EPPO and a common sense of justice
| Published date | 01 April 2021 |
| Date | 01 April 2021 |
| DOI | 10.1177/1023263X211005970 |
| Subject Matter | Articles |
Article
EPPO and a common sense
of justice
Thomas Elholm, PhD*
Abstract
This article discusses the Union’s general inspirational idea of creating a ‘common sense of justice’
and its implications with reference to the development of the European Public Prosecutor. When
the Commission presented its vision of an area of justice, it declared that the ‘ambition is to give
citizens a common sense of justice throughout the Union’. Although a sense of justice seems to be
something psychological and emotional, it also seems almost inevitably to promote EU integration.
The article discusses the various roles that the EPPO may have in contributing to a common sense
of justice and in particular the EPPO’s objective of achieving a Union-wide coherent practice on
prosecution and penalty levels. It analyses critically whether this practice – by mediating between
the different ‘common’ senses of justice in each Member State – is capable of contributing to a
common sense of justice.
Keywords
EU criminal law, common sense of justice, mutual trust, legal diversity, EPPO
1. Introduction
The European Public Prosecutor’s Office is founded on the EU vision of creating a single area of
Freedom, Security and Justice.
1
In July 1998, the Commission set out its vision for a single area of
justice. The notion of a common sense of justice is used by the Commission to explain the vision:
‘The ambition is to give citizens a common sense of justice throughout the Union’.
2
The present
* University of Copenhagen, Faculty of Law, København, Denmark
Corresponding author:
Thomas Elholm PhD, University of Copenhagen, Faculty of Law, 2300, København, Denmark.
E-mail: thomas.elholm@jur.ku.dk
1. See preamble No. 1 of Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on
the establishment of the European Public Prosecutor’s Office (‘the EPPO’).
2. Communication from the Commission, Towards an Area of Freedom, Security and Justice, COM(1998)459 Final, p. 8.
Maastricht Journal of European and
Comparative Law
2021, Vol. 28(2) 212–228
ªThe Author(s) 2021
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DOI: 10.1177/1023263X211005970
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article explores the possible implications of a common sense of justice in relation to the activities
of the EPPO.
Criminal law, including criminal procedural law, has been a battlefield of competence within
EU for decades.
3
Apparently, criminal law is a very sensitive matter for the EU Member States.
4
They have been reluctant to give up sovereignty and they have kept cooperation in criminal matters
(partly) intergovernmental for many years.
5
With the creation of EPPO, a new step has been taken
in a more supranational direction with enforced EU integration.
6
Still, the Member States are
reluctant to abandon sovereignty in the field of criminal law, and therefore EPPO has a more
decentralized structure than was originally proposed by the Commission.
7
It is the contention of this article that the sensitive approach by the Member States in the field of
criminal law, including criminal procedural law, is directly related to the special character of
criminal law. Criminal law is deeply rooted in the historical and cultural traditions of the Member
States, and therefore closely connected to common values and the common sense of justice of a
country. This viewpoint will be elaborated in the next section. It is also the contention of this article
that the EPPO is bound to strive for coherency regarding investigation and prosecution throughout
the Union (the focus of the following section), and that a coherent approach by the EPPO may clash
with the common sense of justice that some Member States (examined below) have. On the other
hand, the EPPO may contribute to the development of a common sense of justice throughout the
EU in matters of EU fraud (briefly elaborated below).
A general warning or disclaimer at the beginning of this article is appropriate: the topic
presented here is neither legal dogmatics in a strict sense nor any other specific scientific art,
although legal rules and principles as well as traits of so ciology are included. Instead, a few
questions are raised in regard to the functioning of the EPPO; questions which are fundamental
in the sense that they form the basis of a number of legal decisions within the EPPO’s competence.
There might be no clear answers to the questions presented. However, the questions are never-
theless important, if the EPPO is going to contribute to the creation of a single area of justice.
2. Criminal law, common values and a sense of justice
8
This section argues that criminal law is deeply rooted in society, in the cultural and historical
heritage and the common values of society. A common sense of justice is a manifestation hereof.
3. See for example the rulings of CJEU: C-240/90 Commission v. Germany, EU:C:1992:408, C-176/03 Commission v.
Council, EU:C:2005:542 and C-440/05 Commission v. Council, EU:C:2007:625.
4. See the contribution by Jacob O
¨berg, ‘Guest Editorial’ in this special issue. See also A. Weyembergh and C. Bri`ere,
Towards a European Public Prosecutor (EPPO), Study for the LIBE Committee, 2016, p. 9.
5. Criminal law and criminal procedural law were intergovernmental matters and therefore a part of the so-called third
pillar of the EU treaties from the adoption of the Maastricht Treaty in 1992 to the Lisbon Treaty, which came into force
in 2009.
6. See the contribution by ‘Jacob O
¨berg, ‘Guest Editorial’ in this special issue; J. Monar, ‘Eurojust and the European Public
Prosecutor Perspective: From Cooperation to Integration in EU Criminal Justice?’ 14 Perspectives on European Politics
and Society (2013), p. 339.
7. Compare COM(2013)534 Final with Council Regulation 2017/1939. See further section 4.A.
8. Parts of this section are based on T. Elholm, ‘The Emotional Component of Proportionality’, in E. Billis, N. Knust and
J.P. Rui (eds), Proportionality in Crime Control and Criminal Justice (Hart Publishing, 2021), p. 79; T. Elholm and R.
Colson, ‘The Symbolic Purpose of EU Criminal Law’, in R. Colson and S. Field (eds.), EU Criminal Justice and the
Challenges of Diversity: Legal Cultures in the Area of Freedom, Security and Justice (Cambridge University Press,
2016), p. 48.
Elholm 213
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