Establishing a European Public Prosecutor: arguments for and against

12 December 2007

Antonio Vitorino, former Justice and Home Affairs Commissioner and Chairman of the EPC’s Governing Board, said the creation of a European Public Prosecutor (EPP) was a controversial issue that had first been mooted to protect EU finances and then broadened to prevent cross-border crime. At the time, these concerns resulted in the creation of Eurojust - an EU-wide body of national prosecutors and judges.

The new Lisbon Treaty opens the way for Eurojust to be extended by appointing an EPP, as cooperation across the fields of freedom, security and justice will require enhanced mechanisms to prosecute cross-border and international organised crime.

Andrew Duff, British MEP, Leader of the Liberal Democrat European Parliamentary Party, said the EPP was a practical example of reinforced cooperation in the EU’s criminal and legal space.

Once the Treaty enters into force, Mr Duff expects some Member States, particularly those frustrated at the way some governments continually seek to opt out or derogate from parts of EU Treaties, to use the EPP to demonstrate how closer cooperation can work in practice.

The Intergovernmental Conference agreed that Eurojust can be broadened into becoming the office of the European Public Prosecutor, which, according to the Treaty, should have a - relatively narrow - remit of protecting EU finances. The Lisbon Treaty also allows the European Council to agree unanimously to extend the EPP’s scope of operations to serious crimes with a transnational dimension.

Alternatively, the Treaty gives Member States the right - provided a minimum of nine of them want to do so - to apply “enhanced cooperation” in judicial matters to establish a EPP. Unanimity in the Council is needed to broaden its scope to transnational serious crimes. It gives this group the further possibility of changing the decision-making procedures and introducing legislative reforms if the circumstances require.

If plans for an EPP materialise, Member States will have to proceed very cautiously to ensure that there is sufficient mutual trust to create a new entity, said Mr Duff. The EPP will be based on Eurojust and, once it starts work, Member States officials will have to go further in “harmonising” what constitutes criminal behaviour and agreeing the penalties to be applied. He added that there needs to be greater collaboration among defence lawyers as well to ensure their clients are adequately protected.

Another of the “thorny issues” will be to clarify rules on jurisdictional competence, deciding which national enforcement system should be used as a model, given, for example, that the Dutch model would be more lenient in criminalising drug use than a French one. Clearly there is still some way to go to ensure a legally sound, just system, he said.

François Falletti, National Member for Eurojust in France and President of the International Association of Prosecutors, stressed that the Treaty specifies that if the EPP is established, it must be a development of Eurojust.

Eurojust has achieved a great deal since it began work in 2002. Based in The Hague, it has an annual budget of €20 million, includes prosecutors from all 27 Member States and has an EU-wide database of ongoing prosecutions. It brings together investigative judges to share legal concerns and its caseload is increasing exponentially - in 2007 alone, it has registered more than 1,000 new cases.

The organisation would like to extend its existing powers, for example to set up joint prosecuting teams and liaise between prosecutors from different countries working on the same case.

The Lisbon Treaty gives Eurojust additional - but limited - powers, he said, as Member States can still ignore its strictures since judicial powers remain at national level. As Eurojust’s recommendations are non-binding national judges can choose either to cooperate or ignore them, depending on whether they accord with national practices.

Mr Falletti believed that the EPP would bring added-value to Eurojust by making it possible to refer ongoing cases - for example, on narcotics - to a central information-gathering system, ensuring that individual lawyers are aware of what is happening across the EU. However, in order to use this properly, the relevant national police and judiciary will have to be involved.

Caution will also be needed in establishing the correct procedures, ensuring that defence mechanisms are reinforced and human rights respected, he said. One should bear in mind that, according to the Treaty, one of the conditions for establishing the EPP is that it should have a limited remit.

Mr Falletti was convinced that within two years, the EPP would have a legal framework, but said it would need to develop “step-by-step”.

Lorenzo Salazar, Member of the Cabinet of Freedom, Security and Justice Commissioner Franco Frattini, agreed that the EPP was “controversial”, but said fraud and corruption are “pioneer issues” in criminal and European law.

The Lisbon Treaty specifies that either an EPP would be established to protect the EU’s financial interests, although the European Council could agree to extend its competence to cover cross-border crime, or, as mentioned above, a group of Member States can opt for enhanced cooperation. According to a 2003 study, 15 Member States were in favour of establishing an EPP, stressing that it needed to cover cross-border crime.

Turning to the question of how to set up the EPP, Mr Salazar believed that it should develop out of Eurojust, beginning with coordinating criminal proceedings and solving disagreements between national jurisdictions. However, unlike Eurojust, it would also be able to bring cases before national courts.

Eurojust already has the independence and necessary powers, he said, and the EPP could use its database to exchange information. It is also the best body to protect the rights of individuals, as it is composed of judges and public prosecutors.

Roger Smith, Director of Justice, the law reform and human rights non-governmental organisation, was both critical and sceptical about an EPP. Coming from an Anglo-Saxon background, he said he tended to be pragmatic and to see what worked, rather than dealing with concepts.

He believed that as the Union was composed of so many different cultures, national legal systems differed too much for it to be possible to meld them into one pan-European system.

He was also concerned about the EU moving towards creating a Public Prosecutor without having agreed common standards for defendants’ legal aid, translation and general rights, stressing that it was a “myth” that these rights were automatically protected by EU law. Defendants’ rights are not secure across the EU, he said, as the standards in some accession countries fall below accepted norms.

However, he felt that one area in which an EPP might work would be in prosecuting fraud cases across the EU, provided that this was done by one national prosecutor who carried the case through.

The recent furore surround the case of the “NatWest Three” - three British bankers arrested for fraud in the Enron case and extradited to the US - demonstrated the massive gap that can exist even between two common law systems. He believed it was a “step too far” if defendants’ rights were not properly protected, and preferred what he described as an “EPP-light”.