“EPPO and OLAF investigations:The judicial review and procedural guarantees”

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Two years after the publication of “La protezione dei diritti fondamentali procedurali dalle esperienze investigative dell’OLAF all’istituzione del Procuratore europeo” (Protecting fundamental rights from the investigations of OLAF to the future EPPO), which contained reflections emerging from the international conference held in Rome from 12 to 14 June 2013, the Foundation Lelio and Lisli Basso – ISSOCO thought it was necessary, given the changes introduced, to stimulate a new debate on the establishment of a European Public Prosecutor’s Office.

To this end, it organised an international conference on 21-22 May 2015, preceded by the drafting of a background paper on the current state of the debate on the European Public Prosecutor’s Office. During the conference, speakers from EU institutions, the judiciary, and the legal profession and academia, presented their reflections on the issue, which have been collected in this book.

The first session focused on the current status and the main issues under discussion. In July 2013, the European Commission presented its proposal for a Regulation Establishing the European Public Prosecutor’s Office with the aim of creating a new prosecution system at EU level to address the shortcomings of the present system, based solely on criminal procedures undertaken by national judicial authorities, which have no jurisdiction over cross-border cases of fraud to the financial interests of the EU. The Commission proposal was questioned by the reasoned opinion of 14 national parliamentary assemblies, complaining that it did not comply with the principle of subsidiarity. Disagreeing with the objections raised, the Commission left the original proposal unchanged, but this underwent substantial changes during work undertaken by the Council. The negotiations that took place first under the Greek and Italian Presidencies, then under the Latvian Presidency, will probably extend into the next Presidencies (Luxembourg, Netherlands).

None of the speakers disputes the issue of “whether” the European Public Prosecutor should be established (fraud against the EU is in fact considered by everyone to be a criminal phenomenon of growing importance and gravity, which the establishment of the European Public Prosecutor should help to curb), but there is disagreement about “what” form it should take.

Two opposing views may be identified regarding the structure, the appointment and powers of the European Public Prosecutor’s Office. On the one hand, the European Commission proposal envisages a vertical decentralized structure with exclusive competence for crimes affecting the financial interests of the EU (which are the subject of the proposal for a PIF directive 2012). On the other, the Council’s proposal is more horizontal in nature and much more intergovernmental, providing for joint jurisdiction with Member States. Many speakers complained that this second vision diminishes the European dimension of the European Public Prosecutor’s Office and risks paralyzing its functions. Favorable to the Commission proposal is the European Parliament, which has called on the Council to take account of its position and to involve it in discussions, in line with the principle of sincere interinstitutional cooperation, in order to avoid problems at the time of the parliamentary vote on the final text.

Another element that some of the speakers at the Conference agree on, is the need to clarify and regulate the relations between the European Public Prosecutor’s Office and the existing bodies that contribute to the fight against fraud to the financial interests of the EU (OLAF, Eurojust). Attention has been focused on operational and functional cooperation and the importance of building on the experience gained, addressing any weaknesses.

The second session aimed to stimulate debate on judicial review. All the speakers highlighted the need for judicial review of EPPO actions and focused on “who” should carry out this review (a European court, national courts or both), “what” needs to be reviewed, and “when” this review should take place.

In the third session, dedicated to procedural guarantees, emphasis was placed on the fundamental importance of the level of protection of procedural rights and guarantees in OLAF investigations, which is not without weaknesses, and therefore in need of further clarification and strengthening. Legal issues concerning procedural safeguards emerging in OLAF investigations would also apply to EPPO investigations. Most speakers agreed that the added value represented by the institution of European Public Prosecutor’s Office and the powers conferred upon it should not come at the expense of fundamental rights.

The credibility of the European Public Prosecutor and the trust placed in it are based precisely on the strengthening of procedural guarantees. For this reason, too, according to some speakers, the Council’s proposal does not appear to be satisfactory. The compromise needed in order to reach an agreement on the Regulation Establishing the European Public Prosecutor’s Office should not lead to a lessening of guarantees.

The difficulties in reaching an agreed solution are known to all. The use of enhanced cooperation, provided in Article 86 TFEU, might seem a likely solution, but it would still leave open the question of relations with Member States that do not participate in it and it seems that the Luxembourg Presidency still wants to try and find a shared solution. The debate that animated the conference has certainly contributed to a better understanding of the complex and delicate issues discussed.

A heartfelt thanks goes to all those who, with their reflections and speculations, contributed to the success of the event and this publication