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Under the radar

04 Oct 2019 / Global news Print

Under the radar

Article 86 of the Treaty on the Functioning of the European Union created the legal basis for establishing the European Public Prosecutor’s Office (EPPO).

Vera Jourová, EU Commissioner for Justice and Consumers (2014-2019) has said: “Establishing the European Public Prosecutor’s Office will be a real game-changer.

Many cases of fraud against the EU budget are transnational. We therefore need an institution that is able, not only to investigate, but also to prosecute across borders.”

The EPPO Regulation (2017/1939) implements enhanced cooperation by establishing the EPPO to prosecute crimes against the EU’s financial interests, such as public procurement fraud, Common Agricultural Policy funds fraud, corruption, money-laundering, and cross-border VAT fraud above €10 million.

According to the commission’s Fight Against Fraud Annual Report 2017 (PIF report), detected fraud in EU spending in 2017 amounted to €390.7 million.

However, investigating and prosecuting serious fraud and corruption at national level is particularly challenging, never mind across the EU.

Although Ireland is not one of the 22 participating member states, Ireland can join the EPPO at any time. Indeed, Ireland has signed up to the connected PIF Directive (2017/1371), which sets out the criminal offences affecting the financial interests of the EU that the EPPO will investigate and prosecute.

Hail to the chief

On 25 September 2019, the European Parliament and the Council of the European Union agreed to appoint Laura Codruta Kövesi as the first European Chief Prosecutor. She is a formidable Romanian prosecutor, with an impressive record in cracking down on corruption and fraud in her home country.

Undoubtedly, the chief – supported by two deputies – will fulfil a pivotal role in organising the EPPO’s work and in liaising with EU institutions, EU countries, and third parties.

College of prosecutors

The selection procedure is also underway for choosing one European prosecutor for each participating member state, who (led by the chief), will form the College of Prosecutors, based in Luxembourg.

The college shall take decisions on strategic matters to ensure coherence, efficiency, and consistency throughout the EPPO case load. The college shall also adopt internal rules of procedure to assist with many of the practicalities.

Permanent chambers will be chaired by the chief, or one of the deputies, or another European prosecutor. Permanent chambers in Luxembourg shall monitor and direct the investi-gations and prosecutions conducted by the European delegated prosecutors, who shall be located in the participating member states.

The EPPO is an innovative and indivisible union body operating as one single office at central level in Luxembourg, with a decentralised level consisting of European delegated prosecutors in each participating EU country.

Evoke or not evoke?

In light of the sensitivities associated with criminal law prosecutions, it may seem somewhat alarming to the Irish criminal lawyer that permanent chambers in Luxembourg shall be issuing all kinds of operational decisions.

These include bringing a case to judgment, dismissing a case, applying simplified procedures, referring a case to national authorities, and instructing European delegated prosecutors to initiate an investigation or exercise the right of evocation.

Since even the word ‘evocation’ is foreign to Irish lawyers – it essentially concerns whether the EPPO ‘evokes’ to take over a file or leave it to the national authorities – it is perhaps not surprising that Ireland adopted a ‘wait-and-see’ approach to the EPPO.

Linguistic and legal nuances

However, such concerns are alleviated by the fact that the European prosecutor who supervises the European delegated prosecutor in the particular case, on behalf of the permanent chamber, will be from the same country, so that linguistic and legal nuances are properly understood.

Interestingly, in article 37 of the EPPO Regulation, the common law system has been accommodated on the rules of evidence by not altering the power of the trial court to freely assess the evidence wherever it has been gathered.

Indeed, recital 80 of the regulation specifically references fairness of procedures in common law systems, and defence rights under the Charter of Fundamental Rights.

Delegated prosecutors

Ultimately, the main prosecutorial work will be conducted by the European delegated prosecutors, of which there must be at least two in each participating country.

The delegated prosecutors shall be responsible for prosecuting and bringing to judgment cases falling within the EPPO’s competence. They shall have the same powers as national prosecutors, along with specific powers conferred by the EPPO Regulation.

Therefore, the EPPO prosecutions will take place in national courts in accordance with national law and procedures, but with the benefit of a centralised set of directions emanating from Luxembourg.

While the delegated prosecutor from the EU country where the main offence was committed will generally handle the case, because EU fraud often has a cross-border dimension, assistance may be sought from a European delegated prosecutor in another EU country, thereby strengthening the EPPO’s effectiveness.

Safeguards for defence

In recent years, the EU has developed an impressive body of procedural rights and safeguards for suspects and accused persons (though Ireland tends to opt out) such as the rights to:

Anyone subject to criminal proceedings of the EPPO shall have these rights, as a minimum, along with the panoply of fair trial rights of the defence contained in the Charter of Fundamental Rights.

The EPPO will also be subject to judicial review in the national courts, and the Court of Justice of the European Union will be able to give preliminary rulings. Combined with the independence and impartiality of the EPPO, defence rights are well protected.

Data protection regime

While practitioners may now feel reasonably confident in navigating their way around the General Data Protection Regulation, and those working in criminal law may have knowledge of the Law Enforcement Directive (2016/680), this is only useful background information for the EPPO’s bespoke comprehensive data protection regime.

While the EPPO Regulation stretches to 120 articles, more than one-third are devoted to data protection (see articles 47-89).

In truth, the data protection provisions do not radically depart from the GDPR and, in fact, the EPPO Regulation is stricter than the Law Enforcement Directive on sensitive data and profiling.

In this regard, the EPPO Regulation only allows data processing when strictly necessary for EPPO investigations, and only if it supplements other operational personal data with no profiling.

Judicial cooperation

Monitoring and advising the EPPO in data protection will be undertaken by the European Data Protection Supervisor.

The EPPO will be assisted by existing EU bodies like Eurojust, OLAF (the European Anti-Fraud Office) and Europol on the exchange of information and mutual cooperation.

Non-participating member states like Ireland and so called third countries (which it appears Britain will soon be) may cooperate with the EPPO through working arrangements and judicial cooperation on relevant international agreements, such as Council of Europe conventions on mutual assistance in criminal matters.

Ireland may, for example, exchange strategic information and second liaison officers to the EPPO.

Daring leap

With Brexit imminent, Ireland will effectively be the only common law member state (though Cyprus and Malta share some common law features).

While a perusal of the Irish case law on the European Arrest Warrant demonstrates that the principles of mutual trust and confidence in the criminal law systems throughout the EU are now well established in Irish law, it may, at first glance, seem a daring leap to opt in to the EPPO and so follow directions emanating from Luxembourg on not only prosecutions, but investigations also.

To join or not to join?

However, there is no compelling legal reason why Ireland should not join the EPPO and, indeed, the intricate architecture of the EPPO contains significant safeguards, both for the rights of the defence, as well as for the constitutional and common law features of Irish criminal law.

By entering earlier into EU criminal law measures, Ireland can best shape the future development of the EPPO – and where better to start with enhanced EU cooperation in the complex area of fraud on EU funds?

Joseph Maguire
Joseph Maguire is on secondment from the Chief State Solicitor’s Office to DG Justice and Consumers in the European Commission. The views expressed are personal and should not be construed as representing either the European Commission or the Chief State Solicitor’s Office