European Public Prosecutor Research Articles

The EU’s Trifecta Mechanisms: Analysis of EU’s Response to the Challenges to the Rule of Law and Corruption

The following paper examines the envisaged framework and effectiveness of the triangulation of mechanisms currently planned at the EU level: the establishment of the European Public Prosecutor’s Office (EPPO), proceedings under Article 7 of the Treaty on European Union (TEU) against Poland and Hungary, and the mechanism to protect EU’s budget in deficiencies withregards to the rule of law in Member States. This research focuses on the overall structure and powers of the EPPO with special attention on its role in investigating and prosecuting offences affecting to the EU’s financial interests. This includes active and passive corruption among others with particular emphasis on the expected interaction between the EPPO and the national authorities. However, not all EU Member States have joined the EPPO framework. Here the role of the EU institutions is analyzed in light of the recent developments in Article 7 TEU proceedings. A third possible mechanism to react to the growth of executive powers in some states and the corresponding imbalances is the EU Commission’s proposal for a mechanism on the protection of the EU’s budget in case of generalized deficiencies as regards the rule of law. This may include corruption or other breaches to the implementation of the Union budget.

Европейската прокуратура и необходимите промени в българското законодателство. Налагат ли се и конституционни промени?

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.

Úřad evropského veřejného žalobce a mezinárodní justiční spolupráce ve věcech trestních

This article explores the possible impact of the establishment of the European Public Prosecutor’s Office (EPPO) on international judicial cooperation in criminal matters. The starting point is the clarification that the EPPO is the authority that does not exercise the criminal jurisdiction of the EU, but the criminal jurisdictions of the EU member states bound by Regulation (EU) 2017/1939. It means that not only the relations between the EPPO and the criminal jurisdictions of the EU member states not bound by Regulation (EU) 2017/1939 and between the EPPO and the criminal jurisdictions of non-member states of the EU have the character of international judicial cooperation in criminal matters, but also the internal relations within the EPPO between the criminal jurisdictions exercised by the EPPO. Each of the three different areas of international judicial cooperation in criminal matters is then separately analysed and the analyses are followed by concluding remarks. While the international judicial cooperation in criminal matters between the EPPO and the EU member states not bound by Regulation (EU) 2017/1939 will probably at least remain on the current level of judicial cooperation between the EU member states, the international judicial cooperation in criminal matters between the EPPO and non-member states of the EU is at risk of worsening (compared to the current level of judicial cooperation between the EU member states and non-member states of the EU), depending on the willingness of non-member states of the EU to cooperate with the EPPO as a new actor on the stage. On the other hand, the international judicial cooperation between the EU member states bound by Regulation (EU) 2017/1939, i. e. within the EPPO, might be better than the current level of judicial cooperation between the EU member states, partly due to the provisions of Regulation (EU) 2017/1939 (although they are not too innovative) and partly due to the fact that higher level of willingness to cooperate is expected “under one roof” of the EPPO than between the authorities of various EU member states.

External Effects of the European Public Prosecutor’s Office Regime

The enhanced cooperation for establishing the EPPO as a new and genuine transnational investigating framework for combating crimes affecting the financial interests of the EU promises effectiveness and a means for overcoming institutional paralysis in transnational criminal cases. The concept and future structure of this cooperation method between EU-MS allow the non-participation for MS by their own decision. On the one hand, this flexibility is a key factor of deepening integration in this field, but on the other hand, this bears significant risks for general goals and values of European integration, especially in the field of exercising jurisdiction (power of punishment) and launching criminal investigations. This flexibility has clear and visible consequences that are covered by the term as external effects of enhanced cooperation. The paper focuses – after describing and shortly examining all the possible external effects of the EPPO – on the jurisdictional issues arising from the flexibility of the enhanced cooperation in order to address the main findings in connection with the real possibility of impunity and forum shopping methods.

A implementação da Procuradoria Europeia – a emergência de um modelo de intervenção penal entre a cooperação e a integração penal?

A intervenção penal da União Europeia tem sido marcada por um movimento de expansão, de intensificação “acelerada” e de proliferação de instrumentos jurídicos, sobretudo a partir do Tratado de Lisboa, acentuando as lógicas do reconhecimento mútuo, da cooperação e da harmonização. A União Europeia está a um passo de dar início a um exercício transnacional da ação penal, através da publicação do Regulamento (UE) 2017/1939 do Conselho, de 12 de outubro de 2017, que dá execução a uma cooperação reforçada para a instituição da Procuradoria Europeia. Partindo da evolução e das metamorfoses sentidas na intervenção penal na União Europeia, sobretudo a partir do Tratado de Lisboa, que se pretendem dar conta num primeiro momento, pretende-se no presente trabalho sobretudo compreender o sentido e o alcance do Regulamento da Procuradoria Europeia, captando o novo modelo de intervenção penal que se perfilha no horizonte. Estaremos a um passo da integração penal, ou a materialização da Procuradoria Europeia dá apenas mais um passo neste caminho? Qual o seu contributo para um verdadeiro sistema de justiça penal? E neste caminho, deve a Procuradoria Europeia ver o seu âmbito alargado a determinados “crimes graves com dimensão transfronteiriça”?

The decision to drop the case in the new EPPO’s regulation: Res Iudicata or transfer of competence?

This article discusses one of the most important decisions the European Public Prosecutor’s Office (EPPO) can take: the decision to drop a case. When this happens, the case will either be referred to national prosecutors or to the European Anti-Fraud Office (OLAF) or dismissed entirely. Why is this an important decision? Because it means the EPPO declines to prosecute, prosecution being (along with investigation) its very raison d’être. This is why it is important to understand how and when the EPPO may drop a case. In this respect, the EPPO Regulation (adopted on 12 October 2017) pursues two goals: first, it seeks to leave the EPPO a certain margin of discretion when deciding whether to drop a case; secondly, however, it seeks to limit that discretion in order to reduce the risk of decisions that are arbitrary or based on irrelevant considerations. This article argues that this strikes an acceptable balance between two different legal traditions: the ones inspired by the strict legality principle, such as Italy and Germany, and those inspired by the principle of opportunity, such as France or England and Wales. The article further explores how this balance is consistent with the emerging principles of international criminal law, where international tribunals try the most serious crimes only.

Data Protection and the EPPO

The European Public Prosecutor’s Office (the ‘EPPO’) necessarily processes personal data in order to fulfil its mission; As such, it falls squarely within the European Union (EU) data protection regulatory landscape. However, because the EU data protection regulatory landscape itself is currently found at a crossroads, an analysis of the EPPO data protection model may be twofold: First, placing it within the proper cross-organization dialogue currently taking place on the future regulatory model of personal data processing for law enforcement purposes carried out at EU level. Second, at an EPPO-specific level, whereby the actual data protection regime afforded to it may be assessed. This article purports to elaborate upon the above two data protection dimensions of EPPO personal data processing activities: It presents considerations and policy options during the lawmaking period that resulted in the establishment of the EPPO, it analyses the data protection regime ultimately awarded to it and attempts to, critically, place the EPPO data protection model within its proper operational and legislative environment.

Fighting Terrorism through the European Public Prosecutor’s Office (EPPO)? : What future for the EPPO in the EU’s Criminal Policy?

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.

Nadležnost evropskog javnog tužilaštva

Nadležnost evropskog javnog tužilaštva

Osnivanje i organizacija Evropskog javnog tužilaštva

As the European Union loses a significant part of the financial resources per year due to the criminal offense of fraud and similar criminal offenses committed against financial interests of the Union, there has been a presumption that a body competent for investigation of such illegal conduct and criminal prosecution of offenders should be established at supranational level. For this reason, the Commission of the European Union presented the Proposal for the Establishment of the European Public Prosecutor's Office as a body authorized to investigate criminal offenses affecting the financial interests of the European Union and to criminalize the perpetrators of these offenses. Following the multi-annual negotiations between the member states and the institutions of the Union and the adaptation of the initial text, Regulation implementing enhanced cooperation on the establishment of the European Public Prosecutor 's was adopted in October 2017. As the first European Union body competent to make decisions in relation to individuals in the sensitive field of criminal law, the establishment of the European Public Prosecutor's Office constitutes a significant moment in the history of the criminal law of the Union. However, expert and scientific analyzes point out that this potentially revolutionary step carries with it quite complicated and far-reaching consequences, and it is controversial whether and to what extent such a supra-national body, with such a predicated structure and competences, will contribute to the suppression of criminal offenses affect the financial interests of the Union.

Prosecuting EU Financial Crimes: The European Public Prosecutor's Office in Comparison to the US Federal Regime

AbstractWhy is the fight against financial crimes such a central task for the EU? The EU has a strong interest to counter financial crimes and fraud against the EU budget as those crimes—so the EU legislator's claim is—hamper the trust in the market and undermine consumer confidence to engage in internal market transactions. In this Article, we aim to discuss the establishment of the European Public Prosecutor Office as a federal agent and the effects of this agent for establishing a robust EU financial crimes regime. Comparisons with the US system of US Attorneys—federal prosecutors—will be drawn to show that this institution has been quite effective at enhancing the protection of US financial market. The Article will then discuss to what extent the EU can, and should, learn from the American experience. We are particularly interested in the strong security focus in the EU and its consequences when it ventures into the area of financial crimes.

EPPO and environmental crime

Notwithstanding the adoption of European measures aimed at tackling environmental crime and the possibilities offered by the new provisions set down in the Treaties, the environment in the European Union is not yet satisfactorily protected, mainly because of an enforcement deficit. Exploring the possibilities offered by the Treaties, this article examines the possibility of developing the potential of Article 86 Treaty on the Functioning of the European Union (TFEU). The article particularly scrutinizes whether the extension of the European Public Prosecutor’s Office’s (EPPO’s) competence to environmental crime could ensure more effective protection of the environment via the effective prosecution of perpetrators of serious environmental crime having a cross-border dimension. To that purpose, firstly, it is ascertained whether and under which conditions it is legally possible and practically feasible to extend the EPPO’s competence over environmental crime. Secondly, it is assessed whether extending the EPPO’s competence to environmental crime is desirable for solving the main problems which cause an enforcement deficit of environmental rules and whether it represents an added value in ensuring the enforcement of the Union’s environmental rules. The findings of the analysis are summarized in the conclusion.

The European Public Prosecutor’s Office : How to Implement the Relations with Eurojust?

After giving an overview of the current and envisaged role of Eurojust, this article outlines the future relationship between Eurojust and the European Public Prosecutor’s Office (EPPO). Here, the author identifies three levels of possible links between the two bodies: the institutional level, the operational level, and the administrative level for the sharing of services. They have a common denominator: the need to establish an intense reciprocal cooperation scheme, despite the diversity of the functions of the two bodies. If this strong cooperation is implemented in practice, it can become the driving force around which the entire European judicial area can be redesigned, in such a way that Eurojust will still continue to play a central role as regards judicial coordination and cooperation in criminal matters. Therefore, a non-antagonistic relationship with the European Public Prosecutor should be aimed for and pursued.

The EPPO Implementation : A Perspective from Spain

Spain has been especially supportive of the creation of the EPPO after its mention in the Treaty of Lisbon − and even before that. Notwithstanding, Spain negotiated the implementation of the EPPO knowing that this would necessitate – partly fundamental − structural changes of its national system of criminal procedure. This system is currently characterised by giving an investigative judge the leading role in criminal investigations; prosecutors are actually one of several parties in the criminal proceedings. In contrast, the EPPO Regulation is based on the more conventional system common all around Europe, consisting in giving the said leading role to prosecutors. After outlining the main structure of the Spanish system of criminal investigation, the article deals with the major challenges that Spain has to meet in order to align its national system to the model imposed by the Regulation regarding cases in which the European Public Prosecutor will assume the investigation. Spain may opt for a total or partial renewal of the investigative structure. The article further explains which other pending issues must be solved in terms of legislation and practice in order to make the EPPO operational in Spain

EPPO Institutionalization during the Bulgarian Council Presidency : Main Steps and Challenges Ahead

The article follows up the efforts undertaken by the EU Commission together with the Council of the European Union to set up the European Public Prosecutor’s Office (EPPO). Preparing the EPPO to become operational by 2020 was a top political priority during the Bulgarian Council Presidency, given the paramount importance of the proper protection of the EU’s financial interests against fraud and misuse of EU money. In the first part, information is provided on how the Presidency drove forward the initial steps to structure the EPPO and enhance its coordination with other EU partner agencies. In the second part, the article gives an overview of EPPO’s powers that make it a unique EU organism equipped with the necessary tools to effectively investigate crimes against EU funds. This overview is followed by an analysis on the challenges that lay ahead particularly for the integration of the European Delegated Prosecutors into this new law enforcement scheme.

La naissance d’un Parquet européen – les enjeux de sa mise en œuvre en France

Since the publication of the Corpus Juris – the fundamental study on the protection of the EU’s financial interests, carried out under the supervision of Professor Mireille Delmas-Mary – the French authorities have considered the establishment of a European Public Prosecutor to be a political goal of utmost importance. The French experts actively participated in the four-year negotiation process and contributed to achieving a balanced and ambitious Regulation. A new chapter was heralded by the adoption of Regulation 2017/1939 on 12 October 2017: the 22 participating Member States must now prepare and adapt their national legal systems and legislation to the establishment of the European Public Prosecutor’s Office. At this early stage of its implementation, it appears relevant to concentrate on two main aspects of the process.

The future cooperation between OLAF and the European Public Prosecutor’s Office

Establishing the European Public Prosecutor’s Office (EPPO) will represent an important step for cross-border cooperation in criminal matters within the European Union, and more particularly for the protection of the Union’s financial interests. The EPPO’s work will complement the work carried out by the European Anti-Fraud Office. This article, based on a briefing paper commissioned by the European Parliament’s Policy Department for Budgetary Affairs, at the request of the Committee on Budgetary Control, analyses future cooperation between these two bodies, OLAF and the EPPO. Three main dimensions of their cooperation are analysed as well as the elements of complexity that may influence it. The article highlights elements essential for their close cooperation and complementarity, especially with regard to a potential revision of OLAF’s legal framework.

Preparing the environment for the EPPO

The adoption on the 12 October 2017 of the Council Regulation (European Union [EU]) 2017/1939 ‘implementing enhanced cooperation on the establishment of the European Public Prosecutor's Office‘ (the EPPO) marks a turning point in the development of the EU as an Area of Freedom, Security and Justice, by the creation of the first EU investigating and prosecuting authority. However, the structure and functioning of such a new body, together with the limited scope of its competence established by referring to provisions in the Directive (EU) 2017/1371 – the PIF Directive – ‘as implemented by national law‘, make the EPPO as an authority whose legal environment largely builds on the national legal systems. Therefore, the putting in place of the new investigative body is far from fully eradicating in itself the various difficulties of judicial cooperation in criminal matters. Instead, its implementation strongly revives the crucial need to foster mutual legal understanding and mutual trust that the experience showed is not achieved yet among the member states. After shortly presenting the main features of the recently adopted EPPO regulation, the article focuses on the crucial need to reshape training of all legal practitioners involved in criminal investigations (first of all when dealing with PIF offences) as the essential condition for the new European investigating body to function smoothly. The author stresses the need for improving mutual understanding of the different legal systems and above all awareness of the common legal grounds already in place as the primary way to boost the necessary mutual trust among practitioners and establish the first embryo of a genuine European legal culture. The article then analyses the main features of a proposal for a training curriculum based on an ius commune perspective recently drafted in the framework of the EUPenTRAIN project run by the Centro di Diritto Penale Europeo of Catania and co-financed by Olaf.

Current Issues in Justice and Home Affairs Cooperation between EU Member States Pertaining to Forensic Services and Investigative Operations

The paper discusses the EU's decision to establish the first supranational law enforcement body – the European Public Prosecutor's Office (EPPO) – and further articulates the notion of “supranationalism”. The author argues for the need to develop a strategic plan for interaction between the Prosecutor General's Office of the Russian Federation and the EPPO to ensure effective oversight over the practice of forensic science and criminalistics, lawfulness of the actions of preliminary investigation units conducting forensic and search operations, and the use of specialized knowledge in transnational crime prevention, detection and response. Adoption of an updated strategy for international cooperation in this field has prompted national jurisdictions to place greater emphasis on the issues of the expert's initiative, proactive forensics, and predictive forensics.

The European public prosecutor’s office and the judicial review of criminal prosecution

In relation to the pending negotiations over the establishment of a European public prosecutor’s office (hereinafter, EPPO) as well as its role and structure, one often faces the question of the accountability and judicial review of the prosecutor’s prosecutorial and investigative functions. More precisely, it seems that it is not clear who should exercise the review, what needs to be reviewed and when such a review should be engaged. Moreover, the draft provisions on the judicial review have been amended several times. This article is aimed at depicting the current state of the subject matter and the main issues under discussion with an emphasis on the issue of judicial review of criminal prosecution in pretrial proceedings. The starting point is the hypothesis that the EPPO’s decision to initiate an investigation really represents a decision on the initiation of criminal prosecution, and as such, it needs to be subject to judicial review. This hypothesis is substantiated by the right to effective judicial review enshrined in Article 47 of the Charter of fundametnal rights of the EU, the right to judicial review in the Treaty on the Functioning of the European Union and an analysis of the principle of mandatory prosecution considering the impact of investigations initiated by the EPPO on the fundamental human rights of suspected persons.