I. Introduction

The creation of a European Public Prosecutor’s Office (EPPO) has been a protracted process, which can be traced back to the early 2000s.¹ The EPPO Regulation was eventually adopted through enhanced cooperation² on 12 October 2017.³

The need for an EPPO stems from the lack of efficiency of the current EU anti-fraud mechanism. This mechanism relies on the EU’s Anti-Fraud Office (OLAF)’s investigations. Its main shortcoming is in the link between OLAF and national prosecuting authorities, or rather the lack thereof.⁴ Despite the undisputed expertise of its investigators, OLAF is an administrative body and therefore only able to conduct administrative investigations. OLAF is not a judicial authority, which prevents it from being able to initiate prosecutions. Hence, the follow-up to OLAF’s investigations appears to be insufficient. The Office indeed has to rely on national authorities to prosecute cases and bring offenders before the national courts. The new OLAF Regulation has slightly improved this situation by having introduced the possibility for OLAF to request national prosecuting authorities to inform it of any actions they have taken in the wake of its reports. However, there is still no obligation for national authorities to prosecute.⁵

These limitations show that the protection of the EU’s financial interests is still insufficient. Moreover, an EU body capable of initiating investigations at the European level and carrying out EU-wide investigations would be most welcome. Such an improved mechanism would also greatly benefit from harmonised procedural criminal rules at the European level. In spite of the legal basis provided for in Art 82 TFEU, the adoption of comprehensive harmonised procedural rules remains a long-term goal, although the EPPO Regulation provides for some very limited procedural rules.

The EPPO is likely to address most of these needs.⁶ It will embody a conceptual change, namely the shift from a system based exclusively on mutual recognition of investigation measures adopted by national authorities to a new mechanism also featuring decisions taken by a new European body and directly enforced in Member States.⁷

National parliaments, however, even recommended not to establish the EPPO. Within the “yellow card” procedure,⁸ they argued that there should be no European prosecutor, that criminal prosecutions should be a matter of national competence, and that the EU should maximize the use of existing legal instruments.⁹ Eighteen chambers of national parliaments have adopted a reasoned opinion, thus voting against the compliance of the proposal with the subsidiarity principle.¹⁰

Notwithstanding, the European Parliament encouraged EU institutions to establish an EPPO with a strong mandate and a good hierarchical structure. The Parliament stressed the need to adopt the EPPO in its resolution of 5 October 2016,¹¹ reaffirming its support for the proposal, with a view to reducing “the current fragmentation of national law enforcement efforts to protect the EU budget.”¹² It also called on the Council to provide “a clear set of competences and proceedings concerning the EPPO,”¹³ by including specific provisions about investigative measures in the Regulation. The competences of the EPPO are defined in reference to PIF offences, (Art. 22(1)) which are themselves defined in the Directive on the Fight against Fraud to the EU’s Financial Interests.¹⁴

The Commission’s proposal for the EPPO Regulation¹⁵ had been under negotiation within the Council for more than three years. Remarkably, the Regulation provides for shared competence between the Member States and the EPPO as regards the prosecution of PIF offences, whereas the original proposal provided for an exclusive competence of the Office.¹⁶ This should also contribute to fulfilling the subsidiarity requirement.¹⁷

The most striking change during the negotiations, however, relates to the very design of the EPPO. Member States have been advocating a shift towards a College model – allowing them to designate European Prosecutors who will be members of the European body of the Office. This change may result in an EPPO that will be less decentralized than originally foreseen in the Commission’s proposal. The currently envisaged layout can therefore be considered a mix between the decentralized and the College models.

Against this backdrop, this paper will first analyse the structure of the EPPO and then focus on specific powers that will be granted to the new body.

II. – The Hybrid Structure of the EPPO

Over the course of the negotiations, the structure of the EPPO has evolved into what can be described as a “hybrid layout”. The addition of a College made up of national representatives ensures greater control on the part of the Member States over the new European Office. The EPPO will rely on a two-level structure that consists of a central, i.e. European, level which has been considerably enlarged compared to the Commission’s plans as well as a decentralized national level, which is more or less in line with the original proposal.

1. The European level

The central body of the EPPO will be headed by a European Chief Prosecutor, together with his/her Deputies and will also include European Prosecutors representing the Member States. The main work is organised both in a College and in Chambers. This institutional setting is explained in more detail in the following.

1. The European Chief Prosecutor

The European Chief Prosecutor will head, organise, and direct the work of the EPPO (Art. 11(1)). The appointment procedure is intended to guarantee the independence of the European Chief Prosecutor. His/her “independence beyond doubt” is an eligibility condition. The European Chief Prosecutor shall be appointed by the Council and the European Parliament by “common accord” for a non-renewable seven-year term (Art. 14(1)). He/she shall be chosen from a short list of candidates approved by a selection panel (Art. 14(3). His/her two Deputies will be European Prosecutors appointed by the College (Art. 15(1)). The European Chief Prosecutor will be in charge of representing the EPPO and will have the power to delegate tasks to a Deputy (Art. 11(2), (3)).

The powers bestowed upon the European Chief Prosecutor have been reduced in comparison with those provided for in the original Commission proposal. His/her role will mainly be of a managerial nature and occasionally encompass operational aspects, e.g., deviating from the random allocation of cases. He may also chair Permanent Chambers but may delegate this power to his/her Deputies or a European Prosecutor according to the internal rules of procedure (Art. 10(1)).

1. The European Prosecutors

The European Prosecutors will be designated by the Member States, thus allowing the latter to exercise some degree of control over the EPPO. There will be one European Prosecutor per Member State. Each Member State shall submit a list of three candidates to the Council, which will appoint one of them after having taken into account the reasoned opinion of a selection panel (Art. 16(1), (2)). The role of the European Prosecutors will be to supervise investigations and prosecutions on behalf of the Permanent Chamber in charge of a case. They will act as channels of information. Moreover, the European Prosecutors will monitor the implementation of the tasks of the EPPO in their respective Member State, in compliance with both national law and the instructions given by the competent Permanent Chamber (Art. 12(1), (5)) The European Prosecutors may give instructions to European Delegated Prosecutors (hereinafter: EDPs) handling cases (Art. 12(3)). Under exceptional circumstances, a European Prosecutor may carry out an investigation himself/herself. Such circumstances might depend on the seriousness of the offence, or arise when investigations concern members of EU institutions, or even arise in case of failure of the reallocation mechanism (Art. 28(4))

1. The College

The College will comprise the European Chief Prosecutor as well as the European Prosecutors (Art. 9(1)). It will be chaired by the European Chief Prosecutor. The role of the College will be (Art. 9(2)):

– to monitor the activities of the EPPO;

– to adopt decisions on strategic matters (such as defining the prosecuting policy);

– to ensure coherence and consistency in the prosecution policy, and

– to adopt decisions on general issues arising from specific cases.

The College will also set up the Permanent Chambers [Art. 9(3)] and appoint the EDPs [Art. 17(1)) upon proposals from the European Chief Prosecutor. Furthermore, it will appoint the EPPO’s Administrative Director from a list proposed by the European Chief Prosecutor (Art. 18(2)).

The College will not have operational powers and therefore not be able to take operational decisions in individual cases. It will adopt the internal rules of procedure governing the functioning of the EPPO upon proposals from the European Chief Prosecutor (Art. 21(2)). It will also define the respective “responsibilities for the performance of functions of the members of the College and the staff of the EPPO” (Art. 9(4)).

d) The Permanent Chambers

The Permanent Chambers will be headed by the European Chief Prosecutor, or his/her Deputies, or a European Prosecutor appointed as Chair of a Chamber (Art. 10(1)). Each Chamber will consist of three members, including the Chair (Art. 10(1)). All members of the EPPO at the European level are to be part of at least one chamber. The Chambers will direct and monitor the investigations and prosecutions conducted in the Member States (Art. 10(2)). They will ensure the coordination of investigations and prosecutions in cross-border cases as well as the implementation of decisions taken by the College on strategic matters and on prosecution policy matters (Art. 10(2)). To this end, the Chambers will be able to take such decisions as (Art. 10(3 and 4):

– initiating an investigation;

– allocating a case;

– determining the Member State in which a prosecution shall be brought to court;

– bringing a prosecution to court;

– dismissing a case;

– referring a case to national authorities;

– reopening a case, or

– referring to the College strategic matters or matters of prosecution policy.

The role granted to the Permanent Chambers by the Regulation therefore appears to be extremely important. They will be responsible for making most of the key operational decisions when investigations are conducted. This is remarkable and represents a significant departure from the approach originally envisaged by the Commission. However, in cases of lesser importance, the Permanent Chambers will be able to delegate their decision-making powers to the European Prosecutors. This might increase the control exercised by the Member States over the EPPO.

2. The national level: European Delegated Prosecutors

In line with the subsidiarity principle, the EPPO will carry out investigations and prosecute at the national level. Such will be the task bestowed on EDPs, who will be responsible for conducting investigations they have initiated, or taken over due to the right of evocation, or which will have been allocated to them (Art 13(1) and Art 26(1), (2)). If several offences were committed in several Member States, the competent EDP will be from the Member State in which the bulk of offences were committed (Art. 26(4)). EDPs may also be allocated cases that were initiated in another Member State should a Permanent Chamber decide to reallocate them.

There will be at least two EDPs in each Member State (Art. 13(2)). They will be nominated by the Member States and appointed by the College upon proposal from the European Chief Prosecutor (Art. 17(1)). This is a departure from the original proposal under which EDPs were to be directly appointed by the European Chief Prosecutor. In line with the decentralised model, EDPs will “wear two hats.” They will indeed be members of both the EPPO and their own national judiciary.¹⁸ Art. 13(3) of the Regulation provides that they “may also exercise functions as national prosecutors, to the extent this does not prevent them from fulfilling their obligations” as members of the EPPO. A thorough implementation of the subsidiarity principle is apparent here, with European Delegated Prosecutors being embedded in national judicial systems.

This new hybrid architecture of the EPPO meets the Member States’ call for greater compliance with national sovereignty. It increases the Office’s complexity, however, because of the added layers: the College and the Permanent Chambers. Such complexity renders the division of tasks between the various layers more complex, which may in turn lengthen procedures and investigations. The added steps resulting from the multiplication of layers may prevent the EPPO from swiftly adopting decisions and therefore hamper the effectiveness of its action. Such delays may unfortunately arise from the link between the European level and the national level of the EPPO, e.g., in case of disagreement about the handling of a case between a European Delegated Prosecutor with decisions adopted by the competent Chamber.

3. Interim Results

In comparison to the Commission’s proposal, which designed a limited central body, the size of the EPPO at the European level will increase. This increase raises the issue of the center of gravity of the EPPO, i.e., the focal point at which the most important decisions will be taken: Will they be taken at the European level or at the national level? Within the European level, will the more European-oriented authorities − the European Chief Prosecutor, his/her Deputies, and to a lesser extent the Permanent Chambers − take the most important operational decisions, or will they be taken by European Prosecutors? Or will such decisions be taken at the decentralised level by EDPs? It appears that the Permanent Chambers will play a leading role in operational matters, whereas the powers of the European Chief Prosecutor will considerably be reduced in their extent under the original proposal. At the other end, most operational decisions regarding investigations and prosecutions will fall within the responsibility of EDPs.

The envisaged layout of the EPPO takes an integrated approach. The central body and EDPs in the Member States will coordinate their actions. This approach will also stem from the key role played by EDPs embedded in national judicial systems. Their double-hatted role will act as a guarantee for their integration into the national systems of criminal justice, thus allowing better coordination of their work with national law enforcement authorities.¹⁹

On a broader scale, the integrated approach will therefore serve to facilitate the cooperation of the Office with national judicial systems. One of the major improvements that the EPPO will bring is its ability to supervise investigations at the EU level and coordinate them between Member States. The smooth functioning of the Office shall be ensured by the specific powers granted to the EPPO. These will be presented in the following part III.

III.- Specific Powers of the EPPO

The EPPO will be granted specific powers, with a view to ensuring a trouble-free coordination between its European and national levels, as well as with national authorities. These powers that are analysed in more detail in the following are:

– to allocate cases;

– to evoke cases, and

– to adopt investigative measures.

1. The power to allocate cases

First, cases will be randomly allocated to the Permanent Chambers. The European Chief Prosecutor will however be able to decide to deviate from this random allocation where necessary for the proper functioning of the Office (Art. 10(1).

Then, the allocation of investigations and prosecutions will be performed by the Permanent Chambers. They will designate the relevant Member State for each investigation and prosecution, be responsible for directing and monitoring investigations and prosecutions conducted in the Member States, and coordinate investigations and prosecutions in cross-border cases (Art. 10(2)). To these ends, the most meaningful task of the Permanent Chambers is to give instructions to EDPs (Art. 10(4)). They will be in charge of instructing an EDP to initiate an investigation (Art. 10(4) lit. a)), and they will also decide whether to bring cases to Court, thus choosing in which Member State to do so (Art. 10(3) lit. a)).

Furthermore, the Permanent Chambers will play an increased role under specific circumstances. They will choose which Member State a case should be allocated to in situations involving the jurisdiction of more than one Member State. The rule set by Art. 26(4) of the Regulation is that a case should be “initiated and handled by a European Delegated Prosecutor from a Member State where the focus of the criminal activity is or, if several connected offences within the competence of the Office have been committed, the Member State where the bulk of the offences has been committed”. The Permanent Chambers will also be able to

- reallocate cases;

- merge or split cases;

- refer some cases to national authorities;

- dismiss cases (if need be).²⁰

2. The power to exercise the right of evocation

The EPPO will be able to take over cases initiated by national authorities, thanks to its right of evocation. The latter may be exercised by the EDP whose national authorities have initiated an investigation (Art. 27(6)). If an EDP decides not to exercise his/her right of evocation, he/she shall inform the competent Permanent Chamber through the European Prosecutor of his/her Member State. The Permanent Chamber will then take the final decision on whether to evoke the case or not (Art. 10(4) lit. b) and 27(6)).

Moreover, when an investigation into offences committed against the EU’s financial interests has already been initiated by national authorities, the latter will be required to inform the EPPO (Art. 24(2)). The Office will then decide whether to exercise its right of evocation. It will have to do so within five days, which can be extended by a reasoned decision taken by the European Chief Prosecutor for another maximum timeframe of five days (Art. 27(1)). The College may issue guidelines allowing EDPs to decide not to evoke a case if damage to the EU does not exceed € 100,000 and if the College sees no need to investigate or prosecute at the EU level (Art. 27(8)). When exercising the right of evocation, the EPPO shall consult with national authorities (Art 27(4)). If done, the latter shall transfer the proceedings to the EPPO (Art. 27(5)). National authorities may have to take any urgent measures necessary to ensure the effectiveness of investigation and prosecution (Art. 27(2)).

The latter shows in particular that the approach chosen by the Regulation will require cooperation from national authorities. Such cooperation will mainly be established through the exchange of information and evidence. It will require trust and good will on the part of both parties in order to ensure a smooth and swift flow of information. Cooperation between the EPPO and national authorities will also contribute to the integrated nature of the EPPO as outlined above. This is expected from the Member States, in compliance with the principle of sincere cooperation in accordance with Art. 4(3) TEU.

3. The power regarding investigative measures

EDPs may either undertake investigative measures themselves or instruct competent authorities in the Member States to do so (Art. 28(1)). The latter possibility was taken over from the Commission’s proposal, although it is now specifically granted to EDPs and no longer to the EPPO as a whole. This power is characteristic for the integration of EDPs into the national judicial systems and should help ensure a smooth coordination between the EPPO and national authorities. It remains to be hoped that national authorities will fully cooperate with EDPs when implementing investigative measures.

To this end, the Regulation provides for a toolbox of investigative measures that will be available as minimum standards. They will not replace national investigative measures. Such measures include, for instance:

– the right to order or request the search of premises, means of transport, private homes, and computer systems;

- the right to obtain the production of any relevant object, document or stored computer data;

– the right to freeze proceeds of crime and assets; and

– the right to intercept electronic communications.²¹

These provisions on investigative measures represent a first step towards the adoption of harmonised procedural criminal rules at the EU level. Although they will only complement national measures and not replace them, the measures contained in this toolbox will allow the EPPO to carry out EU-wide investigations in an effective manner.

As regards investigative measures to be adopted in cross-border cases, the Regulation now provides for a new cooperation mechanism between EDPs. The EDP handling a case will be able to assign an investigative measure to another EDP in another Member State (so-called assisting European Delegated Prosecutor). Therefore, there will be no need to use mutual legal assistance nor mutual recognition instruments anymore across the Member States participating in enhanced cooperation. The use of investigative measures may, however, be subject to conditions and limitations imposed by national law (Art. 30(2) and (3)), and national law will still exclusively govern any measures not provided for in this list.

Should national procedural rules of the assisting EDP require a judicial authorisation prior to performing the required investigative measure, this EDP shall request the authorisation according to his/her national law. If such an authorization is required under the law of the EDP handling the case, however, he/she shall request an authorisation beforehand, then submit it together with the assignment of the investigative measure to the assisting EDP.

This mechanism shows the complexity of building a single judicial area in the EU. Despite the integrated approach provided for in the Regulation, national law still plays the essential role. Moreover, this mechanism seems to be more ambitious than the solution provided for in the Directive on the European Investigation Order.²² In the latter, national law can be invoked under certain circumstances in order to refuse the execution of a European Investigation Order.²³ National authorities are referred to as “issuing” and “executing” authorities instead of the “handling” and “assisting” EDPs. Thus, the wording of the Regulation shows a more integrated approach, implying more direct cooperation. When an EDP seeks the arrest or surrender of an individual in another Member State, he/she must however resort to a European Arrest Warrant.²⁴ There is no specific mechanism foreseen for the EPPO in respect of extradition.

IV. Conclusion

The creation of the EPPO can be considered one of the landmark projects of the Area of Freedom, Security and Justice. After years of negotiations within the Council, a hybrid architecture of the Office has taken shape. This is the result of the requirements put forward by the Member States, which thoroughly amended the original proposal of the Commission into a more “sovereignty-friendly” direction. Indeed, such changes have unfortunately increased the complexity and probably the costs of the project.²⁵ I believe that the hybrid architecture of the EPPO will nevertheless enable better coordination between its central body and the national level. The powers granted to the EPPO (such as the right of evocation and the power to adopt investigative measures) will ensure an effective working environment and its ability to liaise with national authorities. The embedment of EDPs in national judicial systems will greatly contribute to this ability.

The final adoption of the Regulation should, in my view, pave the way for an enhanced protection of the EU’s financial interests. Hopefully, the EPPO will be able to start its work as soon as possible.²⁶ I believe that the EPPO will vastly remedy the shortcomings of the current EU anti-fraud mechanism and ensure an improved protection of the EU’s financial interests. One should also hope that its jurisdiction will soon be expanded to include other serious crimes, such as terrorism, as was recently advocated by both Commission President Juncker²⁷ and French President Macron.²⁸ Criminal organisations rely on international networks and have the ability to strike all EU Member States. Hence, the fight against major cross-border crimes (and especially terrorism) would greatly benefit from improved cooperation and from the EPPO’s ability to coordinate and monitor prosecutions.