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Editorial Guest Editorial eucrim 2/2018
Almost a year has passed since the entry into force of Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (EPPO). Activities aimed at setting up this new important European body are in full swing.
The creation of a strong, efficient, and independent EPPO, which will be able to rapidly carry out its investigative functions, represents a priority for the European Commission and, in particular, for the European Anti-Fraud Office (OLAF), which I have the honour of directing since August 2018.
Setting up the EPPO is a complex task, which requires the contribution of many actors. The Commission has already put a number of steps in place, and many more are being prepared. The Commission is however not alone in this process: Member States participating in the EPPO are called on to ensure that the EPPO operates smoothly and effectively in their legal and judicial ... Read more
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 ... Read more
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 ... Read more
Use and Abuse of the Concept of Fundamental Rights
An Obstacle for Judicial Cooperation?
The focus of this article is on the challenge to which extent EU Member States cooperate. It describes the current landscape of judicial criminal cooperation in the EU, taking into account available data. Hence, one can state that cooperation tools are being increasingly used, but this creates imbalances, which naturally crop up in any cooperation system. This is the starting point for addressing a proper understanding of the various possible reactions in order to tackle these imbalances. One reaction relates to the breach of fundamental rights by the issuing Member State. The article outlines that the results of this strategy, however, could be negative in the long term. Merely mentioning fundamental rights will not make Member States more respectful of them. It is further argued that problems involving fundamental rights should be solved with already existing and tailor-made instruments for this purpose and not by altering the cooperation rationale.Read more
Fundamental Rights and Effectiveness in the European AFSJ
The Continuous and Never Easy Challenge of Striking the Right Balance
In the context of the European Union’s area of freedom, security and justice (AFSJ), “the need to strike the right balance” between the effectiveness of criminal prosecution and cooperation in criminal matters, and the protection of fundamental rights, but also between the primacy of EU law and national constitutions, is a core goal. By addressing two precise scenarios, this article attempts to show how the “needed balances” are understood. This analysis will further serve to show whether the EU is moving in the right direction in the field of cooperation matters. The first scenario will focus on the protection of fundamental rights in cross-border investigations within the context of EPPO proceedings under Regulation (EU) 2017/1939. Secondly, a number of aspects regarding the European Arrest Warrant are analysed. The author argues that, even if the AFSJ is advancing in quite a measured way, much can still be done to improve the ... Read more
A Game of Chance
The Future of the AFSJ
Abstract: The article offers a critical reflection on the ongoing debate over the “Future of Europe” scenarios envisioned in the European Commission’s White Paper of 1 March 2017. Five potential scenarios are described, which enable a peek into the future, and the article explores whether the European Union’s status quo should change towards a new, ambitious vision or just continue muddling through. The desirability and feasibility of the most favoured scenario (“those who want to do more do more” − a multi-speed Europe) will be tested in the Area of Freedom, Security and Justice (AFSJ). It will be argued that the clash between the three supposedly interlinked notions of freedom, security, and justice is the main obstacle hindering more coherence and uniformity in this area. This will be demonstrated by analysing the “root of the problem,” i.e., prison overcrowding.Read more