Questions and Answers: Launch of the activities of the European Public Prosecutor’s Office (EPPO)
(Source: European Commission)
What will be the benefit of the EPPO for the EU citizens?
The EPPO will be a game-changer in the fight against crimes affecting the Union’s financial interests. In the past, the Commission’s efforts to protect the EU budget, driven by the work of EU bodies such as the European Anti-Fraud Office (OLAF), have been extremely beneficial for EU citizens. A strong and successful EPPO will mean strong and successful protection of the Union budget also from a criminal law perspective, and ultimately of EU taxpayers’ money. Especially in light of the EU’s long-term budget, coupled with NextGenerationEU, the temporary instrument designed to boost the economic recovery after the COVID-19 outbreak, the EPPO will play a key role in ensuring that every euro of the EU budget will be spent for the benefit of EU citizens and the recovery of our economies. As of today, citizens also have the possibility to report directly to the EPPO any suspected case of fraud involving EU funds. All the relevant information is available on the EPPO website.
How many cases will the EPPO investigate? How much money will the EPPO recover?
At cruising speed, the EPPO is expected to deal with around 3,000 cases per year. It is, however, likely that, in light of the EU’s long-term budget and the NextGenerationEU’s funds, the number of cases will be even higher. The amount of money the EPPO will be able to recover will depend on a number of factors, not all of them under the EPPO’s control. The EPPO will do its utmost to try to recover all money involved in fraud and other illegal activities that will be subject to its investigations and prosecutions. In 2018, the difference between the expected VAT revenue and the amount actually collected was €140 billion. According to the latest Annual Report on the protection of the Union’s financial interests, approximately EUR 460 million were lost due to fraudulent irregularities in 2019. However, the real amount of damage to the Union budget is likely to be higher as fraud is by definition a hidden crime.
How will the EPPO work in practice?
The EPPO has a multilevel structure which embeds national knowledge, embodied by the European Delegated Prosecutors (EDPs) who are experts on the legal system of their country, in the framework of a single European office, thus effectively protecting the EU budget. The EDPs will conduct the EPPO investigations on the ground. As a rule, the EDP in the Member State where the alleged offence was committed will handle the case. The EDPs are experts of the legal system of the Member State they are working in, in fact they are chosen among the active members of the public prosecution service or judiciary. The EDP will work under the direction of the Central Office in Luxembourg since the EPPO cases will be divided across 15 Permanent Chambers, which will monitor and steer the investigations and prosecutions. In addition, the EDPs are supervised by the European Prosecutor from the same Member State, who also sits in the Central Office in Luxembourg.
National competent authorities, such as police authorities, will support the EDPs in their day-to-day activities. The EDPs will have to keep the Permanent Chamber and the supervising European Prosecutor informed of the developments in the case.
In cross-border cases, the EDPs of different Member States will cooperate in accordance with the rules provided in the EPPO Regulation. These rules largely depart from the existing EU procedures of judicial cooperation and aim to ensure an even swifter and more efficient cooperation among the EDPs, who are members of the same Office, the EPPO.
At the end of the investigations, the Permanent Chamber decides – upon a proposal of the EDP handling the case – whether to prosecute or dismiss the case.
Which Member States do not participate in the EPPO? How will they cooperate with the EPPO?
For the time being, Denmark, Ireland, Hungary, Poland, and Sweden do not participate in the EPPO. Sweden has, however, announced that it intends to join and preparations to join the EPPO in 2022 are ongoing on the national level.
The European Anti-Fraud Office (OLAF), in its capacity as the EU administrative investigating office, will continue to protect the Union’s financial interests in non-participating Member States.
In accordance with Article 325 of the Treaty on the Functioning of the European Union, the protection of the Union budget is an obligation for each Member State, irrespective of its participation in the EPPO. Furthermore, the non-participating Member States will have to cooperate with the EPPO on the basis of the existing EU instruments of judicial cooperation and in accordance with the principle of sincere cooperation.
Non-participating Member States should also conclude working arrangements with the EPPO to facilitate cooperation and the exchange of information. The Commission welcomes the conclusion of the Working Arrangement between the EPPO and the Office of the Prosecutor General of Hungary, and calls on the other non-participating Member States to swiftly conclude similar arrangements.
In some participating Member States, the adoption of the legislation necessary for the EPPO to exercise its powers is delayed. Is this an obstacle for the start of the EPPO’s activities?
No. The Commission is aware that a very small number of Member States have not yet adopted the relevant legislation. The Commission is in touch with those Member States at all levels and has been encouraging them to speed up the national legislative procedures to the extent possible. In light of the direct applicability of the EPPO Regulation and the principles of sincere cooperation and consistent interpretation, the Commission is of the view that the EPPO can start its operations even if some Member States will not have adopted the legislation to adapt their system to the EPPO Regulation. In any case, the late Member States are fully aware of the urgency of the situation and the transition period is expected to be rather short, most likely a matter of weeks only. More than three years and a half have now passed since the entry into force of the EPPO Regulation and it is time to launch the EPPO.
Finland and Slovenia have not appointed their European Delegated Prosecutors (EDPs). Is this an obstacle for the start of the EPPO’s activities?
No. The Commission is aware that Finland and Slovenia have not yet nominated their EDPs. The Commission is in ongoing contacts with both Member States and has repeatedly called on them to nominate their EDPs before 1 June 2021. While the EDPs play a key role within the EPPO, the Commission believes that the reasonable time to proceed with their nomination has now expired. The lack of European Delegated Prosecutors in Finland and Slovenia does not prevent the EPPO from starting its activities. In addition to two or more European Delegated Prosecutors, each participating Member State also has one European Prosecutor in Luxembourg. The EPPO Regulation provides that, in exceptional circumstances, the European Prosecutor from the same Member State can replace the European Delegated Prosecutors. In such circumstances, the European Prosecutors have the same powers and obligations as the European Delegated Prosecutors (Article 28(4) of the EPPO Regulation). This transitional solution will allow the EPPO to start. The Finnish and Slovenian European Prosecutors in Luxembourg can therefore investigate and prosecute cases in Finland and Slovenia with the support of national authorities on the ground, until the European Delegated Prosecutors will be ready to take up their functions.
How will the EPPO cooperate with other EU institutions and bodies, notably the Commission, the European Anti-Fraud Office (OLAF), the European Union Agency for Criminal Justice Cooperation (Eurojust) and the European Union Agency for Law Enforcement Cooperation (Europol)?
The fight against crimes affecting the Union budget needs a coordinated approach. The EPPO Regulation provides for some rules to ensure efficient cooperation among EU bodies and agencies and prevent the duplication of their activities. At the same time, the EPPO is fully independent both from the EU institutions and offices and from the Member States. To allow the EPPO to achieve its mission, all EU institutions, bodies and agencies – as well as national authorities – must report to the EPPO any criminal conduct in respect of which the EPPO could exercise its competence, as they currently do for OLAF.
The Commission spearheaded the setting up of the EPPO and provided the necessary administrative support in the last year. The EPPO is independent from the Commission but cooperation is necessary, since the Commission is responsible for the management of the EU budget. The Working Arrangement between the EPPO and the Commission regulates the procedures for the exchange of information, notably those that the Commission should follow when reporting suspected fraud cases to the EPPO. Further provisions concern the access of the EPPO to the databases and registers of the Commission and their cooperation in the framework of the Regulation on the general regime of conditionality. In accordance with this Regulation, the Commission can propose to the Council to take some measures, e.g. suspension of payments of EU funds, in case breaches of the principles of the rule of law in a Member State affect the protection of the Union’s financial interests. One of the conditions that the Commission could take into account when assessing such measures is the effective and timely cooperation of the national authorities with the EPPO in its investigations or prosecutions.
Due to its expertise in the fight against fraud, OLAF will be a privileged partner of the EPPO. When necessary for its investigations, the EPPO can ask for OLAF’s support, in accordance with the rules of the EPPO Regulation and the EPPO-OLAF Working Arrangement. The Arrangement is now subject to the opinion of the OLAF Supervisory Committee before it can be concluded. OLAF will also be able to conduct, in accordance with the EPPO Regulation and the recently revised OLAF Regulation, complementary investigations at the request of the EPPO in those instances where an administrative reaction is needed in order to secure EU funds. The EPPO will need OLAF’s support for instance in cases concerning EU officials or third countries, or where further elements of the EU budget – in addition to those covered by the EPPO’s criminal investigations – will be potentially concerned. In order to avoid overlap and duplication, OLAF cannot investigate cases that the EPPO decides to investigate. OLAF is also available to support other EU bodies in examining whether a suspected fraud case falls within the competence of the EPPO.
EPPO and Eurojust have signed a Working Arrangement that regulates their cooperation. Due to its expertise in coordinating criminal investigations in cross-border cases, Eurojust will play a key role in supporting the EPPO in cases where Member States that do not participate in the EPPO are involved. In light of its extensive network of partners in third countries, Eurojust will also be in the position to facilitate the EPPO’s cooperation with the competent authorities of third countries.
The Working Arrangement between the EPPO and Europol sets out the rules for their cooperation. Among others, the EPPO may request Europol to provide analytical support to its investigations.
How will the EPPO’s activities be covered by the conditionality Regulation adopted in December 2020?
In accordance with the Regulation on the general regime of conditionality, the Commission will cooperate with the EPPO when assessing potential breaches of the rule of law in the Member States participating in the EPPO. To this end, the EPPO and the Commission have agreed, in the context of their Working Arrangement, on a mechanism that allows the EPPO to inform the Commission of any potential issue concerning the lack of such cooperation by the Member States. This exchange of information will be without prejudice to the independence of the EPPO and the confidentiality of its investigations.
What is the Commission’s position on the extension of the EPPO’s competence to cross-border terrorism?
The Commission issued a Communication in September 2018 with the aim to launch discussions on the matter. While the Commission’s priority has so far been the swift establishment of the EPPO, extending the mandate of the EPPO to cross-border terrorist crimes remains an objective of the Commission, as stated in the Security Union Strategy and the EU Counter-Terrorism Agenda.