Arraigned by the European Public Prosecutor: A mandate yet to be drafted

Faculty of Law Academic Year 2013 14 Exam Session 1 Arraigned by the European Public Prosecutor: A mandate yet to be drafted LLM Paper By Anthea Galea Student number: 01300955 Promotor: Dr Karen Verpoest Co-Reader: Dr Wendy De Bondt

Contents Contents... 2 Introduction... 4 Chapter 1 - A European Public Prosecutor or an extension of Eurojust s mandate?... 7 I. Eurojust... 9 A. Powers of Eurojust under Council Decision 2002/187/JHA... 9 B. Powers of Eurojust under Council Decision 2009/426/JHA Revised Council Decision... 10 C. Powers of Eurojust under TFEU and the proposed Regulation COM (2013) 535... 12 (i) Article 85 TFEU... 12 (ii) Proposed Regulation on the European Union Agency for Criminal Justice Cooperation (Eurojust)... 14 D. Conclusion... 16 II. European Public Prosecutor... 17 A. Proposed Regulation for a European Public Prosecutor... 18 B. Arguments in favour of establishing the European Public Prosecutor s Office... 20 III. Co-existence of Eurojust and the European Public Prosecutor s Office... 24 IV. Final observations... 26 Chapter 2 - What area of competence for the European Public Prosecutor s Office?... 28 I. The European Public Prosecutor s Competence... 28 A. Introduction to article 86 TFEU... 28 B. Competence of the European Public Prosecutor under the proposed Regulation COM (2013) 534... 29 C. PIF Directive... 30 D. A limited material scope... 33 (i) Corpus Juris... 36 (ii) Bodies and agencies relevant for the future European Public Prosecutor s office... 36 (iii) The European Warrants... 38 (iv) The Treaty on the Functioning of the European Union... 38 (v) The draft PIF Directive... 39 E. Observations... 47 2

II. Harmonised offences... 49 III. Final observations... 61 Conclusion... 62 Bibliography... 66 Abbreviations... 72 3

Introduction The European Union has claimed for a long time that it is best placed to protect its own financial interests especially after it has been reported that the amount of fraud of the Union monies runs into millions of Euro annually. This approach by the Union has been supported even more in view of the fact that member states have limited resources which in turn restricts them in their investigations and prosecutions of European Union financial crimes like fraud, corruption, money laundering, counterfeiting of the Euro and other crimes which affect the finances and the budget of the European Union. Moreover, another problem which has been identified by the European Union is the fact that at a national level, prosecution of these crimes is fragmented. As it has been stated, ( ) there is broad recognition of the fact that the fragmented nature of the European judicial area hampers the effectiveness of criminal prosecutions. It is important for the less convinced to remember that there are still obstacles to the effective prosecution of fraud in the field of substantive criminal law: limitation periods may differ, for example, and offences in one Member State may not correspond to those in another. On their own, national legal systems have proved ill-equipped to respond to the transnational nature of Community fraud owing to the principle of territoriality of the law of criminal procedure and the diversity of rules governing the production of evidence. All too often these factors ensure that prosecutions are not launched or completed, as the problems involved in obtaining evidence deter even the most willing. Where the instruments of international judicial cooperation continue to expose positive or negative power struggles and the difficulties with the need for the ne bis in idem principle or the execution of international letters rogatory, the European Prosecutor could provide the solution. He would be equally capable of doing so at the investigation stage, thanks to his delegates, whose work would be based on a minimum of common rules and whose findings would be mutually admissible, and at the prosecution stage, as cases would be tried in just one Member State. 1 The concern of the European Union can be easily seen along the past years being that legislation has been adopted with the aim of targeting fraud and corruption. In fact, there have been adopted a number of instruments namely, the Convention on the Protection of the 1 Commission, On the Green Paper on the criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor (Follow-Up Report) COM (2003) 128, 9 4

European Communities financial interests 2 ; Protocol on the Convention on the Protection of the European Communities financial interests 3 ; the Second Protocol on the Convention on the Protection of the European Communities financial interests 4 ; Convention on the fight against corruption 5. Various instruments have also been adopted also in the field of protecting the Euro against counterfeiting 6. Furthermore, various agencies and bodies have been established with the aim of targeting fraud and corruption. With regard to the anti-fraud offices there was the establishment of the Advisory Committee for the Coordination of Fraud Prevention 7 and OLAF in 1999 8 just to mention a few. In 2001, the European Commission presented a Green paper on criminal law protection of the financial interests of the Community and the establishment of the European Prosecutor 9. Moreover, such concern was manifested in article 325 TFEU which states that The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with this Article, which shall act as a deterrent and be such as to afford effective protection in the Member States, and in all the Union's institutions, bodies, offices and agencies. 10 Yet, despite all of the above, the financial interests of the European Union were not protected enough and sufficiently. 11 When the Lisbon Treaty came into effect in 2009, the European Union was for the first time given the green light to implement its policies through the use of criminal law, specifically via articles 82 and 83 TFEU. Certain actions could now be criminalised in view of the fact 2 Council Act of 26 July 1995 drawing up the Convention on the protection of the European Communities financial interests OJ C 316 3 Council Act of 27 September 1996 drawing up a Protocol to the Convention on the protection of the European Communities' financial interests OJ C 313. In this protocol, the definition of active and passive corruption are dealt with. 4 Council Act of 19 June 1997 drawing up the Second Protocol of the Convention on the protection of the European Communities' financial interests OJ C 221. The target of this protocol is to focus on the cooperation between the member states and the European Commission with regard to the crimes of money laundering and confiscation. 5 Council Act of 26 May 1997 drawing up the Convention made on the basis of Article K.3 (2)(c) of the Treaty on European Union, on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union OJ C 195 6 Europa Summaries of EU legislation, <http://europa.eu/legislation_summaries/fight_against_fraud/fight_against_counterfeiting/index_en.htm> accessed 19 April 2014 7 Commission Decision 94/140/EC of 23 February 1994 setting up an advisory committee for the coordination of fraud prevention [1994] L61/27 8 Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 establishing the European Anti-Fraud Office (OLAF) [1999] L136 9 Commission, On criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor (Green Paper) COM (2001)715 final 10 Art. 325 TFEU 11 Commission, Better protection of the Union's financial interests: Setting up the European Public Prosecutor's Office and reforming Eurojust (Communication) COM (2013) 532 5

that they badly affect the finances of the European Union. Alongside the latter, another article which was innovative was article 86 TFEU which provides a legal basis for the establishment of a European Public Prosecutor s Office whose aim is to investigate and prosecute crimes that affect the financial interests of the European Union. For the first time, the European Public Prosecutor s concept was put on a European law level. 12 A draft proposal has been tabled by the European Commission with article 86 TFEU as the legal basis whose aim is to establish a brand new office of the European Public Prosecutor. 13 The consequence of this proposal has raised the question as to whether there truly is required the establishment of a new office, and therefore under Chapter 1, this dissertation takes up a critical approach to the need of establishing a completely new office within the European Union. 14 The research delves into whether it is possible to place the prosecution service of the European Union within one of the already existing offices of the European Union, i.e. Eurojust. Notwithstanding the outcome of the above question, it seems clear - from the instruments tabled so far by the European Union - that the latter advocates for the establishment of a new office independent from any of the other offices and bodies already up and running within the European Union. This therefore, takes us to Chapter 2 of this dissertation where there will be examined the competence that the office-to-be will have. Primarily, the research will look into the crimes which have been proposed in the regulation on the establishment of the European Public Prosecutor s Office 15 which will eventually fall under the European Public Prosecutor s mandate. However, this will then be followed by an analysis as to whether the material competence of this office could be enhanced and if it can, what other crimes could potentially fall under the mandate of the European Public Prosecutor. 12 Ladislav Hamran & Eva Szabova, European Public Prosecutor s Office Cui Bono? [2013] 4 (1-2) New Journal of European criminal law <http://www.njecl.eu/pdf_file/its/njecl_04_01_0040.pdf> accessed 12 February 2014 13 Commission, On the establishment of the European Public Prosecutor s Office (Proposal) COM (2013) 534 final 14 Rosaria Sicurella, Setting up a European Criminal Policy for the Protection of EU financial interests: Guidelines for a Coherent Definition of the Material Scope of the European Public Prosecutor s Office in Katalin Ligeti (ed), Toward a prosecutor for the European Union Vol 1 A comparative analysis (Hart Publishing 2013), 873 15 Commission, On the establishment of the European Public Prosecutor s Office (Proposal) COM (2013) 534 6

Chapter 1 - A new European Public Prosecutor s Office or an extension of Eurojust s mandate? The idea of establishing a European public prosecutor was primarily mentioned in the Corpus Juris 16 which dates back to 1997. After many years of discussion and with the European Commission being in favour for the establishment of this new office, the Lisbon Treaty 17 provides for the first time article 86 a legal basis for the establishment of the office of the European public prosecutor. Upon a first reading of article 86 TFEU, a remarkable relationship is immediately noticed between the future European public prosecutor and Eurojust being that the wording of the article states that the European public prosecutor shall be established from Eurojust. 18 However, following the coming into force of the Lisbon Treaty, there is also a reinforcement of Eurojust s powers under article 85 TFEU. Therefore, a possible discussion could be whether it is possible and preferable to extend Eurojust s mandate to include the prosecution of crimes rather than establishing a new office whose mandate would be primarily that of investigating and prosecuting crimes affecting the financial interests of the European Union. In fact, various arguments have been put forward which counter the idea of establishing a European Public Prosecutor s office. One such argument goes that it would be ideal that the current mechanisms in place work to the outmost benefit for the member states in their investigating and prosecuting European crimes. This is favoured over establishing a new office especially when the office to be established is a supranational office. This was supported by the study carried out by EuroNEEDS were it results that the current mechanisms, systems and tools in place could be improved along with better training and cooperation amongst the member states. 19 This has been supported by the argument that even if a European public prosecutor would be established, the latter would need to rely to a certain extent, on national criminal justice systems. 16 Corpus Juris, <http://ec.europa.eu/anti_fraud/documents/fwk-green-paper-corpus/corpus_juris_en.pdf> accessed 7 March 2014 17 Lisbon Treaty, Treaty of Lisbon amending the Treaty on the European Union and the Treaty establishing the European Community of 13 December 2007 18 Art. 86 (1) TFEU 19 Marianne L. Wade, A European public prosecutor: potential and pitfalls [2013] 59 Crime Law Social Change 439, 470 7

Moreover, it has also been proposed that Eurojust could host the prosecutorial service within the European Union. 20 This is so in view of the fact that if Eurojust is strengthened and its powers are deepened, there would be nothing to stop this office from performing the same tasks as the European public prosecutor would be mandated to do. This can also be substantiated by the fact that the offences that would potentially fall under the competence of the European public prosecutor are already under the wing of Eurojust. For example, fraud committed against the financial interests of the European Union was explicitly mentioned under the Eurojust Council Decision of 2002/187/JHA. 21 Moreover, under the revised Council Decision 2009/426/JHA 22 there is reference to the crime of fraud which is more open-ended than it was previously mentioned. Furthermore, not only does Eurojust offer the necessary structure from which a prosecutorial section could work but also because ever since Eurojust has been established, it has managed to amass and acquire various expertise on resolving conflicts of jurisdiction. Being a hub for all the information regarding conflict of jurisdiction, it puts the office in an excellent position to deal with the choice of forum for prosecution of offences affecting the financial interests of the Union. What follows is a discussion of Eurojust s powers and the possible extension of its mandate to host a prosecutorial service. 20 Gert Vermeulen, Wendy De Bondt & Charlotte Ryckman, Eurojust & and European Public Prosecutor s Office: Reflections on future policy options in Rethinking international cooperation in criminal matters in the EU: moving beyond actors, bringing logic back, footed in reality [Maklu Publishers 2012] 21 ibid, 484 22 Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime [2009] OJ L138/14 8

I. Eurojust A. Powers of Eurojust under Council Decision 2002/187/JHA On the 28 th of February 2002, Council Decision 2002/187/JHA on setting up Eurojust with a view to reinforcing the fight against serious crime 23 was adopted. This Council Decision was adopted with the aim to improve the judicial cooperation amongst the member states by adopting structural measures at European Union level to facilitate the optimal coordination of action for investigations and prosecutions covering the territory of more than one member state. 24 Moreover, Eurojust s tasks can be categorised under three main headings, namely primarily there is the right to receive information as established under article 13 of Council Decision 2002/187/JHA. Secondly, Eurojust is to coordinate, facilitate and provide support between the competent judicial authorities of the member states. Thirdly, Eurojust has an advisory role in resolving jurisdictional conflicts by means of providing non-binding opinions. 25 Eurojust s mandate is the same as that of Europol, 26 however with some additions. 27 With a competence to deal with fraud, corruption and criminal offences affecting the financial interests of the European Union, Eurojust s competence overlaps with the potential mandate of the European Public Prosecutor. 28 Thus, it can be argued that from a substantive point of view, it seems that both Eurojust and the future European Public Prosecutor have overlapping competences which indeed could raise the question of the added value of establishing a new office like the European public prosecutor. However, the same argument does not stand when considering the powers of both Eurojust and the future European Public Prosecutor. It follows that apart from article 13 of Council Decision 2002/187/JHA - which obliges the member states to provide information to Eurojust - all of the other powers of Eurojust are considered 23 Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crimes [2002] OJ L63/1 24 ibid, recital 2 25 ibid, art 6 & 7 26 Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crimes [2002] OJ L63/1, art 4(1)(a) 27 Ibid, article 4(1)(b) namely computer crime; fraud and corruption and any criminal offence affecting the European union s financial interests; the laundering of proceeds of crime; environmental crime and participation in a criminal organisation within the meaning of Council Joint Action 98/733/JHA of 21 December 1998 on making it a criminal offence to participate in a criminal organisation in the member states of the European Union 28 ibid, art 4 9

as soft powers. This is in view of the fact that Eurojust may only ask the member states to undertake a certain action, yet this is not compulsory. 29 Moreover, its powers range from assisting, advising, coordinating and enhancing cooperation which are all soft powers and non-binding in nature meaning that they cannot be enforced. B. Powers of Eurojust under Council Decision 2009/426/JHA Revised Council Decision On 16 th December 2008, the European Commission set out to strengthen the position of Eurojust and its powers through the adoption of Council Decision 2009/426/JHA which strengthens cooperation between the national authorities and Eurojust itself; increases information exchange and reinforces the body s operational capabilities. One notorious improvement over the Council Decision of 2002 is Eurojust s competence. With the new revised Council Decision, Eurojust s competence is clearer because both Eurojust and Europol have the exact same competence. 30 However, when taking a look at Europol s mandate, the situation is not that clear especially because of the 32 mutual recognition offences for most of which there is no harmonised definition across the European territory. Furthermore, there is the strengthening of the position and powers of the national members in view of the fact that there is an expectancy of an increase in the workload on Eurojust. Thus, every member shall have at least one person who is to be of assistance to him. 31 This is in contrast to the position under the Council Decision of 2002 as it was left optional for the member of Eurojust as to whether to have an assistant or not. Moreover, the revised Council Decision establishes a minimum term of office for the national members under article 9 making way for long term decision making. The powers of the national members have also been heightened due to the fact that whilst previously under the old Council Decision, the national members were allowed to keep their national competences in accordance to what the member state would have decided, under the revised Council 29 Gert Vermuelen, Wendy De Bondt and Charlotte Ryckman, Eurojust and its relevance in the debate on a future European Public Prosecutor s Office, in Rethinking international cooperation in criminal matters in the EU (Maklu Publishers 2012), 374 30 Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime [2009] OJ L138/14, art 1(3) 31 ibid, art 1(2) 10

Decision the position is different. Under the latter, the national members have to retain the national competences and the Council Decision explicitly lists minimum competences. More lee-way has been given to the national members in cooperating on an international level with other judicial authorities as long as the member state defines the parameters within which the national member is to operate. 32 Decision were only experiences had to be exchanged. This is a clear improvement over the old Council The College of Eurojust also underwent certain changes with the coming into force of the revised Council Decision. Whilst retaining its previous powers, a couple of new powers were also added. Precisely, under article 13 of the revised Council Decision, member states are obliged to push information with certain cases with the objective of increasing information exchange. However, with regard to the issue of resolution of conflicts of jurisdiction, the competence of Eurojust s College remains of an advisory nature. In substance therefore, Eurojust s College still has no binding powers. In conclusion on the revised Council Decision, it can easily be stated that Eurojust has been strengthened even more when compared to the Council Decision 2002/187/JHA. It is also in a better position with regards to the exchange of information between itself and the member states since following the coming into force of the revised Eurojust decision, the member states are under an obligation to share any information with Eurojust so the latter is able to perform its tasks as stipulated under articles 4 and 5 of Council Decision 2009/426/JHA. 33 However, there still seems to be something which has gone unchanged, and that is that no binding powers have been given to Eurojust. On the contrary, it still has soft powers. In fact, under article 7 of the revised Council Decision, if it is the case that agreement cannot be reached regarding a matter concerning conflict of jurisdiction as to investigations to be carried out or prosecution, then Eurojust is to provide a non-binding opinion. 34 Moreover, there is no obligation on the part of the member states to follow up on a request or opinion of Eurojust. The only obligation imposed on the member state is to give a valid reason as to why the request or the opinion have not been followed up, however, if the 32 Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime [2009] OJ L138/14, art 1(8) 33 ibid, art 1(11) notice that under the old article 13, the member states could have exchanged information with Eurojust, however under the new article 13 there is the imposition of an obligation on the member states as they shall exchange information 34 ibid, art 1(6) 11

member state is not in a position to give such a reason due to national security interests, then operational reasons can be cited. 35 C. Powers of Eurojust under TFEU and the proposed Regulation COM (2013) 535 (i) Article 85 TFEU With the coming into force of the Lisbon Treaty and article 85TFEU there seems to be a potential strengthening for Eurojust. It is established that Eurojust s mission is to...support and strengthen coordination between national investigating and prosecuting authorities in relation to serious crime 36 affecting two or more Member States.... 37 There is also envisaged a reinforced Eurojust due to the potential tasks that the body might be given if a Regulation were to be adopted in accordance with article 85 TFEU. This in turn means that for there to be the enhancement of Eurojust s powers there is no need for a treaty revision, making it more flexible and possible for this body to have its powers increased. Under article 6 of Council Decision of 2009/426/JHA, Eurojust can ask the competent authorities of the member states to start an investigation or prosecution but article 85 (1)(a) TFEU depicts something different. Firstly, article 85 (1)(a) TFEU envisages a future Eurojust with the task of initiating a criminal investigation and proposing an initiation of prosecution for crimes affecting the financial interests of the European Union. One can immediately notice the difference between the position prior article 85 TFEU as Eurojust s role was primarily that of facilitating and coordinating whilst post article 85 TFEU there can potentially be a Eurojust which can take initiative, actively coordinate and with its conflict resolution having more weight. Moreover, with the potential competence to start an investigation, Eurojust would have gained a power previously held jealously and exclusively by the member states. 35 Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime [2009] OJ L138/14, art 8 36 The Treaty wants to ensure that Eurojust has a wider competence as there is mentioned serious crime and not cross-border crime 37 Art 85 TFEU 12

Insofar as this task is concerned, a clear difference can be singled out between the initiation of an investigation and the initiation of a prosecution. Whilst Eurojust might be competent to initiate a criminal investigation, the legislator does not talk about the initiation of a prosecution but merely a proposal for an initiation of a prosecution. Therefore, whilst this article provides a decision-making power to Eurojust, it does not provide a binding power on the initiation of prosecutions. 38 What stands as yet unclear is whether this potential power of Eurojust to initiate an investigation will be followed up at a national level by a compulsory prosecution. This is to be kept into perspective following the fact that the legal systems of the member states vary from each other, with some systems admitting of the power that the prosecution can decide whether to prosecute or not. To date, article 85 TFEU has not been availed of apart from the draft regulation on the European Union agency for criminal justice cooperation COM (2013) 535 39 - and even if such task would be resorted to, it seems from the wording of the Treaty that Eurojust will not be competent to prosecute itself as the Treaty makes it clear that Eurojust will propose for the initiation of a prosecution. This provision has been used by Eurojust s supporters to put forward the argument that maybe it should be considered that Eurojust s mandate be extended. However, as it has been argued above, this article does not give Eurojust any binding power to initiate prosecution. Moreover, even though Eurojust might be competent to initiate a criminal investigation does not mean that it will be given the competence to do so. Secondly, another possible field of action for Eurojust under article 85 (1)(b) TFEU is the coordination by Eurojust itself of the above mentioned investigations and prosecutions. This stands in contrast with the situation prior the Lisbon Treaty was in force because such coordination was entrusted with the member states. This can also be seen by looking at the old article 6 of Council Decision 2002/187/JHA and the current article 6 of Council Decision 2009/426/JHA. Whilst under the old article Eurojust could assist the competent authorities of the member states to ensure coordination of investigations and prosecutions, under the current article 6, Eurojust may ask the competent authorities of the member states... to 38 Anne Weyembergh, Coordination and initiation of investigations and prosecutions through Eurojust [2013] 14 ERA Forum, 178 <http://link.springer.com/article/10.1007%2fs12027-013-0314-z > accessed 28 January 2014 39 Commission, On the European Union agency for criminal justice cooperation (Eurojust) (Proposal) COM (2013) 535 13

undertake an investigation or prosecution.... 40 Yet again, Eurojust is not given the power to prosecute itself. Thirdly, the potential regulations that might be adopted may deal with strengthening judicial cooperation including resolution of conflicts of jurisdiction. 41 Currently, Eurojust still has the mandate to undertake such task however, it does so by means of a non-binding opinion. It could possibly be envisaged that if such regulations were to be adopted, then Eurojust s opinion in relation to conflicts of jurisdiction would become binding. The latter will most likely be the case being that if it is left up to the national authorities, the situation might arise where the national authority in question would not agree with the resolution taken, ending up with no decision on jurisdictional conflict. Thus, it would seem that the opinions to be given by Eurojust regarding this matter are to be mandatory and binding on the national authorities. 42 (ii) Proposed Regulation on the European Union Agency for Criminal Justice Cooperation (Eurojust) Article 85 TFEU has been finally taken up by the European Commission as it has tabled a proposal for a Regulation on the European Union Agency for Criminal Justice Cooperation (Eurojust) on 17 th July 2013. 43 The impetus that brought about the drafting of this regulation is that on the one hand there is article 85 TFEU which provides binding powers in relation to national authorities and on the other hand, there is article 86 TFEU stating that the European Public Prosecutor s Office is to be established from Eurojust. It is with this perspective that the European Commission has endeavoured to lisbonise and strengthen Eurojust. 44 In fact, one is to notice that on this same date, the European Commission also tabled the draft 40 Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime [2009] OJ L138/14, art 6 (1)(a)(i) 41 Art 85 (1)(c) TFEU 42 Hans G. Nilsson, Judicial Cooperation in the EU Eurojust and the European Public Prosecutor in Elspeth Guild, Sergio Carrera, Alejandro Eggenschwilder (eds), The Area of Freedom, Security and Justice Ten Years On: Successes and Future Challenges under the Stockholm Programme (Centre for European Policy Studies 2011), 76 43 Commission, On the European Union Agency for Criminal Justice Cooperation (Eurojust) [Proposal] COM (2013) 535 44 Council of the European Union, European Public Prosecutor s Office: A Constructive Approach towards the Legal Framework Conclusions of the conference organised by the Lithuanian Presidency in cooperation with the European Commission and the Academy of European Law (Vilnius, 16-17 September) 13863/1/13 REV 1 of 14 October 2013, 12 14

regulation for the establishment of the European public prosecutor s office. 45 This is very significant as it shows that the establishment of a prosecution office within the European Union is not a project that can be tackled on its own being that other bodies are going to be effected by it. It goes to show that there is a comprehensive plan to this reform. An important feature that results from this draft proposal is that there will now be a regulation that is automatically binding on all of the member states. This stands in contrast to the current situation where Eurojust is regulated by means of a Decision. Moreover, the regulation aims to consolidate even further the position taken under the revised Decision by further eliminating the differences between members of Eurojust thus ensuring a better working environment. The main goal of the proposed regulation is to have the Agency for Criminal Justice Cooperation be brought in line with the Lisbon Treaty by re-organising its internal structure to accompany its increased powers and competences along with improving its mandate to a more effective and efficient one. 46 From a brief look at article 4 of the draft regulation, it is immediately clear that Eurojust s tasks will definitely retain the element of cooperation; coordination; consultation with the competent authorities of the member states, the European Judicial Network and Europol; giving assistance by keeping competent authorities informed of any vital information and provision of logistical support. Moreover, the Agency for Criminal Justice Cooperation should be given timely and accurate information in order to sustain its above mentioned activities. This is the reason why the provision of information to the Agency has been stepped up under article 21 (5) of the draft regulation. This is especially so when such article is compared to article 13 (6) of the revised Decision of 2008. There is an element of improvement in the European Union Agency for Criminal Justice Cooperation due to the fact that under the draft regulation it would have the power to ask the competent national authorities to undertake an investigation but this in turn implies that Eurojust will not be given the power to conduct the investigation itself. Rather it will order the national authorities to undertake the investigation themselves and in so doing, the case would be transmitted to them. This way, the investigation shall fall under the competence of the national authorities. Furthermore, the Agency will have the power to ask the competent 45 Commission, On the establishment of the European Public Prosecutor s Office (Proposal) COM (2013) 534 final 46 Commission, On the European union agency for criminal justice cooperation (Eurojust) [Proposal] COM (2013) 535, 3 15

national authorities to prosecute specific acts; require the national competent authorities to coordinate together and set up a joint investigation team. 47 It should be noticed however, that under the draft regulation, the Agency still does not have the power to order but rather to ask a member state to take particular initiatives. It is only under article 8(2) & (3) that the European Union Agency has the power to order an investigative measure when there is an urgent case at hand. D. Conclusion In conclusion to the above, the strength of Eurojust lies in its coordinating and cooperation mandate especially because in these last few years there has been an explosion of crossborder crime including child pornography, trafficking in human beings, drug trafficking, terrorism and cybercrime. 48 One important common element between all of these crimes is that they take place across borders and therefore, coordination between all of the authorities involved proves to be vital and crucial. This has been and still is the role of Eurojust and has in fact been once again consolidated in article 85 of the Lisbon Treaty as the latter explicitly recognises the mandate of Eurojust to be precisely that of coordinating and cooperating. Stated otherwise, Eurojust still retains a non-binding character, with its powers limited to giving advice, providing assistance, coordinating and cooperating which are indeed all soft powers. It can be stated that Eurojust s task is to facilitate and mediate between the national judicial authorities. 49 Moreover, member states are not obliged to follow up the requests sent to them by Eurojust and the College of Eurojust issues just non-binding opinions. The wording of the Treaty is clear in the sense that even though regulations can be adopted to determine Eurojust s structure, operation, field of action and tasks, it does not mean that these tasks will definitely include the initiation of criminal investigations and proposing the initiation of prosecutions. This is in view of the fact that the legislator carefully chooses the word may rather than shall. However, if it were to be the case that Eurojust is given all of the potential powers and tasks as envisaged under article 85TFEU, this body would still not 47 Commission, On the European Union Agency for Criminal Justice Cooperation (Eurojust) [Proposal] COM (2013) 535, art 4(2) 48 ibid, 2 49 Anne Weyembergh, Coordination and initiation of investigations and prosecutions through Eurojust [2013] 14 ERA Forum, 178 <http://link.springer.com/article/10.1007%2fs12027-013-0314-z> accessed 28 January 2014 16

be able to prosecute the crimes itself in front of the member states national courts because it is not given any prosecutorial powers. There is no legal basis under the Lisbon Treaty for Eurojust to be able to bring forward criminal cases in front of the national courts of the member states. II. European Public Prosecutor Following an examination of Eurojust s current and potential future powers and concluding that the Lisbon Treaty does not provide any legal basis for this body to be able to prosecute and present cases in front of national courts, it is time to turn our attention on the European public prosecutor s office. Proposed for the first time back in 1997 in the Corpus Juris, 50 it took such office a little more than a decade to find its place in the Treaty. For the first time, the Lisbon Treaty established a clear legal basis for the establishment and setting up of the European Public Prosecutor s Office under article 86 TFEU. The aim of the European Public Prosecutor will be to combat crimes affecting the financial interests of the European Union. 51 This Office shall be adopted through Regulations which 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. 52 The competence of the Office shall be to investigate and prosecute these crimes along with deciding the forum where the prosecution is to take place. 53 The forum chosen has to be a competent court of the member states. It must be pointed out that the jurisdiction of the office of the European Public Prosecutor can be extended to cover not just crimes affecting the financial interests of the European Union but also serious crime having a cross-border dimension. 54 A question that arises at 50 Corpus Juris, <http://ec.europa.eu/anti_fraud/documents/fwk-green-paper-corpus/corpus_juris_en.pdf> accessed 27 February 2014 51 Art 86(1) TFEU 52 Art 86(3) TFEU 53 Art 86(2) TFEU 54 Art 86(4) TFEU 17

this point is whether there can be the jurisdiction extension if it were the case that only a small number of member states would have agreed for the adoption of the office of the European public prosecutor. Finally, article 86TFEU provides the possibility of adopting the European Public Prosecutor s office through enhanced cooperation if there are at least 9 member states which would be willing to take up the establishment of the office if it is the case that unanimity is not reached. This possibility has been drafted as it can be easily figured out that it is very difficult for there to be unanimity over such a delicate issue. Therefore, being that the European Commission does not want to abandon such project, it resorted to enhanced cooperation. However, it would be best for the proper functioning of the European Public Prosecutor s Office that enhanced cooperation would at least require 15 member states half of the current total member states within the European Union so that there would be as much support from the member states as possible. In including article 86 in the Treaty and with the potential future establishment of a European public prosecutor with powers as mentioned under this same article, the member states for the first time would be surrendering executive judicial powers to a supra-national authority dealing with criminal matters. This in itself explains the reluctance by some member states in agreeing to the adoption of such Office. A. Proposed Regulation for a European Public Prosecutor The proposed regulation COM (2013) 534 On the establishment of the European Public Prosecutor s Office 55 based on article 86 TFEU opts to establish the office in a decentralised manner meaning that there will be a hierarchical structure. 56 At the top, there would be the European public prosecutor supported and aided by deputies and other staff. The office will also have the European delegated prosecutors one from every member state 57 who although still stationed in their respective member state, will prosecute not only national 55 Commission, On the establishment of the European Public Prosecutor s Office (Proposal) COM (2013) 534 final 56 It has been reported that the European Commission has opted to adopt a decentralised European Public Prosecutor mainly because this will result in a less financial burden in view of the fact that national resources will be made availed of. 57 Commission, On the establishment of the European Public Prosecutor s Office (Proposal) COM (2013) 534 final, art 6(5) 18

cases but also European crimes in accordance to the instructions provided by the European public prosecutor. This dual function that the European delegated prosecutors will have has been referred to as double-hatted prosecutors due to being competent to prosecute both national and European crimes. 58 It is immediately clear that the role of the European delegated prosecutors will be central because the latter will be the ones capable of investigating and prosecuting in front of the national court where the crime would be prosecuted. Notwithstanding this, the European Public Prosecutor will still be involved in all of the decisions that are to be taken, most importantly whether there should be prosecution or not. It is also envisaged that there will be established a dedicated investigative department at Union level which would be of great benefit for the European prosecutors as such department would be able to coordinate all of the investigations taking place. 59 The European public prosecutor would still have a very important role regarding decision making as to whether to prosecute or not. OLAF s resources will also be used to their fullest being that its specialised staff will be transferred to the prosecution office. Due to the nature of the mandate of the office of the European public prosecutor, such office shall be independent, to secure that no influence is exercised on the office when investigative and prosecutorial decisions are to be taken. This is ensured in the wording of COM (2013) 534 as the European public prosecutor to be appointed to hold office shall not only possess the required qualifications and enjoy independence but also have prosecutorial experience. 60 Moreover, the European public prosecutor has a non-renewable period of 8 years. Just as important as independence is the accountability of the office: once established, the office would be accountable in front of the European institutions and the national parliaments. 61 One further point that requires discussion at this stage is the procedural aspect of the potential European public prosecutor, in other words, the office s jurisdiction, the way investigations are to be conducted and most importantly, the prosecution stage. Article 14 of COM (2013) 58 Council of the European Union, European Public Prosecutor s Office: A Constructive Approach towards the Legal Framework Conclusions of the conference organised by the Lithuanian Presidency in cooperation with the European Commission and the Academy of European Law (Vilnius, 16-17 September) 13863/1/13 REV 1 of 14 October 2013, 6, 27. This has been criticised by Mr Jorge Espina since it might be possible that the prosecutors would have to prioritise between the cases due to the amount of cases they would be dealing with. 59 Commission, On the establishment of the European Public Prosecutor s Office (Working Document) SWD (2013) 274 final, 33 60 Commission, On the establishment of the European Public Prosecutor s Office (Proposal) COM (2013) 534 final, art 8(2) 61 ibid, art 5 & 70 19

534 establishes that the European public prosecutor shall have jurisdiction over crimes which fall under article 12 62 of the above mentioned draft regulation and such crime has been committed on the territory of one of the member states; or the crime has been committed by a national of a member state, by a union staff member or by members of the institution. 63 Throughout the investigation, the European Public Prosecutor is to be kept informed of what is going on, has to monitor the investigation and coordinate matters. Finally, when the investigation stage is over, all of the material collected needs to be submitted by the European delegated prosecutor to the European public prosecutor so that a decision can be taken as to whether to proceed with a prosecution or not. Currently, the European public prosecutor s office has not been established yet and the draft regulation still has to be approved. However, it has already been made clear by a number of member states that they will not participate in the establishment of such Office, namely Czech Republic, Denmark, France, Hungary, Ireland, Malta, Romania, Slovenia, the Netherlands and UK. UK and Ireland will maintain the opt-in prerogative whilst the rest of the member states which have been mentioned in this paragraph are opting out. Notwithstanding this, it is still to be seen which member states will support such establishment and whether there will at least be 9 member states to carry forward such project. All in all, it seems that article 86 TFEU provides the adequate and clear legal basis for the establishment of the European Public Prosecutor s Office being that this article gives the power to the future office to prosecute the crimes in question. B. Arguments in favour of establishing the European Public Prosecutor s Office Establishing the European Public Prosecutor s Office seems the way forward for the European Union to have a prosecutorial service and thus secure the prosecution of crimes affecting the financial interests of the European Union. Such an approach is very much desired in view of the fact that there are a number of problems with the current situation; like for example there being no obligation to report fraud offences below the 10,000 threshold to 62 The substantive aspect of the European public prosecutor s office will be discussed in Chapter II of this paper. 63 Commission, On the establishment of the European Public Prosecutor s Office (Proposal) COM (2013) 534 final, art 14 20

OLAF. 64 This results in an unreal number of fraud offences which are actually taking place which in turn effects the perception as to how grave the situation is regarding the amount of crime happening. With the European public prosecutor s office in place, investigations and prosecutions will be undertaken resulting in a clearer picture as to the amount of crime happening within European Union borders. Second of all, it is well known that fraud offences are not limited to one territory of a particular member state. This entails that most of these offences are of a cross-border nature which in turn requires proper coordination across the Union. This brings us to another problem currently faced by the European Union and that is that there is no proper coordination at union level to counter these cross-border crimes. The present fragmented system does not lay down a proper basis for there to be investigations and prosecutions of European Union crimes. This is due to the fact that investigations and prosecutions are being conducted at a national level. The problem with the latter situation is that there are capacity and financial limitations along with the possibility of missing the European dimension of a case at hand. Potentially, this is resulting in a lack of prosecution of such crimes. Following a study conducted by EuroNEEDs, at a national level there seems to be no concrete idea as to the level of European crimes that are being perpetrated and the rate of prosecution of these crimes. 65 This has also been a problem singled out by the European Commission in backing the idea of establishing the European Public Prosecutor s office. 66 Moreover, it was concluded that there definitely needs to be taken some sort of action regarding the collection of information on these types of crimes as not enough is known. The benefit of having one office dealing with the prosecution of crimes lies with the fact that it would be completely dedicated to deal with these cases which enhances efficiency and eases the burden of coordination. There would be a consistent way of approaching these crimes along with having the adequate capabilities and resources of doing so. It also helps putting the European dimension to a case in its proper perspective without ever being overlooked. The latter situation stands parallel to what the situation would be if Eurojust would deal with the prosecution of offences as it would be fragmented. This is so because 64 Katalin Ligeti & Michele Simonato, The European Public Prosecutor s Office: Towards a truly European prosecution service? [2013] 4(1) New Journal of European Criminal Law, 3 65 Marianne L. Wade, A European public prosecutor: potential and pitfalls [2013] 59 Crime Law Social Change 439, 448 66 European Commission, Consultation on protecting the European Union s Financial interests and Enhancing Prosecutions (Criminal Justice Newsroom) <http://ec.europa.eu/justice/newsroom/criminal/opinion/120307_en.htm> accessed 28 January 2014 21

Eurojust would coordinate the prosecutions at national levels and therefore, there would not be one single office dealing with the matters at hand. With the European public prosecutor in place, it will be ensured that such crimes are still brought to justice. Moreover, the advantage of having a single office dealing with such matters includes the fact that there will be an independent office. This is fundamental to ensure impartiality in view of the matters that such office will deal with. This independence stems out from the way the European Prosecutor will be appointed, dismissed and the fact that the office s term is non renewable. The European public prosecutor will also have to report its activities to the EU institutions making it accountable for the actions taken. Moreover, the office will be cost-efficient 67 mainly because national resources and personnel which are already currently in place and functioning, will be used. This means that whilst there will be the European public prosecutor heading such office, there will be the European delegated prosecutors. Based in their respective member state, these prosecutors will deal with national and European cases contemporaneously. The double hated European delegated prosecutors truly reflect efficiency. This is the reason why the European Commission opted to resort to establishing the European Public Prosecutor s office in a decentralised manner. This also is the best way to fit the national systems. Furthermore, the investigations and the prosecutions will be undertaken by an office composed of at least 30 members, namely the European public prosecutor together with its four deputies and at least 25 member states excluding the UK, Ireland and Denmark although the number of member states participating might be less as it has already been seen above. One must admit that such a number is not too big for the nature of such office. The office will also act efficiently when it comes to take its decisions since there will be a vertical structure a hierarchy - with the European Public Prosecutor steering the office s actions and taking decisions. This is surely more proficient than having an office which takes decisions in a collegial form. Finally, in establishing a supra-national office at European Union would be sending a clear message to the criminals that it will not tolerate any crimes that affect the finances of the European Union. 67 Michele Caianiello, The proposal for a regulation on the establishment of a European public prosecutor s office: Everything changes, or nothing changes? [2013] 21 European Journal of Crime, Criminal Law and Criminal Justice, 115 <http://dialnet.unirioja.es/servlet/listaarticulos?tipodebusqueda=volumen&revistadebusqueda=8427&clave DeBusqueda=21> accessed 11 February 2014 22