The European Union is taking steps to set up the European Public Prosecutor’s Office (EPPO), but is making announcements that do not accurately describe the current stage and progress in the legislative process.

According to the European Commission, 19 Member States expressed their willingness to participate in the EPPO at the General Affairs Council last week. The Commission maintains that 17 Member States have sent a letter to refer the topic to the European Council, “where heads of state are expected to launch the enhanced cooperation”, and that Portugal and Cyprus weren’t able to clear internal proceedings on time, but remain supporters.

The European Commission says that this step “will enable the establishment of the EPPO to go forward with a large majority of Member States on board. While the text is stable, Member States will be able to fine-tune it before the final vote in the Justice Council in the months following the European Council.”

European Justice, Consumers and Gender Equality Commissioner, Věra Jourová, said on the occasion of the letter from the 17 Member States:

“I am very encouraged that 19 Member States confirmed that they will make a request to start the procedure of enhanced cooperation. We will now be able to establish quickly the EPPO with a significant number of Member States on board. This is not unanimity, but other Member States will be able to join at any time. The EPPO will decisively improve the protection of the EU’s budget. It will investigate and prosecute not only corruption, money laundering or fraud in regional, agricultural or other EU funds, but also serious cases of cross-border VAT fraud.”

The letter, however, does not launch the procedure of enhanced cooperation, which would come at the next stage of the process if the conditions allow. Furthermore, an EU source told New Europe that the cases of Cyprus and Portugal were not simply an issue of “not clearing internal procedures in time”. Indeed, at the informal Valletta summit, the Cypriot Minister was clear that his country would not be signing the letter.

Germany and European Council reaction to Commission statement

On the issue of the exact progress and stage in the legislative process, a spokesperson at the Permanent Representation of the Federal Republic of Germany to the European Union told New Europe that “Germany is in favor that the EU Council has to look into [The European Public Prosecutor’s Office]. There should be a last attempt [at achieving unanimity].”

Referring to the letter of the 17 described above, the spokesperson continued to say “there is a letter asking Mr. Tusk to try. If there is no consensus then it could get to this enhanced cooperation.”

A European Council official told New Europe that the letter gives a mandate for European Council President Donald Tusk to place the item of the March 9 European Council, and to negotiate in an attempt to reach unanimity. The official told New Europe that this is not the procedure described by the European Commission, and that the reference to enhanced cooperation at this stage is incorrect.

The official said that it remains to be seen if it will be 17,18,19 or however many countries in this process of enhanced cooperation when that time comes. At the moment, the official reiterated, the procedure remains one of seeking unanimity.

Asked to comment on information that several countries had expressed their concern with the communication of the European Commission on the EPPO, the Commission declined to comment.

The EPPO and its supporters

The aim for the EPPO is to become an independent specialised body with institutional memory to investigate complex cases quickly. The EPPO would complement the work of the European Anti-Fraud Office (OLAF) and Eurojust, which are not equipped to investigate or prosecute. According to the European Commission, as soon as EPPO is up and running, Eurojust will be able to focus on other crimes such as terrorism and become a more important partner of Europol.

The EPPO will decisively improve the protection of the EU’s budget, according to the European Commission. At least €50 billion of revenue from VAT does not make it to national budgets all of EU member states due to cross-border fraud, like carousel fraud every year. The EPPO will enable for a portion of this lost revenue to be recovered.

The 17 member states that committed to support the legislation proposal with the aforementioned letter are: France, Belgium, Spain, Czech Republic, Slovakia, Luxembourg, Slovenia, Austria, Romania, Bulgaria Latvia, Lithuania, Estonia, Croatia, Greece and Finland.

Italy supports the EPPO, but did not sign the letter as well, as the proposal is not as ambitious as the country hoped for.

The Netherlands, Sweden, Hungary, Poland and Malta do not support the establishment of an EPPO, while under special arrangements, the U.K. and Ireland have chosen not to opt-in and Denmark has a definitive opt-out in the area of freedom, security and justice.

As for the unanimity that would be needed according to Article 86 of the Treaty on the Functioning of the European Union (TFEU) in order to conclude with the procedure that soon, during March’s European Council, Commissioner Jourová admits that “this is not unanimity, but other Member States will be able to join at any time.”

A European Commission official added that there is an understanding that the discussions have been going on for the past 4 years. “I don’t see how the Dutch for example would decide to participate one day before their national elections,” added the official. “It is already very clear who is going to participate and who is not.”

The Maltese Presidency did not respond to a request for comment in time for publication.