On 29 April DELI organised a joint seminar with a fellow Durham research Centre, the Centre of Criminal Law and Criminal Justice. Professor Katalin Ligeti of the University of Luxembourg and Project Leader on the European Commission’s research programme “EU Model rules of Criminal Investigation and Prosecution” was warmly welcomed to the Law School to deliver a seminar entitled “European Public Prosecution Office – Supranational or Collegiate Structure?”, with the main emphasis being placed on the current state of debate surrounding the Commission’s proposal of creating an EPPO almost a year on since it was tabled.
Professor Ligeti began by tracing a brief history of the European Public Prosecutor Office including its 15-year journey of academic and political discussion. She explained that the idea of establishing a EPPO was initially met with much resistance and most Member States preferred the ongoing development of mutual recognition as a basis of criminal law cooperation in the EU. Despite this, many actors at the European level maintained a desire for further action, culminating in the Commission’s proposal in July 2013 for a Regulation to set up an EPPO.
Professor Ligeti then reflected on the current state of the proposal, which prompted 14 member states to raise subsidiarity concerns through the newly established Yellow Card Mechanism under the TFEU. The Commission has, however, refused to make any changes to their proposal with the hope that under Article 86 TFEU an EPPO would be established via enhanced cooperation. Negotiations are still ongoing and the upcoming European elections may result in yet more uncertainty.
Professor Ligeti proceeded to tackle the question as to why there is a need for an EPPO, basing her argument on the need for a new judicial actor at European Level and the requirement to move forward from the horizontal mutual recognition towards vertical integration. She further highlighted that the core purpose of the EPPO has always been linked to the protection of the financial interests of the European Union, especially in light of the European budget being subject to fraud in relation to which member states do not collect sufficient data. Professor Ligeti’s research findings highlighted that member states do not always tackle this issue competently as cases dealing with these matters receive a low prioritisation by national law enforcement authorities due to their complex nature and the failure of the local authorities to identify the European dimensions of a case. Furthermore, the transnational elements have proven lengthy and difficult to prosecute through the currently applied approach of mutual assistance. Thus, typically, only the national element of the case will be dealt with by the national authorities, often leaving the European component unresolved.
After highlighting the relevance of the EPPO to the UK, despite the fact it has opted out of the scheme under the Lisbon Treaty, Prof Ligeti argued that since the UK is still bound by the Treaties and their objectives, such as those under Article 67 TFEU in the area of freedom, security and justice as well as the duty of Loyal Cooperation with the institutions of the Union, the UK will still have to interact with the EPPO. It was for this reason that Professor Ligeti was invited to the House of Lords, just over a month ago, to impart her expertise vis-a-vis the UK’s possible relationship with an EPPO.
The next topic discussed was the content of the Commission’s proposal. Professor Ligeti explained that the Commission wishes the European Public Prosecutor to have binding powers to open up cases as well as other capabilities – some of which require judicial authorisation. Importantly, however, she highlighted some problematic issues with the proposal, such as the definition of ‘arrest’ being left open to the interpretation of the member states. Most controversially the proposal suggests the EPPO should have exclusive competence; whenever the EPPO wishes to prosecute a crime committed threatening a financial interest of the EU, member states would be immediately barred from acting at all. Academics, , including Professor Ligeti, do not support the Commission’s view; the latter justifies this viewpoint by arguing that only European bodies can recognise the European dimensions within cases effectively.
Professor Ligeti once again referred to the key article of the discussion – Article 86 TFEU – which contains a general explanation of what the Regulation should contain including; an enumeration of the crimes falling into the scope of competence of the EPPO, a description of the rules applicable to its procedures, a definition of the rules of admissibility of evidence and judicial review mechanisms of the EPPO itself.
Professor Ligeti then applied her discussion so far to the original seminar title and answered what the institutional structure of the EPPO might look like. The uncertainty stems from several sources including the embryonic Article 86 TFEU being silent in respect of the institutional design of the EPPO. Although Professor Ligeti stressed that the idea of the EPPO being independent was not self-evident, as it is in fact a common constitutional tradition of the member states to have a prosecution service working under the executive, she stated that the notion of an independent European Public Prosecution Service is one that is agreed on, and should go hand in hand with the body’s accountability. Another important feature discussed was the decentralised nature of the EPPO which is another flashpoint of debate surrounding this proposal – as the appropriate extent of decentralisation, with the aim of harmonising transnational cooperation, is a contentious issue.
The essence of the proposed EPPO is one of a hierarchical structure with a European Public Prosecutor and Vice Prosecutors at the top working with national ‘double-hatted’ delegates positioned in member states, already working as prosecutors with the national authorities. According to Professor Ligeti this would, in effect, combine central decision-making with local law enforcement. In light of concerns regarding the concept of an individual natural person such as a single European Public Prosecutor making highly centralised decisions, consideration has turned towards a collegiate structure. Under this alternative structure, core decisions would be made by a college of prosecutors, of which the composition is still unknown and the practicability open to question. Whether the Commission have struck the right balance so far between appeasing member states with a non-centralised body versus a more efficient supranational structure is yet to be determined.
Following her presentation, the floor was open to questions from both DELI and CCLCJ members who unsurprisingly had many questions on such a current and ever-evolving topic. These included questions on the exclusive competence of the EPPO, how the establishment of the EPPO would affect the creation of other central EU institutions or whether the powers of the EPPO would ever extend further than the financial interests of the EU.
We would like to thank Professor Katalin Ligeti and hope to have her in Durham again to update us on such a cutting-edge debate on European Criminal Law.