#66: The EPPO is here

On June 1, 2021, the European Public Prosecutor’s Office (EPPO) was launched. The first Dutch European public prosecutor is Daniëlle Goudriaan. Furthermore The Netherlands has two delegated European public prosecutors. A new European institution which can carry out criminal investigations into offences mentioned in Directive 2017/1371 and offences that are inextricably linked to them. So now that the EPPO is active, what can we expect?

First it is interesting to know what the material scope of competence is of the EPPO. Article 22 of the Council Regulation (EU) 2017/1939 (The EPPO Regulation), states that the EPPO shall cover three different aspects of criminal conduct. First, EPPO focuses on offences affecting the financial interests of the European Union that are provided in the PIF Directive, Directive EU 2017/1371, which are implemented in the 22 participating Member States. Second, the Regulation focuses on participation in a criminal organisation, as long as the organisation is focusing on committing PIF offences. Last, the Regulation covers criminal offences that are inextricably linked to crimes affecting the financial interests of the European Union.   

The Directive has two provisions that define the PIF offences. In each case, the offence covers fraudulent conduct that damages the financial interests of the European Union (EU). The PIF crimes are focused on procurement funds, VAT and corruption. For VAT related crimes the crime should have been taken place in at least two participating Member States and have a tax damage of at least € 10.000.000,-.

The Directive requires these offences to be transposed into the legislation of the Member States as early as 2019. The Netherlands did not make any substantive changes to the criminal law provisions because this was not necessary. Only the penalty for embezzlement has been increased, as a result of which this has also become an offence for which pre-trial detention is possible.

For a good understanding of the EPPO powers and division of tasks, it is important to have an overall picture of the organisation. The EPPO has a central and a decentralised level. At the central level, there are permanent chambers consisting of a number of European prosecutors, who, among other things, supervise and control the cases. The decentralised level consists of delegated European Prosecutors (EDP’s) from the Member States. The delegated prosecutors investigate and prosecute offences in their home Member State as they are familiar with the local law over there. The delegated prosecutors thus play an important role in the investigation and prosecution. Incidentally, these delegated prosecutors are also members of the public prosecutor’s office in the Member State in question.

The competence of the EPPO is stated in Article 23 of the Regulation. The EPPO is competent when the offences, stated above, are committed in whole or in part in the territory of a Member States or by a national of the Member State, provided that that Member State has jurisdiction over the offence or in specific cases also outside the territory of the Union.

In principle, a case is brought and tried by a delegated European Prosecutor from the Member State where the centre of gravity of the criminal activity is located or, if several related offences have been committed, the Member State where most of those have been committed. In principle, therefore, the territoriality principle is adhered to. However, whether this can always be properly determined at the start of an investigation is questionable. An investigation can also develop in the course of time, or apply a certain focus; will the place of prosecution and the EDP then change?

It Is possible to deviate from this criteria for the location of prosecution. The following criteria can be used to deviate from this:

(a) the habitual residence of the suspect or accused;

(b) the nationality of the suspected or accused person;

(c) the place where the greatest financial loss was suffered.

It is unclear whether a defendant himself can request that the case is transferred to another delegated prosecutor from another Member State. Moreover, it seems that the EPPO will often be charged with cross-border cases involving defendants from different Member States. In our view, this could lead to discussions about where the prosecution should take place. The permanent chamber has the power to refer, merge or split a case. We believe that a defendant should also be able to turn directly to the permanent chamber for the referral, joining or splitting of a case. But what criteria are to decide on this is not clear.

Delegated prosecutors act partly on the basis of the powers of national law. The Dutch EDPs are thus bound by the Code of Criminal Law and the Code of Criminal Procedure. However, this does not apply to policy rules and instructions. In this respect, the EPPO is a completely independent and autonomous body. This means for instance that the EPPO is not bound by the Dutch policies on transactions of a criminal case. The EPPO is autonomous in this.

The advantage of the EPPO is mainly that it does not have to make requests for judicial assistance to other Member States – which in practice is still time-consuming – but that a delegated prosecutor can informally seek the assistance of a delegated prosecutor in another Member State who can exercise the investigative powers on the basis of national rules. This is not the case for arrest warrants and surrender warrants but only for investigation warrants.

This intensive cooperation between delegated European officers of the EPPO also requires the necessary efforts of lawyers, because now that the prosecutors are united at a European level and thus have specialist knowledge of the law within each Member State, a good European network within the legal profession is just as important. Cooperation is therefore necessary to defend the rights of defendants at the European level.

Do you have any questions about the above or would you like to exchange views? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.