European Public Prosecutor's Office

It was strongly backed by the former Commissioner for Justice, Freedom and Security, Franco Frattini as part of plans to strengthen the Eurojust agency. Frattini stated in August 2007 that he is "convinced that Europe will have its general prosecutor in the future" and suggested that the commission was just waiting for the treaty to come into force. He stated that a prosecutor "could prove useful" in areas "where important European interests are at stake", namely in dealing with financial crime, fraud and counterfeiting at European level.[4]

The signing, in late 2007, of the Lisbon Treaty by all Member States of the European Union, which refers explicitly to the idea of creating a European Public Prosecutor's Office to combat crimes affecting the financial interests of the Union and, where appropriate, to combat serious crime with cross-border dimension, resulted in the conclusion of an International Seminar in Madrid to study the new institution and the possibilities of its implementation. The seminar was called by the Spanish Attorney General Cándido Conde-Pumpido, and was led by Prosecutors Jorge Espina and Isabel Vicente Carbajosa. The presentations, discussions and conclusions of the meeting were collected in a book, The future European Public Prosecutor's Office, in English and Spanish, and have served to date to guide the proposals and jobs that have been carried out in the implementation of this institution.[5]

Following the short selling of certain euro-zone financial products in 2009 and 2010, Spain proposed the EU enact the European Public Prosecutor's Office provision so the post could co-ordinate legal action in retaliation. "Spain wants the European Union to use a planned public prosecutor's office for the region to protect the euro currency against speculators", Spanish attorney general Cándido Conde-Pumpido said in March 2010.[6]

In March 2010 Eurojust cited the European Public Prosecutor's Office as a potential solution to the problem of cross border crime in the EU. Despite opposition from some member states seeing it as impinging on their sovereignty (partly due to the necessary harmonisation of legal codes), Eurojust set up a working group to study the idea.[7]

In March 2010, during the Spanish Presidency, the Spanish Attorney General Cándido Conde-Pumpido officially launched a draft for the implementation of the European Prosecutor, pursuant to the provision of Article 86 of the Treaty of Lisbon. Conde-Pumpido, speaking with the President of the Commission of Justice and Home Affairs of the European Parliament, Juan Fernando López Aguilar, and the Spanish Secretary of State for the European Union (SEUE), Diego Lopez Garrido, presented a technical project, developed from the conclusions of the International Conference convened by the Spanish Prosecutor in 2008 and 2009, which would be discussed later in the Luxembourg Council.

The creation of this institution was subsequently discussed, according to the Spanish proposal, by the meeting of Ministers for Justice and Home Affairs held in Luxembourg on 27 April 2010, but its implementation was suspended until a new discussion in 2013.[8]

On 21 and 22 September 2010, Eurojust, in co-operation with the Belgian Presidency of the Council of the European Union, held a strategic seminar, "Eurojust and the Lisbon Treaty: towards more effective action", "Establishment of the European Public Prosecutor's Office from Eurojust?", at the College of Europe in Bruges, Belgium.

The goals of the seminar were the development of Eurojust in light of the Lisbon Treaty and the possible establishment of a European Public Prosecutor's Office from Eurojust under Article 86 TFEU.[9]

The European Commission President Jose Manuel Barroso said on 12 September 2012 in his speech to the European Parliament on the state of the Union, that the next presentation of a proposal for the creation of a European Public Prosecutor would come soon, based on "commitment to uphold the rule of law".

On 17 July 2013 the European Commission, at the initiative of Vice-president Viviane Reding and Commissioner Algirdas Semeta, proposed a regulation for the establishment of a, European Public Prosecutor's Office (EPPO).[10][11]

The proposal was then discussed by the representatives of the EU Member States' experts under the specific procedure set by Article 86 of the Treaty. The following 3 main options were considered within the range of options concerning the scope of the initiative to tackle offences against PIF (protection of financial interests):

• Doing nothing – criminal investigations of PIF offences are (still) conducted by Member State authorities exclusively;
• Setting-up the EPPO with a limited mandate (PIF offences) – EPPO has priority competence to order investigations and direct prosecutions into PIF offences
• Setting up the EPPO with an extended mandate (PIF offences and serious cross-border crimes) – EPPO has exclusive/shared competence to order investigations and direct prosecutions into PIF offences and other serious cross-border crimes (money laundering, corruption, accounting offences).

Besides these three options regarding scope, the Commission needed to consider a series of significant legal, institutional and organisational matters (relationship with Eurojust, OLAF, member state authorities, judicial review) which could be formulated as sub-options. Moreover, particular procedural issues (EP involvement, legislative process, what if unanimity requirements are not met, enhanced co-operation with which member states, etc.) needed to be considered in these options. In accordance with Article 86 the proposal could include one or more regulations covering different aspects of the setting up of an EPPO. Soft law instruments were not relevant as legislative measures were needed to address criminal offences and law enforcement.

Likely impacts will include a more effective, dissuasive and equivalent criminal law protection of the Union's financial interests. Irregularities affecting the European budget may reach or exceed €1 billion per year, from which around €280 million could be suspected EU fraud cases to be investigated within the EPPO's competence. This amount could be significantly reduced if the EPPO were to direct investigations and prosecutions throughout the EU, acting on all cases of PIF offences. Moreover, economies of scale might be achieved for the benefit of justice budgets of participating Member States, due to a streamlining of the judicial procedures involving EU financial interests across the EU.

Depending on how the relationship between the EPPO and the national authorities would be defined, the impact would be primarily on national police and judicial authorities, which would certainly have to cope with the new framework for investigations and prosecutions ordered by the EPPO. The administrative burden would depend on the new relations established between the EPPO and the national authorities, and whether the initiative would impose new information obligations on Member States.

Preparatory work, in particular the 2001 Green paper on the establishment of a European Prosecutor, was taken into consideration. Existing studies and evaluations, in particular the Criminal Justice Systems Study, the Euroneeds Study, the Pretrial investigative model rules, the Spanish Presidency Report, officially launched in Brussels in March 2010, etc. and studies regarding Eurojust, provided valuable input.

In November 2013 the Commission concluded that the establishment of a European Public Prosecutor's Office complied "with the principle of subsidiarity" in a report addressing the issue, after it was raised by 14 national parliamentary chambers in 11 Member States.[12] The European Parliament subsequently voted in favour of the commission's proposal to set up the body.[13] On 23 September 2019, the European Parliament and the Council of the European Union agreed on appointing Laura Codruța Kövesi as European Chief Prosecutor.[14]

The College of the EPPO consists of the European Chief Prosecutor and one European Prosecutor per participating Member State – two of whom function as Deputies for the European Chief Prosecutor.[19][22]

The European Prosecutors are distinct from the European Delegated Prosecutors and the European Chief Prosecutor. The European Prosecutors supervise the European Delegated Prosecutors, who conduct investigations on the ground in the participating Member States. At the end of July 2020, the first cohort of European Prosecutors were appointed by the Council of the EU.[23] On 28 September 2020, the European Public Prosecutors were sworn in before the judge responsible at the European Court of Justice.[24]

The decisions of the college are based on internal decision-making rules (Procedural Rules).[25]

The Permanent Chambers of the EPPO each consist of three members. They are two European Prosecutors and, as chairperson, the European Chief Prosecutor or one of their deputies, or a European Prosecutor, cf. Art. 10 of the EPPO Regulation. The Chambers are responsible for controlling the investigations of the European Delegated Prosecutors. The Chambers decide above all on the filing of charges or the discontinuation of proceedings. The right of evocation of Art. 27 of Regulation (EU) 2017/1939 can also be ordered by the Chamber.

Looking at the EPPO's structure hierarchically, the European Delegated Prosecutors are below the Permanent Chambers. The European Delegated Prosecutors carry out their work locally, in their respective member states. In their work, they are independent, i.e. free from instructions by national authorities. At the member state level, the European Delegated Prosecutors are responsible for prosecuting PIF offences (see Brodowski for an overview). According to an internal EPPO agreement, there will be 140 European Delegated Prosecutors across the union.

The table below lists the number of candidates proposed and appointed per country (as of 2 August 2021):

Source: EPPO News "European Delegated Prosecutors Overview per Country"[26][27]

When the EPPO launched its operations on 1 June 2021, Finland and Slovenia had failed to appoint their respective European Delegated Prosecutors. In Finland, the delay was due to a debate between the Finnish government wishing to only appoint part-time prosecutors because of a low expected workload, while European Chief Prosecutor Laura Kövesi insisted all European Delegated Prosecutors were to work on a full-time contract.[28] A compromise was worked out in the beginning of June 2021[29] and the college appointed the Finnish European Delegated Prosecutor a month later.[30]

Shortly before the repeatedly postponed but then set 1 June 2021 starting date of the EPPO, it emerged that Slovenia's acting head of government Janez Janša prevented the selection and nomination of two Slovenian European Delegated Prosecutors. In the wake of this, Slovenia's then Minister for Justice Lilijana Kozlovič resigned from her post on 27 May 2021.[31] Kozlovič belongs to the smaller ruling party SMC, and had asked the independent Prosecutorial Council to appoint two suitable candidates. ORF and other media reported that Janša might have opposed the nomination of the two prosecutors because they had also been involved in investigations against him in the past.[32] Zdravko Počivalšek, Slovenia's Minister of Economy and head of the coalition party SMC, also intervened in the dispute. Počivalšek considered the appointment of only one European Delegated Prosecutor from Slovenia by Janša – the compromise Didier Reynders, EU Justice Commissioner, had proposed as an interim solution – to be an overstepping of competence by the government, the government to which he himself belongs. Počivalšek criticised the EU for exerting pressure in the matter of the hasty appointment of the European Delegated Prosecutors and pointed out that participation in the EU authority was voluntary.[32] The European Chief Prosecutor countered and referred to the very long preparation time. She considers the non-appointment or untimely appointment to be a bad omen, so to speak.[33]

The issue gained prominence as it coincided with Slovenia taking over the rotating presidency of the Council of the EU on 1 July 2021, causing many Members of the European Parliament and even European Commission President Ursula von der Leyen to urge Janša to swiftly appoint the Slovenian European Delegated Prosecutors during a parliamentary plenary debate.[34]