Since 2017, when the European Union (EU) established the European Public Prosecutor’s Office (EPPO), the European law enforcement and business communities, as well as EU Member State governments, have been watching the gradual development and implementation of the EPPO with great interest.
Although all EU Member States have their own national law enforcement agencies, and the EU has had the EU Agency for Law Enforcement Cooperation (Europol) and the EU Judicial Cooperation Unit (Eurojust) to address crimes affecting multiple Member States, the EU chose to create a Europe-wide prosecutor’s office because of two primary concerns. First, it concluded that national criminal justice authorities were “currently not always sufficiently investigat[ing] and prosecut[ing]” criminal offenses affecting to protect the EU’s financial interests against criminal offenses such as fraud, corruption, or serious cross-border value-added tax (VAT) fraud. Second, it believed that “[e]xisting EU-bodies such as Eurojust, Europol and the EU’s anti-fraud office (OLAF) lack the necessary powers to carry out criminal investigations and prosecutions.”
When it established the EPPO, the EU expected that the EPPO would require a three-year build-up before it could begin operations. That build-up appears to be on course for a November 2020 commencement of EPPO operations. The EPPO’s structure envisions a division between strategic and operational functions, and between central- and national-level activities:
- Strategy and Operations: For strategy, the European Chief Prosecutor and two Deputies will head the EPPO, and a College of Prosecutors – consisting of one European Prosecutor per participating Member State – who will participate in decision-making “on strategic matters to ensure coherence, consistency and efficiency within and between cases.” For operations, the EPPO will have a Permanent Chambers of three prosecutors (two European Prosecutors and either the Chief Prosecutor, a Deputy, or another European Prosecutor) who will monitor and direct investigations and prosecutions by European Designated Prosecutors (EDPs) and make operational decisions (e.g., when to bring or dismiss a case), and EDPs (at least two per participating country), who will be responsible for investigating, prosecuting, and bringing to judgment cases within the EPPO’s competence.
- Central and National Levels: The central level will consist of the Chief Prosecutor, the Deputies, and the European Prosecutors to supervise investigations and prosecutions carried out at the national level. The national level will consist of the EDPs, who will be located in the participating Member States and “[a]s a rule” carry out the investigation and prosecution in their respective Member States.
Although the European Council and Parliament have yet to agree on the selection of the EPPO Chief Prosecutor, the EPPO has now begun hiring an estimated 117 staff members for its Luxembourg headquarters. In addition, on May 9, the Luxembourg Government announced plans for the EPPO’s occupancy of an office building in Luxembourg City.
Note: The EPPO has made considerable progress to date in its operationalization, but EU watchers should expect that the most challenging aspects of its development lie ahead. On the one hand, the European Commission has described the EPPO as “an independent and decentralised prosecution office of the European Union” that “will operate as a single office across all participating Member States and will combine European and national law-enforcement efforts in a unified, seamless and efficient approach.”
On the other hand, the EU Council, in Council Regulation (EU) 2017/1939, expressly contemplated “a system of shared competence between the EPPO and national authorities in combating crimes affecting the [EU’s] financial interests,” and invoked “the principle of sincere cooperation” in asserting that “both the EPPO and the competent national authorities should support and inform each other with the aim of efficiently combatting the crimes falling under the competence of the EPPO.” It also specified that “the EPPO should be established from Eurojust, and implied there should be “a close relationship between them based on mutual cooperation.”
These two sets of aspirational statements may have been intended to be consistent. In practice, they leave ample room for jurisdictional and operational conflicts, as the EPPO begins to take on investigation- and case-related decisionmaking that national-level law enforcement authorities have traditionally understood to be their province. If the Council and Parliament can agree soon on a Chief Prosecutor, and overcome other sources of opposition, that official would do well to meet with national law enforcement authorities well in advance of November 2020. The prime objective of those meetings should be to reduce suspicions and mistrust about how the EPPO intends to go about its day-to-day business, and how broadly the EPPO will define what constitutes day-to-day business. Considering the level of tensions that have arisen just in the Chief Prosecutor section process, even that objective may prove a formidable task.
Dipping Through Geometries 