The European Public Prosecutor’s Office (EPPO) is surely one of the most fundamental and ground-breaking innovations in criminal law and procedure. It can be traced back at least as far as 1997 when Professor Mireille Delmas-Marty and others published the Corpus Juris project on a model criminal code for the protection of the financial interests of the EU through the criminal law. Critically, it included a proposal for the establishment of a centralised EU public prosecutor. It was not until November 2017, however, that the necessary legal infrastructure was provided by Council Regulation (EU) 2017/1939 which was adopted through the EU’s enhanced cooperation procedure. Twenty-two EU Member States are participating; the exceptions being the UK, Ireland, Denmark, Sweden, Poland and Hungary.
It is anticipated that the EPPO will become fully operational by the end of 2020. Already, however, the European Commission has published legislative proposals to expand its remit to terrorism (see COM(2018) 641 final). This signals the unprecedented transfer of responsibility for the investigation and prosecution of much serious crime with a cross-border dimension (including cybercrime) from national criminal law enforcement agencies to a supranational authority. It also anticipates a notable deepening of the broader European integration project.
The uniqueness of the EPPO lies in the fact that it incorporates a centralised, independent, EU public prosecutor mandated to investigate, prosecute and bring to justice crimes against the financial interests of the EU. This will include the power to coordinate police investigations, the rapid freezing and seizure of assets and the ordering of arrests across the EU. It is composed of a European Chief Prosecutor and European Prosecutors, based in Luxembourg, and European Delegated Prosecutors based in each of the participating Member States. The European Delegated Prosecutors will investigate and prosecute the relevant offences before their national courts. To this end, they will direct the work of their national law enforcement authorities, such as the police. Critically, however, they will be monitored, directed and supervised by the Chief and European Prosecutors, thereby ensuring a consistent, centralised, investigation and prosecution policy across Europe in respect of crimes within EPPOs remit.
In essence, the EPPO constitutes the first supranational authority with the competence and responsibility to harness and direct national law enforcement agencies in combating crimes that are considered harmful to the interests of the EU as a sovereign entity. It differs markedly from Eurojust, an EU body of national prosecutors based at The Hague. While Eurojust also promotes greater coherence and effectiveness in the prosecution of crimes affecting two or more Member States, it operates through the traditional methodology of cooperation between national prosecution authorities and lacks a centralised directive competence. EPPO, by comparison, represents a landmark pooling of sovereignty in the interests of developing a supranational criminal law and procedure.
EPPO’s remit is prescribed in the Treaty on the Functioning of the European Union as being confined to crimes affecting the financial interests of the EU. Nevertheless, these encompass a very wide range of fraudulent activities, extending also to associated offences such as corruption and money-laundering, as prescribed in Directive (EU) 2017/1371. Most unusually, the European Council is given a power to amend the Treaty to extend the EPPO’s remit to serious crime having a cross-border dimension. Now, before the EPPO is even operational, the European Commission, with the support of President Macron among others, is pushing for an amendment extending EPPO’s competence to terrorism.
Given the nature and extent of the terrorist threat, the Commission argues, reasonably, 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.” EPPO is very well designed to meet that need. It must also be appreciated, however, that the Commission’s proposal will trigger a major expansion of EPPO’s remit, status and significance.
Terrorism embraces a wide range of offences, many of which are defined in very broad and loose terms. In addition to the mainstream offences concerning firearms, explosives and offences against the person and property, it encompasses offences encroaching severely on freedoms of expression and association. Most controversially, some of the offences push criminal law beyond the traditional confines of prohibited acts, omissions, attempts, conspiracies and secondary participation to reach ‘precursor’ offences. These penalise otherwise lawful activities that can be far removed from the completion of any substantive offence. A particularly controversial example is possession of an article that gives rise to a reasonable suspicion that it is possessed for a purpose connected with the commission, preparation or instigation of an act of terrorism. Another is engaging in any conduct in preparation for giving effect to an intention to commit an act of terrorism; and there are many others. Obviously, the parameters of these offences are extremely vague and porous. Some might be described more accurately as the penalising of intentions or thoughts. Most of them also impose an evidential burden on the accused to establish that his otherwise lawful conduct was not for a purpose connected with terrorism.
Inevitably, such broad and loosely-defined terrorist offences might be used oppressively against individuals or communities. Whether, or the extent to which, that is realised depends heavily on police and prosecutorial discretion. Expanding EPPO’s remit to include terrorism will place that discretion in the hands of a supranational prosecutor freed from the constraints of domestic political and criminal justice norms and accountability. It will also provide a foundation for the expansion of EPPO’s remit to all serious crime with a cross-border dimension. Accordingly, the Commission’s proposal constitutes a major landmark in shaping the future of criminal law and procedure, not to mention the development of the EU project itself.
Download the November 2018 edition of Criminal Justice Notes