Avv.ti Luigi Isolabella e Nicola Pietrantoni (Euro Latam Lex, International Journal for Lawyers, luglio 2020)
Through Council Regulation n. 1939/2017 (EU) European lawmakers established the European Public Prosecutor’s Office (EPPO), a new EU body with seat in Luxembourg. The EPPO will become operational at the end of 2020 with the aim of fighting specific serious transnational offences – in particular, fraud, corruption and money laundering and connected offences – that harm the financial interests of the EU pursuant to (EU) Directive 2017/1371 (so-called PIF).
In brief, the European Prosecutor’s Office may now carry out preliminary investigations, through supervision of the activities of the national prosecutors it has appointed in connection with specific crimes; it may exercise penal action; and finally, it may represent the accusation, up until the pronouncement of a final provision, before the courts of the Member States that have subscribed Regulation n. 1939/2017.
The establishment of the EPPO undoubtedly represents the first and fundamental step aimed at the implementation of the long and complex law-making process, initiated after the Treaty of Maastricht, for the creation of a European penal system focussing on a set of assets of a specific and recognised supranational nature.
The enucleation of a supranational punitive interest – and this is the fundamental point – can be seen as the first cornerstone laid in the identification and recognition of a true EU-wide punitive sovereignty, featuring a regulatory framework that is not only substantial, but also and foremostly procedural.
The dilution of investigative and punitive sovereignty for individual States – besides and beyond all of the organisational and coordination complexities underlying investigation spanning across different law systems – represents the essence of the issue, and the reason for its extreme and profound complexity.
While offences of a supranational nature are growingly comprised within the common experience of individual law systems (for example, think of the notion of transnational in itself, of anti-corruption, anti-money laundering and market abuse laws and regulations), the preliminary investigation system and more in general, the functions of the Public Prosecutor are still organised on the basis of national dynamics, rules and rights.
All judicial activities – and in particular, investigation ones – that are to be carried out outside of the national borders of the individual interested State are currently regulated by cooperation agreements between individual States, and in case of active implementation, they also involve Community bodies (Europol, Eurojust and OLAF) whose operational and coordination complexity sometimes does not reach satisfactory results.
The idea of an EPPO, as an independent supranational body of the Union equipped with legal personality and autonomous investigation capabilities is not, as anticipated, a recent novelty. The Treaty of Lisbon of 13/12/2007, with a federalist view to creating autonomous penal competence for the EU, had already laid down the framework of a European Prosecutor’s Office, assigning it with the duty to “counter fraud and any other illegal activities affecting the financial interests of the Union” and with the possibility of extending its scope “…to include [fighting] serious crime having a cross-border dimension”.
However, the profound complexity in identifying supranational investigative sovereignty – with the ensuing and counterbalancing dilution of investigative sovereignty for individual States – as well as the objective difficulty in processing and translating those principles into consistent rules at a European level – a structured penal system that is consistent with the peculiarities of the different law systems aimed at the protection of supranational assets – has suggested the implementation of a different model – the very one regulated by Regulation n. 1939/2017 – which provides for EPPO’s direction and supervision of the functions of the national Public Prosecutor, exercised in compliance with local laws, in a penal proceeding connected with offences to the detriment of the financial interests of the Union.
In completing this first stage, EU lawmakers on the one hand chose not to “prejudice […] Member States’ national systems concerning the way in which criminal investigations are organised” (recital n. 15), and on the other decided, on the basis of the principle of subsidiarity, that the aim of protecting the financial interests of the EU from specific forms of criminal aggression may “be better achieved at Union level” since “given the fragmentation of national prosecutions”, intervention left exclusively to individual States “does not always sufficiently achieve that objective” (recital n. 12).
As provided in the said Regulation n. 1939/2017, the EPPO shall comprise, at a central level, a European Chief Prosecutor with organisation and direction duties, supported by two Deputies in case of absence or impediment (art. 11), as well as the so-called Permanent Chambers and European Prosecutors, in charge of monitoring, coordinating and directing the investigations carried out by the European Delegated Prosecutors (articles 10 and 12), the latter being, for each Member State, one or more Public Prosecutors from the national Prosecutor’s Office.
In conclusion to preliminary investigations, Delegated Prosecutors will present to the European Prosecutor in charge of supervision a report summarising the case and a draft decision whether to prosecute before a national court, or dismiss (art. 35). In this crucial step, there is a clear transfer of the power of the individual State to the new European body, which thus takes exclusive ownership of the pursuit of criminal action. On this point, it will be interesting to study the life and developments of this new approach.
In terms of the rights assigned to those who are involved in a criminal proceeding, it is provided that “The activities of the EPPO shall be carried out in full compliance with the rights of suspects and accused persons enshrined in the Charter, including the right to a fair trial and the rights of defence” (art. 41 p.1), with the further specification that “Any suspected or accused person in the criminal proceedings of the EPPO shall, at a minimum, have the procedural rights provided for in Union law, including directives concerning the rights of suspects and accused persons in criminal procedures, as implemented by national law” (art. 41 p.2).
The following rights have therefore been recognised: interpretation and translation (Directive 2010/64/EU), information and access to documents in connection with the investigation (Directive 2012/13/EU), access to a defence and to communicate and advise third parties in case of detention (Directive 2013/487EU), silence and presumed innocence (Directive 2016/343/EU), legal aid (Directive 2016/1919/EU). European lawmakers also specifically provided that “Suspects and accused persons as well as other persons involved in the proceedings of the EPPO shall have all the procedural rights available to them under the applicable national law, including the possibility to present evidence, to request the appointment of experts or expert examination and hearing of witnesses, and to request the EPPO to obtain such measures on behalf of the defence” (art. 41, p. 3).
Finally, the roles and functions of Europol, Eurojust and OLAF and their relationship with the EPPO were redefined, specifically to ensure improved results in terms of legal assistance, also in connection with extradition. From this viewpoint, “Cooperation with Europol and OLAF should be of particular importance to avoid duplication and enable the EPPO to obtain the relevant information in their possession, as well as to draw on their analysis in specific investigations” (art. 100). EPPO and Eurojust (EU Agency for Agency for Criminal Justice Cooperation) will become partners and will collaborate on the operational front in compliance with their respective mandates (art. 102), while OLAF (European Anti-Fraud Office) should in principle not open any administrative investigations parallel to an investigation conducted by the EPPO into the same facts, without prejudice to the power of OLAF to start an administrative investigation on its own initiative, in close consultation with the EPPO (art. 103).
In conclusion, only time will enable us to assess the role, contribution, identity and autonomous powers of the European Public Prosecutor’s Office within the scope – mentioned above – of that path of progressive creation of a European penal system in which legal assets belonging to the Union (so-called “financial interests of the Union”) can only be identified and ascertained by a judicial body of such Union, featuring specific and distinctive authority.