I. Introduction

The legal definition of judicial authority differs among the legal systems of the Member States of the European Union. Although we cannot claim that there is a pan-European concept of judicial authority, the Court of Justice of the European Union (CJEU) has extrapolated the concept for the purpose of the Framework Decision on the European Arrest Warrant.¹ In doing so, the CJEU chose a broad interpretation of the concept of judicial authority that encompasses not only judges and courts but also other authorities that satisfy the following criteria:²

• They participate in the administration of criminal justice;

• They act independently and are capable of exercising their responsibilities objectively, taking into account all incriminatory and exculpatory evidence, without being exposed to the risk that their decision-making power is subject to external directions or instructions, in particular from the executive;

• Their decisions are subject to review by a court in proceedings that meet in full the requirements of effective judicial protection.

In the same vein, the European Court of Human Rights (ECtHR) emphasizes the necessity of independence in order to qualify an authority as judicial. It has ruled, inter alia, that members of prosecuting authorities under the authority of the Minister of Justice, do not satisfy the requirement of independence from the executive and therefore cannot be considered a “judicial authority” for the purposes of Article 5 § 3.³

In this article, I will discuss the notion of “judicial authority”, claiming that it should not be limited to the designation of judges and courts only but must be construed in a wider sense. I will therefore argue that the European Public Prosecutor’s Office (EPPO) – considering its specific functions – possesses all the features to be considered a fully-fledged judicial authority. I will carry out this analysis based not only on the role and on function of the EPPO as a body of the European Union and its first independent prosecutor’s office, but especially in respect of the status of its prosecutors, their independence and accountability.

II. The EPPO as an Authority with Judicial Powers

The traditional separation between the executive, legislative, and judicial branches of state power is not part of the structure of the EU Treaties, and there is actually no specific part dedicated to the judiciary. Nevertheless, the provisions of the Treaties related to institutions clearly follow this model of division, establishing executive and legislative institutions and one EU institution with clear judicial power, i.e., the Court of Justice of the European Union (CJEU).

The EPPO is not defined as an EU institution. In the Treaty on the Functioning of the European Union (TFEU), the EPPO is included in Chapter 4 of Title IV, in conjunction with “Judicial Cooperation in Criminal Matters”, even though one of the main features of the EPPO is that it takes action as a single office and not by means of judicial cooperation within its participating Member States. Undoubtedly, the EPPO is also not an EU agency: it is different from the agencies established under the same title, i.e., Eurojust and Europol.

According to its founding legislative act – the EPPO Regulation –⁴ the EPPO “is established as a body of the Union” (Art. 3). The mandate of the EPPO is to function directly as the Prosecutor’s Office of the Union: it is tasked with “investigating, prosecuting and bringing to judgment” the perpetrators of criminal offences affecting the Union’s financial interests (Art. 4) and acts “in the interest of the Union as a whole” (Art. 6), whereas the EU agencies “support and strengthen” the action of other authorities.

We can draw the interim conclusion that, within the EU institutional architecture, the role of the EPPO is very peculiar and unprecedented. The EPPO does not rely on national prosecutorial authorities. The EPPO investigates and prosecutes in the Member States directly, without national intermediaries, exercising prosecutorial and investigating powers. In line with Article 86 TFEU, the EPPO exercises its functions before the courts of the Member States.

The latter is especially reflected in Arts. 4, 13(1), and 28 to 40 of the EPPO Regulation, when the European Delegated Prosecutors (EDPs), who are based in the Member States, have, as a minimum, the same powers as the national prosecutors. This creates a hybrid structure, where the EPPO is the centralised prosecutor’s office of the Union but has also full prosecutorial authority within the national system of each Member State. In this context, when the law of a Member State confers judicial powers on prosecutors, if the EPPO exercises its competence, it automatically carries out these judicial functions while carrying out its investigation and prosecution.

The concept of the EPPO Regulation may conflict with national systems that provide for an investigative judge as leading authority in the investigative phase. Therefore, some Member States,⁵ , have amended their codes of criminal procedure in respect of cases handled by the EPPO in order to ensure correct implementation of the EPPO Regulation. More specifically, these Member States removed powers traditionally linked with the judicial authority of the investigative judge, transferring them to the independent prosecutors of the EPPO. As a result, the judge is no longer in charge of the investigation in these Member States but only responsible for authorising investigative measures upon the EDP’s request and/or reviewing acts of the EPPO intended to produce legal effects vis-à-vis third parties. In doing so, national systems were aligned particularly to Arts. 28 and 42 of the EPPO Regulation, which establish not only that the prosecutors of the EPPO are exclusively in charge of managing investigation and prosecution, but also that their procedural acts, which are intended to produce legal effects vis-à-vis third parties (as well as any failure to adopt procedural acts) are subject to review by the competent national courts.

In light of the above considerations, it follows that the EPPO exercises direct judicial action on behalf and in the interest of the Union and as such possesses the necessary judicial authority.

III. The EPPO as an Independent Judicial Authority

A specific, probably the most important feature of the EPPO, which substantiates its judicial nature, is its external independence.⁶

As indicated above, there are different models of prosecution in the EU Member States,⁷ In some Member States, the prosecution service has strong ties with the executive power and may be subordinate to instructions from the government or it is required to report to it. In other few Member States, in order to balance the lack of the independence of the prosecutor, there is an (obviously independent) investigative judge has strong investigative powers. In other Member States, however, the prosecution service is independent, and the prosecutors are fully part of the judiciary.

The EPPO Regulation emphasises the independence of the EPPO in its Art. 6 and recital 16, prohibiting any kind of interference and influence from any authority of the Union and of the Member States and from any persons external to the EPPO. According to Arts. 6(2) and 7, the EPPO is accountable to the EU and the Member States for its general activities but not for its specific investigations and cases, which are protected by confidentiality and only subject to judicial control in line with Art. 42 of the Regulation and national law.

Furthermore, the EPPO does not have links with the executive power even as regards its general prosecutorial policy. According to Art. 9 of the EPPO Regulation, the College of the EPPO (hereinafter: “College”) takes decisions on strategic matters and is tasked with ensuring coherence, efficiency, and consistency in the prosecution policy of the EPPO throughout the Member States. Granting the EPPO the authority to elaborate and decide internally its prosecutorial strategy and policy, without either being subject to general instructions from the executive power, or to directives, guidelines and instructions from a hierarchically superior prosecutorial authority linked to the government, means granting to the EPPO full external and internal independence. This is further confirmation of EPPO’s independence and a clear severance from the executive power.

IV. Institutional Safeguards: the EPPO and its Prosecutors

Recital 16 of the Regulation clarifies the link between the investigative and prosecutorial powers conferred on the EPPO and the necessity to safeguard its independence: “since the EPPO is to be granted powers of investigation and prosecution, institutional safeguards should be put in place to ensure its independence.” It follows, therefore, that the EPPO Regulation considers the EPPO to be a body with judicial functions and, as such, it should be independent.

The ECtHR established requirements for the independence of prosecutors. According to the Court this is strictly connected to judicial function: In a landmark judgement of 2020, the ECtHR maintained:⁸

[the State should respect the] nature of the judicial function as an independent branch of State power – and the principle of the independence of prosecutors, which (…) is a key element for the maintenance of judicial independence.

The ECtHR also referred⁹ to the opinion of the Venice Commission 924/2018, which underlined in respect of appointment methods involving the executive and/or the legislative branch that:¹⁰

supplementary safeguards are necessary to diminish the risk of politicisation of the prosecution office. As in the case of judicial appointments … the effective involvement of the judicial (or prosecutorial council), where such a body exists, is essential as a guarantee of neutrality and professional, non-political expertise.

Against this background, the EU must put in place institutional safeguards to ensure the independence of the EPPO in the exercise of judicial activity. As explained above, the current statutory rules and institutional framework guarantee that the EPPO, acting as a single office in all the participating Member States, is not exposed to any risk of being subject to instructions from or being obligated to report to the executive in specific cases.

Nevertheless, the EPPO carries out its mandate through specific organs in charge of prosecutorial and investigating functions. These are the prosecutors of the EPPO, namely the European Chief Prosecutor (ECP) and the European Prosecutors (EP), acting as members of the Permanent Chambers, as well as the European Delegated Prosecutors (EDP). Hence, institutional safeguards should be in place to protect the EPPO as single office but also to protect its prosecutors’ statutory independence and their institutional status directly.

In line with Art. 96(1) and (6) of the Regulation, the ECP and the EPs are engaged as temporary agents under Art. 2(a) of the Conditions of Employment (hereinafter: “CoE”), whereas the EDPs are engaged as Special Advisors in accordance with Arts. 5, 123 and 124. Art. 96 of the EPPO Regulation specifies that “the Staff Regulations (SR) and the CoE … shall apply to the ECP and the EPs, and the EDPs.” The SRs govern the employment of civil servants of the Union in the context of administrative organisations, are hierarchically structured, and are not suitable for regulating prosecutorial and judicial organs. In particular, SRs cannot guarantee that the prosecutors of the EPPO enjoy institutional safeguards protecting their position from external interferences or undue influence. On the contrary, it is worth noting that judges and advocates general of the CJEU enjoy a robust self-governing mechanism under Arts. 2 to 7 of the CJEU Statute, which can effectively guarantee their independence.

Institutional safeguards to ensure the independence of prosecutors include their appointment, career progression, irremovability, dismissal, and disciplinary action. In several Member States, the implementation of these safeguards is overseen by self-governing bodies, such as High Councils. These bodies usually have a mixed structure comprising members of the judiciary/prosecution and lay members. The Venice Commission has repeatedly highlighted that the involvement of these bodies, not only in the appointment but also in the career progression of prosecutors, “is essential as a guarantee of neutrality and professional, non-political expertise.”¹¹ In relation to the EPPO, however, the EU legislator did not establish such a body, thus missing out on this “essential” institutional safeguard.

1. The European Delegated Prosecutors

Within the EPPO, the College has been given self-governing competences, but only as regards the EDPs. Member States must first nominate one candidate for each EDP position, and then the College appoints the EDPs upon a proposal by the ECP. However, both the European Chief Prosecutor and the College are autonomous in determining whether the candidates meet the criteria of independence and have the necessary qualifications for and relevant practical experience in their national legal system as foreseen in Art. 17(2) of the EPPO Regulation. During the first three-year lifecycle of the EPPO, several candidate EDPs nominated by the Member States were already rejected by the College. Although this procedure guarantees the independence of the EPPO in appointing its EDPs, it leaves the nomination procedure unregulated at the Member States level and hence neither guarantees that this is carried out in an efficient¹² and transparent manner, nor without political interferences.

The evaluation and career progression of the EDPs are regulated in decisions adopted by the College¹³ in line with Art. 114(c) of the EPPO Regulation and fall entirely within the competence of the College. They are subject to disciplinary procedure inside the EPPO.¹⁴ The final disciplinary decision is made by the College, which can also dismiss the EDP in accordance with Art. 17(3) and (4) of the Regulation. Member States may only decide to dismiss or to take disciplinary action against EDPs for reasons not connected with their responsibilities within the EPPO, and only after informing the ECP.

Overall, the status of the EDPs and their external independence is ensured by the College as a self-governing body, which plays a key (though not exclusive) role, from the time of recruitment until their dismissal and throughout their “European” career. In addition, the EDPs are appointed for a 5-year term, which is renewable without any time limit as foreseen in Art. 17(1) of the Regulation. The Member States cannot intervene in the “European status” of the EDPs and cannot call them back to their national positions.

2. The European Chief Prosecutor and the European Prosecutors

In contrast to the nomination and appointment procedure of EDPs described above, political institutions appoint both the European Chief Prosecutor and the European Prosecutors.

In order to carry out a proper assessment of the professional qualification of the candidates, a “selection panel” is established, composed of 12 members “chosen from among former members of the Court of Justice and the Court of Auditors, former national members of Eurojust, members of national supreme courts, high-level prosecutors and lawyers of recognised competence.”¹⁵ Although appointed by EU political authorities (12 members appointed by the Council, of which 11 upon proposal the European Commission, and one proposed by the European Parliament), the panel is entirely independent, and the professional backgrounds of its members ensure proper assessment of the professional profile of the candidates. Nevertheless, despite its name, the “selection panel” selects neither the ECP nor the EPs, since the evaluation is not binding on the appointing authorities.

In respect of EPs, Member States nominate three candidates. Each Member State retains the autonomy to determine the procedure for, and the authority in charge of, nominating the candidates. The selection panel carries out thorough interviews with the candidates and assesses their professional qualifications. If the panel determines that one or more candidates are not fit for the position, it rejects the nomination; in such cases, the Member State concerned needs to nominate new candidates. Otherwise, the selection panel ranks the candidates and issues a reasoned decision.

The appointing authority of the EPs is the Council of the European Union. The Council does not carry out any interviews and does not interact with the candidates in any way. The decision is taken during a JHA Council in the composition of the Ministers of Justice of the Member States. The proceedings of the preparatory bodies and the meeting of the JHA Council at which the candidates are appointed are not public. The votes, explanations of votes, statements contained in the minutes, and the minutes themselves are not accessible to the public. The EPPO Regulation does not impose any specific requirements on the Council to make a reasoned decision; however, the General Court¹⁶ has established that there is a general obligation to motivate such decisions, which stems from Art. 296 TFEU and Art. 41(2)(c) of the Charter of Fundamental Rights of the EU (Charter). Still, the Council retains a wide discretionary power, which is backed by the General Court:¹⁷

[European institutions] have large discretion in assessing and comparing the merits of candidates to a vacant position, and the elements for this assessment do not depend only on the professional skills and the professional value of the candidates, but also on their character, their behaviour and their overall personality.

The appointment of the ECP starts with an open call for candidates published in the Official Journal of the EU. Member States do not have any role in this procedure. Pursuant to its operating rules,¹⁸ the selection panel interviews a sufficient number¹⁹ of the highest-ranked candidates in order to establish a shortlist of three to five²⁰ candidates to be submitted to the European Parliament and to the Council. After the selection panel finalises the ranking, the European Parliament, at a public hearing of the Civil Liberties Committee, along with the participation of the Budget Control Committee, questions the shortlisted candidates. Once the European Parliament decides which candidate to support, it enters into negotiations with the Council. The ECP is appointed by “common accord” by the European Parliament and the Council.

The selection procedure is more transparent in comparison to that of the EPs, and it seems more consistent with the recommendations of the Venice Commission. In an opinion of 2015on the appointment of high-level prosecutors in Georgia, the Venice Commission stated as follows:²¹

The Venice Commission, when assessing different models of appointment of Chief Prosecutors, has always been concerned with finding an appropriate balance between the requirement of democratic legitimacy of such appointments, on the one hand, and the requirement of depoliticisation, on the other. Thus, an appointment process, which involves the executive and/or legislative branch, has the advantage of giving democratic legitimacy to the appointment of the head of the prosecution service. However, in this case, supplementary safeguards are necessary in order to diminish the risk of politicisation of the prosecution office. The establishment of a Prosecutorial Council, which would play a key role in the appointment of the Chief Prosecutor, can be considered as one of the most effective modern instruments to achieve this goal. (…) Nevertheless, it is noted that the new procedure for appointing the Chief Prosecutor is still not fully balanced and that the “political element” in the appointment process still remains predominant.

The approach by the Venice Commission is also shared by the European Commission. In a report on Romania within the Co-operation and Verification Mechanism (CVM) of 2017, the Commission formulated the following recommendation:²²

Put in place a robust and independent system of appointing top prosecutors, based on clear and transparent criteria, drawing on the support of the Venice Commission.

And the Commission added:²³

The fulfilment of this recommendation will also need to ensure appropriate safeguards in terms of transparency, independence, checks, and balances, even if the final decision were to remain with the political level.

As aforementioned, another very relevant aspect related to the institutional safeguards to ensure the independence of prosecutors concern the disciplinary procedure carried out against them. The EPPO Regulation is almost silent in this regard when it concerns the ECP and the EPs. The only relevant provision is Art. 110, referring to Annex IX of the SR as regards the authority of OLAF to carry out internal investigations if the EPPO itself committed unlawful activities affecting the Union’s financial interests. In theory, since the ECP and the EPs are temporary agents under Art. 2(a) of the CoE, they should be subject to the disciplinary procedure under Art. 86(3) and Annex IX of the SR. But these provisions are not compatible with the structure of the EPPO and with the institutional position of the ECP and the EPs. There is neither a legal basis allowing the appointing authority to decide on whether or not to initiate a disciplinary proceeding, nor to compose a disciplinary board and reach a final decision. The non-hierarchical relationship between the EPPO and the appointing authorities of its prosecutors prevents any disciplinary procedure from being brought against them. Most importantly, allowing a political body to make disciplinary decisions on prosecutors would violate the principles of independence of the judiciary and of the separation of powers.

According to the settled CJEU case law, the absence of an independent and impartial disciplinary board, and of a judicial decision-making disciplinary body, would be in breach of the second subparagraph of Art. 19(1) TEU.²⁴ Moreover, the lack of disciplinary rules guaranteeing at least the examination of the case within a reasonable time and specific rights of defence could violate Arts. 47 and 48 of the Charter.

Similar concerns can be observed with regard to the career progression of the EPs. As a rule, EU temporary agents advance in their careers based on evaluation and performance reports by the appointing authority, in accordance with Arts. 43 SR. In respect of the EPs, however, the lack of a hierarchical structure with the appointing authority and the fact that the latter functions as a political institution of the Union, does not allow for a proper performance evaluation.

Conversely, the EPPO Regulation contains provisions related to the dismissal of the ECP and of the EPs. According to Arts. 14(5) and 16(5), only the CJEU may, upon the application of the European Parliament, the Council, or the Commission, dismiss the ECP and the EPs if it finds that they are no longer able to perform their duties or guilty of serious misconduct. Despite the absence of a clearly defined procedure and the rather general nature of the grounds for dismissal, the exclusive attribution of this power to the only judicial institution of the Union guarantees that the rule of law and the independence of the prosecutors of the EPPO are complied with in this regard.

V. Conclusions

The analysis in this article showed convincing arguments that the EPPO is a judicial actor endowed with judicial authority: the EPPO exercises judicial functions and enjoys independence while doing so. Its procedural acts are subject only to the judicial review of national judges and to the jurisdiction of the CJEU, pursuant to Art. 42 of the EPPO Regulation.

However, the institutional and legislative framework under which the EPPO is currently operating is certainly incomplete. Although the institutional safeguards put in place to ensure its independence as a single operating office seem adequate, the safeguards to protect the independence of its prosecutors are inconsistent and insufficient.

It is not guaranteed, for instance, that adequate safeguards, including transparency, independence, and checks and balances, are in place to counterbalance the predominance of the “political element” in the ECP appointment procedure, which is heavily influenced by the decisions of political institutions. The EPs are even more exposed to political interference in respect of their appointment procedure, because it clearly lacks transparency and independence from the political level.

Therefore, it can be concluded that institutional safeguards are not in line with the rule-of-law principles, the case law of the ECtHR, and the recommendations of the Venice Commission. On the contrary, the EDPs enjoy a higher degree of independence and protection from external interference as a result of the self-governing functions of the College.

It seems necessary to re-consider the institutional architecture of the EPPO, starting from its classification as a judicial institution of the Union, in order to have a fully independent EU prosecutor with the necessary institutional safeguards in place for both the institution and its prosecutors.