The European public prosecutor’s office – necessary … 59
there are two important areas where criminal law measures can be adopted at EU
level: an area of serious crime with a cross-border dimension (e.g. terrorism,
trafficking in human beings and sexual exploitation of women and children, illicit
drug trafficking, illicit arms trafficking, money laundering, corruption,
counterfeiting of means of payment, computer crime and organized crime), and an
area where criminal law measures are necessary to ensure the effectiveness of an
EU policy (such as budget and protection of EU financial interests).
Having to choose from these two particular areas for creating the EPPO’s
jurisdiction, which area did the EU institutions chose?
In respect to the EPPO’s scope of competence, there is a political consensus
that it should deal with criminal offences against the financial interests of the
European Union. It is true that all discussions on the EPPO, from the origins of the
idea, have dealt with this area of jurisdiction.
But even if we refer only to this specific jurisdiction, there are skeptic voices
about aided value and effectiveness on creating an EPPO protecting EU financial
interests31. Firstly, the total volume of fraud has at times been considered
insufficient to justify the cost involved in establishing a new body32.
Secondly, according to certain government sources, the number of fraud cases that
are transnational (affecting several Member States) but limited to the European
Union (not involving third countries), which would be the main area of interest to
the European Prosecutor, is too small to justify establishing the institution33.
It should also be pointed out that several governments, some of which were
opposed in principle to the idea of a European Prosecutor, took the view that if a
European Prosecutor were established sometime in the future, his powers set out
in the Green Paper would need to be extended to cover other areas of Community
31 L. Hamran, E. Szabova, ‘European Public Prosecutor’s Office – Cui Bono?’, New Journal of
European Criminal Law, Volume 4, Issue 1–2, 2013, p. 40-58.
32 According to the statistics collected by OLAF, cases of illegal activities involving EU funds
(so-called "irregularities") caused a cumulated damage to EU public money of approximately € 2.07
billion in 2010. Within the amount of the illegal activities in 2010 suspicion of fraud amounted to € 617
million of EU public money potentially lost to crime (0,5% of the EU budget for 2010). It appears
reasonable to assume that not all the losses of EU funds to illegal activities can be avoided or
recovered by criminal law (emphasis added). See in this respect the Impact Assessment (Part I)
accompanying the document Proposal for a Directive of the European Parliament and of the Council
on the protection of the financial interests of the European Union by criminal law [COM(2012) 363
final]. It is also mentioned in the Impact Assessment that an empirical demonstration of exactly how
much EU public money could be recovered, or losses of it be avoided, by criminal law measures is not
possible due to the absence of, and methodological challenges in generating, empirical data on the
preventive effect and thus financial impact of any given criminal law provision.
33 Follow-up Report on the Green Paper on the criminal-law protection of the financial interests
of the Community and the establishment of a European Prosecutor, COM (2003) 128 final, p. 8. At the
public hearing, the ministerial representative from the United Kingdom pointed out that the cases of
agricultural irregularities in the United Kingdom had fallen from 393 in 2000 to 252 in 2001. She
added that at European level only 30% of fraud cases involved more than one Member State or third
countries; in 70% of the cases, the fraud was being committing in one Member State only.
34 Belgium, Denmark, Spain, Luxembourg, Portug al and, to a lesser degree, Germany. Follow-up
report Green Paper, p. 6-7.