Abstract
The decisive commitment of a group of Member States towards “more Europe”, and the tireless efforts of the European Commission, finally led, through enhanced cooperation, to the establishment of the European Public Prosecutor’s Office (EPPO) in 2017 (Regulation 2017/1939).
However, the road to this achievement has been all but easy, and everyone who has followed the lengthy procedure closely can attest that many times the project to establish an EPPO nearly failed. It is true that since it was first discussed, the establishment of a supranational prosecuting institution to protect more effectively the Union’s financial interests sparked strong opposition and rejection by many legal scholars as well as a number of national authorities and policy makers. Indeed, the project of establishing an EPPO has stirred intense discussions since the very beginning, when the first proposal was drafted in 1997 by a group of highly qualified experts with the Corpus Iuris. The proposal on the EPPO was first received with scepticism and even distrust, not only because it meant to introduce a completely new institution into the European area of justice, but also because it touches upon powers such as the criminal prosecution, which are closely linked to the idea of national sovereignty.
However, as it often happens in the building up of the European Union – where linear developments are not the rule – the project of the EPPO was revived when it seemed to have no chance to see the light of day, and it was finally adopted, albeit in a more limited format as initially foreseen. Since the first Commission Green Paper on criminal law protection of the financial interests of the Community and the establishment of a European Prosecutor in 2001, to the later proposal for a Regulation of 17 July 2013, until the final text passed in 2017, the initiative has resisted endless discussions and negotiations, trade-offs and Brexit. But patience and effort finally bore fruit.
More than two decades later, the vision of the initial drafters of the Corpus Iuris and their commitment and determination to come up with such an innovative proposal have to be praised, even if back in the 1990s the establishment of an EPPO could be viewed by many as premature, to the point that the mere idea of being subject to the prosecution by a supranational European Public Prosecutor appeared to be shocking. Their proposal did not go unnoticed and triggered countless debates and fruitful academic discussions; despite certain distrust, the challenging dimension of a future EPPO and its potential in fighting fraud against the EU financial interests was immediately perceived.
While initially those debates were highly theoretical and the proposal was only viewed as an interesting hypothesis, the project slowly evolved towards a more defined reality, but this path was not without hurdles. Despite the support of the European Parliament to the EPPO, the need to set up this institution was continuously called into question by several Member States, who did not welcome the interference of the EPPO in their national criminal justice systems. However, there was proof that, although the risks surrounding a powerful EPPO should not be overlooked, these risks were outweighed by its potential contribution to fighting effectively the high level of fraud that was so detrimental to the financial interests of the European Union.
Currently, the EPPO is being set up and the immediate objective is that it becomes operational in June 2021. All eyes will be looking at Luxemburg, where the EPPO has its seat, to ensure that the implementation of the subsidiary criminal justice system envisaged in the EPPO Regulation really serves the purpose for which it was created: to prevent and fight serious fraud against the financial interests of the Union.
Thus, the moment has passed to keep on discussing whether this institution is necessary, whether it should be structured from Eurojust or integrated with OLAF, or whether it should have been organized around a collegiate body or a more hierarchical Chief European Public Prosecutor would have been more efficient. To my mind, although detecting shortcomings, correcting failures and adjusting the legal framework will require the continuing analysis of this institution and its functioning: the debates on its need or legitimation should be considered over. The time has come to strive to make the EPPO serve to the purpose for which it has been created: to improve the investigation and prosecution of complex fraud offenses against all the taxpayers of the European Union, which is what is intended by protecting the financial interests of the European Union.
A thorough analysis of the almost 800 pages of this book, written by Herrnfeld, Burchard and Brodowski, and published jointly by Nomos, Beck and Hart, is out of place in a book review. But I want to highlight three salient aspects of this impressive work.
First of all, something that is quite obvious: this publication is very timely. At this stage of the procedure for the establishment and operation of the EPPO, it is vital to have a complete and rigorous analysis of the Regulation. These commentaries offer a complete guide so that the EPPO starts its functioning on a solid basis, with a guide on its Regulation that will aid all practitioners in their day-to-day work. This is the aim of the book prepared by these three experts following the German tradition of comprehensive “Article by Article” commentaries. Making this thorough and systematic study accessible to all who will be working in this institution, as well as those who will interact with the EPPO, will undoubtedly contribute to its correct implementation.
The second point I want to highlight, because it makes this book outstanding and guarantees not only its usefulness but also its quality, is the background and the experience of the three co-authors. All of them are very familiar with the steps taken towards the creation of the EPPO “from within” or for having been closely linked to the project from Academia.
This book will serve as a welcome guide for practitioners working with the EPPO. A clear and comprehensive study, which is at the same time thorough and easy to read, is an indispensable tool, especially in this launch stage, to make it possible for the EPPO and its legal framework to be implemented adequately and efficiently. The rich bibliography is a further testament to the depth and value of the book and the analysis is presented in lively and clear language. This should help with the correct understanding of the rules governing the EPPO and the legal framework all its members have to apply, both at the central level and the national level in each of the Member States participating in the enhanced cooperation. To that end, I am sure this work shall become a guide and reference book that will facilitate the exercise of the functions of the newly created institution: it presents an enriching and comprehensive analysis in a user-friendly format, easy to manage for practitioners, but useful also to any scholar who wants to learn more about this institution.
The third element that makes this book unique is its comprehensive and systematic structure. It is the first study that comprehensively addresses all the articles of this Regulation, covering all the rules. Starting with the rules on the guarantees of independence of the EPPO, it continues with the design of its structure, the scope of material competence, the rules on choice of forum, the initiation and conclusion of proceedings, the relationship of the EPPO with other European institutions as well as with national authorities, etc. It does not omit to analyse more organizational issues such as the provisions on the budget, the control by the Court of Auditors, or the rules relating to the staff that will work at the EPPO.
As is known, a large part of the articles of the EPPO Regulation are devoted to ensuring compliance with data protection rules (specifically Chapter VIII of the Regulation comprises 42 articles out of the total 120 articles that make up the Regulation). Many of these articles seek to ensure that the rules and principles of the Data Protection Directive (2016/680) are adequately complied with at the EPPO. The authors could have simply made a reference to the relevant rules on data protection or to other studies, but they have opted to produce a comprehensive book covering also the complex topic of data protection. This will also facilitate a more precise and thorough understanding and application of this Regulation.
When examining each of the articles, the book follows a uniform structure, beginning with an introduction to the rule and an overview of the genesis of the relevant article, which makes it possible to understand and therefore apply and interpret every rule properly. Throughout this systematic analysis, special emphasis has also been placed on addressing in detail the issue of the protection of fundamental rights, including an extensive list of cases of the European Court of Justice.
In sum, it is fair to assume that this work will be the reference book that all practitioners in the field of EU criminal law should have on their desk. Its content, its systematic structure, its quality, its format, as well as the useful legislative annex that is included at the end, make it the essential guide to navigate safely through the up to now unexplored territory of the EPPO proceedings.