The European Public Prosecutor's Office (EPPO): The Impact on Non-Participating Member States

Background

On 17 July 2013 the Commission published its proposals dealing with the establishment of a European Public Prosecutor’s Office (EPPO) under Title V of the Treaty on the Functioning of the European Union (TFEU).

Proposal

The proposal would create the EPPO as a "body of the Union" with a separate legal personality. It would be responsible for investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices in, offences affecting the financial interests of the Union as broadly defined. The prosecution function would be carried out in the criminal courts of the Member States. The competence of the EPPO to investigate and prosecute these offences would be exclusive, which means that national police and prosecution authorities would be excluded from doing so without permission from the EPPO.

The EPPO would also be competent to investigate and prosecute other offences inextricably linked to an offence affecting the financial interests of the Union. It would be headed by a central European Public Prosecutor (EPP) assisted by Deputies and a staff. In each Member State there would be at least one European Delegated Prosecutor (EDP) who would be “an integral part” of the EPPO. National authorities would be under an obligation actively to assist and support the EPPO, and in particular to bring possible offences to the attention of the EPPO. The EPP would be able to choose the jurisdiction to prosecute and with the EDP would have the same powers as national prosecutors and a specific power to discontinue a prosecution - including by taking a lump sum fine from the defendant.

Provisions

There are provisions in the proposal enabling the EPPO to co-operate with EU agencies and bodies, third countries, international organisations and Interpol. The co-operation with Eurojust is particularly deep including: sharing information which the EPPO has acquired and which is outside of its remit; EPPO’s access to Eurojust’s case management system; the exchange of personal data; and a power for the EPPO to call upon Eurojust for back office and other support.

The Coalition Agreement indicates that the UK will not opt in to an EPPO proposal and, under the European Union Act 2011, a referendum would be required approving the UK’s participation before it could do so.

During the summer, enough national parliaments submitted reasoned opinions on the proposal to reach the "yellow card" threshold. On 4 December, the Commission published a formal response to the “yellow card”. Upon reviewing its proposal, the Commission has decided to press ahead under enhanced cooperation.