The New European Prosecutor’s Office
Source: Eurojust
As European citizens we all pay taxes, but have you ever considered where exactly your money goes? In 2019, the European Union’s (EU) budget comprised a total expenditure of €159 billion, an incredibly high amount of money. However, most of us are not aware of the fact that there have also been 939 reported cases of fraud for an amount of €460 million. Article 86 of the Treaty for the Functioning of the European Union (TFEU) provided an important tool in this regard by making provisions for the establishment of a European Public Prosecutor’s Office (EPPO). Established on 12 October 2017, the EPPO is the first supranational public prosecution office in charge of criminal investigations and prosecutions. More concretely, the EPPO is a decentralized and independent office of the EU that has the capability to investigate and prosecute fraud and corruption against the EU budget to bring them eventually to charge. The EPPO has its seat in Luxembourg and launched its operations on 1 June 2021 by investigating crimes that took place after 20 November 2017.
“Establishing the European Public Prosecutor's Office was a real game-changer. Many cases of fraud against the EU budget are transnational. We needed an institution able not only to investigate but also to prosecute across borders. We now have this powerful institution up and running.” EU Commissioner Didier Reynders, 2021
Mission and Tasks
So far, 22 EU member states are participating in the EPPO. Denmark, Ireland, Hungary, Poland, and Sweden do not participate in it, but they may join anytime. Before the EPPO came into force, existing EU organizations such as Eurojust, Europol, and the EU’s anti-fraud office (OLAF) did not have the necessary authority to conduct criminal investigations and prosecutions. Furthermore, fraud and corruption offences, often cross-border cases, remained largely uninvestigated and unprosecuted by national authorities due to a lack of judicial cooperation between member states or insufficient law enforcement and judicial resources. Not at least the ignorance of some member states caused a feeling of impunity within the EU institutions.
The EPPO considerably strengthens the Union’s capacity to keep track of taxpayer’s money, which means our money running in the EU budget will be better protected. In the fight against fraud and corruption, the EPPO will closely cooperate and exchange information with the existing anti-fraud bodies in the EU such as with the member states that are not participating in the EPPO so far. The new office will protect the EU’s financial interests and ensure an effective and equivalent investigation and prosecution of these crimes in the participating member states. Therefore, the EPP intends to fill gaps in judicial cooperation that are not already covered by existing bodies (Eurojust) or by administrative investigations into irregularities and fraudulent activities (OLAF).
Structure and Functioning
The EPPO functions as a single office across all participating EU countries, thereby combining European and national law enforcement in a unified and efficient way. It is headed by the European Chief Prosecutor, currently Laura Codruta Kövesia, the former chief prosecutor of Romania’s National Anticorruption Directorate. As European Chief Prosecutor she is working with one European Prosecutor from each participating member states. At least two European Delegated Prosecutors (EDPs) work within the judicial system of their member state and collaborate with the central office. The EPPO is generally organized on two levels, the central and the decentral, national, level. The central level consists of the European Chief Prosecutor, the Administrative Director, and 22 European Prosecutors. Two of the latter are appointed as Deputy European Chief Prosecutors. The central level, more concretely the Permanent Chambers of the office monitor, supervise and direct the investigations and prosecutions taking place at the national level. The Permanent Chambers play a significant role in the investigation and prosecution procedure, as they possess significant decision-making powers. Based on the proposal by an EDP, they can decide whether a case will be dismissed, prosecuted before a national court, or otherwise dispose of the case. The decentralized level is embedded in each member state’s justice system and consists of the EDPs, who must be active members of the national public prosecution service of the judiciary in charge of conducting investigations before being appointed. As a rule, a case is handled by the EDP of the member state where the alleged offence was committed.
An important feature of the EPPO is its independence, which means the office is not part of any EU institution and does not take advice from them or national authorities. In this regard, the European Chief Prosecutor and all the EPPO staff are protected against any unreasonable influence from the EU- or national level, for example, political interference in the prosecutions. Nevertheless, the EPPO is accountable to the European Parliament, the Council, and the Commission for general activities. Conversely, national competent authorities such as EU institutions, bodies, offices, and agencies are supposed to report, without undue delay, any criminal offence that falls under the EPPO’s competence. Only if the EPPO is duly and sufficiently informed of offences possibly falling under its mandate, it can efficiently investigate, prosecute, and bring to justice suspects and accused persons. To initiate a case, the EPPO can also make use of information from other sources, for example through mainstream news, private parties, or whistleblowers.
Source: European Commission
Investigations and Prosecutions
Legality, proportionality, impartiality, and fairness towards suspects or accused persons are the EPPO’s guiding principles and it is obliged to seek evidence in favour or against them. The focus of the EPPO’s mandate is on fraud and all sort of crimes affecting the EU’s financial interest, which were defined in Directive (EU) 2017/1371 and are known as ‘Protection of the Union’s financial interests (PIF) offences:
fraud relating to expenditures and revenues
fraud relating to VAT (if it involves two or more member states and is worth at least EUR 10 million)
money laundering of assets derived from defrauding the EU budget
active and passive corruption or misappropriation that affects the EU’s financial interests, and
taking part in a criminal organization, if the focus of its activities is to commit crimes against the EU budget.
The EPPO has also ancillary competence, which means it possesses the ability to investigate and prosecute any other activity that is ‘inextricably linked to a PIF offence. Once designated, the competent EDP will introduce investigation measures by him- or herself or the EDP instructs the competent national authorities to proceed. The handling EDP has the right to order or request investigation measures that are available under national or required by the EPPO Regulation. The latter includes searches, orders of production of evidence, freezing of the proceeds of crime, and communication wiretapping amongst others. In cross-border cases, investigation measures can be conferred by the handling EDP to an assisting EDP from another member state without prejudice to obtaining a previous judicial authorization if needed. Thus, the EPPO maintains horizontal relationships, which is crucial for the EPPO’s functioning as a single EU-level prosecution office in cross-border cases.
The work of an EDP is supervised by the European Prosecutor of the same member state, who is in constant dialogue with the EDP. The knowledge of the language, such as the familiarity with the legal system of the competent member state allows the European Prosecutor to deeply investigate the proceedings and give instructions on behalf of the Permanent Chamber. Once the investigations are completed, the Permanent Chamber decides, based on a proposal of the handling EDP, whether to prosecute the case, refer it to national authorities, apply a simplified prosecution procedure, or otherwise dismiss it. A case can be closed by the Permanent Chamber before trial without prejudice to possible further investigations if new facts appear for example when prosecution becomes impossible due to a lack of evidence, statute of limitation, amnesty, or immunity. If the decision was made to prosecute the case, it is brought to the competent national court, where the case is dealt with by the EDP under applicable national laws and in line with the EPPO Regulation.
Legal Safeguards and Judicial Review
The rights of suspected persons, witnesses, and victims are guaranteed by multi-layered procedural safeguards through the EPPO Regulation, based on existing EU and national law. The EPPO must ensure that its activities respect the rights guaranteed by the Charter of Fundamental Rights of the EU, including the right to a fair trial, but also the rights of defence. To ensure legality and compliance with EU law, the EPPO Regulation provides rules on the judicial review of the EPPO’s actions. Therefore, the EPPO’s procedural acts are subject to judicial review by the national courts. The Court of Justice of the European Union has jurisdiction only in a limited number of cases but can ensure a consistent application of EU law through preliminary rulings. Furthermore, the participating member states had to transpose Directive (EU) 2017/1371, the so-called ‘PIF Directive’, on the fight against fraud to the Union’s financial interests by means of criminal law into their national laws by 06 July 2019. The new rules included in the PIF Directive have fostered the EU budget’s protection by adjusting definitions, sanctions, and limitation periods of criminal offences that affect the Union’s financial interests. Besides harmonizing criminal law of the member states in the area of crimes against the Union budget, the PIF Directive provides overall the legal and procedural foundation for the EPPO, which eventually investigates, prosecutes, and enforces offences from 1 June 2021. (Click here for further information about the ‘PIF Directive’: http://data.europa.eu/eli/dir/2017/1371/oj ).
Key Facts
Office based in Luxembourg
Start date: 1 June 2021
Divided in central and decentralized, national level
One European Chief Prosecutor, two Deputies
College consisting of European Chief Prosecutor and European Prosecutors
22 European Prosecutors, one for each participating member state
15 Permanent Chambers, comprising a Chair and two Permanent Members
140 European Delegated Prosecutors located in each participating member state (at least two per member state)
Key partners: Eurojust, OLAF, Europol
Non-participants: Hungary, Ireland, Poland, Sweden, Denmark