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.

 

The Italian Job: the CJEU strengthens criminal law protection of the EU’s finances

Steve Peers

The stereotype of fraud against the EU budget is a sleazy EU official in Brussels receiving manila envelopes stuffed full of bribe money, spending his ill-gotten gains to ensure that his lavish lifestyle becomes ever more decadent. But according to the EU’s annual reports on such fraud, the typical offender is actually rather different: it’s an individual or company who finds ways to get hands on EU money being spent by the Member States, since they are largely in charge of the day-to-day management of EU spending. Furthermore, not all the breaches concern EU spending: some concern the reduction of EU income, for instance by avoiding the customs duties which apply to many goods coming from third countries. 

Agreeing and enforcing EU-wide rules for such behaviour has long been a challenge. But in its recent judgment in Taricco, the Court of Justice has made a major effort to strengthen the law in this field.

Background

The CJEU ruled back in the 1980s (in the Greek maize judgment) that Member States could not simply ignore fraud against the EU budget, but had to take effective measures to stop it. This rule was later added to the Treaties, and now forms Article 325 TFEU, which reads in part as follows:

1.      The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with this Article, which shall act as a deterrent and be such as to afford effective protection in the Member States, and in all the Union’s institutions, bodies, offices and agencies.

2.      Member States shall take the same measures to counter fraud affecting the financial interests of the Union as they take to counter fraud affecting their own financial interests.

As regards criminal law, the current legal rules on the topic date back to 1995, and were adopted in the form of an international Convention (the ‘PFI Convention’) between the Member States, which came into force in 2002. This treaty applies to all Member States except for Croatia (although the Commission has just proposed its application to that State), and the UK – which was initially a party but no longer has legal obligations to apply the Convention since it opted out of many pre-Lisbon criminal law measures as from 1 December 2014 (on that process, see further here). Among other things, the PFI Convention obliges all Member States to impose criminal sanctions for serious cases of fraud against the EU budget.

The Commission proposed a Directive to replace the Convention in 2012, and this is currently in the late stages of negotiation between the Council and the European Parliament (for an update, see here; on the legal basis, see here). It’s evident that one of the main issues remaining in the negotiations is whether the proposed Directive should apply to VAT fraud, given that a small amount of VAT revenue goes to the EU budget. The Commission and the European Parliament argue that it should, while the Council argues against, presumably because the far larger part of the losses from VAT fraud affects national budgets, not the EU budget. There are other issues in the proposed legislation, such as a more precise possible penalty for fraud, and a rule on ‘prescription’ periods (ie the time limit after which a prosecution can no longer be brought or continued).

The proposed Directive is closely connected to another piece of proposed EU legislation: the Regulation establishing the European Public Prosecutor’s Office (EPPO). That’s because the EPPO will have jurisdiction only over EU fraud, and so it’s necessary to have a definition of that concept. (On the defence rights aspects of the EPPO proposal, see discussion here); for an update on negotiations, see here). And the EPPO Regulation is in turn linked to a third legislative proposal: the Regulation refounding Eurojust, the EU’s agency for coordinating national prosecutions. That’s because there will be close links between Eurojust and the EPPO, and so the Eurojust Regulation can’t be finalized before the EPPO Regulation is agreed. (The Council has agreed all of the Eurojust Regulation except for the bits relating to EPPO links: see the agreed text here. This will still have to be negotiated with the European Parliament, however).

Judgment

The recent CJEU judgment in Taricco concerns alleged VAT fraud against a national budget, and in particular the question of prescription periods. Italian rules on the breaks in prescription periods mean few cases involving VAT fraud are ever seen through to completion, since time simply runs out during the proceedings.  A frustrated Italian court therefore asked the CJEU whether these national rules infringed the economic law of the EU: namely the rules on competition, state aids, economic and monetary union and the main VAT Directive.

According to the CJEU, the national law does not infringe EU competition law, because inadequate enforcement of criminal law does not as such promote cartels. It does not infringe state aid law, because the Italian government was not waiving tax obligations as such. Furthermore, it does not infringe monetary union rules, since it was not closely enough linked to the obligation to maintain sound public finances.

That left the VAT Directive. In fact, that Directive sets out the scope of VAT (ie which goods and services have to be taxed), but does not include any rules on criminal law issues. The Court therefore assumed that the national court was asking it questions about EU law more generally, and proceeded to interpret Article 325 TFEU and the PFI Convention. According to the Court, building on the previous case law such as Fransson, there was not only an obligation pursuant to the VAT Directive and Article 325 TFEU to take effective measures in general against VAT fraud to defend the EU budget, there was also a specific obligation to criminalise such activity, where it was ‘essential to combat certain serious cases of VAT evasion in an effective and dissuasive manner’. This was consistent with obligations under the PFI Convention; the Court confirmed that the Convention applied to VAT fraud, despite the absence of express provisions to this effect under the Convention. Given the size of the alleged fraud in this case (several million euros), it had to be considered serious.

Furthermore, the Court ruled that the operation of the limitation periods in Italian law infringed Article 325 TFEU. A limitation period was not objectionable as such, but national law made it effectively impossible to prosecute offences because the way in which it calculated breaks in the prosecution. Also, the national law infringed the principle of equality set out in Article 325, since other national laws on similar types of economic crime did not contain the same problematic rules on calculation of breaks.

The Court then ruled on the consequences of this breach of EU law. In the Court’s view, the national court has to disapply the relevant national law. This obligation was based on Article 325 TFEU, which sets out precise and unconditional rules on effective and equal protection of the EU’s financial interests. So the ‘precedence’ (ie, primacy or supremacy) of EU law required national law to be disapplied.

Finally, the CJEU dismissed a human rights objection to its ruling. While Article 49 of the EU Charter of Fundamental Rights does ban the retroactive application of more stringent criminal penalties than those in force when a crime was committed, the CJEU ruled (following the case law of the European Court of Human Rights on the equivalent Article 7 ECHR) that a limitation period was distinct from a substantive criminal offence. The acts which the defendants were accused of committing were undoubtedly criminal offences in national law at the time of their alleged commission, so there was no retroactivity of criminal law in the sense prohibited by the Charter.

Comments

“You were only supposed to blow the bloody doors off!” This classic quote from The Italian Job aptly summarises the CJEU’s approach to the relationship between national law and EU law in this judgment. Asked only to rule on the interpretation of EU economic law, the Court decided instead to strengthen the constitutional foundations of EU law in the criminal field.

Substantively, the Court’s judgment is significant because it extends EU criminal law obligations to VAT fraud. This is, in the Court’s view, a pre-existing obligation not only in the PFI Convention, but also in the TFEU itself. To overturn it, Member States would therefore have to amend the Treaty, not just the Convention (in the form of the proposed Directive). Also, Member States’ obligations extend not only to criminalisation of serious cases of VAT fraud, but to prescription (and so potentially other procedural issues) as well.  So if Member States (in the Council) do insist on excluding VAT from the scope of the EU fraud Directive, that would have limited impact. Indeed, the Council Presidency has already asked Member States if there is any point maintaining their opposition on this point after the Taricco judgment.

Presumably the Court’s rulings on prescription and criminalisation apply to other forms of EU fraud too. This means that including prescription rules in the Directive (as all of the EU institutions are willing to do) simply confirms the status quo – although the final Directive will likely be more precise on this issue than the CJEU’s ruling. Furthermore, since the Taricco judgment could help to unblock talks on the PFI Directive, this could have a knock-on effect on the negotiations on the EPPO and Eurojust.

Moreover, the Court’s ruling limits the effect of various opt-outs. Ireland and Denmark have opted out of the proposed Directive, but will remain bound by the PFI Convention; the UK has opted out of both. But they remain bound by the Court’s interpretation of the Convention (for Ireland and Denmark) and the Treaty (for all three Member States). This has limited practical impact, as long as national law remains compliant (assuming that it is already compliant) with these measures as interpreted by the Court. While the UK is no longer free to decriminalise fraud against the EU budget, it was never likely to use that ‘freedom’ anyway, particularly as regards VAT fraud, where the main loss would be to the British government’s revenue, not the EU’s.

More fundamentally, the Taricco judgment strengthens the constitutional foundations of criminal law obligations in the EU legal order. While this may only be relevant for EU fraud cases, the Court has already broadened that concept to include VAT fraud. In such cases, there is an obligation for national courts to disapply incompatible national law as regards the procedural aspects of criminal proceedings. Conversely, there is no obligation to disapply incompatible substantive national criminal law, since this would lead to a breach of Article 49 of the Charter.

The ruling is based on the legal effect of the Treaties – the Court does not rule on the legal effect of the ‘third pillar’ Convention. It sets out a test for primacy similar to the test for direct effect (the Court refers to the precise and unconditional nature of the rules in Article 325 TFEU). It is not clear how this rule fits into the EU’s overall constitutional architecture – as a clarification of the general rules or as a special rule relating to protection of the EU’s financial interests. But in any event, the Taricco judgment is a significant contribution toward strengthening the EU’s role in this particular field. 

  

Barnard & Peers: chapter 25, chapter 6

Photo credit: dailymail.co.uk

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