
supranational level.
Therefore, the Regulation provides that if the EPPO “decides to exercising its
competence, the competent countrywide authorities shall now not exercising
their personal competence in recognize of the equal crook conduct”. Likewise,
the Regulation also prohibits OLAF to “open any parallel administrative
investigation into the same facts” the place the EPPO decides to open a case. 20
The trouble of the rights of the suspects and accused persons is strictly
interlinked with that of the judicial overview of the acts of the EPPO. In that
regard, the Commission’s idea presents that, for the functions of judicial review,
the EPPO has to be regarded a countrywide authority, with the end result that
only national courts would be competent to rule on its acts. This provision
ignited a lively debate, due to the fact many authors, specialists and politicians
argued that a European body need to have been submitted to the control of the
European Court of Justice.21
The modern Regulation, such as the Commission’s proposal, gives that
choices of the EPPO having felony consequences vis-à-vis third parties shall be
situation to the overview of equipped country wide courts. The same applies to
the failure of the EPPO to adopt a procedural act, having the identical impact vis-
à-vis of third parties, which the EPPO is required to adopt on the foundation of
the Regulation.
The capacity of the Court of Justice to assessment the selections to dismiss a
case is regular with the current envisaged shape of the EPPO: such a decision is
taken at the EU level by the Permanent Chambers, so that it is realistic to make it
problem to the control of the Court of Luxembourg. For the very same reason,
however, one ought to wonder why the different selections taken by way of the
Permanent Chambers can't be reviewed at the EU level. A politicalanswer on the
unique consideration paid to the dismissal selections ought to be linked with the
mission of the EPPO: due to the fact the EPPO is supposed to bridge over the
contemporary deficiencies of the combat towards crimes affecting EU monetary
interests, the preference no longer to launch the prosecution has to be revised at
20 See F. Giuffrida, Op Cit., p 30.
21 See F. Giuffrida, Op Cit., p 32.
92 OVIDIU-HORIA MAICAN
the EU degree in order to keep away from that instances are unreasonably
dropped.22
In addition to the instances mentioned in the text, the Court of Justice is also
able in any dispute concerning compensation for harm prompted by the EPPO,
arbitration clauses contained in contracts concluded with the aid of the EPPO
and staff-related matters. The Court of Justice has jurisdiction on the dismissal of
the European Chief Prosecutor and of European Prosecutors, too. Finally,
pursuant to the fourth paragraph of article 263 TFEU, the Court is competent to
evaluation the selections of the EPPO which are not procedural acts, such as
these pushing aside the EDPs or concerning data protection.
In conclusion, it is clear that the EU legislator is called on to strike a very
delicate stability in the matter at stake. On the one hand, the need to warranty a
uniform utility of the EU regulations concerning the European investigations
would call for the scrutiny of the Court.23
Specifically, the EPPO is required to establish and keep a close relationship
with Europol, Eurojust and OLAF, even although the privileged partner of EPPO
should be Eurojust. In an admittedly obscure way, article 86 TFEU offers that the
EPPO has to be set up “from Eurojust”.24
The relations with third international locations and with non-participating
member states pose a common problem, if EPPO could be viewed as a equipped
authority for the functions of implementation of the measures regarding judicial
cooperation. In other words, need to the EPPO be allowed to trouble and receive
requests for mutual prison help or extradition. With regard to family members
with third countries, the Commission’s concept answered in the affirmative and
brought an duty for the member states either to “recognise the European Public
Prosecutor’s Office as a equipped authority for the reason of the implementation
of their international agreements on felony help in crook things and extradition,
or, the place necessary, to alter these global agreements to make certain that the
European Public Prosecutor’s Office can exercising its functions on the basis of
such agreements…”. The contemporary draft Regulation is more complicated
and presents special scenarios.
First, with regard to third countries, any possibility for the EPPO to
intervene in the subject of extradition has been removed from the text. It is now
provided that “[w]here it is vital to request the extradition of a person the
European Delegated Prosecutor handling the case might also request the
competent authority of his/her member state to trouble an extradition request in
accordance with relevant treaties and country wide law”. Once more, the
negotiations have watered down the authentic provisions and the drawing close
22 See F. Giuffrida, Op Cit., p 33.
23 See F. Giuffrida, Op Cit., p 34.
24 See F. Giuffrida, Op Cit., p 34.
European Public Prosecutor‘s Office - A New Beginning ? 93
EPPO will not be attributed any additional or new energy in the field. Quite
curiously, this provision mirrors the new law of the pre-trial arrest at some stage
in the investigations of the EPPO. However, apart from extradition, the EPPO can
be recognized as the in a position authority in all the other matters of prison help
with regard to third countries, in accordance to the targeted guidelines to be
observed in the Regulation. 25
Second, as a ways as the non-participating member states are concerned, at
some stage in the negotiations it was once suggested that the member states
setting up the EPPO may want to have recognized the Office as the equipped
authority for the purposes of implementation of the relevant Union acts on
judicial cooperation in their members of the family with non-participating
member states. However, the closing version of the modern draft Regulation
does now not characteristic this provision, even although some states had
cautioned reintroducing it. Finally, the draft Regulation envisages a crucial role
for Eurojust in the coordination of the investigations of the EPPO when non-
participating member states are involved: Eurojust can be invited to supply aid in
the transmission of the EPPO’s selections or requests for mutual felony help to,
and execution in, those member states.
In conclusion, the cutting-edge Regulation has paid more attention to the
family members of the EPPO with the partners than the Commission’s
proposal.26
In fact, it is already clear that, the EPPO subsequently be created, some
member states will now not take part in it, at least at the preliminary stage.
Enhanced cooperation is consequently the most sensible way to set up the Office.
The functioning of the EPPO will be characterised with the aid of a excessive
degree of interaction between EU regulation and national law.
Instead, the Commission’s Proposal prescribed a mixed machine consisting
of a minimal of European regulations to be extended through country wide crook
procedural laws.
The Commission Proposal listed 21 types of investigative measures
reachable to the EPPO, distinguishing between measures for which a prior
judicial authorisation would be required and measures for which the judicial
authorization would be wished only if the national law of the concerned Member
States had prescribed it. The conditions for the authorization and the execution of
the a number investigative measures, however, had been actually left to the
national regulation of the Member State concerned. Although, the section of the
Commission’s Proposal pertaining to to evidence gathering was once modestly
bold compared to the provisions on the institutional design, additionally this
25 See F. Giuffrida, Op Cit., p 36.
26 See, F. Giuffrida Op Cit., p 38.
94 OVIDIU-HORIA MAICAN
section has been appreciably amended for the duration of the Council
negotiations. The most vital modifications are the following: The quantity of
investigative measures that must be available for the EPPOis reduce down from
21 to 5 and their availability is now conditional to a penalti threshold
requirement of at least four years of imprisonment. Second, in case of cross-
border investigations and go border investigative measures, a system of
cooperation between the European Delegated Prosecutors of the a number of
Member States has been introduced. 27
It is a distinction between the European Delegated Prosecutor dealing with
the case and the assisting European Delegated Prosecutor in the Member
State the place the measure is carried out. This terminology is simply
reminiscent of the gadget of mutual felony assistance and seems to be relatively
alien to the notion of a single office.
Several points of the Presidency’s Proposal – such as the session method in
case the law of the Member State where the measure is to be carried out, does no
longer provide for the required measure or the possibility for the helping
European Delegate Prosecutor to think about an alternative and much less
intrusive measure than the one required – seem to be transplants of concepts
from the European Investigation Order. Differently, however, from the European
Investigation Order, the Presidency’s Proposal is now not primarily based on
mutual recognition.46 Instead it depends on a complex multi-level institutional
structure which raises serious doubts on its workability and on the opportunity
for the EPPO to efficiently perform its job.
In fact, there are many motives for that. The first cause is that it is a new
supranational organization in the subject of criminal regulation enforcement.
Unlike Europol and Eurojust it would additionally be entrusted with
independent operational investigative and prosecutorial powers. This capability
that Member States worry that their sovereign powers will be transferred to the
supranational EU level.28
The second purpose is that this transfer of sovereignty is in truth a be
counted of ‘shared sovereignty’, or of what the Germans name
‘Vergemeinschaftlichung’. This ability that at the country wide level, in this case
the pre-trial investigation and prosecution, the European dimension is
increasing. National authorities are increasingly bestowed with European
functions. Transfer of sovereignty and shared sovereignty looks to be
contradictory, but that is only the case at first sight. In many areas of European
regulation, and increasingly more also with regard to European enforcement,
European agencies, our bodies and establishments have been created. However,
27 K. Ligeti, A Marleta, Op Cit., p 57.
28 See J. Vervaele, Shifting Perspectives on the European Public Prosecutor's Office., T.M.C.
Asser Pr ess, The Hagup 2018, p 12.
European Public Prosecutor‘s Office - A New Beginning ? 95
they execute their powers in sturdy interaction with the countrywide level, be it
because they practice additionally countrywide law or be it that they are acting in
close cooperation with the country wide institutions. Verticalisation does no
longer robotically suggest that these powers are no longer embedded in the
national criminal orders. Mostly they are. This is for occasion the case in the place
of competence of the EU competition authority, the EU Central Bank (ECB) and
the European financial regulatory and enforcement agencies, as for instance the
European Securities and Markets Authority (ESMA). This would suggest in our
field that country wide prosecutors would look at and prosecute offences below
the route and preparation of the EPPO. Both transfer of powers and
Europeanisation of domestic criminal justice at the operational degree is for most
Member States an uneasy situation in the region of crook justice. Member States
are afraid that the EPPO will open the door for transferring powers to the EU
level, but that this will also come returned as a boomerang, harmonizing
countrywide procedures.
The fourth motive why a future EPPO is controversial, in my opinion, is
related to the major competence (ratione materiae) of the EPPO. PIF-offences6
seem to be distinctly an awful lot as a specialised and small area, however that is
now not definitely the case. 29
They are associated to corruption, organized crime, money laundering, tax
offences, custom offences, etc. That could be a cause why the Member States are
hostile to consist of VAT offences in the competence of the EPPO, even though
VAT carousel fraud is tremendous and very transnational in nature. In addition
to that, many Member States are involved that the class of PIF-offences will very
soon be broadened to other offences. These should be offences that are related to
the EU interests, such as counterfeiting of the Euro, or tendering-fraud.
Additionally, euro-offences ought to be added, as defined in beneath Article
83(1), inclusive of terrorism, trafficking in human beings, etc., and annex-offences
harmonized below article 83(2), such as PIF (French acronym: Protection des
Intérêts Financiers (de l’Union européenne). market abuse, serious violations of
the environment, or VAT crimes.
Member States are afraid now not to be capable to lock the door, once it is
opened.
The fifth reason, though no longer such a robust one, truely is relevant as it is
associated to the institutional design of the EPPO as such. The EPPO that has
been proposed is now not equal to the public prosecutor’s offices in the Member
States. In many countries prosecutors do no longer investigate, they only
prosecute, and the real investigation is in the arms of the police, or administrative
bodies, with full or high-quality autonomy. However, the EPPO that has been
29 See J. Vervaele, Op Cit., p 13.
96 OVIDIU-HORIA MAICAN
proposed will do both, investigate possible crimes and prosecute suspects, which
for many Member States is a new model.30
The trouble of criminal regulation safety of the EU price range and
associated corruption and money laundering offences is discussed now for over
30 years. Despite the magnitude of the cases and the giant amount of money
involved, few cases are prosecuted and very little money is gathered (in case of
income-fraud, like VAT) or recovered (in case of EU subsidy-fraud). 31
Three fields of motion are doubtlessly of pastime for the EPPO: VAT,
customs and smuggling, and fraud and corruption within the EU institutions.
European Court of Auditors (ECA) posted in 2015 a special report on
‘Tackling intra-community VAT fraud —more motion needed’. Despite the
technicalities, this document is very readable and deserves to be consulted.
Rather astonishingly, the document demonstrates that even for the European
Court of Auditors it seems to be tough to paint a clear picture of EU fraud. What
is on the other hand clear to the Court is that the major players, who are the
Member States, have no clue of the dimension and nature of the problem. Even if
they have data, the facts are no longer shared, not even at the country wide level,
between judicial authorities and tax authorities. For certain, records on VAT
fraud is now not shared horizontally between Member States. Reasons for now
not doing so are both of a felony and realistic nature.. Still, Member States are
declaring that they can deal with it at the country wide level. 32
But let us not neglect that VAT is an intra-community system. Even if most
of the VAT income goes to the country wide budget, the device as such is very a
lot transnational, as it is linked to the single area. Companies of all kind can run
round with items and services in the EU, deliberately heading off VAT payments,
and Member States do find out it in very few instances and prosecute solely a
handful of these offences.
In the discipline of customs we do have a totally unified EU customs code.
However, the customs enforcement is totally national. At the national level,
there is a very specific set of authorities from one Member State to another. The
division of labour between administrative and judicial authorities is additionally
very special from one Member State to another. The cooperation inside the states
and the transnational horizontal cooperation stays fragmented too. The end
result is a harmonized EU customs code that is applied through a patchwork of
countrywide authorities with exclusive powers. Moreover, the EU customs code
did no longer harmonise the enforcement dimension, no longer even the
administrative enforcement and administrative sanctioning.
30 See J. Vervaele, Op Cit., p 14.
31 See J. Vervaele, Op Cit., p 14.
32 See J. Vervaele, Op Cit., p 14.
European Public Prosecutor‘s Office - A New Beginning ? 97
Conclusion
In the next period, the EPPO must demonstrate its value by solving conflicts
of jurisdiction, increasing prosecution rates and obtaining strong results.
This is very difficult in the field of criminal law where national jurisdictions
have set the guiding lines for a long period. An important element for the success
of the EPPO is represented by the support and informations from the member
states who must prove they are serious about protecting the financial interests of
the European Union.
The EPPO has the chance to put into value the precious services provided by
Eurojust, much more than considering it as a simple source of information, and
taking advantage of the Eurojust capacities in many other situations, including
cross border crimes.
REFERENCES
[1] J. Vervaele, (2018) Shifting Perspectives on the European Public Prosecutor's
Office, T.M.C. Asser Press, The Hague
[2] F. Giuffrida., (2017 ) The European Public Prosecuror s Office : King Without
kingdom ? CEPS Research Report nr 2017 /03
[3] K. Ligeti, A. Marletta (2016) The European Public Prosecutor’s Office: what
role for OLAF in the future? In Đurđević Z, Ivičevic Karas E (eds) European
criminal procedure law in service of protection of European Union financial
interests: state of play and challenges. Croatian Association of European
Criminal Law, Zagreb,
[4] M. Santos (2016) The definition of the comoetence rationae materiae of the
European Public Prosecuror Office and the substantive legality principle – The way
forward, Portuguese Law Review, Nr. 1/ 2016