Editorial

The Implementation of a Multi-Layer Model of Criminal Intervention in the European Union

Margarida Santos*

School of Law of University of Minho, Portugal

*Corresponding author: Margarida Santos, School of Law of University of Minho, Portugal. E-mail: msantos@direito.uminho.pt

Citation: Santos M (2019) The Implementation of a Multi-Layer Model of Criminal Intervention in the European Union. J Forensic Sci Digit Investig 2019: 01-03.

Received Date: 10 July, 2019; Accepted Date: 16 July, 2019; Published Date: 24 July, 2019

We are currently witnessing the emergence of a new European criminal justice system, where the European Public Prosecutor's Office (EPPO) is understood as “a logical next step, if the European Union is to create its own criminal competences in the field” [1]. The creation of an EPPO has been under discussion for more than 20 years [2]. In Article 86 (1) of the Treaty on the Functioning of the European Union (TFEU), it is provided the possibility of the Council to establish the EPPO.

The substantive scope of the EPPO is defined in Article 86 (2): “offences against the Union's financial interests, as determined by the regulation provided for in paragraph 1”. In addition, in accordance with paragraph 4 of this article, it is foreseen that the European Council may extend the powers of the EPPO to include “serious crime having a cross-border dimension”. This decision may be simultaneous or subsequent to the establishment of the and shall be adopted by the European Council unanimously after obtaining the consent of the European Parliament and after consulting the Commission.

Article 86 of the TFEU, in covering both areas of crime, summarized the two existing understandings on the “added value” of the European Public Prosecutor's Office. In July 2013, the European Commission presented a proposal for a regulation on the establishment of the EPPO, where it was decided, at least initially, to restrict the material scope of the EPPO to the protection of the financial interests of the European Union. This option, as we have been emphasizing, shows the need to obtain a political consensus, in the face of the existing arguments, of different places (political, academic, judicial praxis ...) that translate, to a certain extent, the will of the Member States to maintain criminal sovereignty.  In addition, this option was justified by the need to face a period of economic consolidation. After a long and difficult debate, where there was no unanimity, it was published, on 31 October 2017, Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (EPPO) (Regulation) [3].

The Regulation entered into force on 20 November 2017, with the participation of twenty Member States [4], to which were added two more [5]. The EPPO shall assume the investigative and prosecutorial tasks conferred on it by this Regulation on a date to be determined by a decision of the Commission on a proposal of the European Chief Prosecutor once the EPPO is set up. The decision of the Commission shall be published in the Official Journal of the European Union. The date to be set by the Commission shall not be earlier than 3 years after the date of entry into force of the Regulation (Article 120 of Regulation). The year 2020 has been set as a goal to be achieved for the “full performance” of the EPPO and the preparation of all necessary procedures for its implementation and the necessary adaptations to the national legal systems are under way.

The Regulation “defines”, inter alia, the status, structure and tasks of the EPPO, its competence, the procedural rules applicable on investigations, investigative measures, criminal proceedings and procedural safeguards. According to the Regulation, the EPPO is a body of the Union with legal personality (Article 3 of the Regulation), which shall be independent and is shall be accountable to the European Parliament, to the Council and to the Commission for its general activities (Article 6 of the Regulation). As regards the status and structure of the EPPO (Article 8 to 21 of the Regulation), the EPPO shall be “an indivisible Union body operating as one single Office with a decentralised structure” - Article 8 (1) of the Regulation. It shall be organized at central level by the Central Office - consisting of the College, the Permanent Chambers, the European Chief Prosecutor, the Deputy European Chief Prosecutors, the European Prosecutors and the Administrative Director (Article 8 (3) of the Regulation) and at a decentralized level - consisting of the European Delegated Prosecutors located in the Member States ((Article 8 (4) of the Regulation).

The substantive competence of the EPPO and its exercise are set out in Articles 22 to 25 of the Regulation and in Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union's financial interests by means of criminal law. In short, we can say that the challenges and complexities at national and European Union level are numerous and fall into different areas (institutional, procedural and substantive), covering issues such as the structure of the EPPO and its intersection with national systems, criminal prosecution, judicial review and the intervention by the Court of Justice of the European Union.

Moreover, at a time when “the implementation” of this Regulation is underway, a question that never ceased to be at the center of the debate (mainly academic) comes back, for different reasons: the question related to the material scope of the European Public Prosecutor's Office. The choice made by the European Commission on 17 July 2013 and which has remained in the text of the Regulation on be limited, at least at first, to the protection of the financial interests is, in fact, the possible solution.

However, the European Commission recently launched the debate in political terms by issuing a Communication to the European Parliament and the European Council aimed at extending the powers of the EPPO to cross-border terrorist crimes [6]. It is therefore proposed that the European Council amend Article 86, paragraphs (1) and (2), of the Treaty on the Functioning of the European Union (TFEU) with a view to extending the EPPO’s competence to terrorist offences affecting more than one Member State. It states that “a stronger European dimension is needed to ensure a uniform, effective and efficient judicial follow up to these crimes across the entire European area of freedom, security and justice. Terrorist crimes affect all Member States and the Union as a whole, which is why a solution at European level must be considered. In this context, there is a strong case that the EPPO would bring added value to combating terrorist crimes and address the identified gaps” [7].  The debate also needs to be intensified on this point.

Nonetheless, we believe that, contrary to the financial interests of the European Union, with regard to the “common legal interests” - not “own” legal interests of the Union - which could be roughly characterized by crimes with cross-border dimension, it is urgent to study its nature to analyze the way forward [8].

In a word, the text of Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the EPPO sets out a new, complex, multi-layer model of criminal intervention in the European Union, which draws up a system of shared competences between the EPPO and the national authorities in the prosecution of crimes against the EU's financial interests as they are defined in the Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union's financial interests by means of criminal law, which includes fraud, money laundering, corruption and misappropriation. It is time to combine efforts to implement the European prosecution, albeit within complex and shared model of criminal intervention.

References:

  1. KLIP, André, European Criminal Law: An Integrative Approach, 2nd ed., Intersentia, Antwerp, Oxford, 2012, p. 465. Indeed, “With the growing number of players in international cooperation, the lines of communication have risen dramatically. (...) The lines of communication and the bodies involved in co- operation have multiplied” (Author´s Bold). In this context, “Progressively, the European Union covers more and more fields, and with bodies of its own. It started with Europol, but European bodies for prosecutors and judges have subsequently been created. The establishment of an EPPO is a logical next step, if the European Union is to create its own competences in the field of criminal law”.
  2. For a summary of the way forward to the Treaty on the Functioning of the European Union, see Santos, Margarida, Para um (novo) modelo de intervenção penal na União Europeia: uma reflexão a partir do princípio da legalidade como limite material de atuação da Procuradoria Europeia, Rei dos Livros, Lisboa, 2016, pages 225 and following. See also, GEELHOED, Willem, ERKELENS, Leendert Hendrik, MEIJ, Arjen (Eds.), Shifting Perspectives on the European Public Prosecutor's Office, T.M.C. Asser Press, The Hague, 2018; WEYEMBERGH, Anne, BRIÈRE, Chloé, Towards a European Public Prosecutor’s Office (EPPO), Study for the Libe Committee, European Parliament, 2016, available at http://www.europarl.europa.eu/RegData/etudes/STUD/2016/571399/IPOL_STU(2016)571399_EN.pdf; LigetI, katalin, Toward a Prosecutor for the European Union. Volume 1, A comparative analysis, Hart Publishing, Oxford, 2013.
  3. Comparing the (initial) Proposal presented by the European Commission in 2013 with the text of the Regulation, there is a limitation on the integration ambition. In effect, there was a change in the structure itself of the European Public Prosecutor's Office and to a reduction of the investigative instruments and measures contained in the initial proposal which make us question the effectiveness of the European Public Prosecutor's Office in prosecuting crimes that harm the EU's financial interests  -  see SANTOS, Margarida, “ Conclusões: A Procuradoria Europeia e a futura arquitetura para a justiça criminal na UE – questões emergentes”, in SANTOS, Margarida, MONTE, Mário Ferreira e MONTEIRO, Fernando Conde (coord.). Os novos desafios da cooperação judiciária e policial na União Europeia e da implementação da Procuradoria Europeia, Braga, Centro de Investigação Interdisciplinar em Direitos Humanos/Escola de Direito da Universidade do Minho, 2017, available at http://www.jusgov.uminho.pt/publicacoes/os_novos_desafios_cooperacao_jud_e_policial_ue_implementacao_da_pe/, p. 220.
  4. Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Italy, Latvia, Lithuania, Luxembourg, Portugal, Romania, Slovakia, Slovenia, and Spain.
  5. The Commission confirmed the participation of the Netherlands in the enhanced cooperation on the establishment of the European Public Prosecutor’s Office on 1 August 2018 (OJ L 196 of 2 August 2018) and the Commission confirmed the participation of Malta in the enhanced cooperation on the establishment of the European Public Prosecutor’s Office on 7 August 2018 (OJ L 201 of 8 August 2018).
  6. See Communication from the Commission to the European Parliament and the European Council - Protecting Europe: 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.
  7. See Communication from the Commission to the European Parliament and the European Council - Protecting Europe: 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 (p. 8).
  8. See Santos, Margarida, Para um (novo) modelo de intervenção penal na União Europeia: uma reflexão a partir do princípio da legalidade como limite material de atuação da Procuradoria Europeia. Lisboa: Rei dos Livros, 2016, p.212.