Establishing an European Public Prosecutor Office

European Journal of Crime, Criminal Law and Criminal Justice 21 (2013) 115–125

© Koninklijke Brill NV, Leiden, 2013 DOI: 10.1163/15718174-21022023

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Editorial

The Proposal for a Regulation on the Establishment of an European Public Prosecutor’s Office: Everything Changes, or

Nothing Changes?

Michele Caianiello*

Department of Juridical Sciences, School of Law, Alma Mater Studiorum, University of Bologna, Bologna, Italy

1. Introduction

As announced on various occasions, on July 17th 2013 the Commission finally pre-sented a proposal for regulation on the establishment of an European Public Prosecutor’s Office (EPPO).1

Of course we cannot tell, so far, if the European Union will ever have a Public Prosecutor, as there are too many variables at stake. It is almost sure that unanim-ity will not be reached2; it is possible, but far from sure, that the establishment of the EPPO will eventually come into being through enhanced cooperation. However, and despite all the possible variables, we can affirm that — as André Klip pointed out — the realpolitik of the day makes this possibility more probable

* E-mail:[email protected]. I am in debt with Maria Laura Ferioli and Michele Simonato for their helpful comments and remarks on the first drafts of this editorial.1) See Commission Document 2013/0255, Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office. The text of the proposal is available online at http://ec .europa.eu/justice/newsroom/criminal/news/130717_en.htm.2) As provided for in para. 47 of the introductory remarks, the United Kingdom, Ireland and Denmark will not be part of the EPPO. The United Kingdom and Ireland will maintain the opt-in prerogative, while Denmark will remain out of the system.

116 M. Caianiello / European Journal of Crime, Criminal Law and Criminal Justice 21 (2013) 115–125

than not, as it is confirmed by the recent proposal of regulation (hereinafter, EPPO’s proposal).

Therefore, it is worth keeping our attention on this issue, which is probably the most topical in the current EU criminal policy agenda. For the first time in a while,3 we have a legal text as a field of analysis, rather than theoretical projects or studies. In my contribution I will focus on various procedural aspects of the EPPO’s proposal, with the goal of drawing some preliminary considerations on the pre-dictable identity of the EPPO, as emerging from the Commission’s proposal.

2. The Goal of the Commission: Reducing Complexity

The first aspect which is worth considering concerns the approach taken by the Commission in its proposal. Far from focusing merely on the EPPO, the Commission is aware that the establishing of the EPPO is likely to interfere with other existent bodies. Therefore, the EPPO proposal is part of a more comprehensive legislative package, which includes regulations on Eurojust and OLAF. The same day of the EPPO’s proposal, the Commission presented two other proposals, dealing, respec-tively, with Eurojust4 and re-launched the idea of reforming OLAF.5 This approach has indeed to be welcomed. The comprehensive plan unequivocally shows that the Commission is aware of the urgent need for simplification, at any level, in EU criminal matters.

Complexity has been so far the actual mark of the EU criminal justice. This is due to various factors. The first cause can be called “sources’ complexity”, and it is well known to any jurist who has been required to apply (or refer to) Union provisions in criminal matters. Since 1992, the European Union has introduced various legal sources in criminal matters, each one different from the other for characteristics and effects. Starting with the first soft law sources — such as the 1992 common positions and recommendations — we had, at the end of the last century (1997-1999), the so-called “semi-hard sources”, such as the Framework Decisions. These sources proved to be far more effective than the EU

3) See, for the various projects presented in the last 18 years, L. Hamran and E. Szabova, ‘European Public Prosecutor’s Office: Cui Bono?’, 4 New Journal of European Criminal Law (2013), 40-58. See, more generally, M. Zwiers, The European Public Prosecutor’s Office, Analysis of a Multilevel Criminal Justice System (Maastricht: Maastricht University, 2011).4) See Commission Document 2013/0256, Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Criminal Justice Cooperation (Eurojust), available at the website cited in note 1.5) See Commission Document (2013) 533, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Improving OLAF’s governance and reinforcing procedural safeguards in investigations: A step-by-step approach to accompany the establishment of the European Public Prosecutor’s Office.

M. Caianiello / European Journal of Crime, Criminal Law and Criminal Justice 21 (2013) 115–125 117

expected and, since the Pupino case,6 they have been recognised to have a direct impact on the national criminal justice systems. Finally, after Lisbon, the whole area of freedom security and justice has been moved under the traditional First Pillar sources (i.e., directives and regulations). The result of the mentioned reforms is a multilevel system, in which various existing sources produce different effects within the same field. Things are not going to be solved after the expiring of the 5 years term pursuant to Article 10 of Protocol 36 on Transitional Provisions of the Lisbon Treaty. According to this provision, after 5 years from the entry into force of the Treaty, the Commission and the European Court of Justice will be able to exercise their powers without restrictions on the Framework Decisions (FD),7 which are the most relevant pre-Lisbon sources adopted by the Union in criminal matters. FD, however, when not replaced by directives, do not become self-executing, and national judges will solely be bound by the duty of consistent interpretation.

The above considerations do not give the whole picture of the “sources com-plexity”; the most difficult and intriguing aspect, in fact, has yet to be addressed. It regards the direct applicability of the Charter of Fundamental Rights by the Member States and the parallel disapplication of the national laws which are inconsistent to it. Last January, the question whether the Charter provisions are directly applicable by national judges was given a positive answer by the European Court of Justice in the Åkerberg case.8 Furthermore, the last issue involved by the problem of sources complexity concerns, indirectly and through Article 52 of the Charter, the direct applicability of the ECHR - as Union law – in spite of national provisions contrasting with it.

The second reason for complexity is cultural, and it is due to the principle of mutual recognition. It is true that mutual recognition, by nature, implies the absence of common minimum rules.9 However, the success of mutual recognition bears some costs. One of them is uncertainty and complexity. In procedural mat-ters, for example, judges are more keen to look at the general principles rather than abiding by the rules. In other words, judges are more concerned with fair-ness, which often implies a certain degree of discretion, rather than legality, which requires a strict observance of every single provision. This is mostly due to mutual

6) 16 June 2005, criminal proceedings against Maria Pupino, C-105/03. See A. Klip, European Criminal Law. An Integrative Approach, 2nd edn (Antwerp: Intersentia, 2012), p. 53.7) A. Klip, loc. cit., p. 128.8) 26 February 2013, Åkerberg, C-617/10.9) See A. Klip, ‘European Criminal Policy’, 19 European Journal of Crime, Criminal Law and Criminal Justice (2012) , 3-13, at p. 5: “the success of the European Arrest Warrant, operating successfully in an environment of non-harmonised substantive criminal law, is evidence of the fact that cooperation on the basis of mutual recognition can work very well without common substantive criminal rules”.


recognition: if a judicial decision adopted in State A has the same value as the one adopted in State B — for the bare reason that all the EU Member States (claim to) observe the same general principles — the strict observation of national rules will be deemed less relevant by the judges, and many procedural violations will end up to be considered harmless, as long as the fairness of the proceedings as a whole is observed.

Finally, the third cause of complexity is institutional. In the EU framework, on the one side, those EU bodies having a role in the criminal field are not operative, and have competence mostly (and almost only) at coordination/cooperation level. This is in particular the case for Eurojust, for Europol, and for European Judicial Network. On the other, operative institutions have not a formal compe-tence on criminal matters, such as OLAF and the competition enforcement system.10

If we look at all these features from the perspective of the citizens, some con-cerns relating to simplification seem to arise, and in need to be solved. The fact that the Commission has presented a whole package of reforms can be seen as an acknowledgment of this need.

Article 86 TFEU can be viewed as an occasion to simplify the system, as it paves the way to unification: not so much to legal unification (which per se would not be a solution, since the provisions will have to be applied in 28 different legal jurisdic-tions) as to partial institutional unification, providing for a centralised and unified body for investigations and prosecutions in certain areas of criminal law. It is true that adjudication remains in the hands of national jurisdictions, and therefore institutional unification — even in the limited area of the crimes affecting the financial interest of the Union — is far from being completely reached. However, in pure theory, nothing would prevent to imagine an EU Court of last resort com-petent to check on the overall fairness of the procedure initiated by the EPPO at the end of its investigations. This hypothetical court could give to the whole system — even the part that remained non-unified — a certain degree of consis-tency, and, from the perspective of the EU citizens, of predictability.

3. Some Key Provisions at a Glance

Looking at the EPPO’s provisions, some elements seem to play a key role. They are the EPPO cost-efficient and decentralised structure, the crucial role of the Member States, the multilevel and integrated normative system and the free circulation of the evidence.

10) See A. Klip, European Criminal Law, cit., p. 454-459; M. Zwiers, loc. cit., p. 34.


3.1. A Cost-Efficient and Decentralised Structure

The press release accompanying the EPPO’s proposal11 defines the EPPO structure as decentralised and cost-efficient. In particular, the structure will be composed of a central office, where will reside the European Public Prosecutor (EPP) and its four Deputies (Article 6, paras 1 and 2), and the European Delegated Prosecutors (EDP/EDPs), at least one for each Member State (Article 6, para 5). The EDP shall act under the exclusive authority of the EPP and follow only its instructions, guidelines and decisions when they carry out investigations and prosecutions assigned to them. They will however be permitted to exercise their function as national prosecutors (Article 6, para. 6).12

This makes a structure of, at least, 29 members: The EPP, 4 Deputies, and at least 25 EDPs, assuming that all the member States — with the exception of the United Kingdom, Ireland and Denmark — will be part of the EPPO. It is not much, if the goal is that investigations and prosecution will be carried out personally by mem-bers of the structure. As usual, this can be seen either with optimism or with scep-ticism. From the former perspective, one can outline that the new institution will have a cost-efficient structure, and will not weigh excessively on the EU budget. From the latter perspective, however, one could wonder whether the EPPO will be able to act directly in practice, or if it will remain overly dependent from the will-ingness and ability of the Member States authorities.

Looking at the internal functioning of the EPPO, a vertical relationship seems to be established among the different levels of the structure. On the one side, at the central office, the Deputies shall operate under the direction and supervision of the EPP, who can also opt for exercising her/his authority directly (Article 6, para. 4); on the other, as previously outlined, the EDP shall act under the exclusive authority of the EPP, following her/his instructions. Moreover, when operating as national prosecutors, the EPP can instruct the EDP to give priority to their func-tions deriving from the EPPO regulation. Finally, the EPP may reallocate the case to another EDP or undertake directly the investigation and prosecution (Article 18, paras 5 and 6). The provisions concerning the appointment and dismissal of the members of the EPPO confirm the vertical relationship between the central office and the EDPs.13 While the EPP and the Deputies are elected with a procedure that

11) See Protecting taxpayers’ money against fraud: Commission proposes European Public Prosecutor’s Office and reinforces OLAF procedural guarantees, available at the website cited in note 1.12) This sounds as an implementation of the “double hat” model: The EDPs would maintain their status within their respective national justice systems and would simultaneously form part of the European office. See K. Ligeti and M. Simonato, ‘The European Public Prosecutor’s Office: Towards a Truly European Prosecution Service?’, 4 New Journal of European Criminal Law (2013), 7-21, at p. 15.13) In this regard, one needs to acknowledge that the relationship between the EPP and its Deputies seems rather less vertical. On the one side, the Deputies are appointed according to the same rules


gives them a strong political mandate (the appointment is issued by the Council with the consent of the European Parliament), the EDPs are appointed directly by the EPP from a list of three candidates submitted by the Member State concerned. Besides, the EPP may dismiss an EDP if she/he considers they do not fulfil the requirement provided for their appointment anymore.

These provisions seem to give preference to a vertical structure, rather than a collegial one.14 In conclusion, the new office will be likely to operate rather effi-ciently at decisional level; however, its cost-efficient structure might give rise to some problems when it comes to the enforcement the adopted decisions.

3.2. The Crucial Role of the Member States

The considerations made above make clear that, in practice, at operational level the acts of the EPPO will rely on cooperation with Member States. On the one side, the Central Office of the EPPO will not have the resources to intervene directly in every case, and it will mostly limit itself to give instructions and moni-tor the investigations carried out by the EDP. On the other side, if the number of the EDPs will not increase, they themselves could not be able to conduct directly the necessary actions for the investigation and the prosecution. This leads to the conclusion that they will make large use of Article 18, para. 1, which empowers the EDPs to give instructions to the competent law enforcement authorities in the Member State, which shall execute the investigation measures assigned to them. If we consider that the EPPO will not have the possibility to rely on an EU police force, and that the investigations will be conducted accordingly, in most part, to the national procedure, it seems likely that the national authorities will continue to carry out the most part of the operations, while the EDPs and the EPP will coop-erate in monitoring and coordinating the investigations, which will often have a cross-border dimension.

3.3. A Multilevel and Integrated Normative System

The EPPO’s proposal envisages a multilevel and integrated normative system, both on substantive and procedural matters. The system is multilevel because it involves various EU sources, at different levels. The regulation aims at respecting the rights enshrined in the Charter of Fundamental Rights of the EU (and the

as the EPP. On the other, the EPP does not have the power to dismiss them, while s/he can only take initiative at this aim.14) A proposal for a collegial structure was presented to the public debate few months ago by France and Germany. See the Document Common Position of the Ministers of Justice of France and Germany on the European Public Prosecutor’s Office (current as of 4 March 2013), available online at: http://eppo-project.eu/design/eppodesign/pdf/converted/index.html?url=b0212eec88f918c78c4c6840e8ccf091.pdf&search=.


principle of proportionality); the investigations and prosecution of the EPPO are governed by the regulation’s provision; however, in the field of the defence’s rights, the recent directives adopted by the EU according to Article 82 TFEU on interpre-tation and translation, on information, and the forthcoming directives (on access to a lawyer, on the right to silence and on the presumption of innocence) are called to play the main role.

Finally, the system is integrated because, when a matter is not regulated by the EPPO’s normative framework, the national law of the State on whose territory the proceedings are conducted will have to be applied. Integration is also provided in practice. Judicial review, for example, is a task assigned to national jurisdictions. Article 26, para. 4 states that the competent judicial authority of the Member State shall issue the judicial authorisation for the investigative measures to be carried out on their territory. National judges are also called to solve the thorny issue of the ancillary competences.

According to Article 13, the EPPO will have competence not only on the crimes affecting the financial interests of the EU, but also on those that are inextricably linked to them. An inextricable link is not enough to trigger the EPPO’s compe-tence. Article 13 requires that the offences devolved to the main competence of the EPPO (those concerning the financial interests of the Union) be preponderant; finally, it is necessary that all the crimes, those devolved to the main competence of the EPPO and those included in force of the ancillary competence are based on the same facts.

It is not difficult to predict that this provision will be extremely problematic and open to various and inconsistent decisions in different cases. The final word on this point - that is, as regards the ancillary competence, the problem of who is in charge of the investigations (national prosecutor or the EPPO?) - is given to the national judges. According to Article 13, para. 3, in fact, national judicial authority competent to decide on the attribution of competences concerning prosecution at national level shall decide on ancillary competence, when a disagreement between the EPPO and the national prosecution institution takes place.

Finally, giving a short glance to substantial provisions, the Commission opted for the use of the directive. The definitions of offences and penalties, in fact, is left to the 2013 proposal on the criminal offences affecting the financial interests of the Union, which has not yet been approved by the legislator. As André Klip has pointed out, the EPPO will have to rely on a legislation where the imple-mented criminal definitions apply. As Europol and Eurojust, the EPPO will end up using a “fictional definition of an offence”,15 whose content can be found

15) A. Klip, ‘The Substantive Criminal Law Jurisdiction of the European Public Prosecutor’s Office’, 20 European Journal of Crime, Criminal Law and Criminal Justice (2012), 367-376, at p. 372.


both in the directive, which only provides for the general framework of the offences, and in the national implementing legislation, which shapes the real content of the crime (and varies according to the margin of appreciation adopted by each Member State). As the case will necessarily be brought before a national court, the national level will play a decisive role for the adjudication of the case.16

3.4. Free Circulation of the Evidence

One final crucial aspect concerns the free circulation of the evidence. Regardless of the judicial authorisation granted at the national level, all the investigative products collected by the EPPO according to Article 26 will be free to circulate in the new area over which the EPPO exercises its competence. When national courts are required to admit evidence presented by the EPPO, they will only have to verify if they jeopardise the fairness of the proceedings or the rights of the defence as protected by Articles 47 and 48 of the Charter of Fundamental Rights. If this is not the case, the evidence will be admitted without any validation or analogous deci-sion from the judges, even if the national law of the Member State sets forth differ-ent rules on the collection or the presentation of such evidence.

In simple words, this seems to realise the objective of the mutual recognition of evidence provided at Article 82, para. 2(a) TFEU (a provision concerning coopera-tion, and not unification). Irrespective of the way in which they have been gath-ered, and as long as some few general EU principles are not violated, evidence will be considered an EU product free to circulate throughout the Union. Specific national rules on evidence may not be invoked, as mutual trust will prevail. Once admitted, according to Article 30, para. 2, they will be freely assessed (the French post-revolutionary intime conviction). This provision implicitly affirms that no rules on corroboration will apply, even if, for the same evidence, national rules would require it. One could argue that this solution does not completely fulfil the provisions of the Treaty. Article 86, para. 3, in fact, seems to require unification rather than mutual recognition. However, one cannot overlook the fact that any international criminal system — being obliged to rely mostly on the States’ coop-eration17 — is highly reluctant to elaborate strict exclusionary rules on evidence, because this could undermine the efficacy of the States’ cooperation, and eventu-ally of the law enforcement by the international institution. In this respect, one

16) A. Klip, loc. cit., p. 373.17) M. Caianiello, ‘Models of Judicial Cooperation with Ad Hoc Tribunals and with the Permanent International Criminal Court in Europe’, in S. Ruggeri (ed.), Transnational Inquiries and the Protection of Fundamental Rights in Criminal Proceedings Transnational Inquiries and the Protection of Fundamental Rights in Criminal Proceedings (Heidelberg: Springer, 2013), 111-124.


example can be found in Article 69, para. 7 of the ICC Statute, and in the case law concerning its application.18

4. The Identity of the New European Service

A first glance to the general picture emerging from the EPPO’s proposal shows an institution which is much more devoted to cooperation and coordination than direct intervention in the areas of its competence. EPPO appears to be a decentral-ised structure, with a rather reduced number of personnel. Given the hierarchy that regulates the relations between its members, its capacity to take decisions seems effective. However, the enforcement of the decisions adopted is almost completely left in the hands of the Member States. This is due to several reasons. The first one is structural, as the authorities (police and judges) called to enforce the legal provisions of the EPPO are national; but even with respect to the only institution which should be European (the prosecutor), its inherent limits will require close cooperation with national authorities. To say it differently, national prosecutors will have the main role at the practical level, whereas the EDPs and the EPP will monitor the investigations conducted by the formers, intervening directly only in sporadic and possibly emblematic cases. The second reason is leg-islative. National law will play a key role with respect to the definition of the crimes and the judicial authorisation of the investigative measures. Moreover, judicial review will take place only at the national level, whereas the European Court of Justice will be confined to intervene on the sole preliminary rulings concerning the interpretation of the EU law.19 Instead of adopting a unified body of norms, the Commission opted for an integrated system, in which national laws will be prevailing, while the products of the investigation will be free to circulate accord-ing to the principle of mutual recognition.20

In the end, the EPPO’s proposal looks more like an enhanced coordination and cooperation office than the first institution of a unified federal criminal justice system, as Article 86 TFEU would have allowed. It looks more like a “reinforced

18) See H. Fartofer, ‘Evidence’, in C. Safferling (ed.), International Criminal Procedure (Oxford: Oxford University Press, 2012) , p. 499-505; M. Caianiello, ‘First Decisions on the Admission of Evidence at ICC Trials A Blending of Accusatorial and Inquisitorial Models?’, 9 Journal of International Criminal Justice (2011), 385-410, at p. 398-400.19) Article 36 provides that: “Where provisions of national law are rendered applicable by this Regulation, such provisions shall not be considered as provisions of Union law for the purpose of Article 267 of the Treaty.”20) Against the idea that the EPPO might rely mostly on mutual recognition, especially for what concerns the admissibility of evidence, see K. Ligeti, ‘The European Public Prosecutor’s Office: Which Model?’, in A. Klip (ed.), Substantive Criminal of the European Union (Antwerp: Maklu, 2011), p. 62.


Eurojust” than an European Public Prosecutor Office, that is, an organ empowered to give orders to the judicial authorities of the Member States rather than inter-vene directly in the field.21 Finally, one has to regret the fact that, once again, the Commission has not found the political agreement to give Eurojust all the powers provided for by Article 85 TFEU. The new proposal for a regulation on Eurojust, in fact, enhances the competences of the agency only in the field of exchanging information, assistance to national judicial authorities, providing consultation and operational, technical and financial support. However, when it comes to the real powers of Eurojust, it turns out that it will continue to ask rather than order the Member States to take certain initiatives. Therefore, the Eurojust regulation’s proposal appears more relevant for its administrative and managerial provisions, and for the rules concerning the internal functioning of the agency, rather than for the actual powers which are given to it.

If we look at the new legislative package presented by the Commission, in light of the needs for simplification and efficacy in law enforcement and rights protec-tion, one is tempted to mention what Gioacchino Rossini said to a young musician who had asked for his opinion on a new opera he composed: there is something new, and there is something good; however, the good is not new, while the new is not good. In our case, the new, rather than not good, is not enough (not enough simplification and unification, despite the overall approach, which is per se remarkable). At the same time, what is not new is much too preponderant (an excessive reliance on cooperation, coordination, and mutual recognition).

One possible amendment could be the creation of an European Court of last resort, entrusted with the task of assuring uniformity to such a complex body of rules. This could happen when the European Union will accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The ECtHR, after that moment, might become such a Court of last resort (even though, being this Court prevailingly focused on the fairness of the single cases before it rather than on the uniform and consistent interpretation of the law, it seems unlikely that it will ensure a high degree of uniformity and consistency). The best option, in my opinion, would be represented by the European Court of Justice, if it will decide to extend its powers to give preliminary rulings on national provi-sions that are applied by national jurisdiction pursuant to the EPPO’s regulation (that is, as part of the EPPO system, and despite its multilevel and integrated nature).

The EPPO is not an obligation for the EU legislator, as Article 86 TFEU makes clear. At the same time, its necessity at the empirical level can be debated.

21) On Article 85 TFEU and the possible development of Eurojust, see A. Weyembergh, ‘The Development of Eurojust: Potential and Limitations of Article 85 of TFEU’, 2 New Journal of European Criminal Law (2011), 75-99.


The data concerning the EU frauds are far from being undisputed,22 and one could state that in the end they do not affect so vigorously the EU budget. Furthermore, the needs expressed by the national (and also by the EU) institutions that could be involved in the EPPO system seem to require more cooperation and coordination, than unification.23

However, if the political willingness will be in favour of the EPPO’s establish-ment, the work needs to be done with courage and with a broad perspective. The worst scenario, in my opinion, would consist in an ineffective policy of too small, and too few steps. As all judicial institutions, the EPPO, which represents the most ambitious product of the Treaty of Lisbon in criminal matters, deals with nothing less than the core of the EU identity, as was the case, over 60 years ago, with the entering into force of the ECHR and the establishment of its Court. The creation of an ambiguous institution, incapable of entailing any real change, could be det-rimental and bear some negative effects on the whole EU criminal policy.

22) A. Klip, loc. cit., 368-369.23) See the report written by Marianne Wade on the EuroNeeds Reseaarch: M. Wade, ‘EuroNEEDs. Evaluating the need for and the needs of a European Criminal Justice System’, available online at: http://www.mpicc.de/shared/data/pdf/euroneeds_report_jan_2011.pdf.

Establishing an European Public Prosecutor Office

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