Ancillary Crimes and Ne Bis in Idem

Abstract

This chapter deals with the issue of the material competence of the European Public Prosecutor’s Office and the conditions under which it may extend to offences other than those which fall within the scope of Directive (EU) 2017/1371 on the fight against fraud to the Union’s financial interests by means of criminal law (the “PIF Directive”). Since Article 86 of the Treaty on the Functioning of the European Union, on which the future Regulation establishing the European Public Prosecutor’s Office (the “EPPO Regulation”) is based, limits the material competence of that Office to offences against the Union’s financial interests but leaves it to the EPPO Regulation to determine more precisely which offences are covered, this chapter analyses the different categories of offences which may be included in the scope of the EPPO Regulation, in order to preserve the effet utile of Article 86 of the Treaty and to take into account the principle of ne bis in idem. The first category of offences consists of offences falling within the scope of the PIF Directive. The second category relates to offences regarding participation in a crimination organisation if the focus of the criminal activity of such a criminal organisation is to commit an offence affecting the Union’s financial interests. The third category consists of offences which are inextricably linked to a criminal conduct falling within the scope of an offence affecting the Union’s financial interests. The concept of “inextricably linked” offences has been clarified in a Recital and the limits of such an “ancillary competence” has been circumscribed by further criteria on the exercise of the competence of the European Public Prosecutor’s Office.