The European public prosecutor's office - necessary instrument or political compromise?

Author:Norel Neag
Position:Acad. Andrei Radulescu' Legal Research Institute of the Romanian Academy - Bucharest - Romania
Pages:52-62
SUMMARY

The legislation in the field of criminal law has evolved significantly in the last ten years in the European Union. This article deals with a new institution, intended to provide new tools for changing traditional judicial cooperation in criminal matters into a framework for united and coordinated proceedings in a criminal law trial throughout the entire EU territory: the European Public Prosecutor’s Office. Besides general observations related to the historical development of this idea and a brief examination of the EPPO regulation proposal, the article focuses on the scope of the competence of EPPO: whether it should deal with fraud affecting the financial interests of the EU, or/and with serious crimes with transnational dimensions. The article concludes that establishing the EPPO according to the lines of the proposal, even if necessary, responds mainly to political compromise rather than real needs of the EU citizens.

 
CONTENT
52 NOREL NEAGU
THE EUROPEAN PUBLIC PROSECUTOR’S OFFICE –
NECESSARY INSTRUMENT OR POLITICAL COMPROMISE?
Senior Researcher Norel Neagu
“Acad. Andrei Rdulescu” Legal Research Institute
of the Romanian Academy, Bucharest, Romania
Abstract
The legislation in the field of criminal law has evolved significantly in the last ten years in the
European Union. This article deals with a new institution, intended to provide new tools for
changing traditional judicial cooperation in criminal matters into a framework for united and
coordinated proceedings in a criminal law trial throughout the entire EU territory: the European
Public Prosecutor’s Office. Besides general observations related to the historical development of this
idea and a brief examination of the EPPO regulation proposal, the article focuses on the scope of the
competence of EPPO: whether it should deal with fraud affecting the financial interests of the EU,
or/and with serious crimes with transnational dimensions. The article concludes that establishing the
EPPO according to the lines of the proposal, even if necessary, responds mainly to political
compromise rather than real needs of the EU citizens.
Keywords: public law; European Public Prosecutor’s Office; judicial cooperation in criminal
matters; serious crimes with transnational dimension, crimes against the financial interests of the
EU.
1. Introduction
European Union is a relatively young organization, which suffered important
transformations in the late years, including here criminal law measures as well. If
we recall the first acquired competences in criminal law at European level, we
cannot go back more than 20 years, to the Treaty of Maastricht. It was an
intergovernmental cooperation in the field of serious transnational crime,
established in concrete terms starting from 1999, with the Tampere Council. At this
particular Council, two fundamental principles of judicial cooperation were
established, which enhanced criminal law legislative action and case law at EU
level: mutual recognition and mutual trust.
These two principles have given during the years a strong impetus to judicial
cooperation in criminal matters within the European Union, starting with the
E-mail: norel.neagu@gmail.com.
Law Review vol. III, issue 2, July-December 2013, p. 52-62
The European public prosecutor’s office – necessary … 53
European Arrest Warrant legislative instrument1, and continuing with the
improved cooperation in the field of recognition of custodial and non-custodial
sentences and transfer of convicted persons2.
Also, a crucial event in the development of both substantial and procedural
criminal law within the EU was the entering into force of the Lisbon Treaty in
December 20093. It provided for a shared competence in the field of criminal law
between the EU and the Member States, the latter being able to exercise their
competence as long and insofar as the EU has decided not to exercise its own.
However, imposing mutual recognition and mutual trust upon the Member
States of the European Union, was not enough to solve an important issue which
this kind of cooperation may raise: due to the lack of harmonization of the national
criminal law provisions, sometimes courts from different member states were
faced with the implementation of judicial decisions stemming from other national
legal systems, which, if taken on their own territory, might have led to different
solutions.
In this context, a harmonization of at least some fundamental aspects of a
criminal trial, starting from the European Convention of Human Rights and ECHR
case law as the common lowest denominator, was required.
An ambitious roadmap for procedural rights in criminal trials has been
established in the EU4. It included measures related to translation and
interpretation5, information on rights and information about charges6, the right to
1 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest warrant
and the surrender procedures between Member States, OJ L 190, 18.7.2002, p. 1–20.
2 Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the
principle of mutual recognition to judgments in criminal matters imposing custodial sentences or
measures involving deprivation of liberty for the purpose of their enforcement in the European
Union, OJ L 327, 5.12.2008, p.27-46; Council Framework Decision 2008/947/JHA of 27 November 2008
on the application of the principle of mutual recognition to judgments and probation decisions with a
view to the supervision of probation measures and alternative sanctions, OJ L 337, 16.12.2008,
p. 102-122.
3 Consolidated version of the Treaty on the Functioning of the European Union (TFEU), OJ C 83,
30.03.2010, p. 47-201.
4 Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural
rights of suspected or accused persons in criminal proceedings, OJ C 295, 4.12.2009, p. 1-3.
5 According to this, the suspected or accused person must be able to understand what is
happening and to make him/herself understood. A suspected or accused person who does not spea k
or understand the language that is used in the proceedings will need an interpreter and translation of
essential procedural documents. Particular attention should also be paid to the needs of suspected or
accused persons with hearing impediments. This measure was already adopted at EU level (Directive
2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to
interpretation and translation in criminal proceedings, OJ L280, 26.10.2010, p. 1-7).
6 A person that is suspected or accused of a crime should get information on his/her basic rights
orally or, where appropriate, in writing, e.g. by way of a Letter of Rights. Furthermore, that person
should also receive information promptly about the nature and cause of the accusation against him or
her. A person who has been charged should be entitled, at the appropriate time, to the information
necessary for the preparation of his or her defence, it being understood that this should not prejudice
54 NOREL NEAGU
legal advice and legal aid7, the right to communication with relatives, employers
and consular authorities8, and special safeguards for suspects or accused persons
who are vulnerable9.
This impetus of procedural criminal law provisions at EU level was
determined by the new legal basis from the Treaty of Lisbon. Thus, Article 82(2) of
the Treaty on the Functioning of the European Union (TFEU) provides that
‘[t]o the extent necessary to facilitate mutual recognition of judgments and judicial
decisions and police and judicial cooperation in criminal matters having a cross-border
dimension, the European Parliament and the Council may, by means of directives adopted
in accordance with the ordinary legislative procedure, establish minimum rules. Such rules
shall take into account the differences between the legal traditions and systems of the
Member States’.
At this particular moment, the EU institutions considered that time was ripe
for a new development in criminal proceedings: stepping from traditional judicial
cooperation towards united and coordinated investigations throughout the entire
territory of the EU10. And this is also due to existing legal basis in the Lisbon Treaty
[Article 86(1) TFEU]:
‘[i]n order to combat crimes affecting the financial interests of the Union, the Council,
by means of regulations adopted in accordance with a special legislative procedure, may
establish a European Public Prosecutor's Office from Eurojust. The Council shall act
unanimously after obtaining the consent of the European Parliament.’
the due course of the criminal proceedings. This measure has also been adopted at EU level (Directive
2012/13/EU of the European Parliament and of the Council on the right to information in criminal
proceedings, OJ L 142, 01.06.2012, p. 1-7.)
7 The right to legal advice (through a legal counsel) for the suspected or accused person in
criminal proceedings at the earliest appropriate stage of such proceedings is fundamental in order to
safeguard the fairness of the proceedings; the right to legal aid should ensure effective access to the
aforementioned right to legal advice. The first part of the measure (right to legal advice) is already
adopted (Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on
the right of access to a lawyer in criminal proceedings and on the right to have a third party informed
upon deprivation of liberty and to communicate with third persons and with consular authorities
while deprived of liberty, OJ L 294, 06.11.2013, p. 1-12). The second part (right to legal aid) implies
delicate negotiations, due to the impact on national budget of the Member States.
8 A suspected or accused person who is deprived of his or her liberty shall be promptly informed
of the right to have at least one person, such as a relative or employer, informed of the deprivation o f
liberty, it being understood that this should not prejudice the due course of the criminal proceedings.
In addition, a suspected or accused person who is deprived of his or her liberty in a State other than
his or her own shall be informed of the right to have the competent consular authorities informed of
the deprivation of liberty.
9 In order to safeguard the fairness of the proceedings, it is important that special attention is
shown to suspected or accused persons who cannot understand or follow the content or the meaning
of the proceedings, owing, for example, to their age, mental or physical condition.
10 K. Ligeti, M. Simonato, ’The European Public Prosecutor’s Office: Towards a Truly European
Prosecution Service?’, New Journal of European Criminal Law, Volume 4, Issue 1–2, 2013, p. 7-21.
The European public prosecutor’s office – necessary … 55
2. Historical Background and Rationale
The idea of a European Public Prosecutor’s Office (hereafter EPPO) is not new
and it did not pop up from thin air. The discussion in this field started in 1997,
with a document elaborated by several scholars, proposing a model solution to
solve the issue of protecting the EU’s financial interests through criminal law
measures, entitled Corpus Juris11. It was not an official paper of the European
Commission but a piece of research work commissioned by it. The purpose of the
group was not to create a single criminal code or criminal procedure for the EU but
to come up with a set of legal principles that would be valid across all Member
States when dealing with financial crime that related to the EU.
This document triggered various reactions, from complete approval to
absolute rejection of the idea12. Nevertheless, in December 2002, the European
Commission issued a Green Paper on criminal-law protection of the financial
interests of the Community and the establishment of a European Prosecutor13 .
Even if the majority of frontline operators supported a qualitative step
forward, political consensus was not reached for the establishment of a European
Prosecutor as a necessary step towards the construction of an area of freedom,
security and justice within the Union14. The main reason invoked for postponing
discussions on the subject was the need for a Treaty amendment to allow the
establishment of a European Prosecutor:
“[…] The amendment of the Treaties establishing the European Communities
remains an indispensable condition: it alone can confer political legitimacy on the
proposal.”15.
As regards the rationale for establishing a European Public Prosecutor’s Office,
the Commission’s Follow-up report16 offered several reasons for its setting up:
“[…] there is broad recognition of the fact that the fragmented nature of the
European judicial area hampers the effectiveness of criminal prosecutions. It is
important for the less convinced to remember that there are still obstacles to the
effective prosecution of fraud in the field of substantive criminal law: limitation
periods may differ, for example, and offences in one Member State may not
correspond to those in another. On their own, national legal systems have proved
ill-equipped to respond to the transnational nature of Community fraud owing to
the principle of territoriality of the law of criminal procedure and the diversity of
11 M. Delmas-Marty,Corpus Juris: Introducing Penal Provisions for the Purpose of the Financial
Interests of the European Union’, Economica, Paris, 1997.
12 J.R. Spencer, ‘Who’s afraid of the big, bad European Public Prosecutor?’, Cambridge yearbook
of European legal studies, Volume 14, 2011/2012 (2012), p. 363-380.
13 Green Paper on criminal-law protection of the financial interests of the Community and the
establishment of a European Prosecutor, COM (2001) 715 final.
14 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.
15 Idem, p. 20.
16 Idem, p. 9.
56 NOREL NEAGU
rules governing the production of evidence. All too often these factors ensure that
prosecutions are not launched or completed, as the problems involved in obtaining
evidence deter even the most willing.
Where the instruments of international judicial cooperation continue to expose
positive or negative power struggles and the difficulties with the need for the ne bis
in idem principle or the execution of international letters rogatory, the European
Prosecutor could provide the solution. He would be equally capable of doing so at
the investigation stage, thanks to his delegates, whose work would be based on a
minimum of common rules and whose findings would be mutually admissible,
and at the prosecution stage, as cases would be tried in just one Member State.”.
3. Proposed Regulation Establishing an European Public Prosecutor’s Office
In 2012 the European Commission issued a Proposal for a Directive on the
fight against fraud to the Union's financial interests17 and also announced its
intention on proposing a Regulation establishing a European Public Prosecutor’s
Office with competence in this field in 201318.
In July 2013 the proposal for the European Public Prosecutor was issued19.
The main objectives of the proposal are:
To contribute to the strengthening of the protection of the Union's financial
interests and further development of an area of justice, and to enhance the trust of
EU businesses and citizens in the Union’s institutions, while respecting all
fundamental rights enshrined in the Charter of Fundamental Rights of the
European Union.
To establish a coherent European system for the investigation and
prosecution of offences affecting the Union’s financial interests.
To ensure a more efficient and effective investigation and prosecution of
offences affecting the EU’s financial interests.
To increase the number of prosecutions, leading to more convictions and
recovery of fraudulently obtained Union funds.
17 Proposal for a Directive of the European Parliament and of the Council on the fight against
fraud to the Union's financial interests by means of criminal law, COM (2012) 363 final.
18 For an extended analysis of this proposal, see also K. Ligeti (Ed.), ‘Toward a Prosecutor for the
European Union. Volume 1, A comparative analysis’, Oxford: Hart, 2013; F. Galli, A. Weyembergh
(Ed.), ’Approximation of substantive criminal law in the EU: the way forward’, Bruxelles: Éd. de
l’Université de Bruxelles, 2013; M. Zwiers, ‘The European Public Prosecutor’s Office. Analysis of a
Multilevel Criminal Justice System’, Intersentia, Cambridge/Antwerp/Portland, 2011, p. 372-385;
S. White, ‘A Descentralised European Public Prosecutor’s Office. Contradiction in Terms or Highly
Workable Solution’, Eucrim, Volume 2, 2012, p. 67-75; J. Fenyk, ‘European Public Prosecutor, a step
towards mutual recognition, or establishment of European criminal justice?’, Czech yearbook of
international law, Volume 1, 2010, v. 1, p. 187-205.
19 Proposal for a Council Regulation on the establishment of the European Public Prosecutor's
Office, COM (2013) 564 final.
The European public prosecutor’s office – necessary … 57
To ensure close cooperation and effective information exchange between the
European and national competent authorities.
To enhance deterrence of committing offences affecting the Union’s financial
interests.
Several aspects are of importance in this proposal: the exclusive competence
over offences against the Union’s financial interests20; the territorial competence of
the EPPO throughout the whole territory of the European Union21; its structure,
comprising both a centralized body and decentralized European Delegated
Prosecutors;22 the principles guiding its activity23; the jurisdiction of national courts
over proceedings opened by the EPPO24, its investigative measures25,
20 The competence of the EPPO regarding offences affecting the financial interests of the Union
should take priority over national claims of jurisdiction so that it can ensure consistency and provide
steering of investigations and prosecutions at Union level. Any extension of this competence to
include serious crimes having a cross-border dimension would require a unanimous decision of the
European Council.
21 For the purpose of investigations and prosecutions, the territory of the Union's Member States
shall be considered a single legal area in which the EPPO may exercise its competence, which can be
extended over an offence which was partly or wholly committed outside the territory of the Member
States by one of their nationals, by Union staff members or by members of the Institutions, if
assistance is obtained from the third country concerned.
22 The organizational structure of the EPPO comprises a single centralized body where decisions
are taken by the European Public Prosecutor, and also decentralized European Delegated Prosecutors
in the Member States. In cases involving several Member States or cases which are of particular
complexity, the efficient investigation and prosecution may require that the European Public
Prosecutor also exercise his powers by instructing national law enforcement authorities. The
European Public Prosecutor and the European Delegated Prosecutors shall have the same powers as
national public prosecutors in respect of prosecution and bringing a case to judgment, in particular
the power to present trial pleas, participate in evidence taking and exercise the available remedies.
23 The investigations and prosecutions of the EPPO should be guided by the principles of
proportionality, impartiality and fairness towards the suspect. This includes the obligation to seek all
types of evidence, inculpatory as well as exculpatory. In order to ensure legal certainty and zero
tolerance towards offences affecting the Union's financial interests, the investigation and prosecution
activities of the EPPO should be based on the principle of mandatory prosecution, whereby it should
initiate investigations and, subject to further conditions, prosecute every offence within its
competence.
24 The European Public Prosecutor shall choose, in close consultation with the European
Delegated Prosecutor submitting the case and bearing in mind the proper administration of justice,
the jurisdiction of trial and determine the competent national court. The jurisdiction of trial should be
chosen by the European Public Prosecutor on the basis of a set of transparent criteria.
25 The use of the investigative measures should comply with the conditions set out in it,
including the need to obtain judicial authorization for certain coercive investigative measures. Other
investigative measures may be subject to judicial authorization if this is required by the national law
of the Member State where the investigation measure is to be carried out. The general requirements of
proportionality and necessity should apply to the ordering of the measures by the EPPO and to their
authorization by the competent national judicial authority.
58 NOREL NEAGU
and judicial review26; the rules on evidence admissibility27; defense
rights28.
4. Scope of Competence for Investigation: Necessity versus Political
Compromise
My further argument is about the necessity of establishing an EPPO in respect
to its proposed jurisdiction.
Stepping up from traditional judicial cooperation between judicial authorities
in the Member States towards united and coordinated criminal investigation with
vertical dimension at European Union level is a huge move forward in terms of
speeding up investigations in criminal law. This revolution in procedural criminal
law is necessary, in my opinion, in support of preventing and combating serious
harm to legal goods of significant importance to EU citizens29.
In respect to protecting legal goods and their importance at EU level through
criminal law measures, two texts are of importance in the EU legislation: Article
83(1) and Article 83(2) TFEU30. One can observe from the two mentioned texts that
26 National courts are entrusted with the judicial review of all acts of investigation and
prosecution of the EPPO which may be challenged.
27 The evidence presented by the EPPO to the trial court should be recognized as admissible
evidence, and thus presumed to meet any relevant evidentiary requirements under the national law
of the Member State where the trial court is located, provided that court considers it to respect the
fairness of the procedure and the suspect’s rights of defense under the Charter of Fundamental Rights
of the European Union. The trial court cannot exclude the evidence presented by the EPPO as
inadmissible on the ground that the conditions and rules for gathering that type of evidence are
different under the national law applicable to it.
28 The EPPO is required to respect fundamental rights and observes the princi ples recognized by
the Charter of Fundamental Rights of the European Union, and, in particular, the right to a fair trial,
the rights of the defense and the presumption of innocence, the right not to be tried or p unished twice
in criminal proceedings for the same offence (ne bis in idem). The rights of defense already provided
for in the relevant Union legislation, should apply to the activities of the EPPO.
29 See N. Neagu (Ed.), ‘Foundations of European Criminal Law’, Bucharest, C.H. Beck, 2014
(forthcoming).
30 Article 83(1) TFEU:
‘The European Parliament and the Council may, by means of directives adopted in accordance
with the ordinary legislative procedure, establish minimum rules concerning the definition of
criminal offences and sanctions in the areas of particularly serious crime with a cross-border
dimension resulting from the nature or impact of such offences or from a special need to combat them
on a common basis.
These areas of crime are the following: 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.
[…]’
Article 83(2) TFEU:
‘If the approximation of criminal laws and regulations of the Member States proves essential to
ensure the effective implementation of a Union policy in an area which has been subject to
harmonization measures, directives may establish minimum rules with regard to the definition of
criminal offences and sanctions in the area concerned. Such directives shall be adopted by the same
ordinary or special legislative procedure as was followed for the adoption of the harmonization
measures in question […].’
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
interest34.
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.
60 NOREL NEAGU
Also, from the impact assessments35 accompanying several proposed
legislative acts in the field of serious crimes with a cross-border dimension, a more
clear need for criminal law instruments in certain fields was proved. Thus,
adoption of criminal law measures in the field of informatics systems was mainly
determined by malware or botnets attacks36, and also trafficking in human being
was addressed at EU level due to the widespread dimension of transnational
crime37. In these areas (not to mention drug trafficking or terrorism), no frontier
35 At EU level, a proposed directive with criminal law provisions should be accompanied by an
impact assessment, which should prove, between others, the necessity to adopt criminal law
provisions.
36 The term 'botnet' indicates a network of computers that have been infected by malicious
software (computer virus). Such a network of compromised computers ('zombies') may be activated
to perform specific actions, such as attacking information systems (cyber attacks). These 'zombies' can
be controlled – often without the knowledge of the users of the compromised computers – by another
computer. This 'controlling' computer is also known as the 'command-and-control center'. The
persons who control this center are among the offenders, as they use the compromised computers to
launch attacks against information systems. Attacks from such botnets can be very dangerous for the
affected country as a whole, and can also be used by terrorists or others as a tool to put political
pressure on a state. This became clear in Estonia in April-May 2007, where important parts of the
critical information infrastructure in government and the private sector were taken out for days due
to large scale attacks against them. As a result, the Parliament was forced to close down its e-mail
system for 12 hours. Due to extensive access attacks two major banks present in Estonia (Hansabank
and SEB Eesti Unisbank) completely stopped their online business and blocked their contacts with
foreign countries for a long time. There have also been reports of attacks on the Estonian telephone
system stating that at least one public telephone exchange was put out of service. A similar attack
occurred in Lithuania on 28 June 2008 when more than 300 private and official sites were attacked
from proxy servers located outside of Lithuania. The world witnessed the spread of a botnet called
'Conficker' (also known as Downup, Downadup and Kido), which has propagated and acted in an
unprecedented scale and scope since November 2008, affecting millions of computers worldwide. In
terms of the potential capacity of current botnets, the above-mentioned botnet ‘Conficker', with an
alleged bot capacity number of 12 million infected computers (February 2009 estimate) and a capacity
to send 10 billion of spam emails per day, is considered the biggest and fastest botnet currently
affecting the world. It infected at a rate of more than a million computers worldwide per day. Inside
the EU, damages from this botnet were reported in France, the UK and Germany. French fighter
planes were unable to take off after military computers were infected by Conficker in January 2009.
The German army reported in February 2009 that parts of its computer network were infected by
Conficker, making the websites of the German army, and the Defense ministry unreachable and
preventing them from being updated by their administrators. Certain IT services, including e-mails,
were unavailable for weeks to the UK Ministry of Defense personnel in January/February 2009 after
they were infected by the Conficker botnet. In March 2009, computer systems of government and
private organizations of 103 countries (including a number of Member States, such as Cyprus,
Germany, Latvia, Malta, Portugal and Romania) were attacked by malware installed to extract
sensitive and classified documents. See the Impact Assessment accompanying the document Proposal
for a Directive of the European Parliament and of the Council on attacks against information systems,
and repealing Council Framework Decision 2005/222/JHA [COM(2010) 517 final].
37 The International Organization for Migration (IOM) database includes data collected from
12,627 victims who have been assisted by IOM worldwide from November 1999 to December 2007.
Out of these, 10,473 are female and 2,154 are male. 630 persons are below 14 years of age, 1,416
The European public prosecutor’s office – necessary … 61
can stop a criminal offence (especially in the European Union, a space of liberty,
security and justice, with no border checks). And the need of EU protection in this
field is proved by the very instruments adopted at EU level38.
Balancing the clear need for EU action in certain fields of serious crimes with
cross-border dimension with the (at least doubtful) need for criminal law
intervention for protecting EU’s financial interests, I can find no scientific
explanation for choosing the latter to establish the jurisdiction of the EPPO, instead
of the former.
Indeed, the message sent to the European citizens is the following one: several
legal goods, of tremendous importance to you (such as life, freedom, health etc.),
are of secondary importance to us (European institutions and Member States).
More important are our financial interests, and we chose a very powerful and
revolutionary instrument (the EPPO) to protect these interests.
The only logical explanation for this choice is the lack of political will to grant
more powers to EU institutions in the field of criminal law. Member States have
come to consider criminal law as part of their own sovereignty, and granting part
of it to EU means less power for national authorities. As they are prepared to do so
in a field where they have little or no interest for protecting (EU financial interests),
there is no intention, at least in the near future, towards extending it to fields
where the EU interests may collide with the national ones. But, in doing so, the
message sent to European citizens is far from encouraging: important social values,
such as life, freedom, health, can be protected sufficiently through traditional
judicial cooperation. However, EU financial interests are of such importance, that
only vertical, united and coordinated investigation through the creation of the
EPPO, can succeed in efficiently protecting those interests.
I wonder if there is still time to change this message.
between 14 and 17, 5,880 between 18 and 24, 2,485 between 25 and 30, 2,092 over 30 (124 not
recorded). The most represented countries of origin are Ukraine, Republic of Moldova, Belarus, and
Romania. Among the countries to which people are trafficked there are several EU countries: Italy
(500 victims), Greece (105), Germany (136), Czech Republic (303), Bulgaria (204), Austria (101), and
Poland (778). 188 recorded cases concern international trafficking, 2,389 are cases of internal
trafficking. See the Impact Assessment accompanying the document Proposal for a Council
Framework Decision on preventing and combating trafficking in human beings, and protecting
victims, repealing Framework Decision 2002/629/JHA, [COM(2009) 136 final].
38 Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism, OJ L164,
22.06.2002, p.3-7; Council Framework Decision 2004/757/JHA of 25 October 2004 laying down
minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit
drug trafficking, OJ L 335, 11.11.2004, p. 8-11; Council Framework Decision 2004/68/JHA of
22 December 2003 on combating the sexual exploitation of children and child pornography, OJ L 13,
20.01.2004, p. 44-48; Directive 2011/36/EU of the European Parliament and of the Council of
5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and
replacing Council Framework Decision 2002/629/JHA, OJ L 101, 15.04.2011, p. 1-11; Proposal for a
Directive of the European Parliament and of the Council on attacks against information systems, and
repealing Council Framework Decision 2005/222/JHA [COM(2010) 517 final].
62 NOREL NEAGU
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