For a long time after the Maastricht Treaty was adopted (1992), discussions were held concerning the establishment of a prosecutor for the European Union, in order to protect the financial interests of the Union in a more efficient way. Several academic papers and Commission soft law instruments have been published, and those led to the insertion of Article 86 in the Treaty on the functioning of the European Union through the Lisbon Treaty (2007). This provided the possibility to establish a European Public Prosecutor’s Office (EPPO). The Commission published its proposal in 2013 and the Council Regulation implementing enhanced cooperation on the establishment of the EPPO was finally adopted on October 12, 2017. Enhanced cooperation meant that only 22 Member States out of the 28 participated in the establishment of the EPPO.
The establishment of a body of the European Union charged to conduct investigations and prosecutions can only be considered an improvement for the European
area of freedom, security, and justice, especially in order to counter fraud against the financial interests of the Union. However, the high importance awarded to national laws in the Regulation raises some concerns.
While the Commission’s proposal did assign an exclusive competence to the EPPO for crimes against the financial interests of the EU or the free admissibility of evidence gathered abroad, the Regulation establishes a shared competence between the Member States and the Union and it limits the free movement of pieces of evidence. Moreover, the judicial review left to national authorities both by the proposal and by the Regulation can also be discussed.
1. Shared competence rather than exclusive competence
On the basis that national authorities do not have the necessary resources, and that their efforts remain often fragmented in the investigation of offences against the EU budget, the Commission provided an exclusive competence for the European Prosecutor regarding such offences. According to the wording of the Commission, the proposal already ensures the least intrusive impact possible for national legal orders.
However, the States within the Council decided to switch to a shared competence. Therefore, the EPPO can only exercise its jurisdiction in the case of an offence liable to cause a total damage of less than EUR 10,000 if the case is likely to have repercussions at a Union level or where Union officials or other servants could be suspected of having committed the offense (Article 25(2) of Regulation 2017/1939). The EPPO also has a right of evocation in other circumstances in case a national prosecution authority has already started an investigation. If a conflict about competence occurs between the European and the national prosecution authorities, ‘the national authorities competent to decide on the attribution of competences concerning prosecution at national level shall decide who is to be competent for the investigation of the case’ (Article 25(6) Reg. 2017/1939).
This established shared competence presents several disadvantages. It leads to more inefficiency in case management, and more legal uncertainty and administrative burden on national authorities. Also, the method of determining the damages caused to the EU budget at the beginning of the investigations, to determine whether the EPPO is competent is highly questionable, as the scale of the damage often only becomes clear during the investigation.
Furthermore, the request of the Member States to keep some kind of competence in this field is astonishing, since the EPPO has been established precisely to face the lack of suitable means given by the Member States to counter fraud against EU financial interests.
2. A missed opportunity for free admissibility of evidence
Article 30 of the Commission’s proposal provided that the evidence gathered by the EPPO was admissible ‘without any validation or similar legal process even if the national law of the Member State where the court is located provides for different rules on the collection or presentation of such evidence’. Evidence admission will, however, be denied if it affects the ‘fairness of the procedure or the rights of defence as enshrined in Articles 47 and 48 of the Charter’.
The provision finally adopted in the regulation astonishes by its compactness. Indeed, it reads that ‘evidence presented by the prosecutors of the EPPO or the defendant to a court shall not be denied admission on the mere ground that the evidence was gathered in another Member State or in accordance with the law of another Member State’(Article 37 Reg. 2017/1939). Moreover, the recitals of the regulation provide that ‘nothing in this Regulation may be interpreted as prohibiting the courts from applying the fundamental principles of national law on the fairness of the procedure that they apply in their national systems’(Recital 80).
While the Commission proposed the free admissibility of evidence gathered abroad with only a few exceptions concerning European law, the terms of the regulation ‘on the mere ground’ leave room for exceptions based exclusively on national law, which is confirmed by the recitals.
Here again, Member States pushed for more references to national law, even though scholars have been asserting for a long time that the mere reference to national principles regarding evidence will result in serious disparities and can lead to impunity.
3. Judicial review
Both the Commission’s proposal and the regulation have conferred the judicial review to national courts by providing that ‘when adopting procedural measures in the performance of its functions, the European Public Prosecutor’s Office shall be considered as a national authority’.
However, Article 3 of the regulation reads that ‘the EPPO is hereby established as a body of the Union’. It still, then, remains the Court of Justice of the European Union’s duty to review the legality of EPPO’s acts, those intended to produce legal effects vis-à-vis third parties as provided for by Article 263 TFEU.
It can seem consistent to provide for a national judicial review since the relevant law will mainly be a national law, eventually implementing EU law through directives. Also, some authors asserted that Article 263 TFEU, modelled on the administrative law annulment procedure, does not suit the specificities of the criminal justice system. Thus they believe that there is no legal basis for a direct criminal competence of the Court of Justice.
The previous considerations are based on the wording of Article 86 TFEU that allows the regulation to determine the rules applicable to the judicial review. It is, though, still uncertain if the aforementioned provision is a proper basis for setting aside the system of judicial review resulting from the Treaty or is it rather a question of establishing specific procedural rules for the functioning of the European Public Prosecutor's Office, without going so far as to deprive the Court of part of its powers.
Yet, Article 263 TFEU is clear and it is the Court of Justice’s duty to review EU bodies’ acts producing effects vis-à-vis third parties. Moreover, other authors asserted that to shield acts of an EU body from the EU judicial scrutiny would contrast the principle of rule of law and pose a challenge for effective judicial protection.
The establishment of a European Public Prosecutor’s Office is undoubtedly a step forward in the European area of freedom, security, and justice, but also in the construction of a European criminal area. However, the highly systematic recall to national law – mainly due to the reticence of Member States within the Council – undermines the efficiency of its investigations, even though it was established precisely to efficiently fight EU budget fraud and to counter the lack of commitment of national authorities to do so.
If the Commission’s proposal was already the result of a compromise in order to reach the greatest consensus possible, the work within the Council led to further ‘nationalisation’ of the EPPO.
First, the shield from exclusive to shared competence is a perfect example of what has just been stated. It only results in a heavier burden on national authorities - their reluctance being the basis of an EU body settlement in this field - while also heading towards potential inefficient management of cases.
Then, while the Commission wanted to settle the free admissibility of evidence, the regulation adopted by the Council reaffirms the pre-eminence of national law principles regarding this issue.
Also, the avoidance of the Court of Justice’s jurisdiction to review the acts of an EU body – as the EPPO – in favour of national courts, can lead to inconsistencies in the conduct of investigations and then contrast with the fundamental rights of convicted persons, whether they are convicted in one or another State.
Finally, it seems that the persistence of Member States in preserving their national sovereignty, together with their will to maintain full competence in criminal matters, have overruled the principles of efficient and effective administration of justice.
By Lucas Pinelli
This material was published in Lawyr.it Vol. 6, September 2020, available only online.
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