European Public Prosecutor's Office

17 July 2013
by eub2 -- last modified 17 July 2013

The European Commission is taking action to improve Union-wide prosecution of criminals who defraud EU taxpayers by establishing a European Public Prosecutor's Office. Its exclusive task will be to investigate and prosecute and, where relevant, bring to judgement – in the Member States' courts - crimes affecting the EU budget. The European Public Prosecutor's Office will be an independent institution, subject to democratic oversight.

What is the European Public Prosecutor's Office?

The European Public Prosecutor's Office will be a decentralised prosecution office of the European Union with exclusive competence for investigating, prosecuting and bringing to judgment crimes against the EU budget. It will have uniform investigation powers throughout the Union based on and integrated into the national law systems of the Member States.

The European Public Prosecutor's Office will draw on Member States' capacities and expertise. Experienced prosecutors will be delegated from the national systems to the European Office. As a rule, it will be the European delegated prosecutors who carry out the operations for the European Public Prosecutor's Office from their locations in the Member States and in line with the law of that Member State. The European Public Prosecutor's Office integration into the national justice systems has many advantages. The delegated prosecutors have in-depth knowledge of the national justice system, the local language, the integration into the local prosecution structure and the practice of handling local court cases. In addition, pooling the investigative and prosecutorial resources of the Member States will ensure swift decision making.

What is the legal basis for the European Public Prosecutors Office?

The Lisbon Treaty puts particular emphasis on combating serious financial and economic crimes with a cross-border dimension. The legal basis and the rules for the set-up of the European Public Prosecutor's Office are laid down in Article 86 of the Treaty on the Functioning of the European Union (TFEU) which states:

"In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulation adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor's Office from Eurojust."

In his 2012 State of the Union Address, President Barroso announced that the Commission intended to bring forward proposals to establish a European Public Prosecutor's Office, as foreseen by the Treaties and as part of the Commission's commitment to protect the EU budget.

The European Commission wants to ensure that the European Union budget is as effectively protected against criminals as national finances are. In July 2012, the Commission proposed that all Member States define fraud to the detriment of the European Union's financial interests in a similar way in their national criminal codes and that they should all provide for similarly deterrent criminal sanctions. The European Public Prosecutor's Office will help making prosecution in the Member States more consistent, effective and efficient.

Will all Member States be part of the European Public Prosecutor's Office?

No. Under the EU Treaties, the United Kingdom and Ireland have a so-called "opt-out" from justice and home affairs policies which means they will not participate - unless they voluntarily and explicitly decide to do so (opt in). Denmark also does not participate in the European Public Prosecutor's Office but has no possibility to opt in.

Why do we need a European Public Prosecutor's Office?

Today, the Union's financial interests are not sufficiently protected. This is due to several factors:

Firstly, the existing EU bodies – OLAF (the European Anti-Fraud Office), Eurojust (the European Agency for criminal justice cooperation) and Europol (the European Police Office) – have no competence to conduct criminal investigations or to prosecute fraud cases. OLAF can only refer the results of its administrative investigations to the competent national authorities which then decide independently whether or not to initiate criminal proceedings based on OLAF's findings.

Secondly, national law enforcement efforts are fragmented across Member States, which do not always take the action required to tackle crimes against the EU budget. Today, only 1 in 5 cases transferred by OLAF to the national prosecution authorities leads to a conviction. In addition, conviction rates vary considerably among Member States.

Thirdly, the consequence of the small number of successful prosecutions is that only a very small proportion of the total amount lost to fraud occurring in the Member States is ever recovered from criminals. Fraudsters targeting the EU budget know that they have a good chance of keeping the proceeds of their crimes, banking on a lack of consistent law enforcement efforts in the EU.

How much money from the EU budget is defrauded?

An average of around €500 million of suspected fraud was committed in the Member States in each of the last three years, but the actual amount of fraud is estimated to be significantly higher. Figures on reported fraud cannot include fraud that is not detected, so the overall figure is likely to be much higher.

Why can fraud not be combated effectively by the Member States?

Currently, only national authorities can investigate and prosecute fraud against the Union's financial interests. But their powers stop at national borders. Crimes against the EU's financial interests are often complex. They involve several actors, complicated and elaborate fraud schemes, several countries and several national jurisdictions. Moreover, successful investigations of fraud require an in-depth understanding of the relevant legal and administrative framework.

Effective cooperation between Member States is difficult due to the different criminal law systems, unclear jurisdiction, cumbersome and time-consuming legal assistance procedures, language problems, lack of resources and varying priorities.

This may result in fraud against the EU budget being regarded nationally as time- and personnel-consuming. As a result, such fraud may not be tackled at all or cases might be dropped as soon as difficulties appear. In some cases, national authorities may decide to only investigate 'their' national part of a crime, disregarding the potentially much wider implications of an international fraud scheme.

Is there an example of how the European Public Prosecutor's Office can improve on the current situation?

In one case, OLAF transferred information to the German and Bulgarian authorities on German and Bulgarian nationals who (allegedly) worked together to defraud an EU agricultural and rural development fund. Whereas the German proceedings led to a conviction, the proceedings in Bulgaria ended with an acquittal of the suspects. The current system therefore led to different results in one cross-border case. A European Public Prosecutor's Office would have made a difference by ensuring consistency of the investigation and prosecution in Bulgaria and Germany.

Another example relates to cigarette smuggling from the Czech Republic into Germany. The German criminal court used telephone tapping records obtained by the Czech police as evidence to convict the suspect. Although that evidence was obtained lawfully according to Czech law, the defence lawyer argued that without a court order authorising the telephone tapping, the evidence should be inadmissible in the German court.

With the European Public Prosecutor's Office, such setbacks due to divergent national procedural laws will be much less likely to occur. Under the new rules, telephone tapping without prior court authorisation would not be possible. In addition, the Regulation states that evidence obtained lawfully in one Member State is admissible in trial courts of all Member States, provided that the evidence was collected respecting the procedural rights as enshrined in Article 47 (the right to an effective remedy) and Article 48 (the presumption of innocence and right of defence) of the EU Charter of Fundamental Rights.

What will change under the European Public Prosecutor's Office?

The European Public Prosecutor's Office will have exclusive competence for investigating, prosecuting and bringing to judgement crimes affecting the EU budget. Complex cases with a cross-border dimension will thus be coordinated and tackled by the European Public Prosecutor's Office. This will overcome the difficulties arising from the limited powers of national authorities which end at the borders of their territory.

The European Public Prosecutor's Office will guarantee a seamless enforcement cycle covering investigation, prosecution and trial at court. Through the European Delegated Prosecutors it will have cross-border investigative powers in all Member States. The European Public Prosecutor's Office will not have to rely upon often cumbersome and time-consuming intergovernmental instruments of legal assistance between Member States (such as the Mutual Legal Assistance and Mutual Recognition agreements). The European Public Prosecutor's Office will benefit from clear rules governing its investigations and the admissibility of evidence collected and presented in trial courts, whichever EU Member State they are based in.

How will the European Public Prosecutor and the European Delegated Prosecutors work together?

The European Delegated Prosecutors will form part of the European Public Prosecutor's Office. As a rule, it will be the European Delegated Prosecutors who will carry out the investigation and prosecution in their Member State, using national staff and applying national law. Their actions will be coordinated by a central office headed by the European Public Prosecutor who will ensure coherence and efficiency throughout Member States (see graphic in the ANNEX).

This decentralised structure makes national expertise directly accessible to the European Public Prosecutor's Office, such as in-depth knowledge of the national judicial system, knowledge of local language, integration into the local prosecution structure, practice in handling local court cases, etc.

The European Delegated Prosecutors may continue their functions as national prosecutors (wearing a 'double-hat'). However, when acting under the mandate of the European Public Prosecutor's Office, the Delegated Prosecutors will be fully independent of their national prosecution authorities.

A "College" of ten – bringing together the European Public Prosecutor, the deputies and the national prosecutors – will ensure a seamless integration between the EU and the national level, notably by agreeing on the internal rules of procedure, including on general rules on the allocation of cases. This solution, which originates from points raised in the consultations with Member States including the recent Franco-German initiative calling for the establishment of a European Public Prosecutor's Office, will also ensure the coordination necessary in the prosecution to avoid the risk of 'double jeopardy' (the ne bis in idem principle) that could arise if connected crimes are neglected or not looked at as a whole.

Will national courts be able to review the European Public Prosecutor's Office's actions?

Yes, they will. The actions of the European Public Prosecutor's Office can be challenged in the competent national court.

Moreover, the competent national judicial authorities will be responsible for the prior authorisation of the European Public Prosecutor's Office's investigative measures where national law and EU legislation so require.

National courts are also the competent trial courts. The European Public Prosecutor's Office will exercise the functions of a prosecutor in the competent courts of the Member States.

The Court of Justice of the European Union may, as always, be involved through the preliminary reference procedure.

Which powers will the European Public Prosecutor's Office have according to the Regulation?

The European Public Prosecutor's Office will have the power to request or to order investigative measures. The instruments at his disposal are clearly defined in the Regulation and comprise both intrusive and 'softer' investigation measures.

Examples of intrusive measures the European Public Prosecutor's Office may apply are searching premises, property and computer systems, seizing of objects, interception of telephone conversations and freezing of financial transactions.

Softer measures might include questioning of the suspected person and witnesses, appointing experts where specialised knowledge is needed, or measures to track and control a person in order to establish his or her whereabouts.

The execution of investigation measures is subject to national law. In particular, the individual measure has to be authorised by the competent national judicial court or other authority if national law or if the Regulation so requires.

In order to guarantee the efficiency of the European Public Prosecutor's Office's investigations, evidence gathered lawfully in one Member State shall be admissible in the trial courts of all Member States.

How will the independence of the European Public Prosecutor's Office be ensured?

Firstly, the Regulation stipulates that the it shall neither seek nor take instructions from anybody outside the European Public Prosecutor's Office. This provision implies that Union institutions, bodies, offices or agencies and the Member States respect the independence of the European Public Prosecutor's Office and do not seek to influence it in the exercise of its tasks. Secondly, the European Public Prosecutor's Office will be structurally independent because it will not be integrated into another institution or service of the EU. Thirdly, the appointment of the European Public Prosecutor involves the Union institutions (appointment by the Council with the consent of the European Parliament) as well as former members of the Court of Justice, members of national supreme courts, national public prosecution services and/or lawyers of recognised competence who shall help to draw up a shortlist of candidates. Its term is limited to eight years and is not renewable thereby ensuring that the European Public Prosecutor will not be guided by considerations of being re-appointed. The European Public Prosecutor can be dismissed by the Court of Justice, following an application by the European Parliament, the Council or the Commission.

With regard to the national European Delegated Prosecutors, the Regulation states that their work on cases for the European Public Prosecutor will always take precedence over national cases. There is also an explicit reference in the Regulation that the delegated prosecutors shall be completely independent from national prosecution authorities. Conflict of interests will be settled by the European Public Prosecutor. European delegated prosecutors cannot be dismissed as national prosecutors by the competent national authorities without the consent of the European Public Prosecutor, when working on its behalf.

What about the procedural rights of suspected persons?

It is important to strengthen the legal safeguards that protect individuals and companies affected by investigations or prosecutions in the European Union. The proposal includes a robust and comprehensive set of procedural safeguards, which will ensure that the rights of suspects and other persons involved in the European Public Prosecutor's investigations will be protected both by existing EU legislation and by national defence rights.

The proposal clarifies that the suspected person has all rights granted by EU legislation and the Charter of Fundamental Rights of the European Union. These rights are listed explicitly, and include the rights to:

• interpretation and translation,
• information and access to the case materials,
• access to a lawyer and to communicate with and have third persons informed in case of detention,
• remain silent and to be presumed innocent,
• legal aid,
• present evidence, appoint experts and hear witnesses.

In addition, the suspected person has the defence rights granted by the national law governing the procedure.

Why is the European Public Prosecutor's Office proposal being presented with a reform of Eurojust?

According to Article 86(1) TFEU, the European Public Prosecutor's Office shall be created from Eurojust. Today's package of legislative proposals aims at establishing strong links and synergies between the two organisations through effective cooperation and the sharing of information, knowledge and resources.

In particular, both the European Public Prosecutor's Office and Eurojust need to be involved in cases where the suspects are involved in crimes affecting the Union's financial interests and other forms of crime. This implies that there will be a need for continuous close cooperation. Respective provisions have been included in both the European Public Prosecutor's Office Regulation and the Eurojust Regulation. In addition, in cases of overlapping competence in hybrid cases, Eurojust may provide assistance in settling the question of jurisdiction.

Eurojust will provide administrative support services to the European Public Prosecutor's Office, such as personnel, finance and IT. For example, the European Public Prosecutor's Office will be able to use the IT infrastructure of Eurojust, including its Case Management System, temporary work files and index, for its own cases. The details of this arrangement will be laid down in an agreement between the European Public Prosecutor's Office and Eurojust.

What will Eurojust's role be once the European Public Prosecutor is set up?

Eurojust helps national investigating and prosecuting authorities cooperate and coordinate in around 1500 cross-border cases a year. It has helped to build mutual trust and to bridge the EU's wide variety of legal systems and traditions. Eurojust, however, has no competence to conduct criminal investigations or to prosecute fraud cases.

The European Public Prosecutor's Office will have exclusive competence for investigating, prosecuting and bringing to judgment crimes affecting the EU budget. The establishment of the European Public Prosecutor's Office also increases the democratic legitimacy of Eurojust: the European Parliament and national Parliaments will in future be more involved in the evaluation of Eurojust's activities.

The reformed Eurojust will support the European Public Prosecutor's Office in the fight against fraud against the EU budget. Eurojust will provide administrative support services to the European Public Prosecutor's Office, such as personnel, finance and IT. For example, the European Public Prosecutor's Office will be able to use the IT infrastructure of Eurojust, including its Case Management System, temporary work files and index, for its own cases. The details of this arrangement will be laid down in an agreement between the European Public Prosecutor's Office and Eurojust.

What else will change with the proposal to reform Eurojust?

Today's proposal aims to further improve the overall functioning of Eurojust. To this end, the reform addresses the internal management of Eurojust. It clearly distinguishes between the operational tasks of the Eurojust College (the College being composed of National Members – one from each of the European Union's Member States) and administrative tasks. It will thus enable the College and the National Members to focus on their operational tasks, i.e. to coordinate and encourage cooperation between the national judicial authorities in the fight against serious crime such as drug trafficking, money laundering, fraud, corruption, cybercrime, terrorism and organised crime. A new Executive Board, which will include the Commission, will assist the College in its administrative tasks.

The proposal will provide a single and modernised legal framework for a new Agency for Criminal Justice Cooperation (Eurojust) which is the legal successor of Eurojust as established by Council Decision 2002/187/JHA. Whilst maintaining those elements that have proved efficient in the management and operation of Eurojust, this new Regulation streamlines Eurojust's functioning and structure in line with the Lisbon Treaty by:

• increasing Eurojust's efficiency by providing it with a new governance structure;
• improving Eurojust's operational effectiveness by consistently defining the status and powers of National Members;
• providing for a role for the European Parliament and national Parliaments in the evaluation of Eurojust's activities in line with the Lisbon Treaty, whilst preserving Eurojust's operational independence;
• bringing Eurojust's legal framework in line with the common approach for EU agencies, whilst fully respecting its special role regarding the coordination of on-going criminal investigations;
• ensuring that Eurojust can cooperate closely with the European Public Prosecutor's Office, once the latter is established.

What will be OLAF's role once the European Public Prosecutor is set up?

As set out in the Communication on OLAF's governance, adopted today, OLAF's role will change with the establishment of the European Public Prosecutor's Office.

It will remain responsible for administrative investigations in areas which don't fall under the competence of the European Public Prosecutor. These include irregularities affecting the EU's financial interests, and serious misconduct or crimes committed by EU staff without a financial impact.

OLAF will no longer carry out administrative investigations into EU fraud or other crimes affecting the financial interests of the EU. This is because such crimes will be under the exclusive competence of the European Public Prosecutor's Office once it is established. If OLAF has suspicions of such criminal offences, it will be obliged to report this to the European Public Prosecutor's Office at the earliest possible stage. Although it will no longer conduct investigations in this area, OLAF will continue to provide assistance to the European Public Prosecutor's Office on request (as it already does today to national prosecutors). This change will facilitate a speedier investigation process and will help to avoid duplications of administrative and criminal investigations into the same facts. In this way, the chances of a successful prosecution will be increased.

The Commission will work on proposals to amend the OLAF Regulation, in order to reflect the changes in its role, and also to further strengthen OLAF's governance in its investigations, in light of what is foreseen for the EPPO. Two key initiatives are foreseen in this respect. First, an independent Controller of Procedural Guarantees would be established, to strengthen the legal review of OLAF investigative measures. Second, there could be enhanced procedural requirements for more intrusive investigative measures (office searches, document seizures etc) which OLAF may need to carry out in the EU institutions.

How many cases will the European Public Prosecutor's Office have to deal with?

The overall number is estimated at 2500 cases per year. This figure is based on an average of 1500 cases of fraud dealt with and reported annually to the EU by administrative investigation bodies from the Member States, an average of 300 cases concerning suspicion of fraud from OLAF, an estimated 500 cases per year of Value Added Tax (VAT) fraud currently dealt with by the Member States and an estimated 200 cases conducted by national criminal investigation authorities. It is expected that the European Public Prosecutor's Office will attract more information on possible fraud than the Member States or OLAF. The caseload may therefore be higher than estimated.

Will the European Public Prosecutors' Office start arresting people around Europe?

No. Only national authorities will be able to arrest people for offences within the European Public Prosecutor's Office competence. It will only be allowed to request the judicial authorities to arrest a suspect if it considers that this is absolutely necessary for its investigation and if less intrusive measures cannot achieve the same objective. Such requests will be assessed and authorised on the basis of national law by the competent national judicial authorities.

What are the next steps?

To become law, the Commission proposal now needs to be adopted by the Member States in the Council (acting in unanimity), after obtaining the consent of the European Parliament.

If unanimity cannot be reached in the Council, the Treaties foresee that a group of at least nine Member States may enter into an enhanced cooperation (Article 86 TFEU).

The main stages of Article 86 in the enhanced cooperation procedure are:

    Presentation by the Commission of its legislative proposal to the Council of Ministers. Member States there must agree (under the conclusion of the Presidency) that unanimity cannot be achieved on the proposal in question;

    In this case the matter is referred by a minimum of 9 Member States willing to start enhanced cooperation to the European Council;

    The European Council discusses the request for a maximum period of four months.

    If consensus is reached, the European Council sends the draft proposal back to the Council for adoption. If no consensus is reached, a minimum of 9 Member States can decide to carry on with enhanced cooperation. With the notification of these Member States to establish enhanced cooperation, the authorisation of the European Parliament and the Council to proceed, shall be deemed to be granted;

    The negotiations on the proposal on which enhanced cooperation is established will be carried out in the Council. All Member States may participate in these deliberations, but only those participating in enhanced cooperation can take part in the vote. Member States can request to join the enhanced cooperation at any time.

European Commission - Criminal law policy

ANNEX: How the European Public Prosecutor will work