Putting Lisbon into practice: what way forward for a European Public Prosecutor’s Office?

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The EU is looking closely at fraud and corruption.

Putting Lisbon into practice: what way forward for a European Public Prosecutor’s Office?


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The political dimension of the EPPO

The proposal to establish a European Public Prosecutor’s Office (EPPO) as tabled by the European Commission last July raises, beyond technical aspects, a fundamental political issue: what kind of Europe do we really want? Do we want to stick to the current scenario of the EU, in which each Member State continues to set its priorities for criminal investigations and prosecutions, or do we want to take a significant step towards a more integrated approach at Union level?

Setting-up an EU prosecutorial body empowered to carry out criminal investigations and to prosecute the authors of certain criminal offences according to common European rules would undoubtedly need the political backing of the Member States. Without such a political will, any initiative of to establish the EPPO would have little chances of success.

This is of course a delicate matter. By supporting the initiative, Member States would have to give up part of their national sovereignty in a specific area, criminal law, which has for centuries been one of the main expressions of the States’ own power. At the same time, Member States could also seize this opportunity and moment in time to make significant progress in achieving a true common space of European justice. In the same vein as establishing a common market for goods, by supporting this proposal, Member States could lay the ground for a common institution to effectively protect the EU budget from fraud.

As the European Union comprises dozens of different judicial systems, it is impossible to conceive a common system that is the perfect synthesis of each of them. This is why, in order to comply with the proportionality principle and to take account of the originalities of each national system, the Commission’s proposal has the merit of creating a EU prosecutorial body without being excessively intrusive when it comes to the criminal procedure to be followed in  EPPO investigations.

Indeed, the proposal is based on a decentralized structure of a European office. It relies significantly on the application of the national law for the execution of investigative measures in a Member State. The Commission hoped that this solution would go a long way in convincing national governments of the merit of its initiative.

However, the proposal has not been free of controversy. On the one hand, the Commission has been criticized – mainly by academics – for its alleged lack of ambition and of a truly “European vision”. Such critics believe the Commission could have put forward a fully-fledged set of European procedural rules directly applicable in each Member State.

On the other hand, the proposal has triggered the severe criticism of the National Parliaments for the exactly opposite reason: it has been considered too invasive in the national systems.

The truth is that such divergent interpretations depend on one’s view of Europe: do we want more or less of it?  This is why the EPPO proposal goes beyond the technicalities of setting up yet another EU institution. Following the path of the Lisbon Treaty vision, it opens a key debate for the future of the European construction.

The merits of the  Commission proposal

Before one can draw any rushed conclusions on the Commission’s proposal, it is however important to carefully consider the core features of the envisaged institution.

The EPPO should investigate, at least at a first stage of its establishment, only criminal offences affecting the EU financial interests and, to a very limited extent, some further offences connected to them. It should protect, therefore, only European interests.

This should thus fully justify a “European” view of the Office’s structure and powers.

Furthermore, statistical figures show that so far the Member States have not always been very proactive in the protection of the European budget at criminal level. The background to this poor protection is probably the idea that the Union budget is something belonging to a farther entity, the Union, which is other than the Member States. Protecting the EU budget has not become a national priority.

This is a clear mistake of perspective: the Union’s interests are the Member States’ and the European citizens’ interests. The protection of the Union’s budget is essential for the member States and for the European taxpayers; if the member States fail to protect effectively the Union budget at criminal level, a reaction from the European institutions makes absolute sense.

There are therefore good reasons for the Union to establish the EPPO as a real European body.  However, this obviously requires the cooperation of the Member States. They should accept a European prosecutorial body in which the prosecutors are appointed by the European institutions and not by the Member States; that can carry out criminal investigations in the territory of the Member States through a very well-conceived system of national delegated prosecutors working for the EPPO; and that overcomes the current system of the cross-border investigations based on mutual assistance among Member states or on the mutual recognition. The EPPO prosecutors will not need such instruments. They will belong to the same European Office that can decide whether or not to prosecute a case through a decision taken at European level.

In a nutshell, the Commission’s proposal is very well balanced. It seeks to achieve good results through a strong European costs-neutral structure (making use of the existing expertise in the Institutions), and avoids excessive intrusion into national legal systems.

There is no doubt that the European element of the EPPO structure is an interesting step towards a new scenario of criminal investigation and prosecution in the Union. It is now up to the Member States and to the European Parliament to decide what they want: supporting the European elements of the proposal and accepting this new space of justice in Europe, or watering down the proposal and depriving it of any added value. This is a decisive choice that goes beyond this specific case: it is a choice about what type of Europe we want in the coming years. The question remains open.

 

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