#67: An obligation to report to EPPO

On 1 June 2021, the European Public Prosecutor’s Office (EPPO) was launched. This moment was accompanied with a number of press publications, including one in which Chief Public Prosecutor Laura Kövesi announced that she would soon make public which cases would be opened first. An announcement hasn’t been made public yet. However, EPPO has notified in a press release of 16 July 2021 that it has already processed more than 1000 reports of EU fraud since 1 June 2021. These reports come from member states or other EU institutions, which are obliged to report cases that fall within the scope of EPPO’s work. Yet another reporting obligation, is this the only way how EPPO gets cases?

To answer this question, it is good to know the structure and organisation of EPPO and its material competences. We also refer for this to Lawlunch #66. The material competences are laid down in Article 22 of Regulation 2017/1939 (the Regulation) and Articles 3 and 4 of Directive (EU) 2017/1371 (the Directive). In short, EPPO has the power to investigate and prosecute offences that harm the EU’s financial interests. Briefly, these are i) procurement fraud involving EU funds; ii) VAT fraud involving at least two Member States and causing total damage of at least €10 million; iii) laundering of proceeds from the above offences and iv) passive and active bribery of (EU) officials. Article 26 of the Regulation allows the EPPO to investigate these offences if there is a reasonable suspicion under national law that an offence within the EPPO’s competence is being or has been committed.

Article 24 of the Regulation contains a reporting obligation: the authorities of the Member States must report ‘without undue delay’ any criminal conduct to the EPPO over which they might exercise jurisdiction. This obligation also applies to other bodies of the European Union, such as the European Commission and the European Parliament. In addition, the EPPO also encourages private persons to report cases to the EOM, at least according to the EPPO website.

There seems to be no sanction for not complying with the obligation to report. Nevertheless, the press release of 16 July 2021 shows that, for the time being, member states are obediently complying with the obligation to report EU fraud. The Regulation requires that reports are well-documented and contain at least a description of the facts, including an assessment of the extent of the (potential) damage, the possible legal qualification, and any available information on potential victims, suspects and other involved parties. On the basis of this information, the EPPO then decides whether to open an investigation on its own. Article 40 of the EPPO’s Rules of Procedure show that the EPPO is bound by a number of assessment criteria. Only then does the EPPO open its own investigation.

Naturally, it may be the case that the Dutch Public Prosecution Service, in response to a suspicion, has already started its own investigation, ‘on its own soil’, into facts that also fall within the competence of the EPPO. In such a case a Member State must notify the EPPO so that it can assess whether it wishes to invoke the right of evocation. In that case, the Member State should transfer the case to the EPPO and the EPPO will continue the investigation. In assessing whether the right of evocation is invoked, the EPPO is again bound by the assessment criteria in the Rules of Procedure. Moreover, the assessment must take place within a period of five days, which may be extended by another five days. Is this period exceeded, then this will be interpreted as a consideration not to ‘evoke’ the case.

As of 16 July 2021 the EPPO has processed the first 1000 notifications, of organisations and possibly also private persons which seem to have found their way to the EPPO. But it remains to be seen whether the EPPO can actually act on the information reported and will open its own investigations or take over investigations.

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


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