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European Union: Twenty Member States Create European Public Prosecutor’s Office

(Oct. 25, 2017) On October 12, 2017, the 20 European Union (EU) Member States that had agreed to establish a European Public Prosecutor’s Office (EPPO) within the framework of enhanced cooperation adopted a regulation that establishes the EPPO. The EPPO will be in charge of investigating, prosecuting, and bringing to justice the perpetrators of, and accomplices to, criminal offenses affecting EU financial interests.  It is expected to start operating in 2020.  Before the creation of the EPPO, prosecuting criminal offenses affecting EU financial interests was within the exclusive competence of the EU Member States, which led to fragmented enforcement efforts, in particular in cross-border cases.  (Press Release 580/17, Council of the EU, 20 Member States Confirm the Creation of an European Public Prosecutor’s Office (Oct. 12, 2017); Council Regulation Implementing Enhanced Cooperation on the Establishment of the European Public Prosecutor’s Office (“the EPPO”), Doc. No. 9941/17 (Council Regulation) (June 30, 2017), Council of the EU website.)

Powers and Composition of the EPPO

Article 86 of the Treaty on the Functioning of the European Union (TFEU) provides that “[i]n order to combat crimes affecting the financial interests of the Union, the Council … may establish a European Public Prosecutor’s Office from Eurojust.” (Consolidated Version of the Treaty on the Functioning of the European Union (TFEU),art. 86, 2012 O.J. (L 326) 47, EUR-LEX.) The EPPO will be set up as an independent and decentralized EU body.  (Council Regulation, arts. 3, 6, & 8 ¶1.)  It will complement and cooperate with the existing EU bodies OLAF (European Anti-Fraud Office), Eurojust (European Union’s Judicial Cooperation Unit), and Europol (European Police Office), which do not have a mandate to conduct criminal investigations or prosecutions.  (Id. arts. 100-102.)

The EPPO will be composed of a central level and a decentralized, national level. (Id. art. 8 ¶ 2.)  The central level will consist of the College, made up of the European Chief Prosecutor and 20 European Prosecutors (one per participating Member State); the Permanent Chambers, composed of the European Chief Prosecutor or one of the Deputies chosen from among the 20 Prosecutors as chair and two other permanent members; the Administrative Director; and other support staff. (Id. art. 8 ¶¶ 3 & 5, art. 9 ¶ 1, & art. 10 ¶ 1.)  The European Chief Prosecutor is the head of the EPPO and will be appointed by the Council of the EU with the consent of the European Parliament for a non-renewable term of seven years.  (Id. art. 11 ¶ 1, art. 14 ¶ 1.)

The decentralized, national level will be composed of European Delegated Prosecutors located in the Member States. (Id. art. 8 ¶ 4.)  The European Delegated Prosecutors will carry out the investigations and prosecutions in their respective Member State on behalf of the central level and will work together with local law enforcement.  They will enjoy the same powers as national prosecutors in addition to specific powers set out in the Council Regulation.  (Id. art. 13 ¶1.)  The investigations and prosecutions will be monitored and directed by the Permanent Chambers and supervised by the European Prosecutors on behalf of the Permanent Chambers.  (Id. art. 10 ¶ 2& art. 12 ¶ 1.) 

Background on Enhanced Cooperation 

As there was no unanimity regarding the draft regulation on the creation of an EPPO, 16 Member States –Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Germany, Greece, Lithuania, Luxembourg, Portugal, Romania, Slovakia, Slovenia, and Spain – notified the European Parliament, the Council of the EU, and the EU Commission on April 3, 2017, that they wished to pursue enhanced cooperation instead. Austria, Estonia, Italy, and Latvia joined later.  Other Member States are free to join at any time.  (Council of the EU, Draft Regulation Implementing Enhanced Cooperation on the Establishment of the European Public Prosecutor’s Office – Adoption, doc. no. 12791/17 (Oct. 10, 2017), p. 2, Council of the EU website.)

“Enhanced cooperation” is a procedure whereby a minimum of nine EU Member States establish advanced integration or cooperation in an area within the framework of the EU’s nonexclusive competences but without the other EU countries being involved. The acts adopted within that framework bind only the participating states.  (TFEU, supra, arts. 326–334; Consolidated Version of the Treaty on European Union (TEU), art. 20, 2012 O.J. (C 326) 13, EUR-LEX.)