European Public Prosecutor’s Office: the tension between supranationalism, sovereignty and legitimacy

 

Jacob Öberg, Professor of EU law, University of Southern Denmark

Photo credit: EPPO

The aim of this blog post is to summarise the key argument of a recent article published by the author in 50(6) 2025 European Law Review titled “The European Public Prosecutor's Office - supranationalism, sovereignty and legitimacy”.

For readers not acquainted with the European Public Prosecutor’s Office (“EPPO”) it could be briefly stated that the EPPO is a centralised European public prosecutor tasked with prosecuting and investigating crimes against the EU’s financial interests (as defined in the PIF Directive) following its mandate in Art 86 TFEU. EPPO which commenced its operation in June 2021, is undoubtedly the pinnacle to date of supranational criminal law in the history of European integration. It represents a significant achievement in terms of its potential for a fundamental system change for EU criminal policy, departing markedly from the conventional Member State-centric view that intergovernmental cooperation should remain the dominating principle of governance in this field (Öberg, 2021).

It is well-known that the EPPO was established in October 2017 through the EPPO Regulation on the basis of the new Art 86 , which provides the Council with a competence to ‘establish a European Public Prosecutor’s Office’ which shall ‘be responsible for investigating, prosecuting, and bringing to judgment … the perpetrators of, and accomplices in, offences against the Union’s financial interests’ and ‘exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences’. The final EPPO Regulation had been preceded by politically protracted negotiations over four years, involving the highest number of official negotiation documents in the Council on criminal law to date (Eurocrim database) and a Yellow Card from national parliaments (Commission Communication, 2013).  Because of far-reaching objections from Member States to the creation of the office, the EPPO Regulation ultimately had to be adopted by means of an enhanced cooperation procedure involving 20 Member States under Art 86(1) 2nd para, TFEU.

In light of this brief account of the genesis of the EPPO, this blog offers a critical analysis of the evolution, structure and functioning of the EPPO on the basis of three theoretical frameworks: the theory of supranationalism, the concept of sovereignty and the critical approach of legitimacy. The first part of the analysis accounts for the current design of the EPPO along the supranational-intergovernmental (Stone Sweet and Sandholtz, 1997) spectrum based on the general literature on EU law and integration (Cappeletti, Seccombe and Weiler, 1986, Pescatore, 1974).  Secondly, the analysis proceeds to examine the governance of the EPPO in attempting to ascertain the extent to which Member States have been capable of maintaining control of its operation. Finally, we consider the EPPO from the perspective of legitimacy, with a specific focus on judicial review of the EPPO’s activities.

First, we reflect on the institutional structure of the EPPO. The key argument here is that the establishment and operationalisation of the EPPO marks a significant transformation from a ‘cooperative’ philosophy in EU criminal justice towards an integrated ‘supranational’ criminal justice system based on formal powers exercised by the EPPO (Monar, 2013). The EPPO Regulation nonetheless captures an intricate compromise between a supranational and intergovernmental conception of the EPPO (Schmeer, 2023). The central feature for the supranational characterisation is the creation of a European prosecutor with binding decision-making powers in respect of criminal investigations and prosecutions in the area of crimes against the EU’s financial interest (Art 86(2) TFEU and Art 13(1) of the EPPO Regulation), with jurisdiction transcending the territorial borders of the EU Member States (Art 23 of the EPPO Regulation). However, the complicated rules in the EPPO Regulation on the exercise of competence (Arts 25-27 of the EPPO Regulation), the removal of exclusive competence and the inclusion of a ‘national link’ in the EPPO’s governance structure (Art 13 of the EPPO Regulation) present limits to the ‘supranationalisation’ of the EPPO. A review of the first years of the EPPO’s activities nonetheless suggests that the body operates de facto as a highly supranational body without being restrained by the legal framework surrounding its operations. The limited evidence available indicates that the EPPO in practice defines its mandate broadly (both in terms of the PIF offences and in respect of ‘ancillary offences’) and that national law enforcement agencies acting on behalf of the EPPO act seemingly in a spirit of loyalty towards the EPPO’s interests (see Recital 69 of the EPPO Regulation). This lends some support to the contention that the EPPO – based on its legal powers and operational practice – is the most ‘supranational’ EU body created to date within the context of EU integration (Öberg, 2021).

The establishment of the EPPO, in conjunction with the adoption of the new PIF Directive, makes a compelling argument for holding that the EU appears to have adopted a ‘federal vision’ of criminal law, at least when it comes to protecting its financial interests (Herlin Karnell and Gomez-Jara, 2013). This development asks more fundamental questions about legitimacy and state sovereignty and if the EPPO stand as a role model for the creation of a ‘European criminal justice system’. It is important to observe that the EPPO exerts significant powers with severe implications for the fundamental freedoms of individuals and that the exercise of those powers also markedly encroaches on ‘core state powers’. Whilst there is a strong normative justification for conferring these enforcement powers to the EPPO (Öberg, 2024, ch 5), these powers need to be accompanied with strong fundamental rights safeguards both at national and EU level.

This brings us to the final observation which relates to the key fundamental rights challenges for a European ‘supranational’ prosecutor. While the establishment of the EPPO is a welcome step towards a ‘federalisation’ of EU criminal justice in this area, the EPPO cannot function effectively without some degree of harmonisation of national criminal procedures and national criminal laws. The recent case law of the Court (G.K. and others, Case C-281/22) highlights the implications of this incomplete centralisation of national criminal procedures which makes it more cumbersome for the EPPO to fulfil its task of combatting crimes against the EU’s financial interests. The ‘output’ (legitimacy) perspective aside, another central tenet of legitimacy for the EPPO is that there should be structures and mechanisms established to hold that body responsible and accountable for its actions. Not only must the legality of the EPPO’s decisions be subject to review by the Court of Justice, as follows from Art 263 TFEU, but national courts must also have the comprehensive ability to request preliminary rulings as per Art 267 TFEU. Therefore, the EPPO Regulation needs to be reformulated to make clear that the Court of Justice’s Treaty-based jurisdiction cannot be restricted by reference to secondary law. Furthermore, stronger common EU measures for protecting the rights of the defendant, along with effective safeguards that form the basis for the exercise of the EPPO’s powers, should be a central feature of a potential future amendment of the EPPO Regulation.

As suggested in the analysis, the Court can have an important role to play in this regard. First, the Court should expand its jurisdiction, following Art 47 of the Charter, to ensure robust judicial review of the actions of the EPPO, and by developing common standards constituting the basis for the EPPO’s operation through the autonomous interpretation of key provisions in the EPPO Regulation. Secondly, the Court can contribute to the development of a system of EU judicial remedies against actions undertaken by the EPPO in its operational activities. As demonstrated by G.K. and Others (Parquet européen) and EPPO v I.R.O. & F.J.L.R. (Case C‑292/23), the CJEU has taken a nuanced approach to judicial remedies, carefully balancing the need for an effective supranational system of criminal enforcement with judicial safeguards for defendants. To conclude, a supranational prosecutor such as the EPPO does not only need to have institutional structures, tools and resources to fight effectively against the EU’s financial interests effectively (output). It also needs a robust legal framework surrounding the EPPO’s operational action, combined with strong legal safeguards for individual defendants, is imperative for ensuring the (throughput) legitimacy of this new unique supranational prosecutor.