Sunday, July 3, 2022

Asser Institute Proposes European Prosecutor’s Office

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DIPLOMAT MAGAZINE “For diplomats, by diplomats” Reaching out the world from the European Union First diplomatic publication based in The Netherlands Founded by members of the diplomatic corps on June 19th, 2013. Diplomat Magazine is inspiring diplomats, civil servants and academics to contribute to a free flow of ideas through an extremely rich diplomatic life, full of exclusive events and cultural exchanges, as well as by exposing profound ideas and political debates in our printed and online editions.

By Leendert Erkelens.
Research fellow at the T.M.C. Asser Instituut and former counsellor at the Dutch Permanent Representation to the EU in Brussels.

The T.M.C. Asser Institute holds a conference on a proposal to set up a European Public Prosecutor’s Office
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The Conference
On 17 July 2013 the European Commission has adopted and issued its Proposal on the establishment of a European Public Prosecutor’s Office (EPPO).
The T.M.C. Asser Instituut will organise a conference on this important new proposal at its premises in The Hague on September 6, 2013. The Conference is entitled: Criminal law protection of the European Union’s financial interests: a shared constitutional responsibility of the EU and its Member States? It aims at offering the first opportunity to the academia together with representatives of EU Member States and EU institutions to evaluate this legislative proposal. The conference will offer a meeting point for exchanging their views based on differing outlooks and it will provide together the first assessment of the Commission’s legislative proposal. The conference will be held at the premises of the Asser Institute in The Hague (for further information see Asser website: http://www.asser.nl/events.aspx?id=368&site_id=1).

The Commission Proposal in a nutshell
The Commission has published its legislative proposal on EPPO mid-July this year. The exclusive task of the Office of the European Public Prosecutor (EPP) will be to investigate and prosecute crimes affecting the EU budget. Where indicated, the EPP will bring cases to trial in the competent court of the relevant Member State. The legal base for setting up this Office is provided by the Treaty on European Union (Lisbon Treaty, Article 86), prescribing that in order to combat crimes affecting the financial interests of the Union an EPPO may be established “from Eurojust” (in French: “à partir d’Eurojust”). One may say that the relation with Eurojust will become organic. Information will be exchanged and Eurojust will provide services in the area of administration, finance, human resources and Information Technology. The EPP will become a member of the Eurojust College and its Executive Board.
According to the Commission’s proposal, it shall develop a special relationship with Europol (Article 58 (1)). The Office shall be independent though accountable for its general activities to the European Parliament, the Council and the European Commission. Internally, the Office will be hierarchically structured with the EPP at the top, supported by four deputies. Externally, the Office will get a decentralised structure with delegated prosecutors in each Member State fully integrated into the judicial system of the concerned Member State. The delegated prosecutors will wear a “double hat”: one derived from EPPO and another from their own country. He or she will remain a member of the national justice system and will be separately remunerated for his/her work as a delegate of EPPO. EPPO will get an exclusive competence to investigate and prosecute offences against the EU budget but also offences which will be inextricably linked to the former criminal offences. The authority of the EPP to act will be vested in the entire EU. For that purpose the territory of the Union’s Member States shall be considered a single legal area (Art. 25 (1)). A comprehensive catalogue of investigation measures provides EPPO with the necessary powers to be able to act. Member States have to ensure that these measures may be used by EPPO. Another catalogue of procedural safeguards provides for the rights of suspects together with additional rights such as the right to remain silent or the right to legal aid.

Comment
The Commission proposal may be considered a genuine break-through. First attempts to get an instrument in place to help combat fraud against the EU budget date back to 1976. Over time different proposals were launched but always in vain. The Lisbon Treaty made it now legally possible to address this question more firm.  It remains to be seen whether the Commission will succeed with the new attempt. It puts forward strong motives such as the serious size of EU budget related fraud (about €500 million every year) and the current fragmented and ineffective way of investigating and prosecuting these crimes.  However, this – possible – break through is not being equally welcomed by EU Member States. From the point of view of the integrity of the national judicial system it is observed that frictions may rise easily. The national competence to determine criminal justice priorities and the subsequent capacities of police, justice and the prison system to implement those priorities will be affected by the new Office. Culturally, national values and norms concerning what is considered to be “good” and “bad” seem to become sidestepped. Some argue that the sovereignty of Member States is at stake, not just emblematically, but also effectively since such Office will affect (exclusive) power of a State to assert its jurisdiction on its own territory, even if EPPO is typically only concerned with fraud against EU funds, outside the sphere of national sovereignty.

The Asser Conference again
The Asser conference will primarily deal with questions of a legal and constitutional nature. The Commission proposal will be assessed in terms of the principles of subsidiarity, conferral of competences and proportionality. Furthermore, legal bases and procedures for EPPO operations and judicial review will be analysed, as well as the division of rules of substance and procedure governing EPPO operations between the Union and the national level. Legally, some constitutional issues related to Eurojust and the EPPO will be scrutinised. In all probability not all EU Member States will endorse the setting up of this new Office, therefore such situation could lead to a special framework called “enhanced cooperation” under which a group of (at least nine) Member States would join the proposal. The feasibility of such a framework will be discussed as well.

The conference has been prepared by Mr Leendert Erkelens, research fellow at the T.M.C. Asser Instituut and former counsellor at the Dutch Permanent Representation to the EU in Brussels, and Mr Arjen Meij, former judge at the General Court of the EU and research fellow at the T.M.C. Asser Instituut. Ms Marta Pawlik LL.M. is the project officer. For more information please contact: Conference Department of the T.M.C. Asser Instituut (conferencemanager@asser.nl).

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