European prosecution between cooperation and integration: The European Public Prosecutor’s Office and the rule of law
| Date | 01 April 2021 |
| Author | Valsamis Mitsilegas |
| DOI | 10.1177/1023263X211005933 |
| Published date | 01 April 2021 |
| Subject Matter | Articles |
Article
European prosecution between
cooperation and integration:
The European Public
Prosecutor’s Office
and the rule of law
Valsamis Mitsilegas*
Abstract
The article will examine the challenges that the establishment of the European Public Prosecutor’s
Office poses for the rule of law – a question which has been underexplored in the policy and
academic debate on the establishment of the EPPO, which focused largely on questions of
structure and powers of the EPPO and the battle between intergovernmental and supranational
visions of European prosecution. The implications of the finally adopted legal framework on the
EPPO on the rule of law will be analysed primarily from the perspective of the rule of law as related
to EPPO investigations and prosecutions and their consequences for affected individuals – in terms
of legal certainty and foreseeability, protection from executive arbitrariness, effective judicial
protection and defence rights. The article will undertake a rule of law audit of the EPPO by focusing
on three key elements of its legal architecture – the competence of the EPPO, applicable law and
judicial review – and the interaction between EU and national levels of investigation and prose-
cution that the EPPO Regulation envisages. The analysis will aim to cast light on the current rule of
law deficit in a hybrid system of European prosecution located somewhere between co-operation
and integration.
Keywords
European public prosecutor’s office (EPPO), rule of law, defence rights, judicial protection, judicial
review, protection of Eu financial interests
* Queen Mary University of London Queen Mary University of London Mile End Road, London
Corresponding author:
Valsamis Mitsilegas, Department of Law, Queen Mary University of London, Mile End Riad, E1 4NS London.
E-mail: v.mitsilegas@qmul.ac.uk
Maastricht Journal of European and
Comparative Law
2021, Vol. 28(2) 245–264
ªThe Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X211005933
maastrichtjournal.sagepub.com
MJ
MJ
Introduction
1
The establishment of a European Public Prosecuto r’s Office has been the outcome of a long
gestation process fraught with political and constitutional tensions. A key tension in this context
has been the clash between a supranational, centralized vision of European prosecution put forward
by the European Commission and a more intergovernmental model of prosecution based on co-
operation between national systems appealing in a number of EU Member States concerned about
the impact of a centralized prosecution model on state sovereignty and national diversity in
criminal matters. The supranati onal and centralized vision of Europ ean prosecution has been
inextricably linked with the view of the EU budget as a sui generis, ‘European’ interest distinct
from national interests.
2
This vision emerged clearly in the academic study on the Corpus Juris
funded by the European Commission in the 1990s: the drafters of the Corpus Juris put forward a
highly centralized model of European criminal law related to the fight against fraud, a model which
emanated from the belief that the budget is a unique, European interest. According to its Expla-
natory Memorandum, ‘the Budget, defined as ‘‘the visible sign of a true patrimony common to
citizens of the Union’’ ..., is the supreme instrument of European policy. To say this emphasizes
the extreme seriousness of any crime which undermines this patrimony.’
3
At a time of limited EU competence in the field of criminal law, the Corpus Juris –whichput
forward the establishment of a European Public Prosecutor and a high level of harmonization in the
fields of substantive criminal law and criminal procedure – and institutions such as the European
Commission werearguing for further Europeanization in order to effectively protect the budget as a
European interest.
4
Underlying calls for EU intervention in this context has been a perception of
mistrust:national authorities are perceived to be unwillingor unable to fight impunity effectively and
to protectEuropean interests in the sameway or as effectively as they wouldprotect national interests
by theuse of criminal law.
5
The Corpus Juris as such was not adoptedin the form of EU law at the time.
MemberStates’ concerns withregard to the perceivedadverse effects of themodel proposed thereinon
state sovereignty and national diversity in criminal law have led to the advancement of European
integration in criminal matters in forms which were distinctly more intergovernmental and co-
operative: mutualrecognition (rather than harmonization) as the centrepieceof European integration
in criminal matters from the Tampere programme onwards, and the establishment – instead of a
centralizedEuropean PublicProsecutor – of a highly intergovernmental, ‘collegiate’ body responsible
for enhancing co-operation betweennational authorities but devoid ofcoercive powers, Eurojust.
6
1. The article builds on a presentation at the conference Transnational Criminal Enforcement by EU Criminal Justice
Agencies: From Cooperation to Integration?, organized by Jacob O
¨berg and the Swedish Network for European Legal
Studies on 17–18 October 2019 at Lund University. I would like to thank participants for their feedback and Fabio
Giuffrida and Jacob O
¨berg for their comments on an earlier draft. The usual disclaimer applies.
2. V. Mitsilegas, ‘The Normative Foundations of European Criminal Law’, in R. Schu
¨tze (ed.), Globalisation and Gov-
ernance: International Problems, European Solutions (Cambridge University Press, 2018), p. 418.
3. M. Delmas-Marty (ed.), Corpus Juris (Economica, 1997), p. 12.
4. For a background to the Corpus Juris, see M. Delmas-Marty, ‘Guest Editorial: Combatting Fraud – Necessity,
Legitimacy and Feasibility of the Corpus Juris’, 37 Common Market Law Review (2000), p. 247.
5. V. Mitsilegas, ‘Conceptualising Impunity in the Law of the European Union’, in S. Montaldo and L. Marin (eds.), The
Fight Against Impunity in EU Law (Hart Publishing, 2020 p. 13.
6. For an overview on the establishment and development of Eurojust see V. Mitsilegas, EU Criminal Law (Hart Pub-
lishing, 2009) and V. Mitsilegas, EU Criminal Law After Lisbon: Rights, Trust and the Transformation of Justice in
Europe (Hart Publishing, 2016).
246 Maastricht Journal of European and Comparative Law 28(2)
To continue reading
Request your trial