9 min read — Analysis | Policy
The European Public Prosecutor’s Office: Democratic Legitimacy and Judicial Oversight
It’s October 12, 2017, and a round table of 28 justice ministers each representing their Member State is assembled in Luxembourg. By 11 A.M., 20 of those ministers had risen their hands, approving their participation in Council Regulation 2017/1939, leaving out Poland, the UK, Denmark, Hungary, Sweden, Malta, and the Netherlands.
A historic new phase in EU criminal justice had commenced: The European Public Prosecutor’s Office was born.
A historic step in EU criminal justice?
Labelling the creation of the European Public Prosecutor’s Office (EPPO) as a historic new step in European integration, particularly in EU criminal justice, is not an overstatement.
Indeed, as exemplified overtly in the 1992 Maastricht Treaty (ie. the three pillar system), criminal justice has historically been (and still mostly is) deemed a policy area which should remain outside the competences of the EU due to it being too sensitive to national sovereignty. This of course makes sense as sovereign control over criminal justice is often perceived as a vital feature of nationhood. For this reason, the little EU legislation that does exist regarding criminal justice matters has predominantly favoured a ‘horizontal approach’, where the EU helps facilitate cooperation between the Member States’ judicial criminal systems, rather than the less-favoured ‘vertical approach’, whereby EU-drafted criminal law is imposed uniformly across the Union, superseding national criminal law.
Yet, EPPO’s establishment has diverged from this status quo of horizontal cooperation.
For the first time in the Union’s history, the EU is now able to independently investigate crimes, bring to trail criminals, and act as a ‘European’ prosecutor in national courts within the territories of the, now, 22 participating Member States, albeit within a limited scope. (Malta and the Netherlands joined EPPO in 2018.)
But… what is EPPO?
EPPO stands as a completely independent EU agency (ie. not influenced by any party or institution in its modus operandi) with headquarters in Luxembourg. Its legal framework is enshrined in the EPPO Regulation.
Having started its operations in 2020, EPPO appoints ‘European Delegated Prosecutors’ within each participating Member State who are then entrusted with the same powers and status as a national prosecutor in addition to the special authority endowed by the EPPO Regulation.
Though EPPO is headed by a European Chief Prosecutor, the agency’s administrative organ which makes its general decisions is the College, where each Member State appoints a ‘European Prosecutor’ to compose it.
Finally, Permanent Chambers, composed (generally) of three European Prosecutors, monitor and take important decisions on specific investigative or prosecutorial cases being conducted on the ground by European Delegated Prosecutors.
Still, EPPO has not been spared from its fair share of criticism.
It’s the afternoon of December 13, 2007, in Lisbon, and Member States had just unanimously agreed on amending the EU’s founding treaties. Among the many changes was the introduction of Article 86 TFEU, establishing the legal basis for a possible (future) European prosecutor’s office.
Rather than envisioning the lawmaking process of EPPO through the ordinary legislative procedure, Member States agreed on a special legislative procedure, whereby EPPO would be established only through unanimity of the respective heads of state who wished to participate in it. This left the European Parliament’s role as a simple stamp of approval, where the Council would simply ask for their ‘consent’ in forming EPPO.
Here lies a primary criticism of EPPO’s democratic legitimacy. In theory, special legislative procedures are a fairly common EU lawmaking safeguard to prevent sensitive policy legislation to be unduly imposed onto Member States. In essence however, because the Council is composed only of Member States’ executive branches (ministers and/or heads of government), such legislative procedures have the effect of bypassing the ordinary parliamentary scrutiny that heads of government would otherwise have to endure under national systems.
Considering criminal law is such an intrusive area of law which directly affects individuals’ fundamental freedoms, it would theoretically require a high level of democratic legitimacy and parliamentary control, as argued by Slovenian European criminal law scholar, Anže Erbežnik. In fact, during the legislative process of the EPPO Regulation, the European Parliament had little influence over the wording of the legislation, having to resort only to non-binding reports to express its thoughts. In effect, Parliament had no meaningful say over the Regulation’s wording as it would under the ordinary lawmaking process.
What is more, critics like Dr. Erbežnik have also raised the criticism that the the Commission didn’t properly respect concern over the principle of subsidiarity raised by national parliaments. Under Protocol No. 2 of the EU’s treaties, national parliaments may resort to the so-called ‘early warning’ mechanism to express its concerns over whether objectives of EU draft legislation can be more effectively accomplished nationally rather than at the EU-level (principle of subsidiarity). If enough national parliaments raise a ‘reasoned opinion’ on their concerns, the Commission is obliged to review the legislation.
On October 2013, national parliaments collectively decided to trigger Protocol No. 2 over EPPO’s draft legislation, a procedure that has only been used two other times to date, highlighting the deep wariness national parliaments had over the matter. Even so, the Commission decided not to amend the draft legislation, arguing the original was already in line with the principle of subsidiarity. Though legally permitted, the Commission had in effect ignored national parliaments’ concerns during the only possible moment they were legally allowed to voice their opinions on the Regulation, albeit non-bindingly.
At the heart of such criticism, however, is the EU’s democratic deficit. As concluded in a previous Euro Prospects article on the democratic deficit, the EU suffers, at least to some degree, from an ‘ill-democratic balance between political competencies and democratic legitimacy’. Whether one agrees with EPPO’s mandate or not, what its legislative origins prove is that the EU’s lawmaking framework (sometimes) provides Member States’ executive branches with the ability to bypass the trias politica in such a way as to undermine the pivotal role of a legislative parliament (whether European or national). Indeed, at the EU-level, particularly in special legislative procedures, national executive branches become the — or at least the main — legislative branch. Whether this constitutes a concern of pivotal importance, however, is up for debate. Progressive treaty reforms like the Lisbon Treaty have addressed the issue but more arguably remains to be done.
But I digress. In any case, democratic legitimacy has been a prime criticism levied against EPPO. But what about accountability?
Democratic accountability: a lack of judicial oversight?
On a more practical level, EPPO has received criticism over its judicial oversight, or rather, lack of it. Because of its autonomous nature as an EU agency — an independence protected under Article 6 of its Regulation — external oversight is largely diluted. Moreover, EPPO’s regulation has also largely weakened EU courts’ accountability over EPPO’s decisions, as discussed below.
Nevertheless, EPPO arguably constitutes an agency which would theoretically require particular accountability due to its powers related to investigation and prosecution which may infringe on fundamental freedoms under proportionality grounds.
EPPO does undergo judicial review at the moment of carrying out individual investigative measures. However, criticism arises over the lack of judicial oversight at the initiation of investigations, which is decided internally.
Moreover, criticism has particularly been levied on the the fact that the Regulation’s wording offers EPPO excessive interpretive discretion, especially in regard to the choice of which Member States’ jurisdiction to conduct a trial. Though Article 26 of the Regulation outlines that, for example, the choice on where the trail will be conducted should be in the Member State where ‘the bulk of the offences has been committed’, the meaning of such a phrase is up to interpretation by EPPO — not a judge. Indeed, it is not always clear-cut where the ‘bulk’ of offences are committed, and biases among the European Prosecutors may lead to favouring some jurisdictions over others. The only method of judicial review over EPPO’s choice of jurisdiction to conduct its trail is by the national court preceding EPPO’s case to refer a preliminary ruling to the Court of Justice of the EU (CJEU) to determine if EPPO’s choice is valid or not — ie. no court, not even EU courts, can tell EPPO which jurisdiction is the correct one for conducting a particular prosecution.
Indeed, if the national judge is satisfied with EPPO’s choice, no review by the CJEU is conducted, and the defendant therefore has no judicial remedy to contest it. It is also worth noting that it is not impossible for national courts to imperfectly interpret the validity of EPPO’s choice, and research has demonstrated that the national judges’ eagerness for judicial review from the CJEU diverges between Member States — posing a gap to the right of an effective judicial remedy protected under Article 47(1) in the Charter of Fundamental Rights of the EU (CFREU).
All this is equally important because right to a fair trial under Article 47(2) of the CFREU arguably includes foreseeability on what type of court you will stand trial in, in order to, for example, duly prepare for your trial and properly find a lawyer beforehand.
Though it is true that the Regulation’s recital (preamble) outlines how judicial oversight on EPPO is maintained, in practice there remains gaps in the assurance of full compliance with the EU’s fundamental rights. It should also not be forgotten that the the European parliament did in fact raise such concerns over protection of fundamental rights during the legislation’s inception, but because of its weak say on the legislation, much of it was largely ignored.
Whether these concerns over fundamental rights protection under EPPO’s conduct will be addressed by the EU’s political bodies in the coming future remains unclear.
What does the future hold for EPPO?
Following 2023’s influential shift in power in Warsaw, Poland seems quite certain to become the 23rd Member State to join EPPO. Indeed, on his first day in office, Poland’s new justice minister set in motion the procedure for the country’s accession to the agency. Whether this may lead to other Member States who have opted out of EPPO to follow Poland’s suit is unclear. Nevertheless, expanding EPPO’s territorial scope to encompass more of the Union seems essential to effectively counteract organised financial crime within the EU.
EPPO itself has also sent requests to the Commission, justice ministers, and the Parliament to review its own legal framework in order to, for example, ‘simplify [its] administrative complexity’, expand its competences to counter smuggling, and reconsider the regime of judicial authorisation of investigative measures. Time will tell how the EU’s top political organs will react.
No matter one’s perspective on the agency, EPPO undoubtedly represents a historic new phase not only in EU criminal justice but equally in (horizontal) European integration in general. Though still young, EPPO has also demonstrated its potential. From fighting corruption and money laundering to VAT revenue fraud and embezzlement, EPPO’s annual reports show impressive figures in combatting financial crime. Indeed, never has the Union had such a powerful agency endowed with direct powers under criminal justice law. Yet, such great powers have also been the source of understandable criticism, from the democratic legitimacy of its origins to its judicial oversight over its conduct. The question thus remains open as to whether EPPO’s legal framework is in full compliance with the EU’s own standards on fundamental rights — one of the highest in the world.