I. Protecting the EU’s Financial Interests: A Shared Responsibility in a Complex Enforcement Environment

The protection of the EU’s financial interests (PIF) implies a shared responsibility on the part of both the Union and the Member States. In this respect, Art. 325 para. 1 TFEU recalls the multiple levels of cooperation required to counter and combat fraud and other illegal activities affecting the financial interests of the Union.

We can identify at least three levels or dimensions of cooperation in the PIF domain:

• The horizontal cooperation between the EU actors holding specific PIF responsibilities;

• The horizontal cooperation between the competent national authorities of the Member States;

• The vertical cooperation between the aforementioned EU actors and the competent national authorities of the Member States.

The intertwining of these three dimensions, coupled with the inherent cross-sectoral nature of the PIF domain¹ − in-between the administrative and the criminal law field − shapes a complex enforcement environment. In this environment, the realization of the ultimate objective – the effective protection of the EU’s financial interests – may be constantly threatened by potential failures in the coordination of the actors at any of the three levels. Also, the efficiency of the enforcement process can be affected by unnecessary duplications of efforts.

While the vertical cooperation between the EU and national actors has been extensively analyzed (particularly, in respect of its failures), the horizontal cooperation between EU actors has received less academic and institutional consideration. This contribution will focus on the cooperation between the main existing EU actors holding enforcement responsibilities in the PIF sector. Therefore, the relationship between OLAF and Europol as well as between OLAF and Eurojust is further explored in the following.²

The analysis of this trilateral relationship will follow three strands of reflection: cooperation and synergies in information exchange and intelligence (infra 2.); cooperation and operational synergies (infra 3.); and the future scenario determined by the establishment of the European Public Prosecutor’s Office (infra 4.).

At the outset, two preliminary remarks need to be made.

Firstly, the material competence of the three actors with regard to crimes affecting the financial interests of the Union may potentially overlap,³ but their tasks and enforcement powers are still different: in this context, it must be recalled that Europol and Eurojust can intervene only when a case involves two or more Member States, while OLAF can also deal with purely internal cases.

Secondly, it cannot be overlooked that, as opposed to the two agencies in the field of Justice and Home Affairs, OLAF can conduct its own administrative investigations (both internal and external) into an alleged PIF case. Such a circumstance, to a certain extent, may have an influence and differentiate the “enforcement attitude” of the three EU actors.

II. Information Exchange and Intelligence Synergies between OLAF, Europol, and Eurojust

An initial reflection should start with the synergies in information and intelligence exchange between the three existing enforcement actors: OLAF, Europol, and Eurojust.

The combination of analytical resources and expertise between OLAF and Europol, for instance through the sharing of criminal intelligence about the structures and techniques involved in committing PIF crimes, could contribute to improving the general detection and reaction capabilities of the enforcement system as a whole.

The current state of the art, however, presents certain limits, with regard both to the “patchwork nature” of provisions on the exchange of information between the EU actors as well as to the still fragmented data protection regimes that are applicable.⁴

The essential framework for the information exchange between OLAF and Europol is still provided by an administrative agreement concluded in 2004.⁵ It allows for a bidirectional exchange of strategic⁶ and technical⁷ information but not of personal data.⁸

A future structural bilateral exchange of personal data between the two entities will be possible after the conclusion of a new agreement;⁹ in particular, OLAF’s access to and the subsequent exchange of information stored by Europol will be possible on the basis of a “hit/no hit” system: in case of a “hit” in the Europol Information System, Europol will have to initiate the procedure to share the related information with OLAF.

Two caveats, however, will apply in this context: any sharing, indeed, will be possible “only to the extent that the data generating the hit are necessary for the performance of [...] OLAF’s tasks”¹⁰ and, most importantly, in accordance with the restrictions indicated by the provider of the information.¹¹ This last condition could imply that the information and data provided to Europol by the Member States might present very different degrees of availability to OLAF, for instance when the providing Member State opposed a general limitation to the exchange of the information with non-judicial or non-police authorities.

A further issue that concerns informative synergies belongs to the possibility to associate OLAF’s experts to specific Europol Focal Points¹² (in particular those on cigarette smuggling, intellectual property, and VAT fraud), previously foreseen under Art. 14 para. 8 of the 2009 Europol Decision¹³ and not recasted in the new Europol Regulation. It cannot be ruled out, however, that such an opportunity to enhance analytical synergies might still be regulated in the new working agreement between OLAF and Europol.

The information exchange between OLAF and Eurojust is currently based on a cooperation agreement signed by the two entities in 2008.¹⁴ In contrast to the agreement with Europol, the Eurojust agreement expressly allows for the exchange of personal data.¹⁵

Under this framework, the OLAF and Eurojust are able to preliminarily exchange general information (“case summaries”) in order to identify cases for collaboration¹⁶ and, as a second step (once the cases have been identified and cooperation has begun), to exchange “case-related information” that may include personal data.

Strategic information − meaning intelligence on structures, links, modus operandi, and forms of financing of organizations involved in the commission of PIF offences − can be shared as well.

Beyond the formal legal framework, however, it cannot be ignored that the institutional relationship between OLAF and Eurojust has actually been a troubled one, marked – especially at its beginning − by a latent antagonism between the two entities¹⁷ and by a certain reluctance on the part of the Member States to share information on criminal investigations and prosecutions with a non-judicial entity.¹⁸

III. Operational Synergies and General Improvements of Enforcement in the Current Scenario

Beyond the informative level, operational synergies between the three main EU actors is marked by their involvement in Joint Investigation Teams (JITs),¹⁹ by the possibility of achieving a better joint coordination of the national authorities, and by increasing the chances of a national judicial follow-up of coordinated cases.

Firstly, OLAF, Europol, and Eurojust can separately or jointly promote a JIT, by recommending its establishment to the national authorities when the information they possess indicates its usefulness. As to the participation of OLAF, Europol or Eurojust in JITs, all the different cooperation agreements concluded by the three actors provide that, whenever possible, each party should inform the other about its involvement in a JIT relating to fraud, corruption, or any criminal offence affecting the Union’s financial interests.²⁰ In addition, in the case of the Eurojust-OLAF agreement, each party is also required to propose inviting the other party to join the JIT to the Member States.

Secondly, with regard to the possibility of achieving a better joint coordination of the national authorities involved in a case, several provisions already allow for the consultation²¹ and association of the other relevant EU actors in the coordination activities. It should be noted, however, that, in the current Eurojust Decision, the possibility to involve OLAF in the coordination of investigations and prosecutions for PIF crimes is still conditional upon the non-opposition of the national authorities.²²

Thirdly, the judicial follow-up of OLAF’s recommendations has been defined the “Achilles heel”²³ of the PIF enforcement system: the most recent statistics provided by OLAF on the actions taken by national judicial authorities following an OLAF recommendation present an unchanged average indictment rate of 47%.²⁴ From this perspective, a closer operational synergy between OLAF and Eurojust might potentially positively impact the attitude of the national authorities. Eurojust, through its national members, might persuade the national judicial authorities to launch a criminal proceeding following OLAF’s recommendation.²⁵ It must be born in mind, however, that, in the current scenario, Eurojust intervention against the national judicial authorities can only succeed through persuasion or consensus: Art. 85 para. 1 (a) TFEU,²⁶ indeed, only refers to the possibility for Eurojust to “propose” the initiation of prosecutions to the competent national authorities, yet without involving binding powers.²⁷

The foregoing considerations on the judicial follow up of OLAF’s administrative investigations leads me to the third part of my reflections: the future scenario and horizontal cooperation between the EU actors after the establishment of the European Public Prosecutor’s Office.

IV. Future Scenario Following the Establishment of the EPPO

The establishment of the European Public Prosecutor’s Office (EPPO) will represent a radical change in the PIF enforcement environment in all of its dimensions: in particular, it will inevitably reshape the cooperative relationship between the existing EU actors. For the purpose of the following reflections, I will focus on the relationship of the EPPO with Europol and with Eurojust and on the future role of OLAF. In doing so, I will refer to the latest available version of the draft text currently being negotiated in the Council.²⁸

1. The relationship with Europol

The relationship between the EPPO and Europol is foreseen by Art. 86 para. 2 of the Treaty on the Functioning of the European Union (TFEU). ²⁹

According to the Treaty, the EPPO will carry its tasks (investigate, prosecute and bring to judgment perpetrators of PIF offences) “where appropriate, in liaison with Europol”. At a first sight, this vague wording had also suggested the idea of Europol as a sort of police judiciaire of the EPPO. However, the express exclusion of direct and coercive powers of investigation upon Europol (Art. 88 para. 3 TFEU) put a significant limit to the viability of such an option.

In any case, Europol’s informative and intelligence support might prove essential for the activities of the future EPPO: not an armed wing, but a well-connected brain.

Nonetheless, the current provisions on cooperation with Europol as foreseen in the draft Regulation on the EPPO appear rather minimal. They mainly refer the modalities of collaboration to the conclusion of a future working agreement and require – in a general way – Europol to provide information and analytical support upon request of the EPPO.³⁰

2. The relationship with Eurojust

The relationship between the EPPO and Eurojust is also established by the TFEU.³¹ The EPPO, according to a much debated provision³², should be established “from Eurojust”. After the Commission’s Proposal it is clear that the two entities will coexist and shall develop a “special relationship”.

The relationship between these two actors will be characterized by several specific aspects and dependent on several circumstances. A first peculiarity would derive from the fact that the EPPO may be established by way of enhanced cooperation. In this scenario, the EPPO will need to resort to Eurojust in order to ensure coordination of its activities with the authorities of the non–participating Member States.

Furthermore, the need for cooperation will also depend on the scope of the competence of the EPPO with regard to the so-called “ancillary offences.”³³ The stricter the competence assigned to the EPPO regarding these offences, the more it will need the support and assistance of Eurojust to coordinate related national investigations and prosecutions and to avoid inconsistent − or even detrimental − outcomes.

The current Art. 57 of the draft text of the EPPO Regulation shapes the general terms of this “special” relationship: Eurojust, in particular, should be associated to the EPPO activities in order to facilitate the transmission and execution of MLA requests towards non-participating Member States and third countries and to share information on investigations, including personal data. In regard to this latter need for information and intelligence synergies, the draft text provides the EPPO with indirect access to the Eurojust Case Management System on a “hit/no hit” basis.³⁴

3. The future role of OLAF

While the original Commission proposal on the EPPO foresaw a strong limitation of OLAF’s role, the new negotiating text reshapes the relationship between the criminal law and the administrative actors in terms of complementarity.³⁵

Complementarity mainly implies that OLAF should not, in principle, conduct administrative investigations into the same facts being investigated by the EPPO, unless the EPPO either decides to dismiss the case or expressly requires OLAF’s support.³⁶

To this end, Art. 57a of the draft text specifies the possible contents of such OLAF on-call support by referring to the following issues:

• the provision of information, analyses, expertise, and operational support;

• the coordination of specific actions of the competent national administrative authorities;

• the performance of administrative investigations.³⁷

Ultimately, OLAF might potentially play a consultative role in the context of certain decisions of the EPPO, such as the exceptional exercise of its competence with regard to PIF offences causing damage under 10,000 euros, according to the current Art. 20 para. 2 of the draft text on the EPPO Regulation.³⁸

V. Conclusions

The current architecture of PIF enforcement at the EU level presents several complexities: this contribution tried to briefly highlight the possible synergies between the EU Actors holding responsibilities in this peculiar field. Notwithstanding certain positive elements pertaining to information exchange and operational cooperation can be already retraced in the current scenario, fragmentation yet appears as the main feature of the existing legal framework.

In this perspective, the future establishment of the EPPO could in principle bring more coherence and reduce the risks deriving from the work of “too many hands” on the same issue: nonetheless, the actual success of such scenario and the persisting need and degree of involvement of different EU Actors in the enforcement process will ultimately depend by the concrete design of the EPPO, by the definition of its material competence and by the geographical scope of its jurisdiction³⁹.