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29 May 2013

The European Public Prosecutor – speculation or reality?

The idea of establishing a European Public Prosecutor (“EPP”) has been the cause of much controversy and discussion for over 15 years. The House of Lords has recently reported that the level of fraud against the EU budget is underestimated and that an approximate 5 billion Euros are lost to fraud every year. This is a staggering figure which needs to be addressed. Some argue that the answer is an independent EPP with powers to investigate and prosecute fraud in all the member states, but is such a scheme feasible? The subject was debated at a recent seminar held at the IALS in London.

The idea of an EPP was first proposed by the corpus juris study, sponsored by the European Commission and published in April 1997. The primary aim of the study was to create a uniform code of criminal offences to deal with fraud. The European Commission has recently revived talk of creating an EPP and is drafting a directive on the issue. The coalition government however, has made it clear that they want nothing to do with the EPP unless a referendum (as required under the European Act 2011) votes in favour of it.

OLAF (the European Anti-Fraud Office) has expressed their frustration at the functioning of the current system due to the lack of accurate data and reporting by member states; lack of enforcement powers; lengthy prosecutions and low prosecution rates. Currently only 42% of cases dealt with by OLAF results in a prosecution. OLAF maintains that this is due to the complex nature of the prosecution systems in member states. There is also a stark disparity between conviction rates in different jurisdictions. OLAF asserts that the EPP would be fully independent, provide a central collection point of relevant data on fraud and would be integrated into national systems, leading to greater efficiency and ultimately a higher prosecution rate.

There is currently a fragmentation of opinion in the EU as to how the EPP might work, therefore, a study was commissioned to look at the practicalities of introducing the EPP. The creation of an EPP is allowed under Article 86 of the Treaty on the Functioning of the European Union (“TFEU”), however there is no obligation to set up an EPP. The EPP would be an office the (“EPPO”) responsible for investigating, prosecuting and bringing, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union’s financial interests. The trial would be before a national court. A contentious issue within the EU is whether an entirely new set of procedural rules should be created. The study makes it clear that the EPPO should not be based on national procedural rules, however, it is considered impractical to adopt a full set of new procedural rules. It is therefore thought that member states should implement powers which don’t currently exist in their domestic systems, such as surveillance measures, in order to align the rules in all participating member states.

There are numerous practicalities involved in introducing an EPP, which include:

1. In the absence of unanimity, a group of at least nine EU countries can go ahead with the project, by establishing enhanced cooperation.

2. Under the requirements of the TFEU, a Regulation would be required.

3. The office of the EPP would come from Eurojust, an EU body which co-ordinates cross-border criminal investigations, therefore reform of Eurojust would be necessary.

4. Offences under the remit of the EPPO would be set out in a separate Directive and integrated into national law. EPPO would have exclusive competence to investigate and prosecute these offences.

5. Rules would have to be established for the employment of staff, similar to the current rules at the European Court of Justice.

6. The EPPO would be a decentralised agency which would rely on the resources of OLAF.

7. The EPPO would be a two layer structure comprising of a central office and assisted by deputy prosecutors embedded in national systems.

8. Judicial review would be conducted by national courts.

9. Evidence must be regulated, however each member state must accept the national rules of the other.

Euroscepticism has meant that the EPP has not had substantial support in the UK where it is considered unnecessary. Given the lack of public support for an EPP, it does not appear likely that any referendum on the issue would be successful, however, how would other member states appointing an EPP affect us? The UK would be able to participate on discussions surrounding the functioning of the EPP, however, until the final structure of the EPP has been decided, it is unclear what all the issues facing the UK will be. Some issues which the UK would have to consider include looking at how the various UK prosecuting authorities such as the SFO and Home Office would work with the EPP; whether or not the EPP have the power to grant a letter of request to the UK under s.13 of the Crime (International Co-operation) Act 2003; with regards extradition, the EPP would not be a territory, therefore would an extradition request be accepted where a European arrest warrant is issued by a court in the territory where the EPP operates? The UK may also consider the creation of joint investigation teams which have been used successfully between Eurojust and the UK in the past and are cost effective.

We await the directive from the European Commission with interest as it is likely to spark lively debate on the issue and raise numerous political issues. Issues such as the impact of intrusive powers on fundamental rights; proportionality, some member states think it would be easier to give more power to Eurojust to initiate investigations and for Eurosceptics, how can we ensure the protection of EU financial interest for participating and non-participating states? It remains to be seen whether there is enough political willpower to champion the EPP, however, if it does come about, then the UK will have to adapt accordingly, whether we like it or not.

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