European public prosecutor's office
In “Civil Liberties, Justice and Home Affairs - LIBE”
In 2013, the European Commission submitted a proposal establishing a European Public Prosecutor’s Office (EPPO). The legal basis and the rules for setting up the EPPO are laid down in Article 86 of the Treaty on the Functioning of the EU (TFEU). Under this provision, the proposed regulation is to be adopted in accordance with a special legislative procedure: the Council is to decide unanimously after obtaining the consent of the European Parliament. If unanimity is not reached in the Council, the Treaties provide that a group of at least nine Member States may undertake enhanced cooperation. Article 86 also provides that the European Council may adopt a decision extending the powers of the EPPO to include serious crime with a cross-border dimension.
The European Parliament followed closely the EPPO file and adopted two interim reports on the proposed regulation, in 2014 and in 2015, calling for the establishment of a strong and fully independent EPPO. In October 2016, the Parliament addressed the provisional outcome of the Council debates in a non-legislative resolution. It called on the Council to provide a clear set of competences and proceedings for the EPPO, based on the then proposed directive on fighting fraud against the Union’s financial interests by means of criminal law (‘PIF directive’). The EP stressed that the directive should cover VAT fraud and that the EPPO should have priority competence for offences defined within. Furthermore, the EP called on the Commission to provide adjusted estimates of the budgetary implications of the collegiate structure supported by the Council, and the results of the ‘reality check exercise’. Parliament recalled that this information may affect its final decision on the EPPO file.
The progress of negotiations in the Council was very slow. In February 2017, the Council registered the absence of unanimity in support of the proposal. In April 2017, 16 Member States notified the three institutions of their intention to launch enhanced cooperation, in accordance with Article 86 TFEU. Later on, four more Member States have joined. On 8 June 2017, the Member States involved reached an agreement on the regulation whilst in July 2017, the 'PIF directive' was adopted. On 5 October 2017, the Parliament gave its consent to the text agreed by the twenty Member States, and the Council adopted the EPPO regulation on 12 October 2017. The Council Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the EPPO entered into force on 20 November 2017. Since then, two more Member States joined the enhanced cooperation (the Commission confirmed their participation in August 2018). By the end of October 2019, only five Member States had not joined the EPPO- Sweden, Hungary, Poland and Denmark. Under Recital 9 of Regulation 2017/1939 they can join at any time.
The EPPO will operate as one single office with a decentralised structure organised at two levels. The Central Office will be composed of the European Chief Prosecutor, the College (with one European Prosecutor per participating Member State), the Permanent Chambers, and the Administrative Director, and will be based in Luxembourg. The decentralised level will consist of the European Delegated Prosecutors located in the Member States and with a double role, acting on behalf of the EPPO and exercising functions as national prosecutors.
The EPPO will investigate, prosecute and bring to judgment by national courts the perpetrators of the 'PIF offences' and 'ancillary offences', inextricably linked to them. In line with the Parliament’s request, its remit will cover cross-border VAT fraud (though only with a total damage of at least €10 million).
The Commission’s aim was to have EPPO up and running by the end of 2020. However, the selection procedure of the European Chief Public Prosecutor, initiated in 2018, registered delays, in view of a disagreement between the European Parliament and the Council on the preferred candidate (the EP having voted for the Romanian candidate Laura Codruţa Kövesi, while the Council selected the French candidate Jean-François Bohnert). After six months of deadlock, the Council decided in September 2019 to align itself with the European Parliament’s position of supporting the Romanian Mrs Kövesi. On 14 October 2019, the Council formally adopted the decision to appoint Laura Codruţa Kövesi as the European Chief Public Prosecutor. Following her confirmation by the Parliament on 16 October 2019 (at the Conference of Presidents), Mrs Kövesi started her mandate, which runs for one non-renewable seven-year term.
In September 2018, the Commission issued a communication on 'an initiative to extend the competences of the European Public Prosecutor's Office to cross-border terrorist crimes' (a possibility provided for by Article 86(4) TFEU). As the extension of the EPPO competences would entail a change to the Treaty, an initiative for the possible adoption of a European Council decision amending Article 86, paragraphs (1) and (2) TFEU is annexed to the communication. To adopt such a decision, the European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission. It has to be noted that 'unanimity' of all EU Members States is required, not only those participating in the enhanced cooperation. Should the European Council adopt the decision to amend Article 86 TFEU, the European Commission would put forward a legislative proposal to amend Regulation (EU) 2017/1939 taking into account the EPPO's broader mandate and providing for necessary adjustments. In addition to the changes related to the EPPO's material competence, the extension of its mandate to terrorist crimes would also have an impact on its budget and staffing. In its communication, the Commission calls on the European Council to bring this initiative forward, together with the European Parliament. The European Council, in its conclusions from 18 October 2018, stated that "the Commission initiative to extend the competences of the European Public Prosecutor's Office to cross-border terrorist crimes should be examined".
- Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’), OJ L 283, 31.10.2017, p.1-71
- EP Legislative Observatory, Procedure file of Resolution on the European Public Prosecutor’s Office and Eurojust, 2016/2750(RSP)
- EP Legislative Observatory, Procedure file of Regulation on European Public Prosecutor's Office, 2013/0255(APP)
- European Parliament, Legislative resolution of 5 October 2017 on the draft Council regulation implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office ('the EPPO')
- European Parliament, Resolution of 29 April 2015 on the proposal for a Council regulation on the establishment of the European Public Prosecutor’s Office, 2013/0255(APP)
- European Parliament, European Parliament resolution of 5 October 2016 on the European Public Prosecutor’s Office and Eurojust
- Council of the European Union, 20 member states agree on details on creating the European Public Prosecutor's office (EPPO), Press release of 8 June 2017
- Council of the European Union, 20 member states confirm the creation of an European Public Prosecutor's Office, Press release of 12 October 2017.
- Council of the European Union, Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’)
- European Commission, Proposal for Council Regulation on the establishment of the European Public Prosecutor's Office, COM(2013) 534
- European Commission, Communication on 'A Europe that protects: an initiative to extend the competences of the European Public Prosecutor's Office to cross-border terrorist crimes', COM(2018) 641 final
- European Council conclusions, 18 October 2018
- European Parliament, EPRS, Initial appraisal of a European Commission Impact Assessment: proposal for a Council Regulation on the establishment of the EPPO, 2013
- European Parliament, EPRS, Setting up the European Public Prosecutor's Office, At a glance, September 2015
- European Commission Factsheet, A reinforced European Public Prosecutor’s Office to fight terrorist crimes, 12 September 2018
Author: Sofija Voronova, Piotr Bąkowski, Members' Research Service, firstname.lastname@example.org