Towards the Establishment of the European Public Prosecutor Office (EPPO): recent developments and legal challenges

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1 EJTN CRIMINAL JUSTICE SEMINAR ECONOMIC CRIMES: ASSETS RECOVERY AND CONFISCATION IN THE EU London, November 2016 Towards the Establishment of the European Public Prosecutor Office (EPPO): recent developments and legal challenges Lorenzo Salazar Deputy Prosecutor General to the Court of Appeal of Naples 1

2 Why an EPPO? Prosecuting offences against the EU budget is currently within the exclusive competence of Member States and no Union authority exists in this area. National law enforcement and prosecution efforts remain often fragmented.

3 A long way to 1976 First COMM proposals for Treaties 1988 Creation of UCLAF 1995 PIF Convention 1996 Corpus Juris 1999 Creation of OLAF 2000 Tentative EPP in the Nice Treaty 2004 EPPO in European Constitution (III-274) 2007/2009 Art. 86 TFEU in Treaty of Lisbon EPPO proposal December 2016?!? 3

4 Art. 86 TFEU Establishment of an EPPO to combat crimes affecting the financial interests of the Union «from Eurojust» Unanimity needed and approval by the EP Possibility for an enhanced cooperation Competent Courts of the MS Possible (subsequent) extension of powers to serious crime with cross-boarder dimension by unanimity 4

5 Key features An indipendent EPPO «guided» by the legality principle A College guided by an European Chief Prosecutor A Central (European) level and a Decentralised (National) level Competence: PIF offences (including VAT) and the «inextricably linked» offences Prosecutions brought to the competent national Courts Protection of the Rights of the accused persons Judicial control at National and European level 5

6 Independence An indipendent EPPO «guided» by the legality principle 6

7 Structure A College guided by an European Chief Prosecutor 7

8 Structure A Central (European) level and a Decentralised (National) level 8

9 Central Level European Chief Prosecutor (ECP) 2 Deputies (X) European Prosecutors (EP s) Permanent Chambers 9

10 Decentralised Level Europen Delegated Prosecutors (EDP s) 10

11 Selection ECP (7 years) (Open>Panel>EP/Council) EP s (MS3 > Panel >Council) EDP s (MS > ECP > College) 11

12 «The» key point of the overall negotiation The National Link 12

13 Competence PIF offences (including VAT) PIF Criminal Organisation Other «inextricably linked» offences 13

14 Investigation measures (a) search premises & computer system; (b)production of any relevant object or document (c) obtain the production of stored computer data (d)freeze instrumentalities or proceeds of crime (e)intercept electronic communications

15 Jurisdiction Prosecutions brought to the competent national Court in the competent MS 15

16 Dismissal Dismissal of the case: Death/ winding up of the natural/legal person insanity of the suspect or accused person; amnesty granted to the suspect or accused person; immunity granted to the person, unless ifted; expiry of the national statutory limitation to prosecute; ne bis in idem ; lack of relevant evidence. Simplified prosecution procedures

17 Defence rights 1. EU Charter of Fundamental Rights 2. EU Instruments 3. National Law 17

18 Judicial control National Courts Court of Justice of the EU (conflict of competence between EPPO and national authorities) 18

19 Remaining challenges

20 Prosecution before national Courts The European Delegated Prosecutor submits a draft decision suggesting to bring a case to judgment The Permanent Chamber to decide on this draft limited only to the question of a) the sanction requested by the European Delegated Prosecutor shall be raised and/or b) the case shall be referred to a competent court of a different Member State. 20

21 Relations with the PIF Directive A dynamic relationship (PIF) Directive 2017/xx/EU as implemented by national law VAT frauds to be included (new voting rules as from March 2017 ) 21

22 Competence EPPO to refrain from exercising competence and refer the case to the national level when: the maximum sanction provided for by national law for a PIF offence is less severe than the maximum sanction for an inextricably linked offence [the damage caused to the Union's financial interests by a PIF offence does not exceed the damage caused, to another victim] 22

23 Investigation measures (f) track and trace any object by technical means, including controlled deliveries of goods. Investigation measures set out under c) (computer data) and e) (interception of communications) may be subject to further conditions or limitations under applicable national law (in particular lett. e) for specific serious offences).

24 Other issues From Eurojust Relationships with third Countries Relationships with non participating MS

25 The Sit

26 EPPO Proposal: preambular part 49. The Representatives of the Member States, meeting at Head of State or Government level in Brussels on 13 December 2003 have determined the seat of the European Public Prosecutor s Office

27 European Council Conclusions december 2003 Finally agreed to give priority to Acceding States in the distribution of the seats of other offices or agencies to be set up in the future, without prejudice to the fact that, if a European Public Prosecutor's Office is established, its seat will be in Luxembourg in accordance with the provisions of the Decision of 8 April 1965

28 European Council Conclusions december 2003 Finally agreed to give priority to Acceding States in the distribution of the seats of other offices or agencies to be set up in the future, without prejudice to the fact that, if a European Public Prosecutor's Office is established, its seat will be in Luxembourg in accordance with the provisions of the Decision of 8 April 1965

29 Decision of the representatives of the governments of the Member States of 8 April 1965 on the provisional location of certain institutions and departments of the Communities (67/446/EEC) (67/30/Euratom) Article 3 The Court of Justice shall remain in Luxembourg. There shall also be located in Luxembourg the judicial and quasi-judicial bodies already existing or yet to be set up pursuant to the Treaties or to conventions

30 What next?

31 Towards an Enhanced Cooperation? «The» JHA Council on 8/9 december The fulfillment of all the legal (pre)conditions Who and how many?

32 Back in the future An AntiTerror EPPO under para. 4 of art. 86 TFEU?

33 The future EPPO?

34 Conclusioni Adozione e (concreta) attuazione La situazione italiana (e qualche luce all orizzonte ) La data del 1 dicembre 2014 La Presidenza italiana SSM 6 marzo 2014 L. Salazar 34

35 (Not yet) The End