Abstract
Once it is established, the EPPO will not operate as an isolated actor, but it will integrate itself in the already existing network of EU agencies and bodies. In this context, its relations with Eurojust are of fundamental importance. Both actors are active in the field of judicial cooperation in criminal matters, and the Treaty itself (Article 86 TFEU) provides for a special link between them. Provisions organising their relationship can be found in the EPPO’s and Eurojust’s proposals for regulations, which are still under negotiation. The present chapter analyses the modalities of their cooperation, as they are currently envisaged, with the aim to assess whether the two actors are privileged partners. This analysis is divided in three steps: it examines firstly their institutional relationship; secondly their management and administrative links and finally their operational cooperation. The analysis reveals that it is at the moment difficult to consider Eurojust as the EPPO’s privileged partner. A better clarification of their bilateral relations should be included in the draft proposals, and Eurojust’s expertise should be better taken into consideration. A further clarification of the distribution of competences between the EPPO, Eurojust and OLAF is also advisable, especially to avoid unnecessary tensions between the different actors.
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Notes
- 1.
Coninsx 2014, p. 28.
- 2.
Commission staff working document, Impact assessment accompanying the proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, SWD (2013) 274 final, 17 March 2013, p. 5.
- 3.
- 4.
See among others, Conclusions of the Strategic seminar organised by Eurojust and the Belgian Presidency (Bruges, 20–22 Sept. 2010), “Eurojust and the Lisbon Treaty, towards more effective action?”, Council Doc. No. 17625/10 REV 1, 9 Dec. 2010; Eurojust/ERA conference “10 years of Eurojust. Operational achievements and future challenges”, The Hague, 12 and 13 Nov. 2012, Council document 8862/13, 26 April 2013, pp. 15 and 16; Hamran and Szabova 2013, particularly pp. 46 and ff.
- 5.
COM(2013) 534 final.
- 6.
EPPO Commission Proposal 2013.
- 7.
No further development since the adoption of a partial General Approach in February 2015 (Council, Proposal for a Regulation of the European Parliament and the Council on the European Union Agency for Criminal Justice Cooperation (Eurojust)—General Approach, Council doc. no. 6643/15, 27 Feb. 2015). See especially para 10, p. 3.
- 8.
EPPO Council Proposal 2016. At the time of writing the latest version of the proposal dated of 28 October 2016.
- 9.
Ibidem.
- 10.
Supra note 6.
- 11.
Commission, Proposal for a Regulation of the European Parliament and the Council on the European Union Agency for Criminal Justice Cooperation (Eurojust), COM (2013) 535 final, 17 July 2013.
- 12.
Commission, Explanatory memorandum, in Proposal for a Regulation on the establishment of the EPPO, COM (2013) 534 final, 17 July 2013, 63 pages, p. 8.
- 13.
In this regard, see for instance Conclusions of the Strategic seminar organised by Eurojust and the Belgian Presidency (Bruges, 20–22 September 2010), ‘Eurojust and the Lisbon Treaty, towards more effective action?”, Council Doc. No. 17625/10 REV 1, 9 Dec. 2010, especially workshop 6, pp. 22 ff. See also Ligeti and Weyembergh 2015; see also White 2012, p. 73.
- 14.
Many argued that this is the most straightforward solution in terms of accountability and internal organisation. It would have the further advantage that since the two entities (EPPO and Eurojust) would be kept completely separate it would be clear that there is one unit for judicial cooperation in general whereas the other one is for investigating and prosecuting EU fraud.
- 15.
In this case the EPPO would be located on Eurojust’s premises in order to be able to use Eurojust’s facilities, but it would function independently from Eurojust.
- 16.
This independence between the two has been clearly confirmed by Commissioner Jourova at the JHA Council meeting of 14 October 2016.
- 17.
See Weyembergh et al. 2014, p. 59.
- 18.
Ibid., p. 17.
- 19.
Council, Proposal for a Regulation on the establishment of the EPPO—Consolidated text: update of the provisional version, 28 July 2016, Council Doc. No. 11350/1/16 REV 1.
- 20.
On this issue see also the Presidency Conclusions, European Council of Laeken, 14 and 15 December 2001, para 57, referring to the Decision 67/446/EEC of 8 April 1965 of the representatives of the Governments of the Member States on the provisional location of certain institutions and departments of the European Communities (notably Article 3).
- 21.
The version of the text we refer to is Council Doc. No. 15 200/16 of 2 December 2016, in which the former recital 112 has been deleted. The removed recital read as follows: “the Representatives of the Member States, meeting at Head of State or Government level in Brussels on 13 December 2003 have determined the seat of the European Public Prosecutor’s Office.”
- 22.
Coninsx 2014, p. 38.
- 23.
However, even if the location of the EPPO’s seat seems to be the one agreed upon in 2003, “nothing could be considered to have been agreed before an overall agreement on the text was reached” (Press release, JHA Council meeting of 9 and 10 June 2016, p. 5).
- 24.
European Parliament, Resolution of 5 Oct. 2016 on the EPPO and Eurojust (P8_TA(2016)0376), para 10.
- 25.
Whereas at the decentralised level the European Delegated Prosecutors have been maintained, new layers have been added to the “central” level (Article 7(3)). The central office now consists of the European Chief Prosecutor, his/her deputies, the College, the Permanent Chambers, and the European Prosecutors (one per Member State).
- 26.
See for an updated costs/benefits analysis the presentation by Commissioner V. Jourova in front of the JHA Council on 14 October 2016. Video available at: http://video.consilium.europa.eu/en/webcast/6917239d-893d-40ad-b2a2-339306dcb322.
- 27.
See intervention of Commissioner Jourova at the JHA Council meeting of mid-October 2016.
- 28.
Coninsx 2016.
- 29.
House of Lords, The impact of the EPPO’s on the United Kingdom, 4th Report of session 2014–2015, p. 26, para 76.
- 30.
As an example, see Eurojust, Annual Report, 2015, p. 28: Eurojust registered in 2014 around 1850 cases. Whereas the agency registered 69 PIF cases, it also registered 647 fraud cases (including excise fraud and VAT fraud) and 90 corruption cases.
- 31.
For more details, see Weyembergh and Brière 2016, p. 52.
- 32.
It was further confirmed by other provisions, such as Articles 12(3) and 16(7) providing EPPO the possibility to participate in Eurojust’s College and Executive Board meetings [wherever issues relevant to its functioning were discussed–albeit without the right to vote. According to Article 16(8), the EPPO may also address written opinions to the Executive Board, to which it shall respond in writing without undue delay].
- 33.
Article 14 of the initial Commission EPPO proposal provided that the EPPO shall exercise its exclusive competence to investigate and prosecute any criminal offence referred to in Articles 12 and 13 (Directive PIF and ancillary competences).
Article 3 Eurojust GA (unchanged from the proposal) «However, its competence shall not include the crimes for which the European Public Prosecutor's Office is competent». EPPO GA—Article 17 «The European Public Prosecutor’s Office shall be competent in respect of the criminal offences affecting the financial interests of the Union which are [provided for in Directive 2017/xx/EU, as implemented by national law] 57, irrespective of whether the same criminal conduct could be classified, under national law, as another type of offence.»
- 34.
The General Approach of the Eurojust regulation of February 2015 still contains this sentence, however it is placed between brackets and considered outside the general approach (Article 3(1), footnote 18).
- 35.
Besides the four hypotheses mentioned in the corpus of the text, Eurojust could also play a role in hybrid cases where PIF offences are connected to other offences (the so-called “ancillary offences”). Indeed, Articles 13(2) and 57(2) c) of the Commission’s proposal for an EPPO regulation foresaw a role for Eurojust in the determination of the competent authority to deal with the ancillary offence (EPPO or the Member State concerned). In the event that the EPPO would not be competent over such offences, then cooperation between the EPPO and Eurojust could become essential, as Eurojust’s assistance would be essential to liaise between the EPPO and the competent national authorities. If by contrast the EPPO would take over the investigation and prosecution of ancillary offences, then there could be a role for Eurojust as an advisor/expert in judicial cooperation issues relating to those ancillary offences. It is however important to note that the relevant provision (Article 57(2) c)) has been deleted during the negotiations in the Council. There is thus some uncertainty as to the role of either body—and their cooperation—in relation to ancillary offences.
- 36.
Article 20(2) of the draft EPPO regulation.
- 37.
See infra Sect. 11.4.2.
- 38.
On the risk of diminishing Eurojust’s relations with third parties in light of the proposal for a Eurojust Regulation, see Deboyser 2014, p. 93.
- 39.
These elements are provided for in provisions outside the scope of the General Approach on the Eurojust regulation. They can be considered as being still valid, yet potentially subject to amendments once the negotiations on the Eurojust regulation restart.
- 40.
Article 59 EPPO COM proposal.
- 41.
For more details, see Weyembergh and Brière 2016, pp. 37–38.
- 42.
EPPO Council Proposal 2016b.
- 43.
These requests may concern infringements which caused damage to the Union’s financial interests, other than those within the competence of the EPPO, where it is necessary to establish links with a criminal conduct on which the EPPO has exercised its competence.
- 44.
It is comparable to the system established between Eurojust and Europol.
- 45.
Article 24 of the Eurojust proposal foresees that the CMS and its temporary work files shall be made available for use by the EPPO. At the same time, Article 22 of the EPPO proposal provides for the establishment of a ‘Case Management System, index and temporary files’ for the EPPO. It is, however, unclear how the two systems would interact. The proposals envisage a system of automatic cross-checking of data.
- 46.
The wording “including by” indicates this. The provision is furthermore complemented by a recital in the preamble (recital 97, which reads as follows: “The European Public Prosecutor’s Office and Eurojust should become partners and should cooperate in operational matters in accordance with their respective mandates. Such cooperation may involve any investigations conducted by the European Public Prosecutor’s Office where an exchange of information or coordination of investigative measures in respect of cases within the competence of Eurojust is considered to be necessary or appropriate. Whenever the European Public Prosecutor’s Office is requesting such cooperation of Eurojust, the European Public Prosecutor’s Office should liaise with the Eurojust national member of the Member State of the handling European Delegated Prosecutor. The operational cooperation may also involve third countries which have a cooperation agreement with Eurojust.”).
- 47.
Weyembergh et al. 2014, op. cit., p. 28–30.
- 48.
European Parliament, Resolution of 2015, para 29 and European Parliament, Resolution of 2016, para 9.
- 49.
For more details about the relations between the EPPO and OLAF, see Weyembergh and Brière 2016, pp. 32–34.
- 50.
As an example, see Eurojust, Annual Report, 2015, p. 28: Eurojust registered in 2014 around 1850 cases. Whereas the agency registered 69 PIF cases, it also registered 647 fraud cases (including excise fraud and VAT fraud) and 90 corruption cases.
- 51.
About such imbalance, see Weyembergh et al. 2014, op. cit. p. 60.
- 52.
- 53.
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Weyembergh, A., Brière, C. (2018). Relations Between the EPPO and Eurojust—Still a Privileged Partnership?. In: Geelhoed, W., Erkelens, L., Meij, A. (eds) Shifting Perspectives on the European Public Prosecutor's Office. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-216-3_11
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