Thursday, December 8, 2022

A European Public Prosecutor?

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By Arjen Meij, Visiting Research Fellow T.M.C. Asser Institute, The Hague, formerly Judge General Court of the EU

Fraud against EU budgetary means is often discussed and sometimes mocked at as one of those weak spots of EU bureaucracy. Over the past decades many initiatives have been taken to provide a better protection of the EU budget against illegal activity. Important steps were the conclusion of a special Convention on the protection of the financial interests of the European Community (EC) in 1995 and the establishment in 1999 of an agency attached to the European Commission entrusted with investigative powers to combat fraud against the EC budget, known as OLAF. However, criminal prosecution of such offences, often of a cross-border nature, remained the prerogative of the Member States. Despite the efforts of EU bodies such as OLAF and later also Europol and Eurojust, prosecution of these offences by the relevant national authorities used to be sidelined in the priority schemes and fragmented between various jurisdictions, thus remaining far from effective and deterrent. Therefore, the presentation last year, after many years of research and documentation, by the Commission of the proposal to establish a truly European public prosecutor’s office (EPPO) appeared a fresh breakthrough in this extremely complex and intricate area.

One of the most delicate questions to be resolved concerns the relationship with the national authorities holding in each Member State the monopoly of prosecutorial operations. At first sight the Commission proposal looks like Columbus egg on this point. It aims at a central European Public Prosecutor (EPP) directing in each Member State one or more European Delegated Prosecutors (EDP) who investigate cases and eventually bring them in the competent national courts. These EDP’s act in a double capacity. They are at the same time integral part of the European prosecutor’s office and public prosecutor of the Member State in question and can as such rely on the whole national machinery involved in prosecutorial operations. This is an unprecedented move by which, for the specific area of EU fraud, the national prosecution authorities become an instrument directed by the central EPP.

This approach has immediately given rise to controversy. No less than 14 national chambers of 11 different parliamentary assemblies have drawn the ‘yellow card’, stating that they found it in breach with the principle of subsidiarity. The Commission, however, has maintained its proposal without modifying a syllable. Nevertheless, while the European Parliament has adopted a resolution giving full support to the proposal, negotiations in the EU Council apparently rather tend to introduce a completely different structure based on a college model much in the vein of the existing Eurojust structure. Besides, not all Member States are willing to participate in the project. However, on the basis of a special procedure of so called enhanced procedure a smaller group of at least nine Member States could be allowed to go for it.

In September last year the T.M.C. Asser Instituut held a first academic conference on the proposal and the multitude of questions it raises. The conference debates have resulted in a volume bringing the contributions to the conference together under the title ‘The European Public Prosecutor’s Office, An Extended Arm or a Two-Headed Dragon?’ edited by L.H. Erkelens, M. Pawlik and myself and published by Asser Press. The book will be launched at a presentation at the premises of the T.M.C. Asser Instituut on November 14, opened by former Dutch Minister of Justice Ernst Hirsch Ballin, provided with a few speeches and presentations by policy makers and academics giving updates on the actual state of play as regards the proposal and followed by a forum debate between speakers and audience.  

Please go for more information on the programme and the registration form as well as references to the book to the following Asser events website page:

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