The EPPO’s legislative framework: Navigating through EU law,national law and soft law

Notification obligations

It should be noted that Article 117 of the EPPO Regulation contains a rather broad obligation on participating Member States to notify the EPPO and/or the Commission and the Council of relevant provisions of national law and other arrangements concerning which Member States are allowed (to a large extent) to adopt their own adaptation measures. In particular, this obligation concerns the list of national authorities competent to “implement” the Regulation, to be understood as authorities competent to “apply” it, as the ones on which the obligations and prerogatives provided for in the Regulation rest in each legal system. ⁸ The notification obligation, however, goes well beyond this, including “an extensive list of the national substantive criminal law provisions that apply to the offences defined in Directive (EU) 2017/1371 and any other relevant national law”. It is a very broad obligation, which again confirms the relevance that national law (not only substantive criminal law) has in completing the provisions of the EPPO Regulation. While some Member States (e.g., Slovenia) have interpreted this obligation quite extensively, notifying under Article 117 the entire text of the criminal code, others have opted for a much more restrictive approach (e.g., Luxembourg, Latvia), limiting themselves to listing in their notification provisions of substantive criminal law related to the implementation of the PIF Directive and the competent national authorities as relevant for the respective articles of the EPPO Regulation.

The notifications received so far by the EPPO are made publicly available (in their original version and, where available, in the English translation) on the EPPO’s website. ⁹

Other adaptations

Furthermore, every participating Member State has adopted laws or other legal acts modifying their national criminal justice system to reflect the existence and working of the EPPO. These modifications concern matters related to criminal law, criminal procedural law, judicial organisation, relations with law enforcement bodies and investigative agencies, etc. ¹⁰

While the EPPO Regulation, being a regulation, does not require implementation in national law (rather, cannot be implemented in national law), the importance of these “accessory” measures cannot be underestimated, as they very concretely affect the ability of the EPPO to operate effectively in the different legal systems of the participating Member States. The EPPO’s own assessment is that many of these national statutes or administrative measures are often in tension or even in friction with the obligations deriving from the EPPO Regulation. Examples of this will be examined later concerning the limitation of the powers of European Delegated Prosecutors in different phases of the life cycle of criminal proceedings. In some cases, during the investigation phase, by maintaining the control of criminal investigations with a national authority other than the EPPO, such as a “juge d’instruction”; while in others, by preventing the European Delegated Prosecutors from taking part in certain trial phases, such as the determination of questions of law before a Supreme Court.

Other cases concern, for example, the identification of which authority at national level is competent to decide on “conflicts of competence” between the EPPO and national prosecutors in specific cases, according to Article 25 (6). I n many instances, ¹¹ Member States have indicated top prosecutorial authorities which are party to the conflict, thus putting into question the fairness of the dispute resolution mechanism. In another example, ¹² national law has arbitrarily imposed a limit to the duration of the possibility for national prosecutors to be appointed as European Delegated Prosecutors.

However, the assessment of compatibility of these adaptations with Union law falls ultimately under the responsibility of the European Commission in its role as guardian of Union law. In 2022, it launched an in-depth study on this matter, which is presently still ongoing. ¹³

Analysis and problem definition

As stated above, the legislative technique used in the EPPO Regulation appears relatively uncommon, if not unique, among the legal acts defining the powers of Union institutions, bodies, offices and agencies. This is the case when comparing the EPPO Regulation to other founding legal acts of bodies and agencies in the Justice and Home Affairs area, such as Eurojust ¹⁴ and Europol. ¹⁵

Various reasons have steered the legislator (in this case, the Council of the European Union, in accordance with Article 86 TFEU) in this very specific direction. From the point of view of the definition under the Treaties of the powers of the EPPO, the cohabitation under one “statutory roof” of rules of Union and national law appears to a large extent inevitable for the definition of the activity of a Union body which is called to “exercise the functions of prosecutor in the competent courts of the Member States” (Article 86 (2) TFEU). As I will illustrate by way of examples, even in the presence of a specific legal basis in the EU Treaty allowing the legislator to adopt uniform and directly applicable rules regulating how the EPPO investigates and prosecutes in the legal systems of the Member States, the policy choice made by the legislator has (almost invariably) been not to exercise that power. A key preoccupation, in this respect, was to avoid creating “systems within systems”, or rather carving out in the justice systems of the Member States a particular sector – the fight against EU fraud – regulated in a manner too removed from the generally applicable rules on criminal investigations and prosecutions. Thus, without specific rules of Union law regarding how those functions need to be exercised (it will be examined later if and how that is the case), the relevance of national law is ingrained in the very nature of the body. For the first time, a Union body is called to exercise its powers under the Treaties in accordance with the rules of a legal system other than the Union legal system. ¹⁶

However, even considering this genetic peculiarity of the EPPO, it must be stressed that the long and complex negotiations in the Council leading to the adoption of the EPPO Regulation have greatly increased the scope of this reliance on national law, both in quantity and in quality. While consenting to the transfer of sovereignty necessary for creating the EPPO, Member States have repeatedly “pulled back” by requesting that this new Union body be compliant with existing rules under their specific justice system. These requests have often taken the form of additional references to national law in the text of the EPPO’s founding Regulation.

The question, then, is the following: how can the interpreter of the legal text approach this novel legislative set up, taking into account the fact that, for the reasons outlined above, it does not always correspond to a coherent logic?

“Indispensable” references

The first category includes all the references to national law that, by their nature, are absolutely indispensable to complete the legal framework provided for by the EPPO Regulation. An example of such reference is the one contained in Article 22 (1) and (2), defining the material competence of the EPPO. Article 22 (1) establishes the criminal offences in relation to which the EPPO shall exercise its competence as those “affecting the financial interests of the Union that are provided for in Directive (EU) 2017/1371, as implemented by national law”. Similar wording is used in paragraph (2) in relation to the EPPO’s competence on the offences related to participation in a criminal organisation in the meaning of Framework Decision 2008/841/JHA.

We can consider these references to national law as indispensable since, as it currently stands, Union law does not allow the adoption of provisions directly defining the descriptive elements of criminal offences and penalties. When the need arises to ensure that substantive criminal law provisions are in place to pursue one of the aims set out in the Treaties, it is by way of Directives based on Article 83 (1) and (2) TFEU ¹⁷ and through the subsequent implementation of those Directives in Member States’ national laws, that those provisions are dictated. ¹⁸ That the Union does not possess the competence to adopt statutes immediately giving rise to actionable criminal offences is confirmed, implicitly, by other provisions, such as Article 49 of the Charter of Fundamental Rights that, in enshrining the relevance of the principle of legality in respect of criminal law, refers to the need that a criminal offence is established “under national or international law” only. ¹⁹

To rely - for the definition of the elements of the criminal offences which the EPPO is called to investigate and prosecute - exclusively on national law is the cause of certain concerns, in particular when the transposition of the PIF Directive in the Member States is defective. This is also highlighted by the European Commission in its implementation reports ²⁰ on the PIF Directive. Furthermore, even when transposition issues are detected, the mechanisms under Union law (Articles 258 and 260 TFEU) to ensure that Member States remedy those issues, though tried and tested, often cannot guarantee adequate results in a short time.

The question could be asked whether Article 325 TFEU constitutes a special case which would modify, at least partially, the above conclusion; in other words, whether, when addressing the need to shield, by way of criminal law, one of its main legally protected interests (the integrity of its budget) the Union may directly adopt substantive criminal law provisions, without the intermediation of national law. ²¹ I consider this doubtful. Among other reasons, I observe that incriminating provisions do not live in isolation but in each criminal law system are part of a wider system of rules that shapes their interpretation, application, and consequences. None of these “systemic” rules are present in Union law. If we were to admit that a Union statute could define a particular (PIF) criminal offence, which would be the regime applicable, for example, to aggravating and extenuating circumstances related to that offence, to the capacity of the author to stand trial, to the statute of limitation, etc?

“Univocal” references

A second set of references to national law, while not indispensable, corresponds to clear policy choices made by the Union legislator in the EPPO Regulation and, as such, appears (at least in a first approximation) of univocal meaning. For example, Article 45 (2) specifies the principle that “The case file shall be managed by the handling European Delegated Prosecutor in accordance with the law of his/her Member State” by adding that “ Access to the case file by suspects and accused persons as well as other persons involved in the proceedings shall be granted by the handling European Delegated Prosecutor in accordance with the national law of that Prosecutor’s Member State”.

A further example lies in the provision setting out the minimum list of investigative measures that the EPPO shall have at its disposal in the participating Member States (Article 30). The investigation measures are referred to only by their generic description, leaving it entirely to Member States’ law to define procedures and guarantees related to their execution, including the possibility to impose limitations and make their execution subject to further conditions (Article 30(3)).

Article 86 (3) TFEU gives the Union legislator the possibility to adopt “the rules of procedure applicable to [the EPPO’s] activities”; however, in these cases, the clear choice of the legislator has been not to make use of this possibility and instead rely on the applicable national law. This may seem to conclude the search for the provisions to be applied in this case. However, the specific example of Article 45 (2) shows that even in these cases, the interpretative activity must proceed cautiously. Indeed, the rules of national law referred to in this case (those concerning access to the case file) have been the object of a specific Union law instrument ²² which has approximated national laws on (among others) this matter on the basis of Article 82 (2) TFEU. Consequently, what seems a plain reference to national law carries with itself relevant issues of Union law which the interpreter will have to take into consideration. On the one hand, national law must be tested against its compliance with the obligations stemming from Directive 2012/13/EU and in case of non-compliance, there may be a need to fall back on the rules of Union law. This could take the form of vertical direct effect of the Directive, in so far as it contains sufficiently clear and unconditioned provisions attributing rights to individuals to be actioned against the State that failed to transpose, or correctly transpose, the PIF Directive. It could also imply the obligation to give national rules an interpretation which, within the limits of the legal text, conforms with the obligations stemming from the Directive.

On the other hand, the EPPO, as a Union body, has a particular position in respect of this and all other fundamental rights of persons subject to criminal proceedings. In accordance with primary law (see Article 51 (1) of the Charter of Fundamental Rights), the EPPO must not only “respect” those fundamental rights, but also “promote” their application. This implies upholding a high standard when confronting questions of interpretation and application of the provisions related to those fundamental rights, such as access to the case file as a key aspect of the right to a fair trial.

“Debatable” references

A third type of reference, mostly of implied nature, offers itself to more than one reading; consequently, the location of the point of balance between Union and national law in the interpretation of the norm is debatable.

Examples of such provisions can be found in the Articles of the Regulation on the EPPO’s competence. Article 23 (a) establishes the competence of the EPPO over PIF offences as “committed in whole or in part within the territory of one or several Member States”. The notion of “offence committed within the territory” of a State is clearly defined at the level of the legislation of each participating Member State, with specific rules which are assisted by a large body of judicial interpretation. If Article 23 (a) is to be understood as referring exclusively to those national rules, this would imply that the concept of territorial competence would have a different meaning in each of the participating Member States. Those more strictly anchored to a principle of territoriality would allow the EPPO to retain competence over a narrower set of offences than those which interpret the notion in a more “universal” manner, establishing their jurisdiction over criminal offences even when only a minor portion of the conduct is linked to their territory. From this point of view, it could seem preferable to reconstruct a uniform notion under Union law of “offence committed on the territory of a Member State”.

However, while this asymmetrical situation would certainly cause issues, on the other hand, it cannot be ignored that abiding by national rules would eliminate (or at least minimize) the risk that questions of territorial competence (or rather jurisdiction) present themselves before the national courts, once the EPPO decides to prosecute a case.

Another concept, the definition of which is equally problematic, is that of “offence” itself, used by Article 23 but also by other provisions, such as Article 25 (3), where its interpretation is relevant to answer the question as to whether it should be for the EPPO or for national authorities to exercise competence with priority. In this latter context, the question arises as to whether the concept of “offence” is or isn’t synonymous with the concept of “conduct”. For example, as stated in Article 25 (3) (b), the EPPO is to refrain from exercising competence if “there is reason to assume that the damage caused to the Union’s financial interests… by [a PIF] offence does not exceed that damage caused… to another victim”. If the notion of “offence” is interpreted in a strictly normative manner, then this provision is only relevant in the case of a single criminal offence, so defined under applicable national law, with more than one victim. If, on the contrary, the notion was to be interpreted in a broader manner, equal to “conduct”, it would have to be applied even in situations where, under national law, the investigation and prosecution concern several connected offences, each one with a different victim. ²³

“Problematic” references

The last typology of reference to national law concerns the situations where giving relevance to rules of national law cannot be done without creating tension, often not solvable, with the EPPO Regulation itself and Union law in general. One example falling within this category can be found in the provision which defines the powers of European Delegated Prosecutors (EDPs) in their respective legal systems. Article 13 (1) states that “the European Delegated Prosecutors … shall have the same powers as national prosecutors in respect of investigations, prosecutions and bringing cases to judgment, in addition and subject to the specific powers and status conferred on them, and under the conditions set out in this Regulation”. Should this be understood as implying that each EDP has only the powers that national prosecutors have in the national system? Or is this provision to be understood as setting a minimum content, whereas the full extent of the EDP’s powers has to be reconstructed in light of other principles? ²⁴

The first interpretation raises a number of issues. If it were to be concluded that Article 13 (1) establishes a perfect equivalence between EDPs and national prosecutors, this would have the result that the EPPO would have different powers in each of the participating Member States and would impact the EPPO’s ability to carry out its mission in different jurisdictions. But even before this practical consideration, Article 86 TFEU defines the powers of the EPPO in a uniform manner, firstly with reference to the EPPO as a whole (and not its individual organs), and secondly by requiring that the EPPO be responsible for “investigating, prosecuting and bringing to judgment” the authors of PIF offences, and that it “shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences”. The catalogue of powers conferred on the EPPO is thus defined uniformly.

Therefore, it is legitimate to ask whether jurisdictions ²⁵ that provide for the cohabitation in the investigation phase of a prosecutor and a judge (the “juge d’instruction” model) are in compliance with the provision on the powers of the EPPO, since they subtract part of the control of the investigation from the EDP to assign it to another (national) authority. ²⁶ On the opposite end of the proceedings, there are jurisdictions ²⁷ where the EPPO and its EDPs are prevented from taking part in appeal proceedings before the respective Supreme Courts, based on the assumption that, because those appeals only concern points of law, there is at that stage no role for the prosecution responsible for the merits of the case. However, the EPPO Regulation itself clarifies (Recital (31)) that the function of prosecutors in competent courts (those that the Treaty itself makes reference to) “apply until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect of accused person has committed the offence, including… resolution of any legal action or remedies available until that decision has become definitive”. No distinction is made, therefore, between phases of the proceedings concerning points of fact and points of law.

On the contrary, it could be argued that the creation of the EPPO should not “prejudice … Member States’ national systems concerning the way in which criminal investigations are organized”, as stated by Recital (15). This could be seen as the specification of the general principle deriving from Article 67 (1) TFEU whereby the constitution of an Area of Freedom, Security and Justice by the Union (of which the EPPO is evidently part) should “respect… the different legal systems and traditions of the Member States”.

However, I do not deem these arguments to be conclusive against the proposed interpretation. As for the reference in Article 67 TFEU, it seems to establish a general principle at the opening of Part III, Title V TFEU which cannot be interpreted as excluding per se modifications to the Member States’ legal systems. This would negate the whole purpose of the powers conferred on the Union under that Title to approximate (in our case) criminal law and criminal justice systems. Therefore, the reference in Article 67 TFEU in itself cannot prevent, under the appropriate legal basis, from modifying specific aspects of those national systems; it being understood that this needs to respect the general principles of subsidiarity and proportionality. As for the wording of Recital 15, apart from the obvious question of its legal value – given that it is not in the operative part of the legal instrument – it could be argued that it expresses a safeguard clause for the organization of criminal investigations in the Member States other than those participating in the EPPO, there being no obligation to extend the modifications necessary to allow the EPPO to carry out its tasks outside the remit thereof.

In light of the above considerations, there are serious arguments to conclude that in the EPPO setting the reference to national law is legally and logically subordinate to a prevailing notion to be defined in a uniform manner under Union law, a notion which is the only one capable of giving effect of the EPPO Regulation.