Sui limiti della giustizia negoziale nel sistema EPPO: Criticità e margini di ampliamento delle procedure semplificate di azione penale

This article analyzes the creation process, the activity, the challenges, as well as the results obtained until now by the European Public Prosecutor's Office, a body recently established by the European Union (EU). The European Public Prosecutor's Office was created to fight crimes affecting the EU budget, such as cross-border fraud and corruption. The main task of the European Public Prosecutor's Office is to investigate, prosecute and bring to justice the criminals involved in these crimes. The activity of the European Public Prosecutor's Office is structured on the basis of a network of delegated prosecutors from the participating Member States, and the article emphasizes the importance of close cooperation between them. It also presents some of the specific tools and methods used by the European Public Prosecutor's Office to investigate and prosecute criminals, such as the joint investigation team and the use of cutting-edge technology in collecting and analyzing evidence. However, the article also highlights some major challenges facing the European Public Prosecutor's Office. These include legislative and procedural differences between Member States, diverse legal language and culture, the need to ensure close cooperation and effective exchange of information between national judicial authorities and the European Public Prosecutor's Office, as well as the issue of EU Member States opting out of this form of consolidated cooperation and in relation to which neither the Treaties of the European Union nor the derived law in force offer a clear solution. The results obtained by the European Public Prosecutor's Office are analyzed in the context of its initial activities. The article highlights several successful cases in which the European Public Prosecutor's Office managed to bring major criminals to justice, thus generating a deterrent effect among those involved in crimes against the EU budget. In conclusion, the article underlines the importance and positive impact of the European Public Prosecutor's Office in the fight against cross-border crimes affecting the EU budget. However, it is recognized that the institution faces significant challenges and continued cooperation between Member States and the European Public Prosecutor's Office is necessary to ensure its long-term success.

The European Public Prosecutor's Office, a revolutionary novelty, has raised many issues and questions from the initial moment of the proposal of its creation in 2013 until now. Being a rather controversial topic, both among practitioners and theorists, the European Public Prosecutor's Office presents itself as an "unidentified flying object" among the European or national institutions of the EU Member States regarding the nature of this body, the way it works, the way of influencing the political decision and its competence, the corresponding policy, and the guiding governance, etc. Preventing and combating, investigating, and prosecuting crimes affecting the EU's financial interests is the core task of the European Public Prosecutor's Office. However, as we will see in this paper, the dynamics of globalization and the criminal phenomenon seem to hinder the proper functioning of this new body, the complexity of these crimes and causal links with phenomena such as terrorism, organized crime or trafficking of prohibited substances can influence the European Public Prosecutor's Office`s investigation and prosecution activities. This paper analyzes from an institutionalist perspective the emergence, evolution, and functioning, but especially the future perspective of this newly established body. Conceptually, the added value of the paper will be the political-legal analysis of how the European Public Prosecutor's Office was created, but also how it can actually work in relation to the national authorities and national law systems of the 27 Member States. Last but not least, this analysis wants to position the European Public Prosecutor's Office, together with other European bodies, agencies, and institutions, as a pillar in the European Union's path toward a possible future federalist scenario.

The idea of the European Public Prosecutor's Office as a supranational body has been part of the academic and political discussion on the development of the common area of criminal justice of the European Union since the 1990s. The European Commission presented a proposal for the establishment of such a body in 2013, which was followed by negotiations between the member states and the EU institutions, in order to find a balance between the preservation of the sovereignty of the member states in the domain of criminal law and the effective protection of supranational value, i.e. the protection of the financial interests of the Union. The European Public Prosecutor's Office was established in 2017, and represents a form of enhanced cooperation between member states that have decided to participate in the work of the European Public Prosecutor's Office. After the organizational, normative, personnel and technical prerequisites have been met, the European Public Prosecutor's Office started its work on June 1, 2021. In this paper, the authors analyze the process of fulfilling the previous conditions, the beginning of work and the activities of the European Public Prosecutor's Office so far.

The first of June 2021 marked the start of the operational activities of the European Public Prosecutor’s Office (EPPO). Established by Regulation (EU) 2017/1939 (‘EPPO Regulation’), the EPPO is the European Union body competent to investigate, prosecute and bring to judgment the perpetrators of criminal offences affecting the Union’s financial interests. The EPPO was established by means of enhanced cooperation. At the time of writing, five Member States do not participate in the EPPO: Denmark, Ireland, Poland, Hungary and Sweden. The effective action against crimes affecting the Union budget requires however smooth cooperation between the EPPO and its counterparts not only in the Member States that participate in the enhanced cooperation, but also in the non-participating Member States. This contribution delves into such cooperation and the several issues it raises, first providing for some introductory remarks on the choice of some Member States not to join the enhanced cooperation on the EPPO. It then analyses the two main provisions of the EPPO Regulation concerning the EPPO’s relations with non-participating Member States, Article 99 and, most importantly, Article 105. Finally, this contribution shortly addresses the relevant role played by Eurojust in this context.

This article analyses the functioning of the European Public Prosecutor’s Office (EPPO) as an independent EU body responsible for investigating, prosecuting and bringing to justice those who have committed criminal offences affecting the financial interests of the European Union - a topical issue for both EU institutions and Member States, including Ukraine as a candidate country. The importance of expanding the powers of the EPPO is mentioned in the Political Guidelines for the next European Commission 2024−2029 «Europe’s Choice». It points to the need to discuss areas where it is seen necessary to increase the powers of this body to combat cross-border serious crime, including corruption, which affects EU funds and which Member States cannot tackle on their own at the national level. In terms of the adaptation of Ukrainian legislation to EU law, accession negotiations and Ukraine’s gradual integration into the EU’s area of freedom, security and justice. The cooperation and interaction of the Ukrainian state authorities with the EPPO plays a significant role. The European Union’s cooperation in the area of freedom, security and justice (hereinafter referred to as the AFSJ) takes place both at the level of the EU and its Member States and is regulated under the Association Agreement between a third country and the EU and its Member States (for the Western Balkan countries - the Stabilisation and Association Agreement). Thus, the EU-Ukraine Association Agreement contains Chapter 3 «Justice, Freedom and Security». The research article analyses the competence of the EPPO, the mandate of the EPPO and the European Anti-Fraud Office was clarified. The article examines the legal framework (Council Regulation (EU) 2017/1939 (the «EPPO Regulation») and Directive (EU) 2017/1371 (the «PIF Directive»), as well as the procedure and status of accession of EU Member States to the EPPO, including the organisation of the body’s work, which is organised at two levels: centralised and decentralised. The authors conclude that Ukraine should join the EPPO after becoming a full member of the EU.

Article 86 TFEU relating to the establishment of a European Public Prosecutor's Office is not very explicit about how the office will work (structure, statute, procedure). In particular nothing is developed about relations with the Court of Justice. Yet the question is fundamental in that, more generally, it raises the question of the structuring of criminal justice and of the control (under different aspects: disciplinary, jurisdictional) of the European Public Prosecutor's Office. The question of the control over the European Public Prosecutor's Office or rather the role of the Court of Justice in relation to the future European Public Prosecutor's Office is dealt with in the proposal for a Council Regulation on the establishment of a European Public Prosecutor's Office of 17 July 2013 and in the European Parliament resolution of 12 March 2014 on the proposal for a Council regulation on the establishment of the European Public Prosecutor's Office. This contribution presents and discusses the main problems and challenges surrounding this question.

The EU legal solutions regulating the European Public Prosecutor's Office assume that Member States give up their sovereign competences regarding prosecution and accusation. Moreover, they significantly interfere with the rights and freedoms of their citizens. In particular, through the blankness of substantive penal norms. The lack of specificity of the acts for which this prosecutor's office can charge is a solution foreign to national legislation and the principle of nullum crimen sine lege. The regulation introduces the primacy of EU law over national law. For the above reasons, the only legal form for a Member State to join the European Public Prosecutor's Office is an international agreement and an appropriate legal act. In the Polish legal system, this type of agreement requires consent in the form of a ratification act adopted by a qualified majority of votes (by the Sejm by a 2/3 majority of Deputies in the presence of at least half of the statutory number of Deputies and by the Senate by a 2/3 majority of votes in the presence of at least half of the statutory number of Senators). Or in the form of a national referendum. The appropriate act should adapt national law to the requirements of the EU regulation. Under no cicumstances the accession of a Member State to the European Public Prosecutor's Office could be limited to the notification and decision of the European Commission, as was the case in our country recently.

The text tackles the European Public Prosecutor's Office (EPPO), which is a European body responsible for investigating, prosecuting, and bringing to justice the perpetrators of crimes detrimental to the Union's financial interests. While the EPPO has been established only by way of enhanced cooperation, involving originally 20 – and soon thereafter 22 – Member States, the fight against crimes affecting the financial interests of the Union is a common effort of all Member States of the European Union. Mostly international nature of the crimes against the Union’s interests makes necessary to create, develop and uphold such a supranational structure, as a most effective one.The EPPO relies on existing structures and human resources in participating Member States. Notwithstanding that the EPPO Regulation is directly applicable in the Member States, there is still a need to adjust the domestic legal framework to ensure that it is able to effectively carry out its tasks of investigating and prosecuting. The following contribution intends to provide an overview of the organizational and legislative measures that have been taken in Germany to this end.

The article named “The European Public Prosecutor’s Office and the necessary amendments in the Bulgarian legislation. Are constitutional changes necessary too?” tries to trace the changes in legislation of Republic of Bulgaria that are necessary in connection with the activities of the European Public Prosecutor’s Office (EPPO). First the author analyzes the mechanism for transposition of Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law in the Bulgarian Penal Code. Specific proposals have been made on the wording of the crime sections in order to comply with the standards of the Directive. In the second part of the article, the author recommends specific amendments to the Code of Criminal Procedure to ensure the proper functioning of the European Public Prosecutor’s Office in order to ensure the successful completion of cases before the Bulgarian Criminal Court. The third part of the article is devoted to the changes in the Judicial System Law, which should guarantee the interaction of the Public Prosecutor’s Office of the Republic of Bulgaria with the European Public Prosecutor’s Office. Finally, in connection with the necessary legislative changes caused by the activity of the European Public Prosecutor’s Office, the author has devoted a special place in the article to the possible contradictions with the Constitution of the Republic of Bulgaria and has proposed specific solutions to this problem.

A European Public Prosecutor’s Office: opportunities and risks By the end of 2020, the European Public Prosecutor’s Office (EPPO) will be operational. The EPPO will be tasked with investigating, prosecuting and bringing to judgement criminal offences against the EU budget. The substantive competence of the EPPO could in the future be extended to terrorism and other serious cross-border crimes. This article will first describe the background, structure and competences of the future EPPO. Then the procedural guarantees will be discussed and the problem of ‘forum shopping for evidence’. This problem entails that the choice in which Member State to conduct an investigative measure could be made on the basis of the less stringent rules in that Member State regarding, for example, the right to privacy. The article will end with a proposal on how to prevent forum shopping for evidence.

The European Public Prosecutor's Office does not start from scratch, but from a number of efforts of the EU institutions which have paid off with the adoption of Council Regulation (EU) 2017/1939 of 12 October 2017. This Regulation facilitates enhanced cooperation between Member States on the establishment of the European Public Prosecutor's Office, whose aims are to achieve a more effective fight combating the perpetrators or suspects of crimes against the Community's financial interests. However, the implementation of this Office will require some legislative developments in Member States such as Spain, where the Public Prosecutor has not been assigned the same powers the Regulation entrusts it with.

The European Public Prosecutor’s Office (EPPO) represents a highly symbolic achievement for the EU criminal justice sector. The article aims to collect some examples of instances where potential tensions between Regulation 2017/1939 and the intricate legal features of Member States arise. It also tries to suggest a possible categorization of EPPO’s transformative powers in the Member States’ criminal justice systems, especially within criminal procedure. Following the normal flow of criminal cases, the examples given concern the “model” of criminal investigations, several investigative measures affecting fundamental rights, the types of prosecutorial decisions (in particular, the dismissal of the case and simplified procedures), trial and appellate remedies.

The EPPO was established by Regulation 2017/1939, which entered into force on 20 November 2017, under enhanced cooperation to fight crimes affecting the Union budget. The Office is currently in the set-up phase with the aim of becoming operational at the end of 2020. On 12 September 2018, the Commission published a Communication on the extension of the EPPO’s competences to cross-border terrorist crimes and invited the European Council to take this initiative forward at the informal summit in Sibiu on 9 May 2019. As a single, decentralised European prosecution office, the EPPO could become an effective tool in investigating, prosecuting and bringing to judgement terrorist crimes and add a European dimension to the current efforts. Compared to the present horizontal, multinational approach, the EPPO would create a vertical, European relationship amongst the Member States and Union actors. This could be a decisive qualitative improvement, which would help overcoming the divergences of effective investigation and prosecution of terrorist crimes across the EU. This article outlines the key aspects of the Communication, touches upon the procedural/legal steps needed for an extension of the EPPO’s competences, and discusses the potential legal and practical implications of such an extension. It sets out which aspects demand particular attention prior to a decision on an extension of the competences of the EPPO, thereby stressing that justice and security are inextricably linked and have to be looked at together. The authors point out that a narrower and more targeted approach, such as a gradual extension of the EPPO’s competences to financial crimes, organised crime or cybercrime could also be envisaged, while at a later stage other types of crimes, such as trafficking in human beings, trafficking in arms and eventually cross-border terrorist crimes, could be included.

The European Public Prosecutor's Office was established under enhanced cooperation in 2017, as a new body in the institutional system of the European Union. The establishment of the European Public Prosecutor's Office changes the EU criminal law in a significant way, as it is the first body of the European Union, which will undertake its own investigations of criminal offences affecting the financial interests of the EU, carry out acts of prosecution and exercise the functions of prosecutor in the competent courts of the Member States.

On the 11th of October 2017, following a positive vote of the European Parliament, 20 Member States of the European Union (EU) adopted a regulation pursuant to Article 86 of the Treaty on the Functioning of the European Union (TFEU) in order to create an independent European Public Prosecutor’s Office (EPPO) by means of enhanced cooperation. In comparison to the widely-criticised draft regulation that had been presented by the European Commission in 2013, the future EPPO will constitute a clearly weaker institution on the basis of a collegiate model. Although the decision of the enhanced cooperation seems to conclude a long search for the best design of an effective and sovereignty-sensitive EPPO, I want to present an alternative model which is inspired by the complementarity principle governing the allocation of jurisdiction between national courts and the International Criminal Court according to the Rome Statute. Transferred to the European context this means that the EPPO should only prosecute insofar as national prosecution authorities are unable or unwilling to genuinely protect the financial interests of the Union. Although the enhanced cooperation did not formally adopt a strict model of complementarity, the general idea will still provide for a valuable guideline as to when the EPPO should exercise its right of evocation and as to distinguish between the competences of the organs of the centralised and the decentralised level within the EPPO’s general structure.