EUROPEAN PUBLIC PROSECUTOR'S OFFICE- CUI BONO?

 
EUROPEAN PUBLIC PROSECUTOR’S OFFICE
                 – CUI BONO?

                     Ladislav Hamran* and Eva Szabova**

ABSTRACT

The establishment of a European Public Prosecutor’s Office could be described as one of
the most topical issues currently under discussion in the European Union. The authors
present a comprehensive interpretation of the problem areas most widely discussed in
relation to the establishment of an EPPO. The contribution is divided into two parts. For
the sake of completeness, the authors provide a description of the events preceding the
enshrinement of this concept in the Lisbon Treaty. The second part of the paper is focused
on the main problem areas that need to be resolved not only from a practical perspective,
but also in order to achieve the greatest possible agreement between the individual
Member States.

Keywords: Article 86 TFEU; Corpus Juris; Eurojust; European Public Prosecutor’s
Office; mutual legal cooperation in criminal matters

INTRODUCTION1
The establishment of a European Public Prosecutor’s Office (‘EPPO’) could be
described as one of the most topical issues under discussion in the European Union,
mainly due to the adoption of the Lisbon Treaty2, which for the first time sets out the
concept of a European Public Prosecutor at the level of primary EU law.

*     L. Hamran is a prosecutor of the General Prosecution Office of the Slovak Republic and National
      Member for the Slovak Republic at Eurojust.
**    E. Szabova is a doctoral student at the Institute of Criminal Law and Criminology, Faculty of Law,
      Trnava University, Trnava, Slovakia.
1     Disclaimer: Presented opinions are exclusively the opinions of the authors and do not represent the
      official position of the Slovak Republic or Eurojust concerning the EPPO.
2     The consolidated version of the Treaty on the Functioning of the European Union appeared in the
      Official Journal of the European Union, published under number C 83/47.

40                                                                                            Intersentia
European Public Prosecutor’s Office – Cui Bono?

    Discussions on the need to expound on its roles, competences, structure and other
questions related to its operation, have been going on for much longer, since the mid-
1990s, initiated by the Corpus Juris project, which provoked a significant response and
inspired practitioners, academics, and the professional public to publish many articles,
studies and analyses on the European Public Prosecutor. After the signing of the
Lisbon Treaty, discussions on this topic became more intense, and a number of
discussion fora, conferences and workshops were devoted to it.3
    In this paper, we will try to present a comprehensive interpretation of the problem
areas most widely discussed in relation to the establishment of an EPPO. For the sake
of completeness, we believe that an appropriate place to begin is with a description of
the events preceding the enshrinement of this concept in the Lisbon Treaty. The
second part of the paper will focus on the main problem areas that need to be resolved
not only from a practical perspective, but also in order to achieve the greatest possible
agreement between the individual Member States.

1.       HISTORICAL OVERVIEW

1.1.     CORPUS JURIS

Corpus Juris may be characterised as a very schematic model of criminal law and
criminal procedures, which was drawn up exclusively for the area of protecting the
financial interests of the European Union. Corpus Juris is not the work of EU
institutions; it is the outcome of numerous investigations and studies conducted by a
group of independent experts, academics and practitioners from the Member States
under the leadership of Mireille Delmas-Marty, a professor at the Sorbonne in Paris.
Corpus Juris is therefore not of a binding nature, and all of the provisions (articles)
contained within it are only recommendations, or proposals de lege ferenda directed
towards the creation of a European judicial area and towards securing more effective
cooperation in relation to protecting the financial interests of the European Union.
Two versions of this study are available – the version originally produced in 1997 and
a new, improved version that resulted from a conference held in Florence in 1999.4
    Corpus Juris comprises 35 articles arranged into two main sections, the substantive
law section (Articles 1–17) and the procedural law section (Articles 18–35). The
substantive law section covers eight elements of a crime5 directed against the financial

3      In particular, the meeting of the working group on the European Public Prosecutor’s Office held in
       Madrid in 2009 and the Eurojust strategic seminar, organised with the Belgian Presidency in
       September 2010 in Bruges.
4      Th is version was also called the ‘Florence version of Corpus Juris’, and is also known as Corpus Juris
       2000.
5      Specifically, fraud affecting the budget of the EU (Article 1), market-rigging (Article 2), corruption
       (active and passive – Article 3), abuse of office (Article 4), misappropriation of funds (Article 5),
       disclosure of secrets pertaining to one’s office (Article 6), money laundering (Article 7), and

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Ladislav Hamran and Eva Szabova

interests of the European Union, as well as the foundations of criminal liability, the
types of punishment and the methods for imposing punishments. The aim of the
subsequent procedural section was to establish substantive law concepts, specifically
by means of provisions on the European Public Prosecutor, on the pre-trial judge and
on the European Arrest Warrant. The project can be said to have succeeded in doing
what many considered completely unrealistic – incorporating all sections (both
substantive and procedural law) of criminal law protection of the financial interests of
the European Union within one, albeit legally non-binding, document, and
overcoming the apparently insurmountable differences between the three main legal
systems in the European Union (Anglo-Saxon, Continental and Mixed
Scandinavian).6
    As the main aim of the Corpus Juris study – the creation of a European judicial
area to combat fraud affecting EU finances – was to be achieved through the
establishment of the EPPO, the provisions on the European Public Prosecutor are
accorded the greatest importance. These are contained in the procedural section,
specifically in Articles 18 to 24, which address many issues related to the establishment
of the EPPO. These mainly concern arrangements for the status and structure of the
EPPO, questions relating to the start of proceedings, the performance of investigations,
the conduct of prosecutions and the tasks of a European Public Prosecutor when
making decisions. The provisions include a definition of the central concept itself –
the European Public Prosecutor. According to Corpus Juris, this is a:

     ‘body of the European Community made up of a European Director of Public Prosecutions
     and of Deputy European Prosecutors, which shall be responsible for investigations,
     prosecutions, the fi ling of charges, the conduct of prosecutions in a main hearing and
     enforcement of judgments relating to the crimes defined in Articles 1 to 8, in other words
     crimes harmful to the financial interests of the EC’.7

1.2.     GREEN PAPER ON THE CRIMINAL LAW PROTECTION OF THE
         FINANCIAL INTERESTS OF THE COMMUNITY AND THE
         ESTABLISHMENT OF A EUROPEAN PROSECUTOR

Despite the fact that Member States gave a markedly cool reception to the ideas
contained in the Corpus Juris project, the project won the full backing of both the
European Parliament and the European Commission (hereinafter, the ‘Commission’),

       conspiracy (Article 8) (Fenyk, J., Europeizace trestního práva [Europeanisation of Criminal Law].
       Bratislava: Bratislavská vysoká škola práva, 2008, p. 29).
6      Vrtek, M., ‘Postavení ČR při ochraně fi nančních zájmů Evropských společenství’ [The position of
       the Czech Republic in the protection of the fi nancial interests of the European Community], in
       Nové jevy v hospodářské kriminalitě: Sborník z mezinárodní konference konané na Právnické fakultě
       MU v Brně v únoru 2005 [New developments in economic crime: Volume from an international
       conference held at the Law Faculty of the MU in Brno in February 2005], Brno, 2005, p. 293.
7      Ondrejová, A., Corpus Juris 2000, Bratislava, Iura Edition, 2003, p. 26.

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European Public Prosecutor’s Office – Cui Bono?

as was made clear from the proposal drawn up by the Commission to provide a legal
basis for the creation of the EPPO. The Commission presented the proposal at a
meeting in Nice, with the aim of making the relevant amendment to the founding
treaty of the European Union. It was not adopted, however, the main reason being the
lack of time to assess the proposal and the need for a more detailed examination of the
practical consequences of creating a European Public Prosecutor. The Commission,
in accordance with its action plan for 2001–03 on protecting the Communities’
financial interests, therefore undertook to adopt the Green Paper on Criminal Law
Protection of the Financial Interests of the European Community and the
Establishment of a European Prosecutor (hereinafter, the ‘Green Paper’).8 The Corpus
Juris project therefore provided a direct impulse for the drafting of the Green Paper,
but the connection between the two documents goes much further. It can be seen in
all of the formulations and proposals, which are often very similar, and sometimes
identical.
    The main purpose of this document is to provide a detailed presentation of the
European Public Prosecutor project to the professional public, and to define realistic
conditions for the implementation of this instrument. The form of the Green Paper is
very specific. It takes the form of a questionnaire, in which the European Commission
raises specific questions, which it then answers in the form of extensive commentaries,
analyses and opinions.9
    The Green Paper addresses many relatively specific questions and problems related
to the establishment of an EPPO. The first question relates to the status of the European
Public Prosecutor. Other questions concern appointment and dismissal, responsibility
for serious errors in the performance of the role, the hierarchical setup of the EPPO,
organisation of the EPPO and the basic principles of its operation, the method of
investigation, detention of persons or items, relationships between the European
Public Prosecutor and the national public prosecutors, the possibility of appealing
against a decision of the European Public Prosecutor, relationships between the
European Public Prosecutor and other EU bodies and much more.
    The response to the adoption of the Green Paper was the drafting of nearly 70
written responses expressing views on the possibility of creating a European Public
Prosecutor. Some of these responses came from individuals, but most were documents
from national governments, parliaments, representatives of judicial bodies, legal
experts, lawyers and NGOs. A round table meeting also took place in 2002 to discuss
the adoption of the Green Paper, resulting in the adoption of further documents

8    Green Paper on Criminal Law Protection of the Financial Interests of the European Community
     and the Establishment of a European Prosecutor, Brussels, 11 December 2001, COM (2001) 715 fi nal
     p. 6.
9    Fenyk, J., ‘European Public Prosecutor – A Step towards Mutual Recognition, or the Establishment
     of European Criminal Justice?’, in Czech Yearbook of International Law, New York, Juris Publishing,
     2010. pp. 193–195.

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Ladislav Hamran and Eva Szabova

setting out reactions to the ideas contained in the Green Paper.10 The report produced
directly by the Commission, the ‘Follow-up report on the Green Paper’, holds a special
place among these documents, as it brought to a close the period of drafting views and
opinions on the Green Paper. The report comprises a general assessment, followed by
an assessment of the responses received from correspondents. The first part of the
report deals with the various opinions on the possibility of establishing a European
Public Prosecutor, and confirms the added value of this new legal instrument in the
area of judicial cooperation in criminal matters. The second part of the report
concentrates on questions of an institutional and legal nature, pointing out the need
to deal with these to a sufficient extent in order to make it possible to achieve the goal
outlined by the Green Paper, in other words the goal of establishing an EPPO. It
includes issues concerning the organisation and status of the European Public
Prosecutor, questions on its relationships to other European institutions, the scope of
competence of the European Public Prosecutor and the issue of how to monitor its
activities.11
    The Commission’s efforts to create a European Public Prosecutor have not,
however, borne fruit. The proposal to create an EPPO by means of an amendment to
Article 280 of the Treaty Establishing the European Community (hereinafter, the
‘TEC’), or a new supplementary Article 280A to the TEC, was not approved by the
conference in Nice, which instead adopted a decision on the incorporation of Eurojust
into the Treaty Establishing the European Union. The issue was then taken up by the
Convention on the Future of Europe, which drew up the Draft Treaty establishing a
Constitution for Europe. The provisions on the creation of a European Public
Prosecutor were contained in Article III-274. The EU Constitution was not, however,
approved. The proposal to create a European Public Prosecutor was thus shelved for a
number of years. The change came on 13 December 2007, with the signing of the
Lisbon Treaty, which brought the effort to enshrine an EPPO in EU primary law to a
successful conclusion. As already mentioned, it was inspired by Article III-274 of the
proposed EU Constitution.12

10   As an example, we might mention an analysis of the Green Paper drawn up by specialists from the
     Max Planck Institute for Foreign and International Law at the request of the European Parliament’s
     Committee on Budgetary Control. The document was published as a study in April 2002 under the
     title ‘Criminal-law Protection of the fi nancial interests of the Community and the establishment of
     a European Prosecutor (Analysis of the European Commission’s Green Paper)’. Another example is
     the document drawn up by members of the Dutch Legal Association for a study on protection of the
     fi nancial interests of the European Community (Dasec) under the title ‘Response of Members of
     Dasec to the Green Paper on Criminal-law Protection of the Financial Interests of the Community
     and the Establishment of a European Public Prosecutor’.
11   Follow-up report on the Green Paper on the Criminal Law Protection of the Financial Interests of
     the Community and the Establishment of a European Prosecutor, Brussels, 19 March 2003, COM
     (2003) 128 fi nal, p. 4.
12   Lopes da Mota, J.L., ‘Eurojust – The Heart of the Future European Public Prosecutor’s Office’,
     Eucrim, 2008, No. 1–2, p. 62.

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European Public Prosecutor’s Office – Cui Bono?

1.3.    LISBON TREATY

The Lisbon revision of the founding treaties incorporated the issue of a European
Public Prosecutor into the provisions of the Treaty on the Functioning of the European
Union (hereinafter, the ‘TFEU’), specifically in Article 86. The incorporation of this
article into the founding treaty means that the creation of the EPPO has ceased to be
a Utopian vision and is becoming a real possibility – a real project with a specific legal
basis.
    According to Article 86, paragraph 1 TFEU, ‘In order to combat crimes affecting
the financial interests of the Union, the Council, by means of regulations adopted in
accordance with a special legislative procedure, may establish a European Public
Prosecutor‘s Office from Eurojust. The Council shall act unanimously after obtaining
the consent of the European Parliament. In the absence of unanimity in the Council,
a group of at least nine Member States may request that the draft regulation be referred
to the European Council. In that case, the procedure in the Council shall be suspended.
After discussion, and in case of a consensus, the European Council shall, within four
months of this suspension, refer the draft back to the Council for adoption. Within
the same timeframe, in case of disagreement, and if at least nine Member States wish
to establish enhanced cooperation on the basis of the draft regulation concerned, they
shall notify the European Parliament, the Council and the Commission accordingly.
In such a case, the authorisation to proceed with enhanced cooperation referred to in
Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall
be deemed to be granted and the provisions on enhanced cooperation shall apply.’
    According to paragraph 2 of Article 86 TFEU, ‘The European Public Prosecutor‘s
Office shall be responsible for investigating, prosecuting and bringing to judgment,
where appropriate in liaison with Europol, the perpetrators of, and accomplices in,
offences against the Union‘s financial interests, as determined by the regulation
provided for in paragraph 1. It shall exercise the functions of prosecutor in the
competent courts of the Member States in relation to such offences.’
    Paragraph 3 of Article 86 states that ‘The regulations referred to in paragraph 1
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.’
    Paragraph 4 of Article 86 states that ‘The European Council may, at the same time
or subsequently, adopt a decision amending paragraph 1 in order to extend the powers
of the European Public Prosecutor‘s Office to include serious crime having a cross-
border dimension and amending accordingly paragraph 2 as regards the perpetrators
of, and accomplices in, serious crimes affecting more than one Member State. The
European Council shall act unanimously after obtaining the consent of the European
Parliament and after consulting the Commission.’

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Ladislav Hamran and Eva Szabova

    The inclusion of these Articles in the TFEU is considered a major success,
signifying a genuine step towards the creation of a European Public Prosecutor. The
high degree of generality (and even vagueness on some points) of the cited provisions
has provoked a number of questions in specialist circles. Their analysis and the
emergence of additional problem areas indicate that the path to creation of a model of
a European prosecution will be far from smooth and painless. We now focus on some
of the areas considered contentious.

2.       POSSIBLE PROBLEM AREAS RELATED TO THE
         ESTABLISHMENT OF A EUROPEAN PUBLIC
         PROSECUTOR’S OFFICE

2.1.     CREATING A EUROPEAN PUBLIC PROSECUTOR’S OFFICE
         FROM EUROJUST

The above-cited provisions of Article 86, paragraph 1 TFEU grant authorisation to the
Council of the European Union (hereinafter, the ‘Council’) to create a European
Public Prosecutor ‘from Eurojust’.13 Almost immediately after the adoption of the
TFEU, discussion started on the meaning of the phrase ‘from Eurojust’. The phrase is
interpreted in specialist circles in widely varying and ambiguous ways, resulting in
many possible scenarios. In the materials and workshop and conference conclusions
published to date, we find the following interpretations:

– Eurojust will gradually become the EPPO, on the basis of a progressive increase in
  the powers of the College and the National Members of Eurojust;
– The EPPO will be created as a specialised unit within the structure of Eurojust;
– The EPPO will combine with Eurojust to create a single body, but with different
  decision-making processes;
– The EPPO will become an additional member of Eurojust, and an EPPO
  representative will participate in meetings of the College that involve the discussion
  of criminal cases affecting the financial interests of the European Union;
– The EPPO will work in the same way as the College, and will be represented at
  national level by the Eurojust National Members from the Member States, whose
  powers will be increased to the level of the powers conferred upon prosecutors in
  each Member State. In this context, suggestions have been made to have, in

13     In this respect, attention may be drawn to the clear parallel between the Lisbon Treaty and the draft
       of Article III-274 of the EU Constitution. Article 86 TFEU, however, goes beyond the draft in its
       subsequent section and goes somewhat further, postulating a special procedure that might lead to
       the creation of a European Public Prosecutor on the basis of a request from nine Member States if
       unanimity in the Council proves impossible to achieve.

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European Public Prosecutor’s Office – Cui Bono?

  addition to the National Members, an EPPO member who is also appointed
  directly by the European Union14;
– The EPPO will be established as an independent entity that will stand outside the
  Eurojust structure, while also making use of Eurojust’s professional experience
  and knowledge;
– Eurojust and the EPPO will be developed as independent bodies with different
  roles, sharing very close links and mutually cooperating;15 or
– The EPPO will be created as an independent body supported by a small team and
  secretariat provided by Eurojust.16

The above list of interpretations of the concept under discussion clearly documents
the lack of consensus on its meaning and subsequent practical implementation. Closer
examination, however, clearly shows a preponderance of models based on the
continuing existence of both institutions. Some justification for this view can be made.
We need to realise in this context that Eurojust and the European Public Prosecutor’s
Office are, in terms of the objectives they must fulfil, entirely different bodies17, the
transformation of which into a single organisation looks like a wrong turning.
    According to Article 85, paragraph 1 TFEU, Eurojust is a body whose mission
shall be to support and strengthen coordination and cooperation between national
investigating and prosecuting authorities in relation to serious cross-border crime.
The organisation’s objectives arise from Article 3 of Council Decision 2002/187/JHA
setting up Eurojust with a view to reinforcing the fight against serious crime, as
amended by Council Decision 2009/426/JHA on the strengthening of Eurojust and
amending Council Decision 2002/187/JHA (hereinafter, the ‘Council Decision on
Eurojust’). The role of Eurojust is to support and facilitate international judicial
cooperation in criminal matters, but this unit of the European Union has no
investigative powers. On the other hand, the EPPO should be a body investigating as
well as prosecuting the crimes falling within its area of competence.
    Assuming a strict application of the grammatical and logical interpretation of the
phrase ‘from Eurojust’, we believe that the Lisbon Treaty is referring to a transformation
of Eurojust into an EPPO. If we accept such an interpretation, another question

14   Lopes da Mota, J.L., ‘Eurojust – The Heart of the Future European Public Prosecutor’s Office’,
     Eucrim, 2008, No. 1–2, p. 63.
15   Th is interpretation was also preferred by the participants of the strategic seminar organised by the
     Belgian Presidency and Eurojust in Bruges on 20–22 September 2010. For more on this seminar, see
     Eurojust and the Lisbon Treaty: Towards more effective action – Conclusions of the strategic
     seminar organised by Eurojust and the Belgian Presidency (Bruges, 20–22 September), 17625/1/10,
     pp. 22–23.
16   Th is proposal won the strongest support at the conference of the working group on a European
     Public Prosecutor’s Office held in February 2010 in Paris.
17   For more information, see Article 3 of Council Decision 2002/187/JHA setting up Eurojust with a
     view to reinforcing the fight against serious crime, as amended by Council Decision 2009/426/JHA
     on the strengthening of Eurojust and amending Council Decision 2002/187/JHA and Article 86,
     paragraph 2 TFEU.

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Ladislav Hamran and Eva Szabova

inevitably arises. Would the former powers of Eurojust defined under the Council
Decision on Eurojust be transferred to the newly-established EPPO? If they would,
then we come again to the question of a possible merger of institutions with completely
different powers, tasks and objectives. If they would not, then we face the question of
which body would then take on the tasks assigned to Eurojust under the Council
Decision on Eurojust?
    The transformation of Eurojust into an EPPO without a decision on the transfer of
the powers of Eurojust to the EPPO or to another body would, in our opinion, be a
backward step. In the 10 years of its existence, Eurojust has proven its worth and it is
playing an even stronger role in the field of combating cross-border organised crime.
The number of criminal cases registered by the College of Eurojust increases every
year18 and the recent Euro NEEDs study19 states that 46.97% of respondents often use
Eurojust in daily practice.20
    We believe that future debates on this issue will move away from a grammatical and
logical interpretation of the phrase ‘from Eurojust’ and that Member States will prefer
an interpretation supporting the existence of both institutions. Another argument
supporting this conclusion refers to the statements made by representatives of certain
European institutions, as well as documents recently published by the Commission in
this area.21 A question still remains, however, as to whether such a scenario still allows
us to talk about creating an EPPO ‘from Eurojust’, as required by the Lisbon Treaty.

2.2.     TERRITORIAL JURISDICTION OF THE EPPO AND RELATED
         PROBLEMS

As indicated with reference to the earlier interpretations, the provisions of Article 86,
paragraph 1 TFEU give Member States the possibility of creating an EPPO based on the
principle of enhanced cooperation, if unanimity is not achieved in the Council. In view
of the approach of Member States to the EPPO project22 so far, a compromise solution
from representatives of the European Union that would win the support of all Member
States is difficult to envision. In addition, representatives of some Member States23 are

18     In 2002, 202 cases were registered by the College of Eurojust, and 1441 were registered in 2011. In
       2011, Eurojust held 204 coordination meetings, 63 more meetings than in 2010.
19     The study was produced by the Max Planck Institute and focused on an assessment of the actual use
       of instruments adopted in the EU in practice.
20     Out of the European institutions evaluated – OLAF, Europol and Eurojust – Eurojust was used by
       the greatest number of respondents.
21     See, e.g., Communication from the Commission to the European Parliament, the Council, the
       European Economic and Social Committee and the Committee of the Regions on the protection of
       the fi nancial interests of the European Union by criminal law and by administrative investigations.
22     In this context, we would like to draw particular attention to the strong criticism of the original
       version of Corpus Juris, with almost one hundred critical responses to the Green Paper and varying
       views on the functioning of the EPPO.
23     Such as the United Kingdom of Great Britain and Northern Ireland.

48                                                                                             Intersentia
European Public Prosecutor’s Office – Cui Bono?

already openly declaring their opposition to an EPPO. Employing the concept of
enhanced cooperation may therefore be a safer option in today’s ‘disunited Europe’. In
this context, however, we again encounter many problems and unanswered questions.
    We are of the opinion that the fundamental problem of the creation of an EPPO
through enhanced cooperation is that it will divide Member States into two camps –
those willing to participate in the newly created EPPO and those who do not support
the idea of creating an EPPO through enhanced cooperation. This situation would
inevitably limit the territory on which the European Public Prosecutor would be able
to exercise its powers. In this context, questions logically arise as to the nature of the
relationships that will exist on the one hand between the states participating in the
European Public Prosecutor project (hereinafter, the ‘participating states’) and the
non-participating states, and on the other hand between the non-participating states
and the EPPO itself. Practical problems can be expected to arise if crimes are
committed on the territories of many Member States and one or several of these
Member States are not taking part in the European Public Prosecutor project.
Additionally, such a scenario would take us back to the start of the discussion on the
need to create an EPPO and its advantages. What is beyond doubt, however, is that in
such a case the rules governing EPPO procedures would, in addition to issues of
judicial cooperation with third States, also need to regulate judicial cooperation
between so-called participating and non-participating states. This situation will
clearly open a Pandora’s Box. According to our information and the background
material collected for this paper, cases of an international judicial cooperation
involving an EPPO have been ignored or deliberately overlooked. We know that
criminal cases within the competence of the EPPO will undoubtedly arise where
performing an act of legal assistance on the territory of a non-participating or non-
Member State will be necessary. In such a case, which judicial authority would process
the request for legal assistance: the judicial authority of the Member State in which the
investigation is being conducted, or the Member State that previously ceded its
jurisdiction to the European Union in the specific area of crime? Or would it be the
European Public Prosecutor himself, who is not yet an entity under international law,
however, and is not party to any international convention governing the area of
judicial cooperation in criminal matters? We can clearly count on many similar
questions arising in this area. This is not our intention, however, nor do we intend to
seek answers to these questions. However, the issue of future judicial cooperation in
criminal matters within the competence of the EPPO cannot be overlooked.

2.3.    ORGANISATIONAL STRUCTURE OF THE EUROPEAN PUBLIC
        PROSECUTOR’S OFFICE

Another area we would like to examine is the structure of the EPPO. Article 86 TFEU
makes no mention of how a future EPPO will look in terms of its structure or
organisation. In order to outline the future structure of the EPPO, reference to non-

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Ladislav Hamran and Eva Szabova

legislative documents is necessary. Particular starting points are the Green Paper, the
Corpus Juris project and the document that came out of the 2010 EPPO working
group in Madrid.
    Concerning the organisation of the EPPO, all three documents came to the same
conclusion, which is that the EPPO should be a European institution organised in a
decentralised way, thereby avoiding the creation of a bureaucratic, centralised and
rigid body. Both Corpus Juris and the Green Paper discuss how an EPPO should be
composed of a chief European Public Prosecutor,24 who would provide the minimum
degree of centralisation necessary at Community level, and Deputy Prosecutors25,
who would be integrated into the national justice systems and who would actually
bring offences to trial.26, 27
    The Green Paper examines two models – the ‘exclusive function’ model and the
‘hybrid function’ model. The ‘exclusive function’ model assumes that Deputy
European Prosecutors will be excluded from holding any other office. The aim of this
proposal is for Deputy European Prosecutors to achieve the narrowest possible
specialisation in terms of fulfi lling the obligations and tasks arising from their
European role.28 Bearing in mind the specific nature of crimes affecting the financial
interests of the European Union, a narrow specialisation can be seen as something
like a conditio sine qua non for the successful and effective functioning of the EPPO.
Another important result of the application of this model is the functional
subordination of Deputy European Prosecutors exclusively to the European Public
Prosecutor.
    The second possible solution is the ‘hybrid function’ model (also known as the
‘two hats’ model), on the basis of which Deputy Prosecutors would have a duty to
prosecute unlawful conduct harmful to the financial interests of the Community, and
in the second place would continue their ordinary work, which would include the
prosecution of crime.29 We can imagine this model functioning mainly in the smaller
Member States, where the incidence of crimes affecting the financial interests of the
European Union is not high. The following condition must be included: in the event

24   Corpus Juris employs the concept the European Director of Public Prosecutions (Article18(3)).
25   Corpus Juris employs the concept of a Deputy European Public Prosecutor (Article 18(3)).
26   Green Paper on the Criminal Law Protection of the Financial Interests of the Community and the
     Establishment of a European Prosecutor, Brussels, 11 December 2001, COM (2001) 715 fi nal, p. 28.
27   In this context, the different legal terminology used in the Green Paper and the Conclusions of the
     Madrid working group on the EPPO in relation to identifying the role of a Deputy European
     Prosecutor performing tasks on the territory of a Member State must be highlighted. Whilst the
     Green Paper employs the concept of a ‘deputy’, the Conclusions of the Madrid working group on the
     EPPO identify this role as a ‘delegated European Public Prosecutor’. The term ‘deputy’ is used in the
     Conclusions of the Madrid working group on the EPPO to indicate persons assisting the European
     Public Prosecutor directly at its head office.
28   Green Paper on the Criminal Law Protection of the Financial Interests of the Community and the
     Establishment of a European Prosecutor, Brussels, 11 December 2001, COM (2001) 715 fi nal, p. 29.
29   Ibid., p. 29.

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European Public Prosecutor’s Office – Cui Bono?

of this model being applied, prosecutors delegated to the investigation and prosecution
of a specific criminal case falling within the competence of the European Public
Prosecutor would be exclusively responsible to the European Public Prosecutor.
    When drafting the Green Paper, an assumption was made that Member States
would be incapable of agreeing on any one of the above models. The Green Paper
therefore offered a third alternative – to leave each Member State free to opt between
the first two options.30 This solution is not considered appropriate, however, in view of
the legal conclusions expressed earlier. As a result of these considerations, not all
Deputy European Prosecutors would have the same status – some would be responsible
only to the European Public Prosecutor while others would at the same time also be
subject to their own domestic authorities.
    Based on the wording of Article 86, paragraph 2 TFEU, the Treaty does not create
a specific ‘European’ court handling cases that fall within the competence of the
European Public Prosecutor. On the contrary, the Treaty clearly specifies that charges
shall be fi led in these criminal cases at the relevant Member State court. A European
Public Prosecutor would then appear before these authorities in the role of a public
prosecutor of the Member State in question. We therefore believe that, in the case of a
decentralised model of the EPPO, the so-called delegated prosecutors would have the
same status and role as a prosecutor from their home state. To ensure their
independence from the management and control bodies of the home state, and also to
ensure their subordination and accountability to the European Public Prosecutor, we
believe that the ideal model would be to assign prosecutors to the EPPO on a temporary
basis. We are deliberately avoiding further interpretations in relation to temporary
assignment to the EPPO, as we give less importance to this area for the purposes of
this article. We do believe, however, that the criteria for selecting candidates to hold
the position of a delegated prosecutor, the period of assignment, conditions of
assignment, status and matters relating to pay should be the same in all of the
‘participating’ states.
    For these substantial reasons, we believe that the exclusive function model appears
to be the best solution, and that it should be included in the future legislative
instrument setting out the organisation of the EPPO.

2.4.      PRINCIPLE OF HIERARCHICAL SUBORDINATION AND
          POSSIBLE RELATED PROBLEMS

The next area upon which we would like to focus is the question of the relationships
between the European Public Prosecutor and the so-called delegated prosecutors. As
can be seen from the explanation set out above, both the non-legislative documents
and professional circles favour a hierarchical structure for the EPPO. At its head
would be the European Public Prosecutor, who would be responsible for managing

30     Ibid., p. 30.

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Ladislav Hamran and Eva Szabova

and coordinating the work of the Deputy European Prosecutors (the delegated
prosecutors). The delegated or deputy prosecutors would be bound by his/her
instructions and would be accountable to him/her for the performance of their
(European) role. What follows from these relationships of superiority and
subordination is that the European Public Prosecutor would have the power to take
disciplinary measures against Deputy European Prosecutors.
     At this point, we would like to draw attention to another possible problem area
(that has previously been overlooked or downplayed), which in our view might have a
considerable impact on the effective and proper performance of the control and
management powers of the European Public Prosecutor – language. We firmly believe
that lack of knowledge of the language of a state in which an investigation or
prosecution is being conducted would result in the European Public Prosecutor being
unable to properly judge whether a subordinated prosecutor had correctly assessed a
criminal case, or had proceeded properly in a case without unnecessary delays, or had
effectively applied all of the powers conferred upon him by law, or had followed the
instructions, opinions and recommendations issued to him earlier, and so on. What is
clear is that if the European Public Prosecutor wants to assess or verify these factors,
they must be translated into a language that he can properly understand. Translating
fi les (in economic crimes, these fi les often run to several thousand pages) will result
not only in additional costs for translation, but also in delays and possible discrepancies
arising from inaccuracies in the actual translation. Moreover, the question inevitably
arises as to whether the European Public Prosecutor would be able to exercise his/her
authority over all subordinate prosecutors. We believe that the idea of creating a ‘small
EPPO with a smaller administrative apparatus’ is clearly unrealistic. The entire
situation would also be complicated by the fact that the criminal proceedings
themselves would be subject to the procedural regulations of the Member State
concerned, which the European Public Prosecutor would not, for understandable
reasons, be able to properly master.

2.5.   THE PRINCIPLE OF LEGALITY OR OPPORTUNITY?

Most of the discussion in specialist fora has centred on the issue of competence in
relation to the start of an investigation or prosecution. This debate is linked to what is
often considered the most fundamental question arising from the Green Paper and
the subsequently adopted Lisbon Treaty. Will the European Public Prosecutor have a
right or an obligation to initiate an investigation or prosecution in relation to a crime
falling within his jurisdiction? In other words, will the criminal prosecution system
for crimes falling within the competence of the EPPO be based on the principle of
discretionary or mandatory prosecution?
    The principle of discretionary prosecution is based on the decision of the prosecutor
whether, in a specific case, a crime will or will not be prosecuted. The prosecutor
therefore has the possibility to refrain from prosecuting an act despite the fact that the

52                                                                               Intersentia
European Public Prosecutor’s Office – Cui Bono?

act might in a specific case have all the elements of a crime. A decision not to prosecute
a crime will therefore be based on his/her own assessment of all the circumstances of
the case. At first sight, the discretionary power of the prosecutor may appear to be
quite broad, but the opposite is actually the case – a decision not to prosecute a crime
must be sufficiently well reasoned, and is subject to judicial review.31 Conversely, the
principle of mandatory prosecution means that the prosecutor is obliged to prosecute
all of the crimes brought to his attention.32 In most cases, however, specific exceptions
to this obligation exist, where the prosecutor, after fulfi lling precisely defined legal
conditions, does not need to prosecute the crime. Even in cases of mandatory
prosecution, the prosecutor enjoys a certain measure of discretion; –he/she decides
whether or not to apply, in a specific case and despite fulfi lment of the legal conditions,
the exemption from the obligation to prosecute.33, 34
    In the Green Paper, the Commission favoured the second of these options, in other
words a mandatory prosecution system, but in a form modified by specific exceptions
rather than in an absolute form. The Commission proposed three specific exceptions:

1. The first exception is based on application of the de minimis rule, in order to
   prevent the EPPO being overloaded with cases of minor importance. Assessments
   of the level of importance would, according to the proposal, be left to the discretion
   of the European Public Prosecutor, and his decisions would be subject to judicial
   review.
2. The second exception states that if a prosecution is mounted against a specific
   person for a portion of a number of charges, a guilty verdict appears likely, and
   further investigation will probably not have a substantial impact on the outcome
   of the case, the European Public Prosecutor can choose not to prosecute the
   remainder of the charges. In other words, the European Public Prosecutor is free
   to decide whether or not to act against a person in respect of the remaining
   charges.

31   The principle of discretionary prosecution is more common in the European Union – it is employed,
     for example, in France, Belgium, Luxembourg and Denmark. Discretionary prosecution can also be
     used to apply a policy of criminal deliberation – in France, during the period when abortions were
     still considered a crime, prosecutors did not prosecute the actual perpetration, because the law
     criminalising this procedure was considered outdated. From this perspective, the discretionary
     principle thus creates room for the prosecutor to soften the harshness of the law. (Council of Europe,
     The role of the public prosecution office in a democratic society, Strasbourg, Council of Europe
     Publishing, 1997, pp. 172–173).
32   Th is is also how the duty of the prosecutor to prosecute crimes is set out in the Slovak Criminal
     Procedure, specifically in Section 2(5).
33   A divergence system exists in our legal arrangement for these exceptions; – and despite the fact that
     the legal conditions for divergence may be fulfi lled, no legal requirement exists for it to be applied;
     in other words, the prosecutor decides on a discretionary basis whether to apply it.
34   Council of Europe, The role of the public prosecution office in a democratic society, Strasbourg,
     Council of Europe Publishing, 1997, pp. 172–173.

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Ladislav Hamran and Eva Szabova

3. The purpose of the third exception is to ensure the effective recovery of financial
   damages corresponding to harm to the financial interests of the European Union.
   If a suspect puts right the damage caused, either by returning the proceeds to
   which he/she was not entitled, or through the payment of taxes and fees he/she has
   unlawfully avoided, an agreement with the European Public Prosecutor may be
   possible, resulting in cessation of proceedings. Such a solution would be beneficial
   in cases where little prospect of convicting the suspect exists, but would be
   realistically possible only with crimes involving small amounts of damages.

The Commission justified its choice of a system of mandatory prosecution on several
counts. First and foremost, the effort should be to secure a unified approach throughout
the European Union, which automatically requires elimination of any discretion on
the part of the European Public Prosecutor. The Commission also pointed out that
only by means of the principle of strict application of the law would ensuring the real
independence of the European Public Prosecutor be possible.35
   If a final conclusion as to which of the two principles of prosecution to apply to
future activities of the EPPO is necessitated, after considering all of the above factors,
a prosecution system based on the principle of discretion may appear more
advantageous. Most of the Member States, however, finally agreed with the
Commission, and future EU regulation is expected to include the principle of
mandatory prosecution modified by the exceptions listed above.

2.6.     ADMISSIBILITY OF EVIDENCE

The submission of evidence to the relevant court will be a major challenge faced by the
European Public Prosecutor. In view of the nature of crimes falling within the
jurisdiction of the EPPO, gathering evidence in another Member State or non-Member
State will frequently be necessary in accordance with different national laws. Since the
effectiveness of the European Public Prosecutor will be assessed on the basis of his
ability to make use of the evidence obtained before the courts, a solution to this
situation is urgently required.
    We take the view that a realistic solution to the situation would be to ensure that
evidence collected in one Member State can be submitted before a court of another
Member State. How can this ambitious aim be achieved? A number of answers to this
question may be considered:

a) unification of the rules (norms) applying to evidence,
b) reference to the national law of a specific Member State, or
c) acceptance of the principle of mutual admissibility of evidence.

35     Green Paper on the Criminal Law Protection of the Financial Interests of the Community and the
       Establishment of a European Prosecutor, Brussels, 11 December 2001, COM (2001) 715 final,
       pp. 45–46.

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European Public Prosecutor’s Office – Cui Bono?

With reference with a) and b) above, unification of the rules applying to evidence
would essentially entail codification of criminal law at EU level. According to the
Green Paper, however, unification would be disproportionate to the objective pursued
through creation of an EPPO: effective action in cases affecting the financial interests
of the European Union. Two evidence systems existing in parallel would also introduce
complexity and considerable danger – one applied to ‘European’ cases and one applied
to national cases. For this reason, among others, the conclusions of the Madrid
working group on the EPPO state that ‘every effort at unification of the rules of
evidence is doomed to fail’.36
    In practice, the introduction of dual criminal processes applied by the national
courts of Member States would, in our view, be a step backwards. In any considerations
of this kind, we should not lose sight of the fact that the relevant Member State courts
will be deciding on charges brought by the European Public Prosecutor. In this
situation, a case may arise in practice where the specific provisions of the ‘unified
European criminal process’ would be interpreted and applied differently by the
relevant Member States, which, in the absence of a body empowered to provide a
unifying interpretation, might lead to even greater legal chaos. We therefore consider
reference to the use of a specific national law to be a simpler solution. Not even this
solution can be considered ideal, however, in view of the existence of variations in
national criminal law systems and clear differences not only in the area of human
rights protection, but also in the procedure for obtaining evidence and its admissibility.
    With reference to c) above, the Commission considers the principle of mutual
admissibility of evidence to be the most satisfactory solution. According to this principle,
any national court dealing with a case involving harm to the financial interests of the
European Union would be obliged to accept any evidence obtained lawfully and in
conformity with the law of the Member State on whose territory the evidence in question
was found. A similar idea has also been expressed in the Conclusions from Tampere:
‘evidence lawfully obtained by the authorities of one Member State should be admissible
before the court of another Member State’. The main argument used by the Commission
to justify introduction of the principle in question is the effort to prevent the European
Public Prosecutor from bringing prosecutions in the Member State that has the most
flexible rules on admissibility of evidence.37
    Despite the many obvious problems created by introducing the principle of mutual
admissibility of evidence, the TFEU also favoured it in Article 82, which states that:

     ‘To the extent necessary to facilitate mutual recognition of judgments and judicial decisions
     and police and judicial cooperation in criminal matters having a cross-border dimension,

36    An opposite view is clearly held by the European Commission (OLAF), which approved a grant
      from the Hercule II programme (2007 to 2013) for a project run by the University of Luxembourg
      for drawing up model procedural regulations for the proposed EPPO.
37    Fijnaut, C. and Groenhuijsen, M.S., ‘A European Public Prosecution Service: Comments on the Green
      Paper’, European Journal of Crime, Criminal Law and Criminal Justice, Vol. 10, 2002, No. 4, p. 333.

New Journal of European Criminal Law, Vol. 4, Issue 1–2, 2013                                         55
Ladislav Hamran and Eva Szabova

     the European Parliament and the Council may, by means of directives adopted in
     accordance with the ordinary legislative procedure, establish minimum rules. They shall
     concern:

     a) mutual admissibility of evidence between Member States…’.

According to the so-called ‘Follow-up report on the Green paper…’, the adoption of
these minimum rules would be a necessary preliminary for the acceptance of the
mutual admissibility principle.38

2.7.     … THE QUESTION OF JURISDICTION, THE COMPETENCE OF
         A SO-CALLED DELEGATED PROSECUTOR, RESOLVING
         CONFLICTS OF JURISDICTION…

We could quite easily continue listing the possible problems or areas of dispute.
However, our intention is not to explicitly recite and offer solutions to every potential
application problem.
    However, we do think that the following questions, which, according to our
findings, were never addressed, play a key role in the search for an answer to whether
we need to establish an EPPO. At this point, we would like to raise the following
questions: Which body will actually perform the detection and clarification of
criminal activities falling within the competence of the EPPO? Will investigations in
these cases be performed by the Deputy Prosecutors themselves, or prosecutors
subordinate to them? Will the EPPO have its own police and investigative bodies with
powers to conduct investigations on the territory of participating Member States?
Alternatively, will a delegated prosecutor only supervise the legality of investigations
conducted by the police force of a given Member State?
    Article 86 TFEU provides no answers to these questions. However, paragraph 2
states that ‘the European Public Prosecutor’s Office shall be responsible for
investigating, prosecuting […] where appropriate in liaison with Europol, the
perpetrators…’. Such a formulation fails to provide an appropriate solution to the
questions and further complicates the entire issue. How can a body which itself has no
investigating powers39 be responsible for investigations conducted by another body?
Should we understand this formulation in such a way that it confers investigating
powers upon Europol? If so, are the Member States then prepared to transfer such a
measure of their sovereignty to the European Union? Assuming that Europol would
have investigating powers on the territory of participating states, what status and

38     Follow-up report on the Green Paper on the criminal-law protection of the fi nancial interests of the
       Community and the establishment of a European Prosecutor, Brussels, 19 March 2003, COM(2003)
       128 fi nal, s. 18.
39     Europol currently has only the powers conferred upon it by Council Decision 2009/371/JHA
       establishing the European Police Office.

56                                                                                              Intersentia
European Public Prosecutor’s Office – Cui Bono?

powers would OLAF ultimately have in the area of protecting the financial interests of
the European Union (which, incidentally, is not mentioned at all in Article 86 TFEU)?
Will OLAF remain solely an administrative body?
    We believe that these should be the most urgent questions both for practitioners
and academics. Paradoxically, we have yet to find answers to them…

CONCLUSIONS

Based on the factors mentioned in this contribution, we fully agree with the opinion
of André Klip, who said that Article 86 TFEU provides more questions than answers.40
    The actual creation of an EPPO clearly requires considerable discussion, effort and
funding. Many fundamental questions relating to this potential body for protecting
the financial interests of the European Union remain unanswered, despite more than
ten years of continuous discussion. The Lisbon Treaty may have taken a giant step
forwards with the enshrinement of the EPPO in the TFEU, but as long as questions
relating to its functioning remain unanswered, consideration of its establishment will
be either unrealistic or inappropriate.
    We must also not lose sight of the fact that, despite the existence of many projects
funded by the European Union and directly or indirectly related to this topic, not one
study has yet focused on an objective assessment of the effectiveness of the current
system for protecting the financial interests of the European Union. This situation
seems all the more paradoxical since the European Union, on the basis of Council
Joint Action 97/827/JHA of 5 December 1997, established a mechanism for evaluating
the application and implementation at national level of international undertakings in
the fight against organised crime, and yet not one assessment round was devoted to
this area.41
    Perhaps for this reason, in discussions on the need to create an EPPO, representatives
of European institutions often limit themselves in their arguments only to general
statements on the need for a more effective procedure for protecting taxpayers’ money,
or refer to OLAF statistics, drawing attention to the number of prosecutions halted or
the number of people released in cases that OLAF passed on to Member States for
further proceedings. From these circumstances, what becomes clear is that one of the
possible reasons for the European Union to create an EPPO is the lack of confidence
felt by EU bodies towards the relevant Member State authorities in the area of

40   Klip, A., European Criminal Law, Antwerp, Intersentia, 2009, p. 410.
41   The first round of mutual evaluation focused on judicial cooperation in criminal matters, the
     second round on the tasks of authorities in enforcing the law in the fight against drug trafficking,
     the third round on assessing cooperation and information-sharing with Europol, the fourth round
     on implementation and execution of the European Arrest Warrant, the fift h round on property-
     related and economic crime. The sixth round of mutual evaluations will focus on cooperation and
     information-sharing between the Member States and Eurojust.

New Journal of European Criminal Law, Vol. 4, Issue 1–2, 2013                                         57
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