Justice for Europe?
The Role of the
European Public Prosecutor’s Office in the
Fight Against Terrorism
Sam Krocké
samkrocke@msn.com #10740759
European Union Law
Supervised by dhr. mr. dr. R.H. van Ooik Date of Submission: 22th of July, 2020.
Abstract
The purpose of the first chapter of this work is to present a clear image of the European Public Prosecutor’s Office (EPPO) by elaborating on its history, as well as its structure and competences as enshrined in Regulation (EU) 2017/1939, establishing a thorough understanding of its current status. Chapter two will then contain a critical assessment of the Commission Communication (COM(2018) 641) elaborating on its proposal to extend the competences of the EPPO to cross border terrorist offenses, as well as an illustration of the potential impact such an extension would have on the EPPO’s legal framework since the Commission, as is argued, payed far too little attention to this issue. The relevant extension of competences would, as is shown in this work, make a significant impact on the institution, requiring thorough consideration. It will by no means be as simple as adding another set of material competence “to the list”, the extension of competences to cross-border terrorist crimes will need to be carefully defined, nuanced, and demarcated. Careful assessment would further be needed with regard to the scope of its available investigative measures, the creation of common rules on information sharing between different authorities, and the admissibility of evidence before the various national courts.
Table of contents
Introduction
11.
The European Public Prosecutor’s Office
31.1 Introduction 3
1.2 The long road to establishment 4
1.2.1 Legal basis: Competence of the Union to establish the EPPO 4
1.2.2 Background and history 5
1.3 The EPPO Regulation 8
1.3.1 A long-debated structure 8
1.3.2 Competences of the EPPO 12
1.3.3 Possibility of competence extension 15
2.
The Commission proposal
172.1 Introduction 17
2.2 Proposed extension and its procedural requirements 18
2.2.1 Proposed extension 18
2.2.2 Comments on the Procedural requirements 19
2.3 Addressing the gaps 20
2.3.1 Fragmentation of investigations 21
2.3.2 Timely exchange of information and handling of evidence 23
2.3.3 Disconnect investigation – prosecution 26
2.3.4 Inefficient/parallel investigations and prosecutions 27
2.4 Implied impact on the EPPO 28
2.4.1 General Comments 28
2.4.2 Illustration of the ancillary impact on the EPPO 30
Conclusion
32Introduction
It was Jean-Claude Juncker, president of the European Commission at the time, who first formally expressed the need for extending the tasks of the European Public Prosecutor’s Office (EPPO) to cross-border terrorist offenses.1 ‘Terrorists know no borders’, he proclaimed in his
State of the Union address of 2018, in which the Commission looks ahead to priorities for the following years;2 ‘we cannot allow ourselves to become unwitting accomplices because of our
inability to cooperate’.3 Strong words underpinning an opinion that is most certainly not
universally shared.4 The agency was not in function at the time of the speech, nor will it be until
at least the end of 2020, yet a Commission proposal accompanied by a Draft European Council Decision to extend its competences has already been released.5
The EPPO has been subject to severe criticism6 ever since (and leading up to) its legal
establishment7 and is, even under its current competences, often accused of being just another
tool facilitating the growth of powers of the EU.8
It is not without reason, of course, that after being met with resistance from several national governments, the legislative process went into the so-called “enhanced cooperation
1 Very briefly mentioned in the 2017 State of the Union Address, more thoroughly elaborated in the 2018
Address; see Jean-Claude Juncker, former EU Commission President, ‘State of the Union 2017: Roadmap for a more united, stronger and more democratic Union’ (State of the Union Address, 13 September 2017), authorized transcript p. 17; see also Jean-Claude Juncker, former EU Commission President, ‘State of the Union 2018: The Hour of European Sovereignty’ (State of the Union Address, 12 September 2018), authorized transcript p. 7.
2 For an exact description of the State of the Union debate see recital 5 of Annex IV to the Framework
Agreement on relations between the European Parliament and the European Commission [2010] OJ L304/47.
3 Jean-Claude Juncker, ‘State of the Union 2018…’, authorized transcript p. 7.
4 The corresponding proposal was met with skepticism, even by pro-integration Member States. See, inter alia,
Christine Andreeva, ‘The EU’s counter-terrorism policy after 2015 – “Europe wasn’t ready” – “but it has proven that it’s adaptable’ (2019), ERA Forum, p. 18 (when converted into PDF); see also Adam Juszczak and Elisa Sason, ‘Fighting Terrorism through the European Public Prosecutor’s Office (EPPO)? What future for the EPPO in the EU’s Criminal Policy?’ (2019), eucrim: The European Criminal Law Associations' Forum, p. 67; and Maria Kaiafa-Gbandi, Editorial in EuCLR European Criminal Law Review 8 (2018) no. 3.
5 See Communication from the Commission to the European Parliament and the Council, A Europe that
protects: an initiative to extend the competences of the European Public Prosecutor's Office to cross-border terrorist crimes, 12 September 2018, COM(2018) 641 final; see also see also Draft European Council Decision
amending Article 86 of the Treaty on the Functioning of the European Union with regard to the competences of the European Public Prosecutor’s Office (EPPO) in its Annex.
6 See, inter alia, Petter Asp, The Procedural Criminal Law Cooperation of the EU (Juridiska Fakultetens
Skriftserie No. 84, Faculty of Law, Stockholm University Research Paper no. 6) p. 195; Ladislav Hamran and Eva Szavova, ‘European Public Prosecutor’s Office – Cui Bono’ (2013) New Journal of European Criminal Law 4, no. 1-2. pp. 46-48 as well as footnote 22; see also Leendert Erkelens, Arjen WH Meij, and Marta Pawlik, eds.,
The European Public Prosecutor’s Office: An extended arm or a Two-Headed dragon? (Springer, 2014)
7 Be it its enshrinement in the Treaties after Lisbon or the adoption of Regulation (EU) 2017/1939; a more
thorough explanation will be given in the chapters to come.
8 See, inter alia, Leendert Erkelens, ‘Introduction: Criminal Law Protection of the European Union’s Financial
Interests: A Shared Constitutional Responsibility of the EU and Its Member States?’ in Leendert Erkelens, Arjen WH Meij, and Marta Pawlik, eds., The European public prosecutor's office: an extended arm or a two-headed
procedure”.9 It remains to be seen whether these new competences would indeed be able to
contribute to the current status of counterterrorism affairs in Europe or if these too will be regarded as just another excuse for the EU’s reproached expansionism.
The Commission thus released an official Communication elaborating and substantiating its motives for the extension of competences, accompanied by a Draft European Council Decision, in which it identified apparent gaps in current anti-terrorism efforts along with potential solutions the EPPO, in its view, could provide.10 However, some crucial
questions were left unanswered, especially regarding the way in which the EPPO’s institutional framework would need to be amended, since serious doubts exist as to whether it would be capable of addressing some of the identified gaps, without thorough redesign of its current features.11
This work takes up that issue by illustrating the institutional impact this seemingly straightforward competence extension implies. Research is, in essence, thus limited to a critical view on the mentioned Proposal, although it is precisely those aspects that the Commission failed to address which will be its ultimate objective.
In the pages to come I will therefore strive to gradually answer the following research question:
To what degree would the extension of competences of the EPPO to cross-border terrorist crimes alter its legal framework as to adequately address the gaps of current European antiterrorist efforts as identified by the Commission?
In order to answer this question, the paper will be divided into two parts. The first chapter will accordingly set out the current status of the EPPO, in terms of structure and competence, as well as some context regarding it origins. Subsequently, in the second chapter, the Commission Communication will be critically assessed, elaborating its proposed extension of competences as well as its relation to the identified gaps in current anti-terrorism efforts. The identified gaps will be addressed in conjunction with its proposed solutions, which will then lead up to an illustration of the way in which the proposed extension of competences would impact the structure and operating framework of the EPPO as to allow it to effectively address the
9 In accordance with the third subparagraph of article 86(1) TFEU, referring to the procedures laid down in
articles 20(2) TEU and 329(1) TFEU.
10 COM(2018) 641 final.
respective gaps. In addition to these gaps, an illustration of the ancillary impact the competence extension implies for the EPPO framework will be provided in the concluding paragraph.
This paper can hence be considered as picking up where the Commission left off: a true and holistic assessment of the unavoidable impact the proposed extension would bring about. After comprehensive elaboration on the EPPO, the Commission’s substantiation of the proposed solutions it would realize for current anti-terrorism efforts will be set out under critical review; and a thorough assessment of the implied impact on the EPPO framework will be provided.
1.
The European Public Prosecutor’s Office
1.1 Introduction
Chapter one concentrates on the establishment of the EPPO, as well as on its current structure and competence. After numerous concepts and almost four years of turbulent negotiations, the EPPO was finally founded under Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor's Office (hereinafter: the EPPO Regulation). Negotiations on the body have always been difficult, even triggering a yellow card procedure12 and, never being able to secure consensus of the Council, initiating
so-called enhanced cooperation.13 To this day the EPPO remains a bone of contention as one of
the most contested EU criminal law measures.14
Far before the Commission’s proposal15 initiated negotiations however, a long history
of academic and political debate anticipated the creation of an EU-level anti-fraud system. Since the Office would not exist if it weren’t for this background, being aware of its history is of great importance to understanding the institution.
12 Enshrined in article 7(2) of Protocol (No 2) on the application of the principles of subsidiarity and
proportionality.
13 Enshrined in Article 20 of the Treaty on European Union.
14 Adam Gergely Bekes, ‘Critical Thoughts on the Future Cooperation between EPPO and Its Partners in Light
of the Recently Adopted Regulation’ (2018), Law Series of the Annals of the West University of Timisoara, p. 8; Carlos Gómez-Jara Díez and Ester Herlin-Karnell, ‘Prosecuting EU Financial Crimes: The European Public Prosecutor’s Office in Comparison to the US Federal Regime’ (2018), German Law Journal, p. 1192.
15 Proposal for a Council Regulation on the establishment of the European Public Prosecutor's Office (18 July
This chapter seeks to convey a thorough understanding of what the EPPO is, why and how it was established, and what the scope of its competences comprises.
In order to achieve this objective, firstly, the lengthy history leading up to the Commission proposal for a Council regulation on the establishment of the European Public Prosecutor's Office will be summarized, highlighting some of its most important twists and turns. Subsequently the (to be) established EPPO will be outlined both in purpose and structure, making use of its legal framework, that is the Regulation, substantiated by diverse academic opinions and additional considerations.
1.2 The long road to establishment
1.2.1 Legal basis: Competence of the Union to establish the EPPO
As regards the Office’s legal basis it is worth noting, as a preliminary point, that Article 325 TFEU employs the EU and the Member States to ‘counter fraud and any other illegal activities affecting the financial interest of the Union...’. This particular formulation corresponds to Article 86 TFEU, introduced by the Treaty of Lisbon, which provides for a specified legal basis for the establishment of the EPPO. Its first paragraph namely indicates that this may be done ‘[i]n order to combat crimes affecting the financial interests of the Union’, to which paragraph two accordingly adds that the Office ‘shall be responsible for investigating, prosecuting and bringing to judgment…the perpetrators of, and accomplices in, offences against the Union's financial interests’ and ‘shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences’.
The same article dictates that the Council may establish the institution by means of regulations adopted in accordance with a special legislative procedure. Both the fundamental aim of the Office as well as the way in which its organizational structure should be set up are thus already provided for in the Treaty.16
Lastly, it should be noted that Article 86 specifically provides for the option to establish so-called enhanced cooperation between at least nine Member States on the basis of the Draft Regulation. This particular aspect turned out to be of great importance and will be elaborated further in the section below.
1.2.2 Background and history
The creation of Article 86 TFEU was by no means the result of momentary inspiration on the part of the EU-legislator, just as the creation of the article was by no means equivalent to the actual creation of the EPPO. The idea to establish an EPPO was first publicly developed by a group of academics and practitioners, headed by Mireille Delmas-Marty, who included its creation in a so-called Corpus Juris, aimed at protecting the EU’s financial interest.17 But the
Member States opposed the idea and some years later, when the Commission based its Green Paper on the presented study, those sentiments had not changed.18 The debate was rekindled
once more when Article 86 TFEU was inserted by the Lisbon Treaty, becoming one of its most debated articles.19 Still, little actual progress was made,20 until the Commission decided to
release an official proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office on the 17th of July 2013.21
When the proposal was published, it seemed as though the Commission was under the assumption that all Member States would be eager to join the EPPO.22 The fact that a situation
where one or more Member States would decline participation in the project was not foreseen by the Commission, may have been caused by its strong ambition to include all of the Member States, which might have created the expectation or, as Franssen calls it, ‘rather self-fulfilling prophecy’, that all of them would.23
The principle argument presented by the Commission, as to why the EPPO should be established, was the fact that ‘Eurojust and Europol have a general mandate to facilitate the exchange of information and coordinate national criminal investigations and prosecutions but
17 Mireille Delmas-Marty, Corpus Juris: Introducing Penal Provisions for the Purpose of the Financial Interests
of the European Union (Paris: Economica, 1997).
18 Green paper on the criminal law protection of the financial interest of the Community and the establishment of
an European Prosecutor, 11 December 2001, COM(2001) 715 final; See also Anne Weyembergh and Chloé Briere, Towards a European Public Prosecutor’s Office (EPPO), Policy paper for the European Parliament (2016), p. 9.
19 Katalin Ligeti and Michele Simonato, ‘The European Public Prosecutor’s Office: Towards a Truly European
Prosecution Service’ (2013), New Journal of European Criminal Law, p. 7; Anne Weyembergh and Chloé Briere, Towards a European Public Prosecutor’s Office (EPPO), p. 9.
20 See, e.g., European Council, The Stockholm Programme - An open and secure Europe serving and protecting
the citizen, 2 December 2009, 17024/09, providing a framework for relevant EU action for the period
2010-2014, only briefly referring to the establishment of the EPPO as a possibility that could potentially be taken into consideration (p. 24); see also Anne Weyembergh and Chloé Briere, Towards a European Public Prosecutor’s
Office (EPPO), p. 9.
21 COM/2013/0534 final - 2013/0255 (APP).
22 Nicholas Franssen, ‘The future judicial cooperation between the EPPO and non-participating Member States’
(2018), New Journal of European Criminal Law, p. 291.
lack the power to carry out acts of investigation or prosecution themselves’.24 Actions taken by
national authorities in the field were said to be slow, prosecution rates were low, and results throughout the Member States unequal.25 In essence, the financial interest of the Union, so it
was argued, was not protected sufficiently by the Member States.26
The specifics of the proposal, however, gave rise to a substantial amount of issues from various national, sometimes even constitutional perspectives, some of which identified interference with the sensitive notion of national sovereignty.27
The level of political opposition to the idea became undeniably clear when in October of the same year fourteen Chambers of eleven Member State parliaments released reasoned opinions on the proposal, triggering the so-called “yellow card” procedure.28 This procedure
has been implemented by the Lisbon Treaty to give national parliaments the opportunity to intervene when, in their view, a draft legislative act does not comply with the principle of subsidiarity, after which the Commission would be obliged to review the relevant act. This review took place in November 2013, which led the Commission to conclude that the proposal was fully in line with the subsidiarity principle, and thus no amendment or withdrawal was required.29 The fact that this was only the second time the yellow card procedure had been used
since its inclusion in the Treaties, combined with the way in which the Commission simply dismissed the reasoned opinions of the Member State parliaments, attracted a lot of attention and debate.30 Based on these events alone, it seems rather miraculous that the enhanced
cooperation mechanism wasn’t triggered earlier since it seemed clear, even before the negotiations commenced, that it was anything but certain that all Member States would join the project.31
24 Carlos Gómez-Jara Díez and Ester Herlin-Karnell, ‘Prosecuting EU Financial Crimes…’, p. 1200; see also
COM(2013) 534 final 2013/0255 (APP), p. 2.
25 Ibid.
26 Petter Asp, The Procedural Criminal…’, p. 196; see also COM(2013) 534 final 2013/0255 (APP), p. 2. 27 Anne Weyembergh and Chloé Briere, Towards a European Public Prosecutor’s Office (EPPO), p. 9; see
further, for a comprehensive oversight of national issues with, and a critical review of, the EPPO proposal (COM(2013) 534 final 2013/0255 (APP)): Anže Erbežnik, ‘European Public Prosecutor's Office (EPPO) – too much, too soon, and without legitimacy?’ (2015), European Criminal Law Review.
28 See article 7(2) of Protocol (No 2) on the application of the principles of subsidiarity and proportionality. 29 See Communication from the Commission to the European Parliament, the Council and the national
parliaments on the review of the proposal for a Council Regulation on the establishment of the European Public Prosecutor's Office with regard to the principle of subsidiarity, in accordance with Protocol No 2, 27 November 2013, COM(851) final.
30 Nicholas Franssen, ‘The future judicial…’, p. 292; Carlos Gómez-Jara Díez and Ester Herlin-Karnell,
‘Prosecuting EU Financial Crimes…’, p. 1199.
31 Carlos Gómez-Jara Díez and Ester Herlin-Karnell, ‘Prosecuting EU Financial Crimes…’, p. 1198; Nicholas
It was March 9th, 2017 when the European Council finally established the absence of
unanimity for the Draft Regulation. The following month, sixteen Member States initiated enhanced cooperation.32 This mechanism enables a group of at least nine Member States to
‘establish advanced integration or cooperation in an area within EU structures but without the other EU countries being involved’.33 As stated above, the option to resort to this type of
procedure is specifically provided for in Article 86 TFEU.34 Moreover, this solution seems to
be somewhat facilitated in this particular situation since the procedure derogates from its general modus operandi by noting that authorization to proceed the enhanced cooperation, a requirement of the ordinary procedure, “shall be deemed to be granted”.35
It soon became clear, however, as pointed out by a Council representative in the negotiation stage,36 that if not at least twenty Member States decided to join the project, the
EPPO would never see the light of day.37 By June 2017, this exact number of Member States
had officially decided to take part in the EPPO project, and a Council Regulation implementing enhanced cooperation was finally adopted on the 12th of October.38 The Draft Regulation
thereby seemed preserved, but the Member States remained reluctant to yield to far-reaching criminal law integration.39 Negotiations steered away from overly centralized supranationalism
and eventually, as will be highlighted in the following section, turned the EPPO into a significantly more intergovernmental institution than the Commission intended it to be.40
32 The sixteen participating states were, in alphabetical order, Belgium, Bulgaria, Croatia, Cyprus, the Czech
Republic, Finland, France, Germany, Greece, Lithuania, Luxembourg, Portugal, Romania, Slovakia, Slovenia, and Spain.
33 Glossary of summaries, ‘enhanced cooperation’, Eur-Lex,
https://eur-lex.europa.eu/summary/glossary/enhanced_cooperation.html?locale=en (accessed 17 June 2020).
34 More specifically article 86(1) subparagraph 3.
35 Ibid; Cf. Articles 20(2) TEU and 329 TFEU; see also Giovanni Grasso, Rosaria Sicurella, and Valeria Scalia,
‘Articles 82-86 of the Treaty on the Functioning of the European Union and Environmental Crime’ (2015), Study in the framework of EFFACE research project, p. 44.
36 Michal Kotlarik, Director General at the Ministry of Justice of the Slovak Republic, statement made at the
meeting of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE-committee) held on the 29th of November 2016 (note that Slovakia had presidency of the Council of the European Union at the time) debate available at
http://www.europarl.europa.eu/ep-live/en/committees/video?event=20161129-0900-COMMITTEE-LIBE, referred comment at 10:51:55.
37 See supra, stating that if less than twenty Member States would take part in the enhanced cooperation its
efficiency would be questionable, and the number should thus be seen as a minimum; see also Adam Gergely Bekes, ‘Critical Thoughts on the Future…’, p. 7;
38 The four additional Member States to join the EPPO were, in alphabetical order, Austria, Estonia, Italy, and
Latvia; on a later stage Malta and the Netherlands decided to join the project as well, bringing the total of participating Member States to twenty-two.
39 Anne Weyembergh and Chloé Briere, Towards a European Public Prosecutor’s Office (EPPO), p. 9. 40 Carlos Gómez-Jara Díez and Ester Herlin-Karnell, ‘Prosecuting EU Financial Crimes…’, p. 1202; Valsamis
Mitsilegas and Fabio Giuffrida, ‘Raising the bar? Thoughts on the establishment of the European Public Prosecutor’s’ (2017), CEPS Policy Insight, p. 7.
1.3 The EPPO Regulation
To answer the question as to what the EPPO is, in the general sense, one must look at the second Chapter of its Regulation.41 In here the EPPO is defined as an independent EU body, having
legal personality, aimed at acting in the interest of the Union as a whole, and not to be influenced by the Member States, Union institutions, or any person external to the EPPO.42 It shall
investigate and prosecute individuals committing criminal offenses affecting the financial interest of the Union and be accountable to the European Parliament, to the Council, and to the Commission and issue annual reports on its general activities and transmit these not only to said institutions, but to the national parliaments as well.43
To understand its precise structure, aims, and competences, a deeper assessment of its legal framework is required. In the coming section that assessment will be provided regarding the structure of the Office, its current competences, and the overall possibility of competence extension. The current design of the EPPO, as defined by its legal framework, is the result of the lengthy negotiations discussed in the last paragraph. Therefore, in order to create a full image of the framework in which the Office operates, clear implementations of specific negotiated outcomes will be highlighted when necessary.
The thorough understanding of the EPPO’s structure and aims this paragraph conveys is crucial with an eye on the next chapter in which a specific potential extension of competences will be discussed.
1.3.1 A long-debated structure 44
The structure of the EPPO is perhaps best introduced as defined by Gómez-Jara Díez and Herlin-Karnell who refer to the Office as ‘a centralized decision-making EU institution with a de-centralized enforcement structure...’45. Indeed, article 8 of the Regulation tells us the EPPO
‘shall be organized at a central level and at a decentralised level’.46
41 Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public
Prosecutor's Office [2017] OJ L283/1, Chapter II.
42 Regulation (EU) 2017/1939, articles 3(1)(2) and 6(1). 43 Ivi, articles 4, 6(2) and 7(1).
44 A great part of the following elaboration is taken from the EPPO Regulation. Its principle structural elements
will be summarized, but not to the extent as to include every detail. For a full description of the EPPO’s structure see therefore Regulation (EU) 2017/1939, Chapter III Section I.
45 Carlos Gómez-Jara Díez and Ester Herlin-Karnell, ‘Prosecuting EU Financial Crimes…’, p. 1201. 46 Regulation (EU) 2017/1939, article 8(2).
The centralized level, or “Central Office”, consists of the College, the Permanent Chambers, the European Chief Prosecutor, its Deputies, the European Prosecutors and the Administrative Director.47 The fact that the existence of such a substantial amount of bodies
and individuals might raise serious questions as to the real level of centralization of the decision-making institution is by no means coincidental: this multi-layered structure is the result of the intense negotiations discussed above, in an attempt of the Council to make the Institution more intergovernmental.48 The original Commission proposal did not mention the
College, nor the Permanent Chambers,49 but the Member States did not accept that amount of
supranational centralization.50
In the current framework the College, consisting of the European Chief Prosecutor and one European Prosecutor per Member State, is responsible for general oversight of the activities of the EPPO as well as decisions on strategic matters and general, but not operational, decisions arising from individual cases.51
The Permanent Chambers will be set up by the College and consist of the Chair—which would be the European Chief Prosecutor, one of its Deputies, or an appointed European Prosecutor—plus an additional two members.52 Next to these permanent members, the
European Prosecutor who is supervising an investigation or prosecution will participate in the deliberations of the Chamber.53 These deliberations will comprise the “directing” and
“monitoring” of investigations and prosecutions conducted by the European Delegated Prosecutors and the coordination of investigations and prosecutions in cross-border cases.54
The European Chief Prosecutor, as its name suggests, is the head and official representative of the EPPO. The two Deputy European Chief Prosecutors assist the Chief Prosecutor with its duties and act as its replacement when needed. The European Prosecutors each supervise, on behalf of the competent Permanent Chamber, the investigations and prosecutions of the European Delegated Prosecutors in their respective Member States,
47 Ivi, article 8; the Administrative Director shall be responsible for the EPPO’s administrative and budgetary
management. The particular function is, however, not relevant for this work and is therefore excluded from further elaboration. See, for thorough explanation of its status and responsibilities, articles 18, 19 and, to lesser extent, article 20.
48 Carlos Gómez-Jara Díez and Ester Herlin-Karnell, ‘Prosecuting EU Financial Crimes…’, p. 1202. 49 Cf. COM/2013/0534 final - 2013/0255 (APP), article 6.
50 Anne Weyembergh and Chloé Briere, Towards a European Public Prosecutor’s Office (EPPO), p. 12; see
also Valsamis Mitsilegas and Fabio Giuffrida, ‘Raising the bar…’, p. 8.
51 Regulation (EU) 2017/1939, article 9(1)(2). 52 Ivi, article 10(1).
53 Ivi, article 10(9).
54 Ivi, article 10(2); see, for a detailed list of specific issues the Permanent Chambers are authorized to decide on,
intervening or instructing when necessary.55 They act as “liaisons and information channels”
between the Permanent Chambers—the Central Office—and the Delegated Prosecutors—the decentralized level— in their Member State of origin, and truly facilitate the functioning of the EPPO as a single office.56
The decentralized “enforcement structure” functions in the form of European Delegated Prosecutors. At least two Delegated Prosecutors are located in each participating Member State,57 carrying out investigations and prosecutions within the EPPO’s jurisdiction whilst
following directions and instructions of the Permanent Chamber in charge of the case, as well as from the supervising European Prosecutor.58 The European Delegated Prosecutors act on
behalf of the EPPO in their respective Member States and in doing so enjoy the same powers as national prosecutors, in addition, and subject to, the specific powers conferred on them by the EPPO Regulation.59 Members of the national public prosecution service or judiciary are
appointed at the central EPPO level after being nominated by their Member State60 and may,
according to article 13(3) of the Regulation, also exercise functions as national prosecutors to the extent that it would not prevent them from fulfilling their EPPO obligations. This means that the assigned Delegated Prosecutors may continue their functions as national prosecutors but must remain fully independent of their national prosecution authorities when acting under the mandate of the EPPO.61 It is this particular aspect to which scholars often refer as the
“double-hat” situation62 which raises grave concerns as to their ability to act independently for
two separate entities.63
55 Ivi, article 12(1); see also recital 23.
56 Ivi, article 12(3)(5); Carlos Gómez-Jara Díez and Ester Herlin-Karnell, ‘Prosecuting EU Financial Crimes…’,
p. 1203, footnote 51.
57 Ivi, article 13(2).
58 Ivi, article 13(1) second subparagraph.
59 Ivi, article 13(1) first subparagraph; see also article 30(1) employing Member States to ensure that the
European Delegated Prosecutors are entitled to order or request a variety of investigative measures (in case of offenses punishable by a maximum penalty of at least four years of imprisonment), as well as (4) which adds to that list any other measure available to prosecutors under national law in similar cases.
60 See, for the exact procedures regarding appointment and dismissal of the European Delegated Prosecutors,
Regulation (EU) 2017/1939, article 17.
61 European Commission, fact sheet: Frequently Asked Questions on the European Public Prosecutor's Office, 1
August 2018, p. 2 (when converted into PDF),
https://ec.europa.eu/commission/presscorner/detail/en/MEMO_18_4767, accessed 17 July 2020.
62 See, for use of the term, inter alia, Carlos Gómez-Jara Díez and Ester Herlin-Karnell, ‘Prosecuting EU
Financial Crimes…’, p. 1203; Katalin Ligeti and Angelo Marletta, ‘The European Public Prosecutor’s Office: What Role for OLAF in the Future’, in Zlata Đurđević, Elizabeta Ivičević Karas, Eamonn Shanahan, eds.,
European Criminal Procedure Law in Service of Protection of European Union Financial Interests: State of Play and Challenges (Croatian Association of European Criminal Law 2016) p. 57.
63 Valsamis Mitsilegas and Fabio Giuffrida, ‘Raising the bar…’, p. 5; see also Helmut Satzger, ‘The Future
European Public Prosecutor and the National Prosecution: Potential Conflicts and How They Could be Avoided’ in Petter Asp, ed., The European Public Prosecutor’s Office – Legal and Criminal Policy Perspectives
The Council negotiations thus produced a multi-level, complex, and rather bureaucratic European prosecution system ‘with clear and strong intergovernmental elements as regards the structure, composition and decision-making underpinning the activities of the European Public Prosecutor’s Office’.64
It is the national law enforcement authorities that conduct investigations and prosecutions, not the supranational ones. Although they might get instructions from what Gómez-Jara Díe and Herlin-Karnell even classify as ‘somewhat supranational authorities’65 and
are supervised by a European Prosecutor coming from their own Member State, the European Delegated Prosecutors remain full members of the national judicial and prosecutorial authority. Moreover, the Permanent Chambers, being one of these supranational —or at least centralized —authorities, operate in a collegiate manner and involve members from the relevant state in their decisions.66 The addition of this layer, so argues Satzger, was a clear move to ensure
ownership of the process by the Member States.67
Member States are under its current structure furthermore significantly enabled to influence the enforcement actions of the EPPO at different stages of the centralized level.68
They have their own European Prosecutor in the College, and the European Prosecutor supervising the case is always a national of the relevant Member State. Of course, as stated above, the EPPO must remain independent. This independence survived from the Commission proposal69and turned out to be a crucial point during negotiations.70 However, actual safeguards
to prevent national authorities from influencing the outcome of EPPO actions, so argue Gómez-Jara Díe and Herlin-Karnell, ‘are more theoretical than practical’.71 Since the Council departed
from the vertical model the Commission had proposed and investigations and prosecutions will mostly be carried out in accordance with national law, the question remains whether and to what extent the Permanent Chambers will be able or willing to oppose suggested decisions
64 Valsamis Mitsilegas and Fabio Giuffrida, ‘Raising the bar…’, p. 7.
65 Carlos Gómez-Jara Díez and Ester Herlin-Karnell, ‘Prosecuting EU Financial Crimes…’, p. 1203. 66 Valsamis Mitsilegas and Fabio Giuffrida, ‘Raising the bar…’, p. 7; see also Regulation (EU) 2017/1939,
article 10(9)(10).
67 Helmut Satzger, ‘The Future European…’, pp. 75-76.
68 Carlos Gómez-Jara Díez and Ester Herlin-Karnell, ‘Prosecuting EU Financial Crimes…’, p. 1203. 69 COM/2013/0534 final - 2013/0255 (APP), article 5.
70 Valsamis Mitsilegas and Fabio Giuffrida, ‘Raising the bar…’, p. 7; The independence of the Delegated
Prosecutors is controversial since the status of prosecutors at the domestic level varies significantly throughout the EU. It was even one of the reasons the Netherlands did not initially join the enhanced cooperation, since in the Dutch legal system the public prosecutors follow instructions of the Minister of Justice, who is in turn held accountable by the national Parliament (Ibid.); see in that respect articles 127 and 128 of the Wet op de rechterlijke organisatie (Law on judicial organization); see furthermore article 42(2) of the Dutch Constitution.
coming from Delegated prosecutors who are more knowledgeable of the domestic legal systems.72
In my view it is hence safe to say that the way in which the EPPO is structured doesn’t make any significant impact on the current Member State systems: it is the same body of prosecutors that investigated and prosecuted these kinds of cases in the past that will do so in the future.73 Of course the Delegated Prosecutors will be instructed by a supranational organ,
but from a pure Member State perspective the same domestic prosecutors will be prosecuting the same offenses, merely supervised by a European Prosecutor of the same nationality.74
1.3.2 Competences of the EPPO
In recital 11 of the EPPO Regulation it is stated that:
The TFEU provides that the material scope of competence of the EPPO is limited to criminal offences affecting the financial interests of the Union in accordance with this Regulation. The tasks of the EPPO should thus be to investigate, prosecute and bring to judgment the perpetrators of offences against the Union’s financial interests under Directive (EU) 2017/1371 of the European Parliament and of the Council and offences which are inextricably linked to them.75
Article 22 of the Regulation confirms and further defines these statements, establishing a direct link between the EPPO’s material competence and Directive 2017/137176 (hereinafter: The PIF
Directive)77. Its first paragraph furthermore adds a clause specifying that offenses concerning
certain types of VAT fraud only fall within EPPO competence when they concern the territory of two or more Member States and a total damage of at least ten million euro. Article 22(2) provides for the additional material competence of the EPPO over offenses regarding participation in a criminal organization,78 when the focus of said organization is to commit any
72 Ibid; Valsamis Mitsilegas and Fabio Giuffrida, ‘Raising the bar…’, p. 8.
73 Carlos Gómez-Jara Díez and Ester Herlin-Karnell, ‘Prosecuting EU Financial Crimes…’, p. 1204. 74 Ibid.
75 See also Regulation (EU) 2017/1939, article 4, simply titled “tasks”, which defines that the EPPO shall be
responsible for ‘investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices to, criminal offences affecting the financial interests of the Union which are provided for in Directive (EU) 2017/1371 and determined by [its] Regulation’; Recital 11 was chosen in this respect for it portrays a more complete image.
76 Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against
fraud to the Union's financial interests by means of criminal law, [2017] OJ 198/29.
77 PIF being the French acronym for: “protection des intérêts financiers”, the same goes for “PIF offenses”. 78 As defined in Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised
of the offenses covered by the PIF Directive; and paragraph three grants competence over ‘any other criminal offense that is inextricably linked’ to crimes provided for in the Directive.
As elaborated earlier in this work, it is well known that the protection of EU financial interests has been a common thread through the lengthy history leading up to the establishment of the EPPO.79 It was therefore no surprise that when the Lisbon Treaty introduced a specific
legal basis for its establishment, it only explicitly referred to combatting this category of crime.80
The ambiguous way in which “offenses against the Union’s financial interest” has been worded in the Treaty provoked diverging interpretations and, consequently, has often been understood as an indication of only limited jurisdiction.81 Yet its link to the PIF Directive went
significantly further than expected, not to mention its potential to its scope broaden even further by virtue of the “inextricably linked” clause.82 It is thus no surprise that this particular aspect
gave rise to criticism in the negotiation stage because it was seen as ‘a way to further erode national sovereignty’83 potentially enabling the Office to go beyond the field of purely PIF
offenses, even without an official competence extension.84
Another controversial point is the fact that offenses provided for in the PIF Directive will fall under EPPO jurisdiction as they are implemented in the different domestic criminal law systems.85This provokes a somewhat uncertain situation, however, since it might result in
divergent criminalization approaches throughout the Member States, whereas a degree of common provisions might prevent this from happening.86 It is true that the offenses described
in the PIF Directive fall under EPPO competence, irrespective of their classification as another type of offense under national law.87 However, throughout its development the Directive has
been accused of introducing a ‘very minimalistic degree of minimum harmonisation’,88 keeping
79 Carlos Gómez-Jara Díez and Ester Herlin-Karnell, ‘Prosecuting EU Financial Crimes…’, p. 1205; see also
Mireille Delmas-Marty, Corpus Juris…
80 Ibid; see also Article 86(1)(2).
81 John A.E. Vervaele, ‘The material scope of competence of the European Public Prosecutor’s Office: Lex
uncerta and unpraevia?’ (2014), ERA Forum, p. 87; Carlos Gómez-Jara Díez and Ester Herlin-Karnell,
‘Prosecuting EU Financial Crimes…’, p. 1205; Giovanni Grasso, Rosaria Sicurella, and Valeria Scalia, ‘Articles 82-86…’, pp. 42-43.
82 Rosaria Sicurella, ‘Il diritto penale applicabile dalla procura Europea: diritto penale sovranazionale o diritto
nazionale “armonizzato”? Le questioni in gioco’ (2013), Diritto Penale Contemporaneo, p. 28; Carlos Gómez-Jara Díez and Ester Herlin-Karnell, ‘Prosecuting EU Financial Crimes…’, p. 1205; see also Regulation (EU) 2017/1939, article 22(3).
83 Valsamis Mitsilegas and Fabio Giuffrida, ‘Raising the bar…’, p. 9. 84 Ibid.
85 Regulation (EU) 2017/1939, article 22(1). 86 Rosaria Sicurella, ‘Il diritto penale…’, p. 29 ff. 87 Regulation (EU) 2017/1939, article 22(1).13 88 John A.E. Vervaele, ‘The material scope…’, p. 97.
the EU substantive criminal law field fragmented, thus enabling domestic legislation to interfere with the effectiveness of transnational EPPO actions.89
A further highly disputed provision which, be it under certain conditions, nevertheless managed to survive negotiations was the inclusion of VAT fraud in the scope of the PIF Directive and therefore of the EPPO.90 Compromise was found in applying the two conditions
of article 22(1) listed above which demonstrate the ‘very limited willingness of Member States to lose their control over the matter’.91 Consequences for the EPPO deriving from this inclusion
should however not be underestimated either. It means that, as soon as the EPPO picks up its duties, the caseload of the Delegated European Prosecutors will be of significant volume since there is by no means a shortage of VAT fraud cases throughout the Member States.92 In
addition, it should be noted here that paragraph four of article 22, remarkably so, makes explicit the notion that the EPPO shall not be competent for criminal offenses in respect of national direct taxes including offenses inextricably linked thereto. The structure and functioning of the tax administration of the Member States, so it states, shall not be affected by the Regulation.
As a final remark on material competence, a provision which did in fact not survive the Council negotiations, the Commission proposed “exclusive competence” of the EPPO on PIF offenses.93 This, under the current Regulation, was transformed into a “priority” competence combined with a, much weaker,94 right to evocation.95 Granting the EPPO exclusive
competence was a strong, federal signal the Commission tried to send the Member States by implying that investigating and prosecuting “EU-crimes”, such as fraud against the Union budget, could only fall under the competence of an EU institution such as the EPPO.96 General
priority and evocation right can barely be compared to the situation of prima facie EPPO jurisdiction foreseen by the Commission.
89 Katalin Ligeti, ‘Approximation of Substantive Criminal Law and the Establishment of the EPPO’, in Francesca
Galli and Anne Weyembergh, eds., Approximation of Substantive Criminal Law in the EU: The way forward (Éditions de l’Université de Bruxelles 2013) p. 82; this author furthermore notes that defining the material scope of EPPO competence by referring to the PIF Directive and its implementation by the Member States ‘will ultimately mean that the EPPO will have as many definitions of its competence as the number of Member States participating in its establishment’ (Ibid.).
90 Valsamis Mitsilegas and Fabio Giuffrida, ‘Raising the bar…’, p. 9.
91 Ibid; simply excluding VAT fraud from the scope of the Directive wasn’t a feasible option considering strong
support coming from the Commission, the European Parliament, and, perhaps most importantly, the Taricco ruling of the ECJ; see in that respect Case C-105/14 Taricco and others [2015], ECLI:EU:C:2015:555; see also European Parliament Resolution of 25 October 2016 on the fight against corruption and follow-up of the CRIM resolution, [2016] 2015/2110(INI), para 52.
92 Carlos Gómez-Jara Díez and Ester Herlin-Karnell, ‘Prosecuting EU Financial Crimes…’, p. 1206. 93 COM/2013/0534 final - 2013/0255 (APP), article 11(4).
94 Under article 27(4) the EPPO is even required to consult the Member State Authorities, before deciding
whether or not to exercise its right to evocation.
95 See, for the priority rule, Regulation (EU) 2017/1939, recital 58; see for the right to evocation its article 27. 96 Valsamis Mitsilegas and Fabio Giuffrida, ‘Raising the bar…’, pp. 9-10.
To give a practical example of the hurdles this creates in terms of institutional strength, article 105(3) of the EPPO Regulation requires Member States to “notify the EPPO as a competent authority” for implementing Union acts on judicial cooperation, within the PIF scope, in their relations with non-participating Member States. This obligation, so argues Franssen, appears to be based on the idea of the EPPO being a “legal successor” of the national judicial authorities responsible for PIF crimes.97 However, the fact that the EPPO did not
acquire exclusive competence for these crimes but merely shares this competence with the national authorities implies that it can only be regarded a successor ‘to the extent that it has actually and effectively exercised its competence for PIF crimes in a given case, thus taking priority over a competent national authority’.98 Especially at the start of the cases it will not
always be evident whether these circumstances are met,99 which might overcomplicate
cooperation with non-participating states that would have to switch partners halfway.
Lastly, as regards territorial and personal competence, article 23 lays down three criteria for the EPPO to assume competence over the offenses referred to above, depending on whether they a) were committed in whole or in part within the territory of one or several Member States; b) were committed by a national of a Member State, provided that a Member State has jurisdiction for such offenses when committed outside its territory or c) were committed outside the territories referred to in point (a) by a person who was subject to the Staff Regulations or to the Conditions of Employment, at the time of the offense, provided that a Member State has jurisdiction for such offenses when committed outside its territory.
1.3.3 Possibility of competence extension
As a concluding remark to this chapter, as well as introductory to the next, it should be noted that Article 86(4) establishes a competence of the European Council to adopt a decision amending paragraphs one and two in order to extend the material scope of the EPPO to include ‘serious crime having a cross-border dimension’. To this end the European Council shall act unanimously after obtaining the consent of the European parliament and after consulting the Commission.
97 Nicholas Franssen, ‘The future judicial…’, p. 295. 98 Ibid.
This option was, however, not further discussed in the negotiations leading up to the conclusion of the Regulation due to hesitancy on the part of the Member States to provide the EPPO with such a broad mandate.100 This explains why there is not a single elaborative
reference to the fourth paragraph of Article 86 TFEU, or any of its content, anywhere in the EPPO Regulation.101 By contrast, the original proposal to establish the EPPO enshrined in its
“review clause” the presentation of an evaluation report containing, inter alia, the Commission’s findings on ‘the feasibility and advisability of extending the competence of the [EPPO] to other criminal offences in accordance with Article 86(4) of the Treaty’.102 The same
article furthermore established a legal ground for the Commission to recommend to the European Council the extension of EPPO competence. As will be shown in the next chapter, however, the absence of this right in current legislation did not prevent the Commission from issuing such a recommendation, to which it even annexed a full Draft European Council Decision.103
An extension of competences was already endorsed by the European Parliament,104 and
advocating voices have been gaining ground after the terrorist attacks of 2015-2016.105 Yet
what is most required, as Alexandrova rightly holds, is the political will to introduce such a major change.106 As noted in the introduction to this work, the Commission proposal to extend
the EPPO competences to cross-border terrorist crimes was foreshadowed by Jean-Claude Juncker’s State of the Union Address of 2017, and confirmed in the 2018 Address.107 In
addition, Emmanuel Macron, President of the French Republic, listed the extension of EPPO
100 Valsamis Mitsilegas and Fabio Giuffrida, ‘Raising the bar…’, p. 10.
101 Recital 11, the only hint of, although still no explicit reference to, the fourth paragraph of Article 86 merely
acknowledges that ‘[a]ny extension of this competence to include serious crimes having a cross-border dimension requires a unanimous decision of the European Council’.
102 See COM/2013/0534 final - 2013/0255 (APP), article 74(1); Cf. the current “review clause” in Regulation
(EU) 2017/1939, article 119.
103 See COM(2018) 641 final; see also Draft European Council Decision…’ in its Annex. 104 European Parliament Resolution 2015/2110(INI), para 54, referring to organized crime.
105 Valsamis Mitsilegas and Fabio Giuffrida, ‘Raising the bar…’, p. 10; which is fully in line with expectations
expressed even before these attacks occurred, see Marianne L. Wade, ‘The European Union as a counter– terrorism actor: right path, wrong direction?’ (2014), Crime, Law and Social Change, p. 369 who stated, in reference to the subject, ‘one might well speculate that such a likelihood would return should the misfortune of a major terrorist attack occur on Union territory’.
106 Vera Alexandrova, ‘Presentation of the Commission’s Proposal on the Establishment of the European Public
Prosecutor’s Office’ in Leendert Erkelens, Arjen WH Meij, and Marta Pawlik, eds. The European public
prosecutor's office: an extended arm or a two-headed dragon? (Springer 2014) p. 17.
107 See Jean-Claude Juncker, ‘State of the Union 2017…’, authorized transcript p. 17 briefly stating ‘I also see a
strong case for tasking the new European Public Prosecutor with prosecuting cross-border terrorist crimes’; see also Jean-Claude Juncker, ‘State of the Union 2018…’, authorized transcript p. 7.
competences to organized crime and terrorism amongst his propositions to “relaunch the European Project”.108
The fact that encouragement for further development presses forward even before the Office has officially picked up its tasks seems to be in line with the idea that the EPPO ‘is clearly conceived as an authority which is structurally and functionally “prepared” for having a general inquiring competence covering (potentially) any serious crime having a cross-border dimension’.109
2.
The Commission proposal
2.1 Introduction
This chapter focusses on the Commission’s proposal to extend the competences of the EPPO or, more accurately, on the Communication from the Commission to the European Parliament and the European Council (hereinafter: The Communication), in which its motives behind the proposal are explained.
What stands out is that the Communication, in both the legal and practical sense, gives very little notice to the implications of the relevant extension for the framework under which the Office operates.110 When it comes to practicalities the Commission in fact mentions little
more than the amendment of article 86 TFEU and a subsequent legislative proposal to “amend the EPPO Regulation accordingly”.111
The bulk of the document is spent elaborating what the Commission calls “gaps in the investigation and prosecution of cross-border terrorist crimes” and furthermore how the EPPO, in their view, would address these should it be awarded the relevant competences. However, little practical substantiation is given as to how the EPPO, in its current form, would effectively address these gaps, and its section on impact is focused on little more than formally adding the
108 Emmanuel Macron, President of the French Republic (speech at Sorbonne University, Paris, 27 September
2017), http://international.blogs.ouest-france.fr/archive/2017/09/29/macron-sorbonne-verbatim-europe-18583.html, accessed 16 June 2020.
109 Giovanni Grasso, Rosaria Sicurella, and Valeria Scalia, ‘Articles 82-86…’, p. 46.
110 In this chapter, “framework” will refer to the borrowed term of “legal, institutional and operational
framework” used by the Commission in the Communication under discussion. When necessary, the term “legal framework” will be used as a specified form; see COM(2018) 641 final.
111 For the exact formulation of the Commission see COM(2018) 641 final, pp. 3-4; see also Regulation (EU)
relevant competence “to the list” so to speak, followed by a vague explanation of how its legal focus needs to be taken off of financial crimes, and the fact that an extension might influence the EPPO’s budget and staffing. Real proposals of concrete changes to the current Regulation remain, however, absent.
Yet it is anything but obvious that the EPPO would be able to address the relevant gaps without thorough redesign of its structural features.112 The core objective of this chapter is
hence to bring to light the unavoidable impact the extension of competences would have on the legal framework of the EPPO, and thus demonstrate the great extent to which the Commission failed to do so in its Communication. To this end the Communication will first and foremost be critically assessed; additionally, the potential impact on the EPPO will be demonstrated in a substantially more elaborate fashion than the Commission chose to do.
The chapter will be subdivided as follows: firstly, the proposed extension and concomitant procedural requirements will be elaborated. Subsequently, the so-called gaps in the investigation and prosecution of cross-border terrorist crimes, as listed in the Communication, as well as the way in which the Commission claims these would be addressed by the Prosecutor’s Office will be closely, and critically, examined. Lastly, the ancillary structural consequences of an extension of competences in order to fill the respective gaps will be addressed.
2.2 Proposed extension and its procedural requirements
2.2.1 Proposed extension
The purpose of the relevant Communication entails the instigation of an adaptation to the Treaty in order to extend the competences of the EPPO to terrorist crimes with a cross-border element ‘as part of the comprehensive and strengthened European response to terrorist threats’.113 The
Commission had undoubtedly sensed the emerging support for an extension of competences after the aforementioned attacks, with some scholars even drawing a parallel between the last financial crisis, which exposed the need for coordinated anti-fraud measures, and the current
112 Maria Kaiafa-Gbandi, Editorial in EuCLR European Criminal Law Review 8.
113 COM(2018) 641 final, p. 3; see also Jean-Claude Juncker, ‘State of the Union 2018…’, authorized transcript
p. 7, referring to the proposition of ‘new rules to get terrorist content off the web within one hour’ as part of that same “European response”.
threat of terrorism on the European continent.114 Keeping in mind the severe sensitivity of the
issue,115 countering cross-border terrorism was singled out as a most imperative set of
competences to strengthen the “Security Union”116 and a Commission initiative for the adoption
of a European Council decision amending paragraphs 1 and 2 of article 86 TFEU ‘with a view to extending the EPPO’s competence to terrorist offenses affecting more than one Member State’ was annexed to the Communication.117
2.2.2 Comments on the Procedural requirements
As mentioned in the preceding chapter, article 86(4) TFEU states that the European Council may ‘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’.
The first remark to be made here is that unanimity in this respect, as confirmed in the Communication,118 does not only refer to the Member States that actually participate in the
EPPO,119 but, since the matter concerns Treaty reform, includes all members of the European
Council. This means not just the Member States outside the enhanced cooperation, but even Member States which excluded themselves from taking part in the adoption of measures pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union,120
the AFSJ, are required to cast their votes. The Commission acknowledges this fact inasmuch as it bothers to mention it. It does, however, not seem to identify any problem in this respect, whereas others have indicated that such a decision can only be made once all Member States
114 Claudia Carloni, “La normativa di contrasto al terrorismo tra contraddizioni attuali e prospettive future”
Corso di Laurea Magistrale in Giurisprudenza (Master of Laws thesis) (Università di Pisa, 2016), pp.195-196.
115 Anne Weyembergh and Chloé Briere, Towards a European Public Prosecutor’s Office (EPPO), p. 9. 116 See Jean-Claude Juncker, ‘State of the Union 2018…’ for use of the term.
117 Draft European Council Decision…’, annex to COM(2018) 641 final.
118 As stated this is briefly mentioned in the Communication; see COM(2018) 641 final, p. 3; this
acknowledgement takes away the controversial uncertainty surrounding the subject, see, for a concise outline of the debate: Costanza di Francesco Maesa, ‘Repercussions of the Establishment of the EPPO via Enhanced Cooperation: EPPO’s Added value and the Possibility to Extend Its Competence’ (2017), eucrim: The European
Criminal Law Associations' Forum, pp. 158-159.
119 As indicated above: to this day twenty-two; see also section 1.2.2: ‘background and history’ of this work. 120 Ireland and Denmark by virtue of protocols 21 and 22 respectively; see Protocol (No 21) on the position of
the United Kingdom and Ireland in respect of the area of freedom, security and justice [2008] OJ C115/295; and Protocol (No 22) on the position of Denmark [2012] OJ C326/299.
would agree to be a part of the EPPO, since no vote to extend competence can be valid stemming from a Member State that does not recognize the institution itself.121
A subsequent point to note is that, at least according to the Commission, although the relevant procedure does not foresee the European Council acting on a Commission proposal, this does not prevent the Commission from presenting one.122
Then, in the Communication the notion of “serious crime having a cross-border dimension”, as meant under article 86, is linked to the areas of crime referred to in article 83(1) TFEU, of which, indeed, the first one listed is the area of terrorism. The following necessary legal step, should the proposal to amend article 86 be followed by the European Council and obtain consent of the Parliament, entails a Commission proposal to appropriately modify the EPPO Regulation as to include the competence over cross-border terrorist crimes affecting more than one Member State. This step is only briefly mentioned in the Communication’s introduction to the initiative by stating that the respective proposal would introduce ‘any possible adjustment that might be required for the EPPO’s effective activities in investigating and prosecuting terrorism’.123
It is precisely this broad, undefined statement that forms the core of this paper: what adjustments might be required for the EPPO’s counter-terrorism efforts to be effective? In the next part the Commission-identified gaps in anti-terrorism efforts will be elaborated along with the way in which the EPPO should be able to address them, according to the Communication.
Subsequently some comments will be provided on how this would affect the EPPO’s framework, and thus on what concrete adjustments would be required to effectively achieve that which the Commission holds the EPPO would be suited to do. The Commission does, as mentioned, briefly refer to the “impact” the relevant proposal would have on the EPPO124 but,
as will be elaborated further in this chapter, this can hardly be regarded as a holistic assessment.
2.3 Addressing the gaps
The Commission identifies five separate categories of gaps in the “legal, institutional and operational framework” of current investigation and prosecution efforts concerning
cross-121 Maria Kaiafa-Gbandi, Editorial in EuCLR European Criminal Law Review 8. 122 COM(2018) 641 final, p. 3.
123 Ivi, pp. 3-4.
border terrorist crimes: respectively fragmentation of investigations; timely exchange of information; handling of evidence; disconnect between investigation and prosecution; and inefficient/parallel investigations and prosecutions.125 In the coming paragraphs, these gaps will
be critically assessed one by one, along with the potential solution the EPPO has to offer for each one, as argued in the Communication.
2.3.1 Fragmentation of investigations
The first gap identified in this section concerns the fact that it is the national law enforcement and judicial authorities that are exclusively responsible for the investigation, prosecution and bringing to judgment of terrorist crimes. These sorts of offenses, however, as the Commission points out, often have a cross-border dimension. The Commission argues in this respect that terrorist investigations might get fragmented as different approaches in the various national systems may provoke problems in the exchange of information, coordination, and cooperation between different authorities across national borders.
Current efforts made by Eurojust and Europol are mentioned in this section; along with the fact that the caseload of Eurojust in the area of fighting terrorist crimes has increased significantly over the years.126 Member States make use of Eurojust assistance for a variety of
reasons, among which the exchange of information and evidence, and the setting up of Joint Investigation Teams. Yet the Commission does not deduce from the increase in caseload that this could indicate that the procedure is generally viewed as effective, nor does it provide any context as to whether the amount of terrorist activity has in any way increased over the same period of time. In fact, the increase of Eurojust activities regarding terrorism is solely mentioned to substantiate the notion of a ‘growing need for a common and coordinated approach between national judicial authorities’.127
The Commission continues its argument by stating that isolated approaches to terrorist investigations often arise from concerns regarding national security; the responsible authorities might hence not share information or open up their investigations beyond what is strictly necessary for the national case. It is therefore argued that boundaries of national jurisdiction can be an impediment for countering cross-border terrorist activities. This statement seems to
125 See, for exact wording of the Commission elaboration on this point, COM(2018) 641 final, pp. 4-7. 126 The Communication mentions 41 cases in 2015, 67 in 2016, and 87 cases in 2017.
