Who Reviews the Conditions of Union Power? The Kövesi Litigation and a Blind Spot in the Judicial Review of Hybrid EU Governance

 

Joanna Demopoulou holds a PhD in International Affairs and is a former Executive in Residence at the Geneva Centre for Security Policy (GCSP). Her research examines the legal and institutional architecture of public authority and governance, focusing on how law structures, distributes, and constrains public authority across European and international institutions.

 

Photo: Laura Kövesi, by AGERPRES, cropped by Ionutzmovie, via Wikimedia Commons

 

EU law can examine almost any exercise of public power. Where it struggles is with the decision, taken a step earlier, about whether that power may exist at all. The Kövesi litigation is where the gap becomes visible.

 

On 24 June 2026 the Administrative Plenum of the Greek Court of Cassation dismissed, as inadmissible, an application brought by the European Chief Prosecutor, Laura Kövesi. She had challenged a Greek decision renewing three European Delegated Prosecutors (EDPs) for two years, where the College of the European Public Prosecutor's Office had wanted five. The vote was seventy-two to ten. Reported as news, the case looks like a routine standing problem: a supranational official has no locus, under domestic law, to contest a Member State's handling of its own judicial officers, and national procedure ran its course. That reading is not wrong. It is just incomplete.

 

What the dismissal actually protects is worth stating plainly. European prosecutorial independence was shielded here not according to what it does, but according to who signed the act that curtailed it. Nobody designed things to work this way, which is rather the trouble.

 

The case in brief

 

The College favoured a five-year renewal for three prosecutors in the Greek national section. The Supreme Judicial Council, the organ of national judicial self-government, granted two. Kövesi sought annulment. The Plenum found she lacked standing. Under Greek law on the service status of judicial officers, recourse lies only with the affected officers themselves, and only where the underlying Council decision carried a dissent of at least two members. This renewal had been unanimous.

 

The consequence is what matters. The problem was not that the wrong applicant had turned up. On these facts, no applicant could have brought a challenge at all. A minority of ten judges would have referred the underlying question, who fixes the duration of an EDP's mandate, to Luxembourg; the majority made no reference. And the forum matters: this was the Administrative Plenum in closed session, the Court acting in its self-governing rather than its adjudicative capacity. A national body, applying national rules, set a term that would bound the independence of a Union prosecutor.

 

EU law reviews the exercise of power well

 

The EPPO Regulation shows how far Union law has come in policing how European Union power is used. Operational acts, meaning the procedural steps of an investigation that can affect third parties, are reviewable under Article 42(1). Administrative acts of the Office fall to the Court of Justice under Article 42(8). And that Court has read these provisions generously. In EPPO v I.R.O. and F.J.L.R. (C-292/23), decided by the Grand Chamber on 8 April 2025 on a reference from a Spanish court, it insisted on effective review even of a witness summons issued by a European Delegated Prosecutor, looking past the formal label of the act to its effect on a legal position. The Regulation itself reveals an asymmetry: Article 42(8) expressly provides review for decisions dismissing EDPs under Article 17(3), but says nothing about national decisions shortening the office on which the Union mandate depends. Where European Union power is exercised, in short, a court can generally be found to look at it.

 

The Greek renewal decision is not that kind of act. It exercises no Union power and administers no Union office. What it does is change the duration of the national judicial status a person must hold in order to serve as an EDP at all (Recitals 32–33). Article 17, which entrusts appointment and dismissal to the College, treats that status as a standing precondition of the Union mandate, not as the thing the mandate acts upon. The act does not use the prosecutor's independence and it does not formally end it; it determines whether that independence can go on being held at all. What is being decided, in other words, is a precondition of the Union mandate rather than anything the mandate does, and preconditions of that sort are where EU judicial review is thinnest.

 

Why it falls between the regimes

 

The Regulation's review architecture sorts acts along two axes: institutional origin (an act of the EPPO, or of a Member State) and character (operational or administrative). A decision of the kind at issue here fits none of the resulting boxes. Because it is national in origin, the national track applies and Article 42 does not. Because it is neither operational nor administrative in the Regulation's sense, no Union regime claims it either. It is left to ordinary national service-status litigation.

And in Greece that litigation led nowhere. The unanimity bar, anchored in Article 90(3) of the Greek Constitution (whose compatibility with the right to effective judicial protection is itself already contested), meant that no review was available to anyone. The independence of a Union prosecutor was capped by a national hand, and no court, Greek or European, was in a position to examine the cap.

 

The obvious objection

 

The natural response is that this is simply a national act, and that dressing it up as anything else misreads the bargain on which the EPPO was built. The Office was designed to stay embedded in national structures. Article 42 was written for the Office's operational output, not for Member States' decisions about their own judges.

 

Take that objection at its strongest and it still runs into the facts. To succeed, it has to treat the decision's effect on a Union status as carrying no independent legal weight, the two-year cap as, in Union terms, simply invisible. But the College's five-year act and the Council's two-year act, pulling in opposite directions over the same office, put exactly that in doubt. If national tenure can quietly cap the Union mandate, a formally national act is shaping a condition of Union authority with no Union-level review; if it cannot, the act was never purely national in effect. Either way the binary the architecture relies on does not hold, and incorporation of the national status into the Union scheme, even if one grants it, says nothing about who may review a decision that shortens the incorporated condition.

 

The argument does not turn on how Kövesi ends

 

It is worth being precise about what this is not. There is a substantial literature on judicial review in composite or integrated procedures, where national and Union authorities each contribute to a single act and review fractures because each court sees only its own segment. The Greek renewal is a different animal: not a national input into a composite Union act, but a self-standing national decision that governs a precondition the Union scheme takes as given. The composite-procedures problem is who reviews which part of a joint act. The problem here is that the review architecture offers no settled framework for a decision about whether the Union mandate can subsist at all.

 

None of this denies that EU law has built review doctrines in adjacent terrain. Article 19(1) TEU, in the line running from the Portuguese Judges case, obliges Member States to uphold the independence of national courts that may rule on Union law. But that doctrine asks whether independence is protected; it does not supply a route for reviewing a national decision that fixes the tenure on which a Union mandate depends. The guarantee runs to independence as a value, not to the reviewability of the act that conditions the office.

 

Suppose the Court of Justice were eventually to hold, here or in a later case, that a renewal of this kind is purely national and beyond Union reach. That would not defeat the point; it would illustrate it. The claim is not that such decisions must become Union acts and be reviewed in Luxembourg. It is narrower and more awkward: EU law currently reads such decisions through the origin of the act, so that their bearing on Union power does no independent work. A ruling that an act of this kind is 'purely national' would be the clearest demonstration of that reflex. The thesis is about the criterion of review, not the disposition of this dispute, which is why it survives whichever way the dispute is resolved.

 

Beyond the EPPO

 

European Union constitutional law has grown confident at reviewing how public power is exercised. Whether it has built anything equally coherent for reviewing the legal conditions on which that power rests is far less clear, and those conditions multiply as Union governance turns hybrid, its authorities European but their underpinnings national.

 

So Kövesi is not really a story about three prosecutors in Athens. It is the point at which the standard question of judicial review, who exercised this power, starts to miss something. EU law has developed an answer to the first question. It has not yet developed one to the second, who set the conditions under which the power could be exercised at all.

 

*A note on sources. At the time of writing the full reasoning of the Administrative Plenum was not publicly available. This post relies on the EPPO Regulation (Council Regulation (EU) 2017/1939) and CJEU case law as primary materials, and on contemporaneous reporting for the Greek proceedings. The characterisation of the majority and minority positions should be checked against the official text once it is released.

 

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.

 

EU General Court rules for the first time on financial consequences of alleged irregularities regarding a former member of the EU Court of Auditors

 

 

Alessandro Nato* and Camilla Ramotti**

 

*Associate Professor in European Union law, University of Teramo

**Postdoctoral Research Fellow in Administrative Law, Luiss Guido Carli, Rome

 

Photo credit: Cedric, via Wikimedia Commons

 

 

1.     Introduction

 

The role of EU institutions and officials in managing and protecting Union funds remains a relatively underexplored area within European legal scholarship. For this reason, the present post will address this specific issue, investigating case-law that evaluates how effectively EU institutions handle supranational public finances.

 

On September 11^th, 2024, in its Judgment in Case T-386/19, CQ v Court of Auditors, the General Court of the European Union partially annulled a decision concerning CQ, a former Member of the European Court of Auditors (ECA).

 

The dispute arose from an action brought by CQ against the ECA on June 24^th, 2019, in which the applicant requested, in essence, that the Court: (i) declare the action admissible and well-founded; (ii) annul the decision of the Secretary General of the Court of Auditors of April 11^th, 2019, which classified the sum of € 153,407.58 as an undue payment and order the recovery of that amount, plus interest at a rate of 3.5% from May 31^st, 2019.

 

CQ had served as a Member of the Court of Auditors from March 1^st, 2006 until April 30^th, 2018, completing two terms of office. Prior to his appointment, CQ had held various political roles in the Kingdom of Belgium dating back to the 1980s. During his tenure at the Court, he was assigned to the section responsible for auditing EU expenditure related to external relations, enlargement, and humanitarian aid.

 

In 2016, the Court of Auditors received information regarding several serious irregularities allegedly committed by CQ, who was informed of these allegations in July 2016, which he has consistently denied.

 

In October 2016, the Secretary-General of the Court of Auditors referred the matter to the European Anti-Fraud Office (OLAF), concerning activities by CQ that had led to potential undue expenditure being charged to the EU budget. OLAF subsequently decided to initiate an investigation and, in March 2017, the Director-General of OLAF formally notified the President of the Court of Auditors of the opening of an investigation into potential irregularities involving CQ. These included allegations of misuse of the Court's resources, breaches of applicable rules concerning official missions, and matters affecting the financial interests of the Union.

 

Following several exchanges of information and documents between OLAF and CQ, the Court of Auditors received OLAF’s final report, which concluded that CQ had misappropriated resources of the Court in connection with activities unrelated to his official duties. The report found that CQ had improperly used fuel cards, misused the insurance policy for his official vehicle, been absent from work without justification, failed to declare external activities, disclosed confidential information, and been involved in a conflict of interest.

 

Meanwhile, the Court of Auditors had sought to recover the full contested sum of over €157,000 for the irregularities attributed to CQ. CQ paid this amount but simultaneously lodged an action before the General Court of the European Union seeking the annulment of the recovery decision and compensation for non-material damage allegedly suffered.

 

 

2.              The protection of Eu’s financial interests

 

In Case T-386/19 (for further comments, see EU Law Live Blog and BETKONEXT Newsletter n. 2/2024) the General Court found that the OLAF investigation had not uncovered evidence of all the alleged irregularities. The Court also concluded that the ECA’s decision to recover the sums in question was sufficiently reasoned and well-founded.

 

On the merits, the General Court held that although five years had elapsed between the facts in question and the establishment of the financial entitlements, the majority of the claims were not time-barred, as the ECA could only have identified the relevant sums after OLAF’s investigation was concluded.

 

Moreover, in relation to the allegations concerning breaches of procedural safeguards, the Court found that it could not be excluded that the applicant had been afforded a sufficient opportunity to be heard on the relevant elements, even those he could not comment on prior to OLAF’s report. Given the absence of any new or concrete evidence to the contrary, and the applicant’s ability to raise such matters during the written stage of the proceedings, the plea was rejected as unfounded.

 

The Court further determined that a significant proportion of CQ’s meetings with politicians were unrelated to his duties as a Member of the Court of Auditors, rendering the expenses associated with those meetings irregular. However, finding that certain claims were time-barred and that certain mission and representation expenses, along with costs related to CQ’s driver, were legitimate, the Court annulled part of the recovery decision.

 

Ultimately, the General Court set aside certain aspects of the ECA’s recovery decision.

 

It ruled that several claims were indeed time-barred and that some of the mission and representation expenses, as well as driver-related costs, were valid. Consequently, the General Court partially annulled the ECA’s decision, reducing the contested amount by €19,254.20, while rejecting most of CQ’s claims.

 

Regarding CQ’s claim for compensation, the General Court held that there was insufficient evidence to establish that the ECA’s actions caused direct damage to his reputation or that it was responsible for the unauthorized disclosure of information.

 

 

3.              Damage compensation

 

In the CQ case at hand, the plaintiff sought compensation of 50,000 euros, claiming that he had suffered serious damage to his career and reputation from the dissemination of information related to an OLAF investigation. According to him, the ECA had violated the presumption of innocence by disseminating elements suggesting his responsibility before he was formally informed. He disputes that the report was forwarded to third parties (members of the Court and Parliament) before him, and that the press was able to publish its contents as early as July 11, 2018. On the same day, the Court issued an internal briefing note, according to the appellant, reinforcing the perception of guilt.

 

The criticism levelled at the Court of Auditors was thus twofold: on the one hand, there would have been an active tortious behavior - the disclosure of information not yet known to the person concerned, in a context that suggested liability; on the other hand, an omission - the failure to activate an internal investigation to identify the source of the leak. The Court responded by first raising a plea of inadmissibility on grounds of procedural defect, holding that the claim for compensation could not be brought in the context of an action for annulment (Article 263 TFEU), but only through an autonomous action based on Articles 268 and 340 TFEU.

 

However, the same Court later recognized that, in principle, it is possible to cumulate claims for annulment and compensation within the same proceeding, provided certain formal requirements are met. In this case, however, it was held that the plaintiff had not adequately substantiated, from the outset, the grounds for the Union’s non-contractual liability.

 

On the merits of the case, the Court rejected allegations of infringement of the presumption of innocence and the principle of good administration, finding that the internal communication of July 11, 2018, was after the publication of the news by the press, which occurred as a result of a leak from an anonymous source.

 

However, this reconstruction raises several questions. The fact that the Court reacted with communications directed within the institution, even after the newspaper article came out, does not rule out the possibility that these communications contributed to consolidating a negative portrayal of the plaintiff. The strongest objection relates precisely to the principle of impartiality: even in the presence of a leak that cannot be attributed to the administration, the latter remains bound to prudent and neutral management of information, particularly when the person concerned has not yet been put in a position to formally know the acts that concern him or her. The principle of good administration requires not only transparency and timeliness, but also balance in communication, especially when it affects personal rights.

 

The Court also dismissed the failure to launch an internal inquiry, citing no obligation to do so. Yet, even without a binding rule, confidentiality and administrative accountability could justify such action. In a rule-of-law framework, institutional inaction can also entail liability. Furthermore, the Court rejected the claim for failing to establish wrongful conduct — the first condition for non-contractual liability — making examination of damage and causality unnecessary. Legally consistent, this outcome nonetheless raises doubts about the actual protection of fundamental rights and principles in EU administrative action.

 

 

4.              Concluding remarks 

 

The CQ v. Court of Auditors case is a significant test in assessing the effectiveness of judicial protection with respect to the protection of the Union’s financial interests. The case highlights a latent tension between two fundamental requirements: on the one hand, the need to respect the procedural guarantees of the person involved; on the other, the imperative to effectively protect the integrity of the EU budget.

 

In this delicate balance, the ruling ends up downplaying the proactive role and responsibility that institutions should assume in preventing and dealing with irregularities. The fact that CQ’s conduct resulted in a misuse of public funds that was not contested in substance, but only partially acknowledged for procedural reasons, raises questions about the level of diligence and control exercised by the European institution.

 

However, this case law cannot be viewed in isolation. On 28 April 2025, the Official Journal of the European Union published a summary of an action for annulment brought by the European Public Prosecutor’s Office (EPPO) before the Court of Justice (case T-99/25, lodged on 10 February 2025) pursuant to Article 263(4) TFEU. In that action, the EPPO challenges the decision adopted by the European Court of Auditors on 9 December 2024, denying the authorization to hear certain staff members as witnesses in an ongoing criminal investigation into alleged wrongdoing within the same institution. The investigation, launched at the end of 2022 following a report from the European Anti-Fraud Office (OLAF), concerns facts that potentially constitute offences affecting the financial interests of the Union.

 

According to the EPPO, the repeated refusal by the Court of Auditors to cooperate—first by denying access to its electronic archives, then by refusing to lift immunity and finally by preventing witnesses from testifying—has obstructed the investigation and hindered the EPPO’s ability to determine whether the allegations should lead to prosecution. Under the EU Staff Regulations, authorization from the institution is required for staff members to testify about matters known to them in the exercise of their duties. However, as clarified by the Court of Justice, such authorization may only be withheld in cases where the Union’s “interest of considerable importance and vital to the Union” is at stake. The EPPO argues that this condition clearly does not apply in the present case.

 

Taken together, these two cases—one dealing with individual financial responsibility, the other with institutional resistance to judicial cooperation—reveal a deeper tension within the EU legal and governance system: the challenge of ensuring both personal accountability and institutional transparency in the management and protection of EU public funds. On the one hand, the EU seeks to recover unduly paid amounts from former members of its institutions; on the other, it encounters systemic obstacles when a key institution refuses to cooperate with its own prosecutorial authority.

 

This duality exposes a structural concern. When an EU institution can, in effect, block a criminal investigation by withholding key testimonies, it undermines the very logic of interinstitutional checks and the role of the EPPO as an independent prosecutorial body. Such conduct raises fundamental questions about the coherence of the EU’s system for protecting the rule of law and financial integrity. More broadly, it calls into question whether the principle of sincere cooperation—enshrined in Article 13(2) TEU—is being fully respected when institutional interests are perceived to outweigh those of justice and public accountability.

 

In conclusion, the CQ v. Court of Auditors case and the EPPO’s appeal in T-99/25 highlight the growing need for a systematic reflection on how to ensure both individual and institutional accountability within the EU legal framework. At a time when the Union is managing unprecedented levels of public expenditure—particularly through instruments such as Next Generation EU—it is essential to ensure that mechanisms for oversight, enforcement, and judicial cooperation are not only available in theory, but fully operational and unobstructed in practice. A deeper and more critical exploration of these legal and institutional dynamics—across academia, jurisprudence, and policymaking—is not merely advisable: it is imperative. In a context where EU funds are increasingly significant and politically sensitive (i.e. Next Generation EU), opaque management by officials can undermine public trust and the effectiveness of the protection of the Union’s financial interests.

 

Fundamental Rights and the European Public Prosecutor’s Office: an uncomfortable silence

 

 

Michiel Luchtman, Jannemieke Ouwerkerk, Marloes van Noorloos, Pim Geelhoed, Jorrit Rijpma and Louis Middelkoop are members of the Meijers Committee (www.commissie-meijers.nl/en).

The EU’s proposal for the establishment of a European Public Prosecutor’s Office (EPPO) has created quite a stir in the Member States. The EPPO would be competent to investigate and prosecute fraud with EU money (e.g. the misuse of EU funds), although there is already talk about extending its competence to terrorism and other serious crime. So far, political negotiations over the draft regulation have focused on the question why the EU is in in need of this new supranational body in the first place, and on the extent of the EU’s influence on national affairs, particularly in such a sensitive area as criminal justice.

Supposing that in the near future the European Public Prosecutor’s Office will indeed be established, more attention to the substance of the current proposal needs to be paid without delay, particularly to the protection of fundamental rights. The current proposal raises serious concerns on this matter, as it is unclear who will supervise the actions of the EPPO and how this may be done effectively.

Procedural Rights in EU criminal law

In the EU context, the question of who is responsible for the guaranteeing of procedural rights in transnational criminal law enforcement has already frequently been addressed by legislation. After all, Member States of the EU do cooperate intensively on a daily basis: think of the European arrest warrant mechanism, which enables the rapid surrender of suspects from one Member State to another. All such cooperation mechanisms contain provisions on legal protection.

The proposal to establish an EPPO takes criminal justice integration significantly further than any other instrument created thus far. The EPPO will be authorized to take intrusive coercive measures, such as ordering arrests, interceptions of telecommunication, or house searches, just as national prosecutors can. Yet – and unlike national prosecuting authorities – the EPPO would be competent to apply these measures in all the territories of the participating Member States, without the restriction of national borders. It might therefore be expected that the ministers of justice, the European Parliament, and the European Commission would hold extensive debates on the precise conditions for searches, telephone interceptions, arrests, and pre-trial detention in supranational investigations. Surprisingly, they have not.  

On the contrary, in their efforts to prevent a further transfer of power to ‘Brussels’, most Member States oppose any further approximation of criminal procedure. And those who do support the establishment of an EPPO hold that citizens’ rights are already sufficiently protected, referring to the fundamental rights acquis laid down in treaties and the EU Charter. They also point out that the EPPO must respect the additional procedural guarantees provided in the domestic legal order of the Member State where it is conducting its operations.

 From national to transnational criminal procedure

Such safeguards are designed for the administration of criminal justice in a domestic system and will not always fit the new transnational setting of the EPPO. The potential consequences of this systemic flaw in EPPO’s design are highly problematic. Imagine that the EPPO conducts a house search without proper judicial authorization in Amsterdam, and then that the case is subsequently brought to trial before a Milanese criminal court. Should the Italian judge apply the complicated Dutch case-law on unlawful house searches? And should the EPPO be allowed to search someone’s personal computer online, from a distance, in order to evade the stricter rules of the Member State on whose territory the computer is located? After all, it is not only the mobility of criminals that is increasing, but also of witnesses, information, and evidence in the area of freedom, security and justice to which the EU aspires. Nonetheless, the proposal remains silent on these issues, with such potential consequence as forum shopping and a race to the bottom of the lowest level of safeguards.

The envisaged framework for the EPPO leaves an important question unanswered: Do discretionary margins for choosing the applicable national law with respect to investigatory powers, procedural safeguards, judicial supervision, admissibility of evidence, etcetera permit arbitrary interference with the fundamental rights of citizens involved in criminal proceedings?

Both the European Court of Human Rights and the European Court of Justice have consistently stressed the importance of the rule of law, as a vital mechanism defending against arbitrary interference with citizens’ fundamental rights. The law provides citizens with legal certainty as to the scope of their rights and duties; it helps to effectuate their defence rights; and it enables courts to prevent executive discretion from turning into arbitrariness. Under the proposed EPPO set-up, the problem is not that national laws are absent, unclear or ignored. The problem is rather that the EPPO is given more than twenty divergent national legal system to work with. This creates the risk that a legal avenue for a particular intrusive measure might be very easy to obtain. In certain cases, the EPPO is allowed to choose the most attractive rules from multiple codes of criminal procedure – and continuously to change the rules during the game, without its adversaries having any say on the matter, and without courts being able to exercise control. This leaves citizens without an adequate indication of which set of national rules will apply in a particular case. 

As a community based on the rule of law, the European Union should protect its citizens against arbitrary action by European law enforcement authorities. In order to guarantee that the rule of law will be upheld in the European Public Prosecutor’s Office, citizens must be offered legal certainty  as to which law will be applied. Moreover, the law must be adequately accessible to all citizens: they must be permitted to know their rights and duties, and invoke them in court.

 

Barnard & Peers: chapter 9, chapter 25

Childhood’s End: EU criminal law in 2014

 

Steve Peers

With the elections to the European Parliament, the installation of a new European Commission, and a number of important legislative and case-law developments, 2014 was an important year for the European Union. This is the first in a series of blog posts reviewing the year in selected fields of EU law.  

The most significant change to EU criminal law came on December 1^, when the five-year transitional period relating to EU criminal law measures adopted before the entry into force of the Lisbon Treaty (‘pre-Lisbon EU criminal law measures’, also known in practice as the ‘third pillar’) came to an end. From this date on, pre-Lisbon EU criminal law measures are subject to the normal rules of EU law (except that they maintain their previous limited legal effect, in particular the lack of direct effect). More specifically, this change (discussed generally here) has three main impacts.

Firstly, the UK was entitled to opt out of all pre-Lisbon EU criminal law measures, and then apply to opt back in to some of them again. The UK indeed exercised these possibilities, opting back in to 35 such measures as of 1 December 2014 (see discussion of the details here), following an unnecessarily convoluted process in the House of Commons (discussed here). In a nutshell, since the UK has opted back into a large majority of the pre-Lisbon measures which have any significant importance, the whole process has had barely reduced the UK’s actual degree of participation in EU criminal law.

Secondly, the end of the transitional period means that the EU Commission can now bring infringement actions against Member States that failed to correctly implement pre-Lisbon EU criminal law measures - or that failed to implement such measures at all. The relevance of this is obvious in light of the Commission reports issued this year, regarding: legislation on the transfer of prisoners, probation and parole and supervision orders (discussed here); hate crime and Holocaust denial (discussed here); and conflicts of jurisdiction and the recognition of prior convictions (discussed here).  

Thirdly, all courts in all Member States can now send references to the CJEU on the interpretation pre-Lisbon EU criminal law. For the EU as a whole, the impact of this change will probably be limited in practice, because (a) two-thirds of Member States allowed such references anyway, and (b) there were no such limits regarding EU criminal law adopted after the entry into force of the Lisbon Treaty. On the former point, the CJEU decided two cases this spring on the EU’s double jeopardy rules (discussed here), in which it finally developed the relationship between those rules and the double jeopardy provisions of the ECHR and the EU Charter of Fundamental Rights. A final reference to the CJEU on the basis of the old rules, sent just a month before the end of the transitional period (Kossowski), now asks the Court to clarify whether Member States’ derogations from the Schengen rules violate the EU Charter.

On the second point, the first reference from national courts on post-Lisbon EU criminal law was referred this year: the Covaci case, on the Directive on interpretation and translation in criminal law proceedings and the Directive on the ‘letter of rights’. So far, there is no sign of the predicted avalanche of cases on EU suspects’ rights legislation (the deadline to apply the letter of rights Directive passed in June). Of course, there could still be an increase of such cases in future, perhaps after the 2016 deadline to apply the third suspects’ rights Directive (on access to a lawyer). And in the meantime, Member States must apply the victims’ rights Directive towards the end of 2015. Hopefully the CJEU’s case law on that measure will be more convincing than its ruling earlier this year (criticised here) on the scope of the Directive on compensation for crime victims.

Another important CJEU judgment in the criminal law field this year (discussed here) ruled that policing information measure actually fell within the scope of EU transport law. The immediate impact of this judgment was a rush to adopt replacement legislation (the text of which is already agreed), which will apply to all Member States (the UK, Ireland and Denmark had opted out of the prior measure). More broadly, the judgment shows that the CJEU is not inclined to interpret the EU’s criminal law powers broadly – at least as compared to the EU’s other powers.

The end of the transitional period did not lead to a general review of pre-Lisbon EU criminal law measures, with the Commission proposing only a very limited repeal of some obsolete measures (I’ll blog on these proposals in the new year). In particular, the new Justice Commissioner appears to have no significant agenda to suggest criminal law proposals, whether to amend prior measures or to adopt new ones (for an argument as to what the Commission should do, see here).

However, some of the pre-Lisbon criminal law measures have been amended or replaced, or will be amended or replaced by proposed legislation now under discussion. In particular, during 2014, the EU adopted legislation concerning: the European Investigation Order (discussed here); the counterfeiting of the euro (discussed here); the confiscation of criminal assets; and the European Police College (moving its seat from the UK to Hungary). The EU also adopted legislation on criminal sanctions for market abuse (discussed here).

There are also proposals under discussion to replace pre-Lisbon EU criminal law measures concerning: fraud against the EU (see the state of play here); the police agency, Europol (see discussion of negotiations here); the prosecutors’ agency, Eurojust (there was a partial agreement on this proposal); and data protection in criminal law cases (see the state of play here). The latter issue is increasingly important, as indicated by the related CJEU judgment invalidating the data retention directive (discussed here), which gave rise to questions as to whether Member States could adopt or retain their own data retention laws (on this point, see generally here, and here as regards the UK in particular).

In fact, the CJEU will soon be ruling on data protection and criminal law issues as such, since the European Parliament has asked it to rule on the validity of the EU/Canada draft treaty on passenger name records (see discussion here). The pending Europe v Facebook case (discussed here) raises questions about the impact of the Snowden revelations upon the EU and US arrangements on data protection. In the meantime, the proposed Directive on passenger name records still remains on ice (having been put there by the European Parliament), with EU leaders’ attempt to set a deadline to adopt this proposal by the end of 2014 proving futile.

 

Other proposals are also under discussion: a more general overhaul of the European Police College; the creation of a European Public Prosecutors’ Office (see the state of play here); and the adoption of three more suspects’ rights measures, concerning child suspects (agreed by the Council), presumption of innocence (also agreed by the Council) and legal aid (see the state of play here). However, the Commission’s proposal for new rules relating to the EU’s anti-fraud body, OLAF, soon melted in the heat of Council opposition. 

 

Conclusion

Taken as a whole, the year 2014 showed how the European Parliament, the CJEU and the Commission are already playing a significant role in the development of EU criminal law. Following the final demise of the third pillar, the year 2015 is likely to see further important developments in this area, which will make the pre-Lisbon measures even less important: the adoption of new legislation on Europol, the European Police College and possibly Eurojust, as well as revised legislation on fraud against the EU budget. There will likely be two or three further Directives on suspects’ rights and the victims’ rights Directive will begin to apply. The rules on the new European Public Prosecutors’ Office might also be agreed, and there could be significant developments in the area of data protection. Overall, the longer-term trends toward greater parliamentary and judicial control and greater focus on individual rights in this area accelerated significantly in 2014 and could well do so again next year.

 

Barnard & Peers: chapter 25