(EPPO) European Public Prosecutor: also the European Parliament wants a say…

by Giuseppe RIZZO (Free Group Trainee)

How a simple “yes or no” could be complemented by a political dialogue

After almost two years since the European Commission’s Proposal for a Regulation on the establishment of a European Public Prosecutor’s Office (EPPO), the Council of the European Union is still negotiating the rules concerning the institution and the action of the EPPO (see preparatory documents here).

According to art. 86  of the TFEU, this new body could be established with unanimity within the Council of the EU or with an enhanced cooperation by at least nine Member States. It is worth noting that unlike  the ordinary legislative procedure in the EU, art. 86 of the TFEU establishes a special legislative procedure where the Council has to take the final decision even if  the European Parliament can approve  or reject the Council’s text.. This institutional model  which can be sensible when international agreements are at stake (as the EP like the national parliaments can only ratify or reject them) , when applied at legislative level is not consistent with the general rule according to which EU legislation should result from an agreement between the Council which represent the national governments and the European Parliament as direct representative of EU Citizens.

To overcome this political and institutional imbalance the EP in the cases of legislation to be adopted by simple consent ,has established a practice through which it try to influence the position of the Council by adopting interim reports with recommendations. The latter even if not legally binding could have a political weight and should be taken in account by the Council if it wants avoid the risk of rejection of its text and the need to re-start from scratch a new procedure  (as it already happened after the rejection of some international  agreements).

The EP Interim reports    

On the EPPO proposal the European Parliament already adopted on 12^th March 2014  in the previous legislature an interim resolution  which was focused on issues such as the jurisdiction of the future Institution,  if and how decisions taken by the prosecution could be appealable, the relations between the EPPO and other already existing Agencies and bodies such as Eurojust and OLAF.  The 2014 EP LIBE resolution highlighted, the relation between the Member States notably  in case of adoption of the EPPO regulation following the  “enhanced cooperation” procedure  (by so trying to frame the relation between participating and non-participating Member States).

One year after the LIBE Committee has drawn up another Interim Report that will be discussed next week by  the plenary in Strasbourg.

In this new report the LIBE Committee takes stock of the current state of negotiations in the Council, and focus on the most important characteristics of the future EPPO. Notwithstanding the reservations of several national parliaments LIBE confirms the necessity and urgency of building up the new body also to overcome the Member States persistent unwillingness to follow the  recommendations for prosecution issued by OLAF (followed only in 31% of the cases from 2006 to 2013).

LIBE also agree that for the time being that the competence of the future EPPO should be limited to offences relating to fraud against the financial interests of the Union, even if the spreading of the terrorist threat in the EU could had suggested a wider EPPO competence taking stock of the limits of Europol and Eurojust in this sensitive domain. But even if limited to the protection of financial interests the new competence should be further defined as nowadays there is not yet a uniform definition of what constitutes illegal activities “affecting the EU’s financial interests”. In principle this legal gap will be soon overcome by another legislative text currently negotiated between the EP and the Council [1], the so-called “PIF” Directive (from the French acronym: protection des intérêts financiers) which will also define the scope of the material competence of the future EPPO which will be the subject of an incoming post of this blog.

Structure and competence of the EPPO

Building on its role of committee in charge of the impact on the Rule of law and on fundamental rights in the EU draft legislation (see art. 38 of the EP Rules of Procedures) the LIBE Committee is in favor of an EPPO , strong and fully independent from national governments and EU institutions.[2]  However this is also the hottest issue [3]debated in the Council working groups as reported previously here .

Following the outcome of the negotiations, the organization of EPPO is completely different from the initial proposal of the European Commission: it imaged a hierarchical structure of the new body to ensure a swift and efficient action in investigations and prosecutions. Consistently with this strategy the Brussels Executive proposed a small centralized office composed by an European Chief Prosecutor and four Deputies, competent for deciding  if to prosecute, investigate, reallocate or dismiss a case. At national level criminal prosecutions should had been  the competence of an European Delegated Prosecutor.

Quite differently the negotiations in the Council have been from the very beginning in favour of a collegial structure of the EPPO, where a central office should meet  each Member State (as it is the case for Eurojust) . In the Council’s view a College composed by 25 European  Prosecutors (one for every partecipating Member State) should be the highest authority of the EPPO, framing also the powers of the European Chief Prosecutor.

It is very likely that such a “collegial structure” envisaged  by the Council risks to be too heavy to accomplish  the important roles to be played by the EPPO  according to Art. 86 TFEU.

To make things even simpler the Council has envisaged some Permanent Chambers composed by some European Prosecutors. By acting  as  small working group, these “permanent chambers” shall have the power to initiate an investigation, reallocate a case, determine the MS in which the prosecution shall be brought and dismiss a case. Following this design the Permanent Chamber will play most of the operational functions of the EPPO, notably because “…whenever necessary for the efficient handling of the investigations and prosecutions they may give instructions to the European Delegated Prosecutors.”[4]

However this inevitably hinders the independence of every single European Delegated Prosecutor at national level, which will always be subordinate at a Permanent Chamber. But also the opposite statement could  be true pursuant to the possibility that a collegial responsibility doesn’t allow a national jurisdiction’s evaluation of the work of European Prosecutors.

On this issue the new LIBE Interim Report is at most ambiguous because on one side it “finds (the Council model) regrettable” but on the other it confirms a central role of the Chambers for the issues aforementioned, underling that they  should play a leading role in investigations and prosecutions and not limit their activities to mere functions of coordination, but should supervise the work of the European Delegated Prosecutors (!).[5]

This statement, embodying two inconsistent  positions  in the same paragraph, (par. 15) shows that LIBE does not dare to oppose the emerging position of the Council’ (even if by so doing the future EPPO risks to be too influenced by national pressures and… resistances).

Needless to say that after the introduction of the Permanent Chambers it would be necessary to define their roles compromising individual independence of each European Prosecutor (Delegated or not-Delegated) “in order to ensure full independence of the decision-making of the Office.”[6]
Hotly debated is  also the automatic link between a European Prosecutor at central level and a case lodged in his/her Member States (situation which can have an impact on his decisions). However  the Council may still change its position on the issue.
It is worth noting that the LIBE Report emphasizes the importance of “predetermined and objective criteria” to allocate cases among the different Chambers (unlike “automatic” (?) criteria as suggested by some Member State). Moreover the LIBE Interim Report is also in favor of “specialized” Chambers.

Ne bis in idem

Institutional aspects taken apart the interim report makes several suggestions to avoid the violation of the ne bis in idem principle by recommending that the EPPO should first decide whether it has competence and before national authorities initiate their own investigations. In order to avoid parallel investigations on offences which may fall under the competence of the EPPO national authorities should be obliged to inform it of any such investigations and the latter should have the right to take over such investigations, “where it determines that that is appropriate, so as to ensure the independence and effectiveness of the Office” (par. 12and 13). LIBE also reiterates the EPPO competence on “ancillary” offences “other than those affecting the Union’s financial interests” only where cumulatively” occur the following conditions:

• with the same action is committed an offence affecting Union’s financial interests and other offences;
• there is a predominant offence that damage the Union’s financial interests while other offences are merely ancillary;
• and last but not least the other offences would be barred from further trying and punishment if they were not prosecuted and brought to judgment together with the offences affecting the Union’s financial interests.

This third requisite occurs only if two criminal offences are inextricably linked and one of them is a case of  EU fraud. It’s then important that they should be prosecuted at the same time by the EPPO or by national prosecutors.

Access to judicial review

In case of a disagreement between the EPPO and the national prosecution authorities over the exercise of competence, the EPPO should decide who will investigate and prosecute.  The EPPO decision should be subject to judicial review but before the national Court and not before the Court of Justice (as it would had been more consistent with the nature of the new European body). Instead also LIBE together with the Council consider that the EPPO “should be considered to be a national authority before the competent courts of the Member States”.

One can guess if this solution of “institutional transplant” submitting an institution deemed to be “European” to twenty five different procedural systems will not pave the way to various degree of judicial protection bearing also in mind that also the rules criminalizing the cases of violations of EU financial interests will be framed by a Directive (PIF) which risks to be transposed in divergent ways following 28 different criminal law systems.

To make the things even more complex the second part of  paragraph 24 of the LIBE report states that the decisions taken by the Chambers, (such as the choice of jurisdiction for prosecution, the dismissal, reallocation or transaction of a case,) “should be subject to judicial review before the Union’s Court”.  But what means this generic expression?

It is more than likely that LIBE is referring both to the competent national court (which should be considered “Europeans” when applying EU law) as well as the Luxembourg judges which will be the judges of last resort in case the national Courts do not apply correctly the EU law. It is more than likely that such model could raise some concerns on the side of the highest national Courts which consider criminal law an expression of the national identity (see the BVG Lisbon Urteil).

This case taken apart the LIBE interim report makes reference to a decision of the Court of Justice only in case of dismissal of members of the College (upon request by the Council, the Commission, Parliament and/or the European Chief Prosecutor. See par 9)

Connection between new instruments: legal protection and investigative measures

The LIBE report makes also clear that EPPO should grant legal protection to suspected and accused persons as required not only by the Art. 6 TEU, the Charter of Fundamental Right and the, Art. 16 TFEU (on data protection ) but also by the measures already adopted or currently negotiated at Union level on the procedural rights in criminal proceedings. It is worth recalling between these “pending” measures the proposals on legal aid, presumption of innocence and protection of vulnerable persons, all measures which should apply to all persons who are under investigation or are being prosecuted by the EPPO.

Quite surprisingly the LIBE Committee does not suggest further procedural rights to be framed by the EPPO decision as according to same scholars could be possible following art. 86 p. 3 of the TFEU (“The regulations referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor’s Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.”)

Investigations and admissibility of evidence   

The LIBE Interim Report stresses the importance of streamlined procedures for the EPPO to obtain the authorization for investigative measures in cross-border cases, always in accordance with the law of the Member States where the measures should be executed. However it should be possible for the EPPO to take advantage of the easier circulation of evidence founded on the mutual recognition system established at EU level as it is the case for the European arrest warrant and more recently for Directive 2014/41/EU on the European Investigation Order (EIO). No doubts that using the mutual recognition system for the EPPO activities looks as an old fashioned approach but we can’t forget that the Council’s negotiations didn’t dare to establish an autonomous investigative system for the new body. So each European Prosecutor will investigate only in accordance with the law of Member States even if this could create problems when using evidence in cross-border cases. That having been said the EIO represents the newest and more comprehensive instrument to deal with evidence linked to cross-border cases. Moreover the mutual recognition system, from ex third pillar until nowadays, has clearly contributed to a slow but uniform construction of European criminal law, founding this uniformity on the quitclaim of Member States’ prerogative.

Inter-agency cooperation : EPPO-Eurojust..

The pivotal role of the EPPO for the European Area of Freedom Security and Justice is stressed in the last section of the LIBE Interim Report. However the integration of the EPPO’s work with the already existing institutions, in particular Eurojust and OLAF (not to speak of Europol), appears one of the main stumbling blocks for the future. LIBE avoid this difficulty with a rather generic statement in paragraph 29 calling (?) for r an “exact clarification on the relations between Eurojust, EPPO and OLAF in order to differentiate their respective roles in the protection of EU’s financial interests”.

It is worth recalling that the Commission in its initial EPPO proposal dealt rather extensively with  cooperation with Eurojust. According to its explanatory memorandum, “special rules apply to the relationship of the EPPO with Eurojust given the special links that tie them together in the area of operational activities, administration and management”[7]. According to Recital 40 of the proposal, “they should organically, operationally and administratively co-exist, co-operate and complement each other.” Art. 3(3) of the proposal states that the “European Public Prosecutor’s Office shall cooperate with Eurojust and rely on its administrative support in accordance with Art. 57”.

…and EPPO-OLAF

Quite obviously Art. 86 TFEU on the establishment of an EPPO is silent with regard to the role of the Commission and of its independent body OLAF, in spite of the obvious overlap between its mandates with the future EPPO. As the EU Treaties and notably Art. 325 TFEU recognize that the Commission still has an important role in the field of the protection of the EU’s financial interests it is more than likely that OLAF will continue to play its role notably with regard to non-participating EU member states (such as UK).

So we can’t imagine the future of OLAF without taking into account two different aspects: its role with regard to the EPPO, and its role with regard to non-participating member states and the resulting interaction between OLAF and the EPPO. The Commission’s proposal for an EPPO Regulation does not really clarify what will happen with OLAF once the EPPO is established.

The Commission proposal for the establishment of the EPPO made reference to the future of OLAF outlining:
1) the possibility of a gradual transfer of OLAF’s staff to the EPPO;
2) the possibility for OLAF to carry out internal PIF investigations within the EPPO (art.66 of the proposal); and
3) the need to strengthen the EPPO-OLAF cooperation (for instance Art. 58(3) of the proposal provides that the EPPO “shall cooperate with the Commission, including OLAF, for the purpose of implementing the obligations under Art. 325(3) of the Treaty. To this end, they shall conclude an agreement setting out the modalities of their cooperation”).

The Commission’s communication accompanying the proposals took the view that, once the EPPO is established, OLAF would suspend carrying out administrative investigations into PIF offences, in order to avoid ne bis in idem with the possibility that parallel investigations coexist at both administrative and criminal levels. However, the Commission had proposed an EPPO with exclusive competences over PIF offences, and the perspective of shared competence might change the situation. Therefore, it is unclear whether OLAF will continue to carry out external administrative investigations into PIF offences.

The special regime of non-participating Member States adds an extra layer of complexity to the already unforeseeable relationship between OLAF and the EPPO. While the Commission’s proposal for an EPPO Regulation is silent in this regard, the impact assessment accompanying the proposals did point out that “OLAF, would need to be adjusted to this new reality, with the likely separation of Member States into two groups, one which still uses OLAF for administrative (external) investigations and another which does not.

The impact on OLAF’s work would indeed be substantial: part of its staff and resources would need to be transferred to the EPPO to handle the latter’s criminal investigations in relation to Member States participating in its establishment, while another part would stay and carry on conducting administrative investigations”[8]. In this regard, the UK fears that the creation of the EPPO will undermine OLAF’s assistance.[9] OLAF’s Director-General ensured that sufficient resources would remain available to maintain OLAF but surely the level of staff transfer from OLAF to the EPPO will vary in relation to the number of non-participating Member States.

A further consequence of having Member States outside the EPPO has to do with what EU body/agency will lead the interaction between non-participating Member States and the EPPO. The EPPO proposal confers this role to Eurojust (Art. 57(2)(f)), at least with regard to judicial cooperation in criminal matters. However, this role does not necessarily exclude cooperation between OLAF and the EPPO.

Actually a rather short-sighted negotiation doesn’t thoroughly evaluate this circumstance and relationships between agencies in the field of the protection of financial interests are far from clear. In this phase the European Parliament, and especially the LIBE Committee, may still exercise its prerogative and ask more clarity from the Council, encouraging the development of negotiations about inter-agency cooperation and a functional institution of the new body.

Conclusion

The EPPO’s institution is still under negotiation and numerous nodal points have to finalized.
The European Union can’t lose the opportunity to introduce the most important keystone for the development of “a single judicial space“ in the EU Area of Freedom Security and Justice. For the latter it is of fundamental importance to reject downward trends.
Rather it is necessary to encourage the further improvements around many  neglected aspects such as the protection of fundamental rights; the obligation to prosecute crimes; a clear distribution of ancillary competence between the EPPO and Member States’ prosecutors; the distant possibility that the European Court of Justice becomes a court of last resort after that criminal proceedings were prosecuted before national courts; and, lastly, a full carrying out of Art. 86 TFEU, extending the powers of the European Public Prosecutor’s Office to include serious crimes that have a cross-border dimension.
Only after a truly constructive and frank inter-institutional debate on these aspects we would attend at the most important development for judicial cooperation in criminal matters in European Union

NOTES