European Public Prosecutor

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The European Public Prosecutor's Office (EPPO) is an independent body of the European Union (EU) to be established under the Treaty of Lisbon between 22 of the 28 members of the EU following the method of enhanced cooperation.[1]. It will be based in Luxembourg alongside the European Court of Justice (ECJ) and the European Court of Auditors (ECA).[2]

Role and structure

The role of the EPPO is to investigate and prosecute fraud against the EU budget and other crimes against the EU's financial interests including fraud concerning EU funds of over €10,000 and cross-border VAT fraud cases involving damages above €10 million. Previously only national authorities could investigate and prosecute these crimes and could not act beyond their borders. OLAF, Eurojust and Europol similarly had no ability to act. The body is intended to be decentralized, based around European Delegated Prosecutors located in each Member State. The central office will have a European Chief Prosecutor supported by 20 European Prosecutors, technical and investigatory staff. The EPPO may request a suspect's arrest, but this must be confirmed by the relevant national authority.[3][4]

Legislative procedure through enhanced cooperation

The European Commission proposed a regulation on the establishment of a Public Procecutor's Office on 17 July 2013, based on a mandate in the Treaty of Lisbon to set up such an office.[5][6] However, on 7 February 2017 the Council concluded that no consensus existed among the member states on the proposed regulation.[7] As a result, 17 EU member states (Austria, Belgium, Bulgaria, Croatia, Czech Republic, Estonia, Finland, France, Germany, Greece, Latvia, Lithuania, Luxembourg, Romania, Slovakia, Slovenia and Spain) requested on 14 February 2017 that the proposal be referred to the European Council for their consideration.[8] After no agreement was reached at the by the European Council on 9 March 2017,[9] 16 members states (the prior 17 less Austria, Estonia and Latvia, plus Cyprus and Portugal) notified the European Parliament, the Council and the Commission on 3 April 2017 that they would proceed with establishing the EPPO by the use of enhanced cooperation.[10] This was done under TFEU Article 86, which allows for a simplified enhanced cooperation procedure which does not require authorization from the Council to proceed. The participating member states agreed on the legislative text to establish the EPPO on 8 June.[11] By this point, Latvia and Estonia had begun participating in the enhanced cooperation procedure. The proposal was approved by the European Parliament on 5 October 2017,[12] and on 12 October 2017 the regulation was given final approval by the 20 participating states, which had grown to include Austria and Italy.[13] The EPPO will not have authority to begin investigating or prosecuting crimes until a decision of Commission approves this, which per the terms of the Regulation cannot take place until 3 years after the entry into force of the Regulation in November 2017.[13]

EPPO members

  EU members participating
  EU members not participating

22 EU members participate in the enhanced cooperation. The original regulation was joined by 20 member states.[14] Other EU members, apart from Denmark which has an opt-out from the area of freedom, security and justice (AFSJ), are permitted to join subsequently.

Following the Rutte III Cabinet taking office[15] the Netherlands officially requested to join EPPO on 14 May 2018.[16][17] Their participation was approved by the Commission on 1 August 2018.[18][19] Malta requested to join on 14 June 2018,[20] and their participation was approved on 7 August 2018.[21][22]

The Public Prosecutor was inserted as article 86 of the Treaty on the Functioning of the European Union by the Treaty of Lisbon.[23][24] The article states the following:

Establishment;
Role;
  • The office shall, in liaison with Europol, be responsible for investigating, prosecuting and bringing to judgement those connected to offences against the EU's financial interests.
  • It shall exercise this function in the relevant national courts.
  • The regulations establishing the office shall determine rules governing how it performs its duties including the admissibility of evidence.
  • The European Council may amend the treaty, after consulting the Commission and gaining the consent of Parliament, to extend its powers to include serious cross border crime

History

Early Proposals

It was strongly backed by the former Commissioner for Justice, Freedom and Security, Franco Frattini as part of plans to strengthen the Eurojust agency. Frattini stated in August 2007 that he is "convinced that Europe will have its general prosecutor in the future" and suggested that the Commission was just waiting for the treaty to come into force. He stated that a prosecutor "could prove useful" in areas "where important European interests are at stake", namely in dealing with financial crime, fraud and counterfeiting at European level.[25]

The firm, in late 2007, the Lisbon Treaty by all Member States of the European Union, which refers explicitly to the idea of creating a European Public Prosecutor to combat crimes affecting the financial interests of the Union and, where appropriate, to combat serious crime with cross-border dimension, resulted in the conclusion of an International Seminar in Madrid to study the new institution and the possibilities of its implementation. The Seminar was called by the Spanish Attorney General Cándido Conde-Pumpido, and led by Prosecutors Jorge Espina and Isabel Vicente Carbajosa. The presentations, discussions and conclusions of the meeting were collected in a book, "The future European Public Prosecutor's Office", in English and Spanish, and have served to date guide to the proposals and jobs that have been carried out on the implementation of this Institution. [26]

Following the short selling of certain euro-zone financial products in 2009 and 10, Spain proposed the EU enact the European Public Prosecutor provision so the post could co-ordinate legal action in retaliation. "Spain wants the European Union to use a planned public prosecutor's office for the region to protect the euro currency against speculators", Spanish attorney general Cándido Conde-Pumpido said in March 2010. [27]

In March 2010 Eurojust cited the European Public Prosecutor's Office as a potential solution to the problem of cross border crime in the EU. Despite opposition from some member states seeing it as impinging on their sovereignty (partly due to the necessary harmonisation of legal codes) Eurojust set up a working group to study the idea.[28]

Spanish Presidency draft for the implementation of the EPPO

The Spanish Attorney General Cándido Conde-Pumpido, officially launched in Brussels, in March 2010, on Spanish Presidency draft for the implementation of the European Prosecutor, pursuant to the provision of Article 86 of the Treaty of Lisbon. Conde-Pumpido, speaking with the President of the Commission of Justice and Home Affairs of the European Parliament, Juan Fernando López Aguilar, and the Spanish State Secretary for the European Union (EU), Diego Lopez Garrido, presented a technical project, developed from the conclusions of the International Conference convened by the Spanish Prosecutor in 2008 and 2009, which would be discussed later in the Luxembourg Council.

The creation of this institution was subsequently discussed, according to the Spanish proposal, by the meeting of Ministers of Justice and Home Affairs held in Luxembourg on 27 April 2010, but its implementation was suspended until a new discussion in 2013. [29]

Seminar of the Belgian Presidency and Eurojust in Bruges

Eurojust, The Hague, Netherlands

On 21 and 22 September 2010, Eurojust, in co-operation with the Belgian Presidency of the Council of the European Union, held a strategic seminar, "Eurojust and the Lisbon Treaty: towards more effective action", "Establishment of the European Public Prosecutor's Office from Eurojust?", at the College of Europe in Bruges, Belgium.

The goals of the seminar were the development of Eurojust in light of the Lisbon Treaty and the possible establishment of a European Public Prosecutor's Office from Eurojust under Article 86 TFEU.[30]

Barroso Commission Proposals

The European Commission President Jose Manuel Barroso said on 12 September 2012 in his speech to the European Parliament on the state of the Union, the next presentation of a proposal for the creation of a European Public Prosecutor, based on "commitment to uphold the rule of law ".

On 17 July 2013 the European Commission, at the initiative of Vice-President Viviane Reding and Commissioner Algirdas Semeta, proposed a regulation for the establishment of a, European Public Prosecutor's Office (EPPO).[31][32]

The proposal will now be discussed by the representatives of the EU Member States' experts under the specific procedure set by Article 86 of the Treaty. The following 3 main options may be considered within the range of options concerning the scope of the initiative to tackle offences against PIF (protection of financial interests):

  • Doing nothing – criminal investigations of PIF offences are (still) conducted by Member State authorities exclusively;
  • Setting-up the EPPO with a limited mandate (PIF offences) – EPPO has priority competence to order investigations and direct prosecutions into PIF offences
  • Setting up the EPPO with an extended mandate (PIF offences and serious cross-border crimes) – EPPO has exclusive/shared competence to order investigations and direct prosecutions into PIF offences and other serious cross-border crimes (money laundering, corruption, accounting offences).

Besides these 3 options regarding scope, the Commission will need to consider a series of significant legal, institutional and organisational matters (relationship with Eurojust, OLAF, national authorities, judicial review) which could be formulated as sub-options. Moreover, particular procedural issues (EP involvement, legislative process, what if unanimity requirements are not met, enhanced co-operation with which member States, etc.) should be considered in these options. In accordance with Article 86 the proposal could include one or more regulations covering different aspects of the setting up of an EPPO. Soft law instruments are not relevant as legislative measures are needed to address criminal offences and law enforcement.

Likely impacts will include a more effective, dissuasive and equivalent criminal law protection of the Union's financial interests. Irregularities affecting the European budget may reach or exceed 1 Billion Euro per year, from which around 280 Million Euro could be suspected EU fraud cases to be investigated within the EPPO's competence. This amount could be significantly reduced if the EPPO were to direct investigations and prosecutions throughout the EU, acting on all cases of PIF offences. Moreover, economies of scale might be achieved for the benefit of justice budgets of Member States, due to a streamlining of the judicial procedures involving EU financial interests across the EU.

Depending on how the relationship between the EPPO and the national authorities will be defined, the impact will be primarily on national police and judicial authorities, which will certainly have to cope with the new framework for investigations and prosecutions ordered by the EPPO. The administrative burden depends on the new relations established between the EPPO and the national authorities and whether the initiative will impose new information obligations on Member States.

Preparatory work, in particular the 2001 Green paper on the establishment of a European Prosecutor, will be taken into consideration. Existing studies and evaluations, in particular the Criminal Justice Systems Study, the Euroneeds Study, the Pretrial investigative model rules, the Spanish Presidency Report, officially launched in Brussels in March 2010, etc. and studies regarding Eurojust, will provide valuable input.

National and European Parliaments

In November 2013 the Commission indicated its intention to go ahead with the establishment of a European Public Prosecutor, despite the opposition of 14 EU national parliaments.[33] The European Parliament has subsequently voted in favour of the Commission's proposal to set up the office.[34]

See also

References

  1. ↑ https://www.washingtonpost.com/world/europe/20-eu-nations-back-plan-for-eu-prosecutors-office/2017/06/08/0192c0ea-4c36-11e7-987c-42ab5745db2e_story.html
  2. ↑ https://www.wort.lu/en/luxembourg/ministry-of-justice-new-european-public-prosecutor-s-office-to-be-based-in-luxembourg-5939316ca5e74263e13c1884
  3. ↑ http://ec.europa.eu/justice/criminal/judicial-cooperation/public-prosecutor/index_en.htm
  4. ↑ https://globalcompliancenews.com/eu-public-prosecutors-office-20170620/
  5. ↑ Brussels explores creation of EU public prosecutor.
  6. ↑ http://europa.eu/rapid/press-release_IP-13-709_en.htm
  7. ↑ "European Public Prosecutor's Office : Council takes first step towards a possible enhanced cooperation". Council of the European Union. 2017-02-07. Retrieved 2017-10-21.
  8. ↑ "Proposal on the creation of a European Public Prosecutor's Office (EPPO) - State of play". Council of the European Union. 2017-03-07. Retrieved 2017-10-21.
  9. ↑ "Conclusions by the President of the European Council". European Council. 2017-03-09. Retrieved 2017-10-21.
  10. ↑ "European public prosecutor's office : 16 member states together to fight fraud against the EU budget". Council of the European Union. 2017-04-03. Retrieved 2017-10-21.
  11. ↑ "20 member states agree on details on creating the European Public Prosecutor's office (EPPO) - Consilium". www.consilium.europa.eu. Retrieved 2017-06-11.
  12. ↑ "Procedure file - 2013/0255(APP) - European Public Prosecutor's Office". European Parliament. Retrieved 2017-10-21.
  13. 1 2 "Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor's Office ('the EPPO')". Official Journal of the European Union. L 283/1. 2017-10-31. Retrieved 2017-10-31.
  14. ↑ "20 member states confirm the creation of an European Public Prosecutor's Office". Council of the European Union. 2017-10-12. Retrieved 2017-10-21.
  15. ↑ Jeroen Segenhout (10 October 2017). "Nederland sluit zich aan bij Europees OM" (in Dutch). Retrieved 21 October 2017.
  16. ↑ "European Public Prosecutor's Office - update on the implementation". Council of the European Union. 2018-05-30. Retrieved 2018-06-12.
  17. ↑ "OUTCOME OF THE COUNCIL MEETING - 3622nd Council meeting - Justice and Home Affairs" (PDF). Council of the European Union. 2018-06-05. Retrieved 2018-06-09.
  18. ↑ "European Public Prosecutor's Office: The Netherlands becomes 21st country to join common efforts to protect EU budget against fraud". European Commission. 2018-08-01. Retrieved 2018-08-02.
  19. ↑ COMMISSION DECISION (EU) 2018/1094 of 1 August 2018 confirming the participation of the Netherlands in the enhanced cooperation on the establishment of the European Public Prosecutor's Office
  20. ↑ "PRESS RELEASE BY THE MINISTRY FOR JUSTICE, CULTURE AND LOCAL GOVERNMENT: Malta joins the European Public Prosecutor's Office". Government of Malta. 2018-06-14. Retrieved 2018-06-15.
  21. ↑ "European Commission - Daily News". European Commission. 2018-08-07. Retrieved 2018-08-08.
  22. ↑ "COMMISSION DECISION (EU) 2018/1103 of 7 August 2018 confirming the participation of Malta in the enhanced cooperation on the establishment of the European Public Prosecutor's Office". Official Journal of the European Union. 2018-08-07. Retrieved 2018-08-07.
  23. ↑ eur-lex
  24. ↑ eur-lex
  25. ↑ Brussels eyes single European public prosecutor, Goldirova, Renata (1 August 2007).EU Observer
  26. ↑ "La futura Fiscalía Europea-The Future European Public Prosecutors Office" (PDF). Fiscalía General del Estado.
  27. ↑ Spain calls for EU prosecutor to protect euro, Reuters
  28. ↑ Eurojust
  29. ↑ España insiste en la Fiscalia Europea. Diario jurídico, 7 de mayo de 2010 (in Spanish)
  30. ↑ Strategic Seminar – Establishment of the European Public Prosecutor's Office from Eurojust?
  31. ↑ Brussels explores creation of EU public prosecutor.
  32. ↑ http://europa.eu/rapid/press-release_IP-13-709_en.htm
  33. ↑ "'YELLOW CARD' ON EPPO TRIGGERS COMMISSION REVIEW". Vice President of the European Commission. November 2013. Retrieved 3 June 2014.
  34. ↑ "European Parliament backs European Public Prosecutor's office". out-law.com. 14 March 2014. Retrieved 3 June 2014.
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