arraigned by the european public prosecutor: a mandate yet ...€¦ · b. arguments in favour of...

Faculty of Law

Academic Year 2013 – 14

Exam Session 1

Arraigned by the European Public Prosecutor:

A mandate yet to be drafted

LLM Paper

By Anthea Galea

Student number: 01300955

Promotor: Dr Karen Verpoest

Co-Reader: Dr Wendy De Bondt

2

Contents

Contents .................................................................................................................................... 2

Introduction .............................................................................................................................. 4

Chapter 1 - A European Public Prosecutor or an extension of Eurojust’s mandate? ...... 7

I. Eurojust ........................................................................................................................... 9

A. Powers of Eurojust under Council Decision 2002/187/JHA ....................................... 9

B. Powers of Eurojust under Council Decision 2009/426/JHA – Revised Council

Decision ............................................................................................................................ 10

C. Powers of Eurojust under TFEU and the proposed Regulation COM (2013) 535 ... 12

(i) Article 85 TFEU .................................................................................................... 12

(ii) Proposed Regulation on the European Union Agency for Criminal Justice

Cooperation (Eurojust).................................................................................................. 14

D. Conclusion ................................................................................................................. 16

II. European Public Prosecutor .......................................................................................... 17

A. Proposed Regulation for a European Public Prosecutor ........................................... 18

B. Arguments in favour of establishing the European Public Prosecutor’s Office ....... 20

III. Co-existence of Eurojust and the European Public Prosecutor’s Office ................... 24

IV. Final observations ..................................................................................................... 26

Chapter 2 - What area of competence for the European Public Prosecutor’s Office? ... 28

I. The European Public Prosecutor’s Competence ........................................................... 28

A. Introduction to article 86 TFEU ................................................................................ 28

B. Competence of the European Public Prosecutor under the proposed Regulation

COM (2013) 534 .............................................................................................................. 29

C. PIF Directive ............................................................................................................. 30

D. A limited material scope ........................................................................................... 33

(i) Corpus Juris ........................................................................................................... 36

(ii) Bodies and agencies relevant for the future European Public

Prosecutor’s office ........................................................................................................ 36

(iii) The European Warrants ..................................................................................... 38

(iv) The Treaty on the Functioning of the European Union ..................................... 38

(v) The draft PIF Directive ...................................................................................... 39

E. Observations .............................................................................................................. 47

3

II. Harmonised offences .................................................................................................... 49

III. Final observations ..................................................................................................... 61

Conclusion .............................................................................................................................. 62

Bibliography ........................................................................................................................... 66

Abbreviations ......................................................................................................................... 72

4

Introduction

The European Union has claimed for a long time that it is best placed to protect its own

financial interests especially after it has been reported that the amount of fraud of the Union

monies runs into millions of Euro annually. This approach by the Union has been supported

even more in view of the fact that member states have limited resources which in turn

restricts them in their investigations and prosecutions of European Union financial crimes

like fraud, corruption, money laundering, counterfeiting of the Euro and other crimes which

affect the finances and the budget of the European Union. Moreover, another problem which

has been identified by the European Union is the fact that at a national level, prosecution of

these crimes is fragmented.

As it has been stated,

(…) there is broad recognition of the fact that the fragmented nature of the

European judicial area hampers the effectiveness of criminal prosecutions. It is

important for the less convinced to remember that there are still obstacles to the

effective prosecution of fraud in the field of substantive criminal law: limitation

periods may differ, for example, and offences in one Member State may not

correspond to those in another. On their own, national legal systems have proved

ill-equipped to respond to the transnational nature of Community fraud owing to

the principle of territoriality of the law of criminal procedure and the diversity of

rules governing the production of evidence. All too often these factors ensure that

prosecutions are not launched or completed, as the problems involved in obtaining

evidence deter even the most willing. Where the instruments of international

judicial cooperation continue to expose positive or negative power struggles and

the difficulties with the need for the ne bis in idem principle or the execution of

international letters rogatory, the European Prosecutor could provide the solution.

He would be equally capable of doing so at the investigation stage, thanks to his

delegates, whose work would be based on a minimum of common rules and

whose findings would be mutually admissible, and at the prosecution stage, as

cases would be tried in just one Member State.1

The concern of the European Union can be easily seen along the past years being that

legislation has been adopted with the aim of targeting fraud and corruption. In fact, there

have been adopted a number of instruments namely, the Convention on the Protection of the

1 Commission, ‘On the Green Paper on the criminal-law protection of the financial interests of the Community

and the establishment of a European Prosecutor’ (Follow-Up Report) COM (2003) 128, 9

5

European Communities’ financial interests2; Protocol on the Convention on the Protection of

the European Communities’ financial interests3; the Second Protocol on the Convention on

the Protection of the European Communities’ financial interests4; Convention on the fight

against corruption5. Various instruments have also been adopted also in the field of protecting

the Euro against counterfeiting6. Furthermore, various agencies and bodies have been

established with the aim of targeting fraud and corruption. With regard to the anti-fraud

offices there was the establishment of the Advisory Committee for the Coordination of Fraud

Prevention7 and OLAF in 1999

8 just to mention a few. In 2001, the European Commission

presented a Green paper on criminal law protection of the financial interests of the

Community and the establishment of the European Prosecutor9. Moreover, such concern was

manifested in article 325 TFEU which states that “The Union and the Member States shall

counter fraud and any other illegal activities affecting the financial interests of the Union

through measures to be taken in accordance with this Article, which shall act as a deterrent

and be such as to afford effective protection in the Member States, and in all the Union's

institutions, bodies, offices and agencies.”10

Yet, despite all of the above, the financial

interests of the European Union were not protected enough and sufficiently.11

When the Lisbon Treaty came into effect in 2009, the European Union was for the first time

given the green light to implement its policies through the use of criminal law, specifically

via articles 82 and 83 TFEU. Certain actions could now be criminalised in view of the fact

2 Council Act of 26 July 1995 drawing up the Convention on the protection of the European Communities’

financial interests OJ C 316 3 Council Act of 27 September 1996 drawing up a Protocol to the Convention on the protection of the European

Communities' financial interests OJ C 313. In this protocol, the definition of active and passive corruption are

dealt with. 4 Council Act of 19 June 1997 drawing up the Second Protocol of the Convention on the protection of the

European Communities' financial interests OJ C 221. The target of this protocol is to focus on the cooperation

between the member states and the European Commission with regard to the crimes of money laundering and

confiscation. 5 Council Act of 26 May 1997 drawing up the Convention made on the basis of Article K.3 (2)(c) of the Treaty

on European Union, on the fight against corruption involving officials of the European Communities or officials

of Member States of the European Union OJ C 195 6 Europa – Summaries of EU legislation,

accessed 19 April 2014 7 Commission Decision 94/140/EC of 23 February 1994 setting up an advisory committee for the coordination

of fraud prevention [1994] L61/27 8 Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 establishing the European Anti-Fraud

Office (OLAF) [1999] L136 9 Commission, ‘On criminal-law protection of the financial interests of the Community and the establishment of

a European Prosecutor’ (Green Paper) COM (2001)715 final 10

Art. 325 TFEU 11

Commission, ‘Better protection of the Union's financial interests: Setting up the European Public Prosecutor's

Office and reforming Eurojust’ (Communication) COM (2013) 532

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995F1127(03):EN:NOThttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995F1127(03):EN:NOThttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996F1023(01):EN:NOThttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996F1023(01):EN:NOThttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31997F0719(02):EN:NOThttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31997F0719(02):EN:NOThttp://europa.eu/legislation_summaries/fight_against_fraud/fight_against_counterfeiting/index_en.htmhttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=Decision&an_doc=1994&nu_doc=140http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31999D0352:EN:NOT

6

that they badly affect the finances of the European Union. Alongside the latter, another article

which was innovative was article 86 TFEU which provides a legal basis for the establishment

of a European Public Prosecutor’s Office whose aim is to investigate and prosecute crimes

that affect the financial interests of the European Union. For the first time, the European

Public Prosecutor’s concept was put on a European law level.12

A draft proposal has been tabled by the European Commission with article 86 TFEU as the

legal basis whose aim is to establish a brand new office of the European Public Prosecutor.13

The consequence of this proposal has raised the question as to whether there truly is required

the establishment of a new office, and therefore under Chapter 1, this dissertation takes up a

critical approach to the need of establishing a completely new office within the European

Union.14

The research delves into whether it is possible to place the prosecution service of the

European Union within one of the already existing offices of the European Union, i.e.

Eurojust.

Notwithstanding the outcome of the above question, it seems clear - from the instruments

tabled so far by the European Union - that the latter advocates for the establishment of a new

office independent from any of the other offices and bodies already up and running within the

European Union. This therefore, takes us to Chapter 2 of this dissertation where there will be

examined the competence that the office-to-be will have. Primarily, the research will look

into the crimes which have been proposed in the regulation ‘on the establishment of the

European Public Prosecutor’s Office’15

which will eventually fall under the European Public

Prosecutor’s mandate. However, this will then be followed by an analysis as to whether the

material competence of this office could be enhanced and if it can, what other crimes could

potentially fall under the mandate of the European Public Prosecutor.

12

Ladislav Hamran & Eva Szabova, ‘European Public Prosecutor’s Office – Cui Bono?’ [2013] 4 (1-2) New

Journal of European criminal law accessed 12

February 2014 13

Commission, ‘On the establishment of the European Public Prosecutor’s Office’ (Proposal) COM (2013) 534

final 14

Rosaria Sicurella, ‘Setting up a European Criminal Policy for the Protection of EU financial interests:

Guidelines for a Coherent Definition of the Material Scope of the European Public Prosecutor’s Office’ in

Katalin Ligeti (ed), Toward a prosecutor for the European Union Vol 1 – A comparative analysis (Hart

Publishing 2013), 873 15


7

Chapter 1 - A new European Public Prosecutor’s Office or

an extension of Eurojust’s mandate?

The idea of establishing a European public prosecutor was primarily mentioned in the Corpus

Juris16

which dates back to 1997. After many years of discussion and with the European

Commission being in favour for the establishment of this new office, the Lisbon Treaty17

provides for the first time article 86 – a legal basis for the establishment of the office of the

European public prosecutor. Upon a first reading of article 86 TFEU, a remarkable

relationship is immediately noticed between the future European public prosecutor and

Eurojust being that the wording of the article states that the European public prosecutor shall

be established “from Eurojust”.18

However, following the coming into force of the Lisbon Treaty, there is also a reinforcement

of Eurojust’s powers under article 85 TFEU. Therefore, a possible discussion could be

whether it is possible and preferable to extend Eurojust’s mandate to include the prosecution

of crimes rather than establishing a new office whose mandate would be primarily that of

investigating and prosecuting crimes affecting the financial interests of the European Union.

In fact, various arguments have been put forward which counter the idea of establishing a

European Public Prosecutor’s office. One such argument goes that it would be ideal that the

current mechanisms in place work to the outmost benefit for the member states in their

investigating and prosecuting European crimes. This is favoured over establishing a new

office especially when the office to be established is a supranational office. This was

supported by the study carried out by EuroNEEDS were it results that the current

mechanisms, systems and tools in place could be improved along with better training and

cooperation amongst the member states.19

This has been supported by the argument that even

if a European public prosecutor would be established, the latter would need to rely to a

certain extent, on national criminal justice systems.

16

Corpus Juris,

accessed 7 March 2014 17

Lisbon Treaty, ‘Treaty of Lisbon amending the Treaty on the European Union and the Treaty establishing the

European Community of 13 December 2007’ 18

Art. 86 (1) TFEU 19

Marianne L. Wade, ‘A European public prosecutor: potential and pitfalls’ [2013] 59 Crime Law Social

Change 439, 470

http://ec.europa.eu/anti_fraud/documents/fwk-green-paper-corpus/corpus_juris_en.pdf

8

Moreover, it has also been proposed that Eurojust could host the prosecutorial service within

the European Union.20

This is so in view of the fact that if Eurojust is strengthened and its

powers are deepened, there would be nothing to stop this office from performing the same

tasks as the European public prosecutor would be mandated to do. This can also be

substantiated by the fact that the offences that would potentially fall under the competence of

the European public prosecutor are already under the wing of Eurojust. For example, fraud

committed against the financial interests of the European Union was explicitly mentioned

under the Eurojust Council Decision of 2002/187/JHA.21

Moreover, under the revised

Council Decision 2009/426/JHA22

there is reference to the crime of fraud which is more

open-ended than it was previously mentioned.

Furthermore, not only does Eurojust offer the necessary structure from which a prosecutorial

section could work but also because ever since Eurojust has been established, it has managed

to amass and acquire various expertise on resolving conflicts of jurisdiction. Being a hub for

all the information regarding conflict of jurisdiction, it puts the office in an excellent position

to deal with the choice of forum for prosecution of offences affecting the financial interests of

the Union.

What follows is a discussion of Eurojust’s powers and the possible extension of its mandate

to host a prosecutorial service.

20

Gert Vermeulen, Wendy De Bondt & Charlotte Ryckman, ‘Eurojust & and European Public Prosecutor’s

Office: Reflections on future policy options’ in Rethinking international cooperation in criminal matters in the

EU: moving beyond actors, bringing logic back, footed in reality [Maklu Publishers 2012] 21

ibid, 484 22

Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending

Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime [2009] OJ

L138/14

9

I. Eurojust

A. Powers of Eurojust under Council Decision 2002/187/JHA

On the 28th

of February 2002, Council Decision 2002/187/JHA on setting up Eurojust with a

view to reinforcing the fight against serious crime23

was adopted. This Council Decision was

adopted with the aim to improve the judicial cooperation amongst the member states by

adopting “structural measures at European Union level to facilitate the optimal coordination

of action for investigations and prosecutions covering the territory of more than one member

state”.24

Moreover, Eurojust’s tasks can be categorised under three main headings, namely

primarily there is the right to receive information as established under article 13 of Council

Decision 2002/187/JHA. Secondly, Eurojust is to coordinate, facilitate and provide support

between the competent judicial authorities of the member states. Thirdly, Eurojust has an

advisory role in resolving jurisdictional conflicts by means of providing non-binding

opinions.25

Eurojust’s mandate is the same as that of Europol,26

however with some additions.27

With a

competence to deal with fraud, corruption and criminal offences affecting the financial

interests of the European Union, Eurojust’s competence overlaps with the potential mandate

of the European Public Prosecutor.28

Thus, it can be argued that from a substantive point of

view, it seems that both Eurojust and the future European Public Prosecutor have overlapping

competences which indeed could raise the question of the added value of establishing a new

office like the European public prosecutor. However, the same argument does not stand when

considering the powers of both Eurojust and the future European Public Prosecutor. It follows

that apart from article 13 of Council Decision 2002/187/JHA - which obliges the member

states to provide information to Eurojust - all of the other powers of Eurojust are considered

23

Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight

against serious crimes [2002] OJ L63/1 24

ibid, recital 2 25

ibid, art 6 & 7 26

Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight

against serious crimes [2002] OJ L63/1, art 4(1)(a) 27

Ibid, article 4(1)(b) namely computer crime; fraud and corruption and any criminal offence affecting the

European union’s financial interests; the laundering of proceeds of crime; environmental crime and participation

in a criminal organisation within the meaning of Council Joint Action 98/733/JHA of 21 December 1998 on

making it a criminal offence to participate in a criminal organisation in the member states of the European

Union 28

ibid, art 4

10

as soft powers. This is in view of the fact that Eurojust may only ask the member states to

undertake a certain action, yet this is not compulsory.29

Moreover, its powers range from

assisting, advising, coordinating and enhancing cooperation which are all soft powers and

non-binding in nature meaning that they cannot be enforced.

B. Powers of Eurojust under Council Decision 2009/426/JHA – Revised Council

Decision

On 16th

December 2008, the European Commission set out to strengthen the position of

Eurojust and its powers through the adoption of Council Decision 2009/426/JHA which

strengthens cooperation between the national authorities and Eurojust itself; increases

information exchange and reinforces the body’s operational capabilities. One notorious

improvement over the Council Decision of 2002 is Eurojust’s competence. With the new

revised Council Decision, Eurojust’s competence is clearer because both Eurojust and

Europol have the exact same competence.30

However, when taking a look at Europol’s

mandate, the situation is not that clear especially because of the 32 mutual recognition

offences for most of which there is no harmonised definition across the European territory.

Furthermore, there is the strengthening of the position and powers of the national members in

view of the fact that there is an expectancy of an increase in the workload on Eurojust. Thus,

every member ‘shall’ have at least one person who is to be of assistance to him.31

This is in

contrast to the position under the Council Decision of 2002 as it was left optional for the

member of Eurojust as to whether to have an assistant or not.

Moreover, the revised Council Decision establishes a minimum term of office for the national

members under article 9 making way for long term decision making. The powers of the

national members have also been heightened due to the fact that whilst previously under the

old Council Decision, the national members were allowed to keep their national competences

in accordance to what the member state would have decided, under the revised Council

29

Gert Vermuelen, Wendy De Bondt and Charlotte Ryckman, ‘Eurojust and its relevance in the debate on a

future European Public Prosecutor’s Office’, in Rethinking international cooperation in criminal matters in the

EU (Maklu Publishers 2012), 374 30



L138/14, art 1(3) 31

ibid, art 1(2)

11

Decision the position is different. Under the latter, the national members ‘have’ to retain the

national competences and the Council Decision explicitly lists minimum competences.

More lee-way has been given to the national members in cooperating on an international level

with other judicial authorities as long as the member state defines the parameters within

which the national member is to operate.32

This is a clear improvement over the old Council

Decision were only experiences had to be exchanged.

The College of Eurojust also underwent certain changes with the coming into force of the

revised Council Decision. Whilst retaining its previous powers, a couple of new powers were

also added. Precisely, under article 13 of the revised Council Decision, member states are

obliged to push information with certain cases with the objective of increasing information

exchange. However, with regard to the issue of resolution of conflicts of jurisdiction, the

competence of Eurojust’s College remains of an advisory nature. In substance therefore,

Eurojust’s College still has no binding powers.

In conclusion on the revised Council Decision, it can easily be stated that Eurojust has been

strengthened even more when compared to the Council Decision 2002/187/JHA. It is also in

a better position with regards to the exchange of information between itself and the member

states since following the coming into force of the revised Eurojust decision, the member

states are under an obligation to share any information with Eurojust so the latter is able to

perform its tasks as stipulated under articles 4 and 5 of Council Decision 2009/426/JHA.33

However, there still seems to be something which has gone unchanged, and that is that no

binding powers have been given to Eurojust. On the contrary, it still has soft powers. In fact,

under article 7 of the revised Council Decision, if it is the case that agreement cannot be

reached regarding a matter concerning conflict of jurisdiction as to investigations to be

carried out or prosecution, then Eurojust is to provide a non-binding opinion.34

Moreover, there is no obligation on the part of the member states to follow up on a request or

opinion of Eurojust. The only obligation imposed on the member state is to give a valid

reason as to why the request or the opinion have not been followed up, however, if the

32



L138/14, art 1(8) 33

ibid, art 1(11) – notice that under the old article 13, the member states could have exchanged information with

Eurojust, however under the new article 13 there is the imposition of an obligation on the member states as they

“shall” exchange information 34

ibid, art 1(6)

12

member state is not in a position to give such a reason due to national security interests, then

operational reasons can be cited.35

C. Powers of Eurojust under TFEU and the proposed Regulation COM (2013) 535

(i) Article 85 TFEU

With the coming into force of the Lisbon Treaty and article 85TFEU there seems to be a

potential strengthening for Eurojust. It is established that Eurojust’s mission is to “...support

and strengthen coordination between national investigating and prosecuting authorities in

relation to serious crime36

affecting two or more Member States...”.37

There is also envisaged

a reinforced Eurojust due to the potential tasks that the body might be given if a Regulation

were to be adopted in accordance with article 85 TFEU. This in turn means that for there to

be the enhancement of Eurojust’s powers there is no need for a treaty revision, making it

more flexible and possible for this body to have its powers increased.

Under article 6 of Council Decision of 2009/426/JHA, Eurojust can ask the competent

authorities of the member states to start an investigation or prosecution but article 85 (1)(a)

TFEU depicts something different. Firstly, article 85 (1)(a) TFEU envisages a future Eurojust

with the task of initiating a criminal investigation and proposing an initiation of

prosecution for crimes affecting the financial interests of the European Union. One can

immediately notice the difference between the position prior article 85 TFEU as Eurojust’s

role was primarily that of facilitating and coordinating whilst post article 85 TFEU there can

potentially be a Eurojust which can take initiative, actively coordinate and with its conflict

resolution having more weight. Moreover, with the potential competence to start an

investigation, Eurojust would have gained a power previously held jealously and exclusively

by the member states.

35



L138/14, art 8 36

The Treaty wants to ensure that Eurojust has a wider competence as there is mentioned ‘serious crime’ and

not ‘cross-border crime’ 37

Art 85 TFEU

13

Insofar as this task is concerned, a clear difference can be singled out between the initiation

of an investigation and the initiation of a prosecution. Whilst Eurojust might be competent to

initiate a criminal investigation, the legislator does not talk about the initiation of a

prosecution but merely a proposal for an initiation of a prosecution. Therefore, whilst this

article provides a decision-making power to Eurojust, it does not provide a binding power on

the initiation of prosecutions.38

What stands as yet unclear is whether this potential power of

Eurojust to initiate an investigation will be followed up at a national level by a compulsory

prosecution. This is to be kept into perspective following the fact that the legal systems of the

member states vary from each other, with some systems admitting of the power that the

prosecution can decide whether to prosecute or not. To date, article 85 TFEU has not been

availed of – apart from the draft regulation on the European Union agency for criminal justice

cooperation COM (2013) 53539

- and even if such task would be resorted to, it seems from

the wording of the Treaty that Eurojust will not be competent to prosecute itself as the Treaty

makes it clear that Eurojust will propose for the initiation of a prosecution.

This provision has been used by Eurojust’s supporters to put forward the argument that

maybe it should be considered that Eurojust’s mandate be extended. However, as it has been

argued above, this article does not give Eurojust any binding power to initiate prosecution.

Moreover, even though Eurojust might be competent to initiate a criminal investigation does

not mean that it will be given the competence to do so.

Secondly, another possible field of action for Eurojust under article 85 (1)(b) TFEU is the

coordination by Eurojust itself of the above mentioned investigations and prosecutions.

This stands in contrast with the situation prior the Lisbon Treaty was in force because such

coordination was entrusted with the member states. This can also be seen by looking at the

old article 6 of Council Decision 2002/187/JHA and the current article 6 of Council Decision

2009/426/JHA. Whilst under the old article Eurojust could assist the competent authorities of

the member states to ensure coordination of investigations and prosecutions, under the

current article 6, Eurojust “may ask the competent authorities of the member states ... to

38

Anne Weyembergh, ‘Coordination and initiation of investigations and prosecutions through Eurojust’ [2013]

14 ERA Forum, 178 accessed 28 January

2014 39

Commission, ‘On the European Union agency for criminal justice cooperation (Eurojust) (Proposal) COM

(2013) 535

14

undertake an investigation or prosecution...”.40

Yet again, Eurojust is not given the power to

prosecute itself.

Thirdly, the potential regulations that might be adopted may deal with strengthening

judicial cooperation including resolution of conflicts of jurisdiction.41

Currently, Eurojust

still has the mandate to undertake such task however, it does so by means of a non-binding

opinion. It could possibly be envisaged that if such regulations were to be adopted, then

Eurojust’s opinion in relation to conflicts of jurisdiction would become binding. The latter

will most likely be the case being that if it is left up to the national authorities, the situation

might arise where the national authority in question would not agree with the resolution

taken, ending up with no decision on jurisdictional conflict. Thus, it would seem that the

opinions to be given by Eurojust regarding this matter are to be mandatory and binding on the

national authorities.42

(ii) Proposed Regulation on the European Union Agency for Criminal Justice

Cooperation (Eurojust)

Article 85 TFEU has been finally taken up by the European Commission as it has tabled a

proposal for a Regulation on the European Union Agency for Criminal Justice Cooperation

(Eurojust) on 17th

July 2013.43

The impetus that brought about the drafting of this regulation

is that on the one hand there is article 85 TFEU which provides binding powers in relation to

national authorities and on the other hand, there is article 86 TFEU stating that the European

Public Prosecutor’s Office is to be established from Eurojust. It is with this perspective that

the European Commission has endeavoured to ‘lisbonise’ and strengthen Eurojust.44

In fact,

one is to notice that on this same date, the European Commission also tabled the draft

40



L138/14, art 6 (1)(a)(i) 41

Art 85 (1)(c) TFEU 42

Hans G. Nilsson, ‘Judicial Cooperation in the EU – Eurojust and the European Public Prosecutor’ in Elspeth

Guild, Sergio Carrera, Alejandro Eggenschwilder (eds), The Area of Freedom, Security and Justice Ten Years

On: Successes and Future Challenges under the Stockholm Programme (Centre for European Policy Studies

2011), 76 43

Commission, ‘On the European Union Agency for Criminal Justice Cooperation (Eurojust) [Proposal] COM

(2013) 535 44

Council of the European Union, ‘European Public Prosecutor’s Office: A Constructive Approach towards the

Legal Framework Conclusions of the conference organised by the Lithuanian Presidency in cooperation with the

European Commission and the Academy of European Law (Vilnius, 16-17 September)’ 13863/1/13 REV 1 of

14 October 2013, 12

15

regulation for the establishment of the European public prosecutor’s office.45

This is very

significant as it shows that the establishment of a prosecution office within the European

Union is not a project that can be tackled on its own being that other bodies are going to be

effected by it. It goes to show that there is a comprehensive plan to this reform.

An important feature that results from this draft proposal is that there will now be a regulation

that is automatically binding on all of the member states. This stands in contrast to the current

situation where Eurojust is regulated by means of a Decision. Moreover, the regulation aims

to consolidate even further the position taken under the revised Decision by further

eliminating the differences between members of Eurojust thus ensuring a better working

environment.

The main goal of the proposed regulation is to have the Agency for Criminal Justice

Cooperation be brought in line with the Lisbon Treaty by re-organising its internal structure

to accompany its increased powers and competences along with improving its mandate to a

more effective and efficient one.46

From a brief look at article 4 of the draft regulation, it is

immediately clear that Eurojust’s tasks will definitely retain the element of cooperation;

coordination; consultation with the competent authorities of the member states, the European

Judicial Network and Europol; giving assistance by keeping competent authorities informed

of any vital information and provision of logistical support. Moreover, the Agency for

Criminal Justice Cooperation should be given timely and accurate information in order to

sustain its above mentioned activities. This is the reason why the provision of information to

the Agency has been stepped up under article 21 (5) of the draft regulation. This is especially

so when such article is compared to article 13 (6) of the revised Decision of 2008.

There is an element of improvement in the European Union Agency for Criminal Justice

Cooperation due to the fact that under the draft regulation it would have the power to ask the

competent national authorities to undertake an investigation but this in turn implies that

Eurojust will not be given the power to conduct the investigation itself. Rather it will order

the national authorities to undertake the investigation themselves and in so doing, the case

would be transmitted to them. This way, the investigation shall fall under the competence of

the national authorities. Furthermore, the Agency will have the power to ask the competent

45


final 46

Commission, ‘On the European union agency for criminal justice cooperation (Eurojust) [Proposal] COM

(2013) 535, 3

16

national authorities to prosecute specific acts; require the national competent authorities to

coordinate together and set up a joint investigation team.47

It should be noticed however, that

under the draft regulation, the Agency still does not have the power to ‘order’ but rather to

‘ask’ a member state to take particular initiatives. It is only under article 8(2) & (3) that the

European Union Agency has the power to order an investigative measure when there is an

urgent case at hand.

D. Conclusion

In conclusion to the above, the strength of Eurojust lies in its coordinating and cooperation

mandate especially because in these last few years there has been an explosion of cross-

border crime including child pornography, trafficking in human beings, drug trafficking,

terrorism and cybercrime.48

One important common element between all of these crimes is

that they take place across borders and therefore, coordination between all of the authorities

involved proves to be vital and crucial. This has been and still is the role of Eurojust and has

in fact been once again consolidated in article 85 of the Lisbon Treaty as the latter explicitly

recognises the mandate of Eurojust to be precisely that of coordinating and cooperating.

Stated otherwise, Eurojust still retains a non-binding character, with its powers limited to

giving advice, providing assistance, coordinating and cooperating which are indeed all soft

powers. It can be stated that Eurojust’s task is to facilitate and mediate between the national

judicial authorities.49

Moreover, member states are not obliged to follow up the requests sent

to them by Eurojust and the College of Eurojust issues just non-binding opinions.

The wording of the Treaty is clear in the sense that even though regulations can be adopted to

determine Eurojust’s structure, operation, field of action and tasks, it does not mean that these

tasks will definitely include the initiation of criminal investigations and proposing the

initiation of prosecutions. This is in view of the fact that the legislator carefully chooses the

word “may” rather than ‘shall’. However, if it were to be the case that Eurojust is given all of

the potential powers and tasks as envisaged under article 85TFEU, this body would still not

47


(2013) 535, art 4(2) 48

ibid, 2 49

Anne Weyembergh, ‘Coordination and initiation of investigations and prosecutions through Eurojust’ [2013]

14 ERA Forum, 178 accessed 28 January

2014

17

be able to prosecute the crimes itself in front of the member states’ national courts because it

is not given any prosecutorial powers. There is no legal basis under the Lisbon Treaty for

Eurojust to be able to bring forward criminal cases in front of the national courts of the

member states.

II. European Public Prosecutor

Following an examination of Eurojust’s current and potential future powers and concluding

that the Lisbon Treaty does not provide any legal basis for this body to be able to prosecute

and present cases in front of national courts, it is time to turn our attention on the European

public prosecutor’s office. Proposed for the first time back in 1997 in the Corpus Juris,50

it

took such office a little more than a decade to find its place in the Treaty. For the first time,

the Lisbon Treaty established a clear legal basis for the establishment and setting up of the

European Public Prosecutor’s Office under article 86 TFEU. The aim of the European Public

Prosecutor will be to combat “crimes affecting the financial interests of the European

Union”.51

This Office shall be adopted through Regulations which shall determine “the general rules

applicable to the European Public Prosecutor’s Office, the conditions governing the

performance of its functions, the rules of procedure applicable to its activities, as well as

those governing the admissibility of evidence, and the rules applicable to the judicial review

of procedural measures taken by it in the performance of its functions”.52

The competence of

the Office shall be to investigate and prosecute these crimes along with deciding the forum

where the prosecution is to take place.53

The forum chosen has to be a competent court of the

member states.

It must be pointed out that the jurisdiction of the office of the European Public Prosecutor can

be extended to cover not just “crimes affecting the financial interests of the European

Union” but also “serious crime having a cross-border dimension”.54

A question that arises at

50

Corpus Juris,

accessed 27 February 2014 51

Art 86(1) TFEU 52

Art 86(3) TFEU 53

Art 86(2) TFEU 54

Art 86(4) TFEU

18

this point is whether there can be the jurisdiction extension if it were the case that only a

small number of member states would have agreed for the adoption of the office of the

European public prosecutor.

Finally, article 86TFEU provides the possibility of adopting the European Public Prosecutor’s

office through enhanced cooperation if there are at least 9 member states which would be

willing to take up the establishment of the office if it is the case that unanimity is not reached.

This possibility has been drafted as it can be easily figured out that it is very difficult for there

to be unanimity over such a delicate issue. Therefore, being that the European Commission

does not want to abandon such project, it resorted to enhanced cooperation. However, it

would be best for the proper functioning of the European Public Prosecutor’s Office that

enhanced cooperation would at least require 15 member states – half of the current total

member states within the European Union so that there would be as much support from the

member states as possible.

In including article 86 in the Treaty and with the potential future establishment of a European

public prosecutor with powers as mentioned under this same article, the member states for the

first time would be surrendering executive judicial powers to a supra-national authority

dealing with criminal matters. This in itself explains the reluctance by some member states in

agreeing to the adoption of such Office.

A. Proposed Regulation for a European Public Prosecutor

The proposed regulation COM (2013) 534 ‘On the establishment of the European Public

Prosecutor’s Office’55

based on article 86 TFEU opts to establish the office in a decentralised

manner meaning that there will be a hierarchical structure.56

At the top, there would be the

European public prosecutor supported and aided by deputies and other staff. The office will

also have the European delegated prosecutors – one from every member state57

– who

although still stationed in their respective member state, will prosecute not only national

55


final 56

It has been reported that the European Commission has opted to adopt a decentralised European Public

Prosecutor mainly because this will result in a less financial burden in view of the fact that national resources

will be made availed of. 57


final, art 6(5)

19

cases but also European crimes in accordance to the instructions provided by the European

public prosecutor. This dual function that the European delegated prosecutors will have has

been referred to as ‘double-hatted prosecutors’ due to being competent to prosecute both

national and European crimes.58

It is immediately clear that the role of the European

delegated prosecutors will be central because the latter will be the ones capable of

investigating and prosecuting in front of the national court where the crime would be

prosecuted. Notwithstanding this, the European Public Prosecutor will still be involved in all

of the decisions that are to be taken, most importantly whether there should be prosecution or

not.

It is also envisaged that there will be established a dedicated investigative department at

Union level which would be of great benefit for the European prosecutors as such department

would be able to coordinate all of the investigations taking place.59

The European public

prosecutor would still have a very important role regarding decision making as to whether to

prosecute or not. OLAF’s resources will also be used to their fullest being that its specialised

staff will be transferred to the prosecution office.

Due to the nature of the mandate of the office of the European public prosecutor, such office

shall be independent, to secure that no influence is exercised on the office when investigative

and prosecutorial decisions are to be taken. This is ensured in the wording of COM (2013)

534 as the European public prosecutor to be appointed to hold office shall not only possess

the required qualifications and enjoy independence but also have prosecutorial experience.60

Moreover, the European public prosecutor has a non-renewable period of 8 years. Just as

important as independence is the accountability of the office: once established, the office

would be accountable in front of the European institutions and the national parliaments.61

One further point that requires discussion at this stage is the procedural aspect of the potential

European public prosecutor, in other words, the office’s jurisdiction, the way investigations

are to be conducted and most importantly, the prosecution stage. Article 14 of COM (2013)

58

Council of the European Union, ‘European Public Prosecutor’s Office: A Constructive Approach towards the

Legal Framework Conclusions of the conference organised by the Lithuanian Presidency in cooperation with the

European Commission and the Academy of European Law (Vilnius, 16-17 September)’ 13863/1/13 REV 1 of

14 October 2013, 6, 27. This has been criticised by Mr Jorge Espina since it might be possible that the

prosecutors would have to prioritise between the cases due to the amount of cases they would be dealing with. 59

Commission, ‘On the establishment of the European Public Prosecutor’s Office’ (Working Document) SWD

(2013) 274 final, 33 60


final, art 8(2) 61

ibid, art 5 & 70

20

534 establishes that the European public prosecutor shall have jurisdiction over crimes which

fall under article 1262

of the above mentioned draft regulation and such crime has been

committed on the territory of one of the member states; or the crime has been committed by a

national of a member state, by a union staff member or by members of the institution.63

Throughout the investigation, the European Public Prosecutor is to be kept informed of what

is going on, has to monitor the investigation and coordinate matters. Finally, when the

investigation stage is over, all of the material collected needs to be submitted by the European

delegated prosecutor to the European public prosecutor so that a decision can be taken as to

whether to proceed with a prosecution or not.

Currently, the European public prosecutor’s office has not been established yet and the draft

regulation still has to be approved. However, it has already been made clear by a number of

member states that they will not participate in the establishment of such Office, namely

Czech Republic, Denmark, France, Hungary, Ireland, Malta, Romania, Slovenia, the

Netherlands and UK. UK and Ireland will maintain the opt-in prerogative whilst the rest of

the member states which have been mentioned in this paragraph are opting out.

Notwithstanding this, it is still to be seen which member states will support such

establishment and whether there will at least be 9 member states to carry forward such

project.

All in all, it seems that article 86 TFEU provides the adequate and clear legal basis for the

establishment of the European Public Prosecutor’s Office being that this article gives the

power to the future office to prosecute the crimes in question.

B. Arguments in favour of establishing the European Public Prosecutor’s Office

Establishing the European Public Prosecutor’s Office seems the way forward for the

European Union to have a prosecutorial service and thus secure the prosecution of crimes

affecting the financial interests of the European Union. Such an approach is very much

desired in view of the fact that there are a number of problems with the current situation; like

for example there being no obligation to report fraud offences below the €10,000 threshold to

62

The substantive aspect of the European public prosecutor’s office will be discussed in Chapter II of this paper. 63


final, art 14

21

OLAF.64

This results in an unreal number of fraud offences which are actually taking place

which in turn effects the perception as to how grave the situation is regarding the amount of

crime happening. With the European public prosecutor’s office in place, investigations and

prosecutions will be undertaken resulting in a clearer picture as to the amount of crime

happening within European Union borders.

Second of all, it is well known that fraud offences are not limited to one territory of a

particular member state. This entails that most of these offences are of a cross-border nature

which in turn requires proper coordination across the Union. This brings us to another

problem currently faced by the European Union and that is that there is no proper

coordination at union level to counter these cross-border crimes. The present fragmented

system does not lay down a proper basis for there to be investigations and prosecutions of

European Union crimes. This is due to the fact that investigations and prosecutions are being

conducted at a national level. The problem with the latter situation is that there are capacity

and financial limitations along with the possibility of missing the European dimension of a

case at hand. Potentially, this is resulting in a lack of prosecution of such crimes. Following a

study conducted by EuroNEEDs, at a national level there seems to be no concrete idea as to

the level of European crimes that are being perpetrated and the rate of prosecution of these

crimes.65

This has also been a problem singled out by the European Commission in backing

the idea of establishing the European Public Prosecutor’s office.66

Moreover, it was

concluded that there definitely needs to be taken some sort of action regarding the collection

of information on these types of crimes as not enough is known.

The benefit of having one office dealing with the prosecution of crimes lies with the fact that

it would be completely dedicated to deal with these cases which enhances efficiency and

eases the burden of coordination. There would be a consistent way of approaching these

crimes along with having the adequate capabilities and resources of doing so. It also helps

putting the European dimension to a case in its proper perspective without ever being

overlooked. The latter situation stands parallel to what the situation would be if Eurojust

would deal with the prosecution of offences as it would be fragmented. This is so because

64

Katalin Ligeti & Michele Simonato, ‘The European Public Prosecutor’s Office: Towards a truly European

prosecution service?’ [2013] 4(1) New Journal of European Criminal Law, 3 65

Marianne L. Wade, ‘A European public prosecutor: potential and pitfalls’ [2013] 59 Crime Law Social

Change 439, 448 66

European Commission, ‘Consultation on protecting the European Union’s Financial interests and Enhancing

Prosecutions’ (Criminal Justice – Newsroom)

accessed 28 January 2014

http://ec.europa.eu/justice/newsroom/criminal/opinion/120307_en.htm

22

Eurojust would coordinate the prosecutions at national levels and therefore, there would not

be one single office dealing with the matters at hand. With the European public prosecutor in

place, it will be ensured that such crimes are still brought to justice.

Moreover, the advantage of having a single office dealing with such matters includes the fact

that there will be an independent office. This is fundamental to ensure impartiality in view of

the matters that such office will deal with. This independence stems out from the way the

European Prosecutor will be appointed, dismissed and the fact that the office’s term is non

renewable. The European public prosecutor will also have to report its activities to the EU

institutions making it accountable for the actions taken.

Moreover, the office will be cost-efficient67

mainly because national resources and personnel

which are already currently in place and functioning, will be used. This means that whilst

there will be the European public prosecutor heading such office, there will be the European

delegated prosecutors. Based in their respective member state, these prosecutors will deal

with national and European cases contemporaneously. The double hated European delegated

prosecutors truly reflect efficiency. This is the reason why the European Commission opted

to resort to establishing the European Public Prosecutor’s office in a decentralised manner.

This also is the best way to fit the national systems. Furthermore, the investigations and the

prosecutions will be undertaken by an office composed of at least 30 members, namely the

European public prosecutor together with its four deputies and at least 25 member states

excluding the UK, Ireland and Denmark – although the number of member states

participating might be less as it has already been seen above. One must admit that such a

number is not too big for the nature of such office. The office will also act efficiently when it

comes to take its decisions since there will be a vertical structure – a hierarchy - with the

European Public Prosecutor steering the office’s actions and taking decisions. This is surely

more proficient than having an office which takes decisions in a collegial form.

Finally, in establishing a supra-national office at European Union would be sending a clear

message to the criminals that it will not tolerate any crimes that affect the finances of the

European Union.

67

Michele Caianiello, ‘The proposal for a regulation on the establishment of a European public prosecutor’s

office: Everything changes, or nothing changes?’ [2013] 21 European Journal of Crime, Criminal Law and

Criminal Justice, 115

accessed 11 February 2014

23

One point of criticism regards the fact that judicial review on the decisions taken by the

European public prosecutor’s office to investigate and in turn to prosecute will be undertaken

by the national courts. The question that arises at this point is whether there will be a uniform

approach in determining whether the actions of the European Public Prosecutor were lawful

or not being that the latter will be determined by different national courts.68

It would be

beneficial if specific criteria would be established upon which national courts could clearly

determine whether there has been an abuse of power by the European Public Prosecutor.

Furthermore, it still has to be determined if all of the actions of the European Public

Prosecutor will be subjected to judicial review.

Moreover, the way the criminal system will be established within the European Union

regards the enforcement of decisions given because the latter will still be in the hands of

national authorities. At no point is the European Public Prosecutor given any form of power

to enforce decisions given as the competence of such office covers merely investigation and

prosecution.69

It should not be forgotten that for the European public prosecutor to be established, it is

necessary that unanimity on behalf of all of the member states is achieved. If this office will

be taken up by just 9 member states – which is most likely the case being that it is quite

difficult to have all of the 28 member states agreeing to it - then there will still be some kind

of fragmentation as the prosecution office will not be able to deal entirely with such crimes

over all of the European territory. Ultimately, what cannot be overseen is the fact that such

office should be equipped with the right mechanisms not just to investigate and prosecute

European crimes but to be able to cooperate fully with other European Union institutions,

bodies and agencies for the benefit of fighting crime.

68

Council of the European Union, ‘Proposal for a Council Regulation on the establishment of the European

Public Prosecutor’s Office – Discussion Paper’ accessed 23

February 2014 69

Michele Caianiello, ‘The proposal for a regulation on the establishment of a European public prosecutor’s

office: Everything changes, or nothing changes?’ [2013] 21 European Journal of Crime, Criminal Law and

Criminal Justice, 115 – 125

accessed 11 February 2014

24

III. Co-existence of Eurojust and the European Public Prosecutor’s

Office

After considering both Eurojust and the European Public Prosecutor’s office, this discussion

would not be complete if the question of the relationship between these two bodies would be

left unexplored.

The close link that there is between these two bodies stems out of the fact that article 86(1)

TFEU states that the European Public Prosecutor’s office shall be established “from

Eurojust” and therefore, the latter is to be of support to the prosecution office.70

With this in

mind, the main aim of the draft regulation on the European Union Agency for Criminal

Justice Cooperation is to structure the now existing Eurojust in a better manner such that it

complements the office of the European Public Prosecutor once that the latter is established.

In fact, there is a dedicated provision in the draft regulation establishing the European Union

Agency for Criminal Justice Cooperation which regulates “the special relationship”71

between both offices. Whilst the European Public Prosecutor will be tasked to investigate and

prosecute crimes that affect the financial interests of the European Union, Eurojust’s role will

be to keep on coordinating and supporting national authorities when the latter would be

investigating and prosecuting such crimes in accordance with the regulation that establishes

the prosecutorial office.72

All of the above shows that the European Union is preparing for the coming into force of the

European Public Prosecutor’s Office, making it clear that there will be two different offices

which will co-exist contemporaneously and complement each other. This also stems out from

a reading of the articles in question in the TFEU, namely the Treaty provides two distinct

articles which are dedicated to both bodies, such that both bodies will keep on existing

simultaneously with the added value that they will complement each other.73

Moreover, under

the proposed COM(2013) 535, it is made explicit that the European Union Agency for

Criminal Justice Cooperation and the future European Public Prosecutor are to have

70


(2013) 535, 3 71

ibid, art 41(1) 72


(2013) 535, recital 5 73

Rosaria Sicurella, ‘Setting up a European Criminal Policy for the Protection of EU financial interests:

Guidelines for a Coherent Definition of the Material Scope of the European Public Prosecutor’s Office’ in

Katalin Ligeti (ed), Toward a prosecutor for the European Union Vol 1 – A comparative analysis (Hart

Publishing 2013)

25

completely separate and distinct competences from one another. This implies that the

European Commission has not envisaged a future where the agency and the prosecution

office are one and the same.

The competence of European Union Agency for Criminal Justice Cooperation shall cover a

list of 31 crimes found in Annex 1 to the draft regulation however, its competence will not

spill over to those crimes for which the European Public Prosecutor’s office will be

competent. The special relationship to be forged between European Union Agency for

Criminal Justice Cooperation and the European Public Prosecutor’s office shall be

established through having regular meetings to discuss what is of common concern to both,

cooperate between themselves and cross-checking data. This is alongside the fact that the

European Union Agency for Criminal Justice Cooperation will provide support for the

functioning of the European Public Prosecutor’s Office.74

It seems very plausible that the way the European Public Prosecutor is to be established is

through enhanced cooperation and therefore less member states will be involved. This

implies that the European Public Prosecutor will have a narrow scope. On the other hand,

with Eurojust still up and functioning and with strengthened powers once the draft regulation

would be adopted, it seems that it will have a wider scope when compared to the European

Public Prosecutor. In view of the latter, the role of Eurojust will be fundamental for there to

be coordination between the European Public Prosecutor and prosecution authorities of

member states which are not participating in the European Public Prosecutor’s office. This

enhances the importance of Eurojust and its coordination and cooperation along with the

European Public Prosecutor.

It should be kept in mind that Eurojust’s main task has been and still is, to coordinate matters

between the national authorities especially jurisdictional problems. For example, Eurojust’s

role in the field of choice of forum is also seen in other instruments like Framework Decision

2009/948/JHA on prevention and settlement of conflicts of exercise of jurisdiction in criminal

proceedings where “the member states shall refer the matter...to Eurojust” if there cannot be

agreed the forum which has jurisdiction.75

In addition, under the Framework Decision

2002/584/JHA on the European arrest warrant and the surrender procedures between member

74

Commission, ‘On the European Union Agency for Criminal Justice Cooperation (Eurojust) (Proposal) COM

(2013) 535, art 41 75

Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts

of exercise of jurisdiction in criminal proceedings [2009]

OJ L328, recital 14 & art 12

26

states, member states can refer to Eurojust’s expertise in deciding on which European arrest

warrant shall be executed76

. Member states also have the facility of referring “to anybody or

mechanism established within the European Union in order to facilitate cooperation between

their judicial authorities and the coordination of their action”77

under the Framework

Decision 2002/475/JHA on combating terrorism. Eurojust can also be consulted in

accordance with the Framework Decision 2008/841/JHA on the fight against organised crime

in such a scenario where there cannot be decided the forum of jurisdiction by the member

states involved78

.79

All of this shows the expertise that Eurojust has managed to accumulate

all of these years and this definitely could have a good impact and influence on the office of

the European Public Prosecutor.

IV. Final observations

It can be easily concluded that the legal basis establishing Eurojust can never provide a

proper legal basis for such body to be the prosecution service of the European Union. This is

so notwithstanding the fact that the Lisbon Treaty has provided article 85 TFEU and there

will duly be the adoption of the draft regulation establishing the European Union Agency for

Criminal Justice Cooperation.80

Ultimately it can be stated that the main difference there is

between Eurojust and the European Public Prosecutor is that the latter has been given a

mandate with binding powers. The legal basis that establishes such office foresees the

European Public Prosecutor with binding powers to open an investigation, take up

prosecution and decide where the prosecution is going to take place. Therefore, it was argued

that Eurojust’s mandate could not be extended to host the European Public Prosecutor –

specifically because the Lisbon Treaty does not provide for the latter possibility - but rather

the potential establishment of the new European Public Prosecutor is the way forward in

European criminal law. Moreover, with the creation of the office for a European public 76

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the

surrender procedures between member states [2002] OJ L190, art 16(2) 77

Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism [2002] OJ L164/3, art

9(2) 78

Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime [2008]

OJ L300/42, art 7(2) 79

Catherine Deboyser, ‘Eurojust’s role in the matter of choice of Forum’ in Michiel Luchtman (ed), Choice of

Forum in cooperation Against EU Financial Crime – Freedom, Security and Justice and the protection of

specific EU interests (Eleven International Publishing 2013) 80

Commission, ‘On the European union agency for criminal justice cooperation (Eurojust) (Proposal) COM

(2013) 535

27

prosecutor there would truly be the embodiment of European criminal law – something which

cannot be achieved even if Eurojust where to be improved being that the prosecution would

still rely in the hands of the national authorities.

Now that it has been established that the setting up of a new office to deal with the

investigation and prosecution of criminal offences affecting the finances of the European

Union is the only way ahead, it is now time to examine the competences of this office.

28

Chapter 2 - What area of competence for the

European Public Prosecutor’s Office?

It is imperative that the future European Public Prosecutor’s office’s mandate is clear. In this

section, the proposed competence of this new office will be looked into and therefore

specifically the crimes that have been mentioned under article 86TFEU and the draft

regulation which will establish the office of the European Prosecutor.81

This competence will

be studied and looked at closely along with the exploration of a possible different and

extended type of competence.

I. The European Public Prosecutor’s Competence

A. Introduction to article 86 TFEU

The Lisbon Treaty under article 86 TFEU immediately stipulates in the first sub-paragraph

that the competence of the future European Public Prosecutor’s office shall be that on

“crimes affecting the financial interests of the European union”.82

This choice as the

principal area of competence came to no surprise being that it had been discussed beforehand

by the European Union that the financial interests of the Union had to be safeguarded. The

main argument had revolved around the fact that being that the financial interests of the

European Union are of a supranational interest, the competence to take decisions should

reside with the Union itself.83

This was then specifically mentioned for the first time under

the Maastricht Treaty in article 209A and under article 280(4) in the Amsterdam Treaty

where the Council was given the power to adopt the necessary measures in the field of the

prevention and fight against fraud affecting the financial interests of the Community with a

view to affording effective and equivalent protection in the member states. In 1995, there was

81

Commission, ‘On the establishment of the European Public Prosecutor’s Office’ (Proposal) COM (2013) 534 82

Art 86(1) TFEU 83

Sicurella R., ‘Setting up a European Criminal Policy for the Protection of EU financial interests: Guidelines

for a Coherent Definition of the Material Scope of the European Public Prosecutor’s Office’ in Katalin Ligeti

(ed), Toward a prosecutor for the European Union Vol 1 – A comparative analysis (Hart Publishing 2013), 876

29

also the adoption of the Convention on the protection of the European Communities’

financial interests i.e. the PIF Convention.84

Moreover, there was the Corpus Juris wherein

the idea of having a European public prosecutor was coined, who would in turn be

responsible to investigate, prosecute, commit to trial and execute sentences. This idea was

then taken up by the European Commission in December 2001 through the Green Paper on

the penal protection of the Community’s financial interests and the creation of a European

Public Prosecutor.85

Eventually, all of the above paved the way to the introduction of article

86 TFEU specifically stating that the European Public prosecutor’s office shall have the

primary mandate to deal with crimes affecting the financial interests of the European Union.

Article 86(1) TFEU establishes that the European Public Prosecutor shall be established to

“combat crimes affecting the financial interests of the Union”.86

Therefore, one would

assume that the European Public Prosecutor’s office’s competence will be established for the

particular and specific purpose of protecting and securing the financial interests of the

European Union. However, such clear mandate which one would assume that the European

Prosecutor’s Office will have is rattled if one keeps on reading article 86 TFEU, in particular

sub-paragraph 4. The latter establishes that the competence of the European public

prosecutor’s office can be extended to incorporate also “serious crime having a cross-border

dimension”.87

This therefore, implies that having the competence over crimes affecting the

financial interests of the union is just the pinnacle as more crimes could fall under its

competence.

B. Competence of the European Public Prosecutor under the proposed Regulation COM

(2013) 534

On the 17th

of July 2013, the European Commission tabled a draft proposal for the

establishment of the European Public Prosecutor where there is indicated a clear competence

of the future European Public Prosecutor, namely “The European Public Prosecutor’s Office

shall have competence in respect of the criminal offences affecting the financial interests of

84

Council Act of 26 July 1995 drawing up the Convention on the protection of the European Communities’

financial interests OJ C 316 [1995] OJ C316 85

Commission, ‘On criminal-law protection of the financial interests of the Community and the establishment

of a European Prosecutor’ (Green Paper) COM (2001)715 final 86

Art 86 (1) TFEU 87

Art 86(4) TFEU

30

the Union, as provided for by Directive 2013/xx/EU and implemented by national law”88

,

namely the PIF Directive.89

C. PIF Directive

The draft PIF directive has its legal basis on article 325(4) TFEU. This article is found under

Chapter 6 Title II of the TFEU entitled ‘Combating Fraud’ which grants the European Union

the power to enact measures to be able to prevent and fight fraud90

along with any other

illegal activities that affect the European Union’s financial interests. This article symbolises

that action against fraud is being undertaken also at Union level and not just at a national

level.

The draft PIF directive shall only apply for the protection of the Union’s financial interests91

by preventing and fighting fraud and any other activities that attack the Union budget. In turn,

article 2 provides that the Union’s financial interests shall mean “all revenues and

expenditure covered by, acquired through, or due to (a) the Union budget; (b) the budgets of

institutions, bodies, offices and agencies established under the Treaties or budgets managed

or monitored by them”.92

Essentially, there are two important articles which define the fraud offences affecting the

European Union’s financial interests. Firstly, there is article 3 on “fraud affecting the Union’s

financial interests” which orders the member states to punish the following criminal offence

when committed intentionally, namely

(a) with respect to expenditure, any act or omission relating to:

(i) the use or presentation of false, incorrect or incomplete statements or documents,

which has as its effect the misappropriation or wrongful retention of funds from the

Union budget or budgets managed by the Union, or on its behalf;

88


final, art 2(b) & 12 89

Commission, ‘On the fight against fraud to the Union’s financial interests by means of criminal law’

(Proposal) COM (2012) 363/2. Council of the European Union, ‘European Public Prosecutor’s Office (EPPO)’

13567/13 accessed 24 February 2014 90

Fraud here should be understood in its wide sense and therefore to include as well fraud- related criminal

offences – Commission, ‘On the fight against fraud to the Union’s financial interests by means of criminal law’

(Proposal) COM (2012) 363/2, 6 91


(Proposal) COM (2012) 363/2, art 1 92

ibid, art 2

31

(ii) non-disclosure of information in violation of a specific obligation, with the

same effect; or (iii) the misapplication of liabilities or expenditure for purposes

other than those for which they were granted;

(b) with respect to revenues, any act or omission relating to:

(i) the use or presentation of false, incorrect or incomplete statements or documents,

which has as its effect the illegal diminution of the resources of the Union budget or

budgets managed by the Union, or on its behalf;

(ii) non-disclosure of information in violation of a specific obligation, with the

same effect or;

(iii) misapplication of a legally obtained benefit, with the same effect.93

The crime of “fraud affecting the Union’s financial interests” has been mentioned and

referred to in other European Union instruments. The European Arrest Warrant instrument

provides a list of 32 offences for which the double criminality principle has been abandoned,

including “fraud, including that affecting the financial interests of the European

Communities within the meaning of the Convention of 26 July 1995 on the protection of the

European Communities’ financial interests”.94

This is also the position for the European

Evidence Warrant.95

When taking a look at article 1 of the Convention on the protection of

the European Communities’ financial interests, it is immediately realised that the definition

given here of fraud affecting the European Communities’ financial interests is pretty much

the same as to the definition given under the PIF draft Directive. This approach is very much

welcomed in view of the fact that the same definition of what is considered as ‘fraud

affecting the financial interests of the European Union’ is used. This improves consistency

within the European Union acquis with respect to substantive criminal law. In fact, the

offence of fraud affecting the financial interests of the European Union has been listed as one

of the offences out of 62 classified offences identified under the EU level offence

classification system (EULOCS) as having a harmonised definition throughout the European

Union territory.96

Secondly, article 4 of the draft PIF Directive deals with “fraud related offences affecting the

Union’s financial interests” and member states are to ensure that the following conduct is

93


(Proposal) COM (2012) 363/2, art 3 94

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the

surrender procedures between member states [2002] OJ L190, art 2(2) 95

Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the

purpose of obtaining objects, documents and data for use in proceedings in criminal matters [2008] L350/72 96

Gert Vermeulen & Wendy De Bondt, EULOCS – The EU level offence classification system: A benchmark for

enhanced internal coherence of the EU’s criminal policy (IRCP Series, 35 Maklu Publishing 2009), 26-27

32

criminalised, namely (i) the provision of information or the failure to provide information by

a tendering body in public procurement with the aim to circumvent the application of

eligibility, exclusion, selection or award criteria; (ii) money laundering as defined in

Directive 2005/60/EC; (iii) Passive & Active Corruption.

Under article 1 of the Directive 2005/60/EC of 26 October 2005 on the prevention of the use

of the financial system for the purpose of money laundering and terrorist financing, there is

the definition of money laundering. Money laundering shall consist of (a) “the conversion or

transfer of property, knowing that such property is derived from criminal activity or from an

act of participation in such activity, for the purpose of concealing or disguising the illicit

origin of the property or of assisting any person who is involved in the commission of such

activity to evade the legal consequences of his action; (b) the concealment or disguise of the

true nature, source, location, disposition, movement, rights with respect to, or ownership of

property, knowing that such property is derived from criminal activity or from an act of

participation in such activity; (c) the acquisition, possession or use of property, knowing, at

the time of receipt, that such property was derived from criminal activity or from an act of

participation in such activity; (d) participation in, association to commit, attempts to commit

and aiding, abetting, facilitating and counselling the commission of any of the actions

mentioned in the fore-going points.”97

In providing a clear definition for the offence of money laundering, the 2005/60/EC Directive

has brought about the harmonisation of the definition of the offence. In fact, the offence of

money laundering is also listed as one of the 62 label offences identified by EULOCS as

being harmonised across the legal systems of the member states.98

Moreover, in referring to

the definition of the offence as described under the Directive 2005/60/EC improves clarity

and consistency as there is a homogenous way in describing the offence of money laundering.

In turn, passive and active corruption have also been identified by the PIF draft Directive as

fraud related offences affecting the Union’s financial interests. This time, the PIF draft

Directive gives – u

arraigned by the european public prosecutor: a mandate yet ...€¦ · b. arguments in favour of...

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