The decision to drop the case in the new EPPO’s regulation: Res Iudicata or transfer of competence?

Published date01 June 2019
Date01 June 2019
AuthorMichele Caianiello
Subject MatterArticles
The decision to drop
the case in the new EPPO’s
regulation: Res Iudicata
or transfer of competence?
Michele Caianiello
University of Bologna, Italy
This article discusses one of the most important decisions the European Public Prosecutor’s Office
(EPPO) can take: the decision to drop a case. When this happens, the case will either be referred
to national prosecutors or to the European Anti-Fraud Office (OLAF) or dismissed entirely. Why
is this an important decision? Because it means the EPPO declines to prosecute, prosecution being
(along with investigation) its very raison d’e
ˆtre. This is why it is important to understand how and
when the EPPO may drop a case. In this respect, the EPPO Regulation (adopted on 12 October
2017) pursues two goals: first, it seeks to leave the EPPO a certain margin of discretion when
deciding whether to drop a case; secondly, however, it seeks to limit that discretion in order to
reduce the risk of decisions that are arbitrary or based on irrelevant considerations. This article
argues that this strikes an acceptable balance between two different legal traditions: the ones
inspired by the strict legality principle, such as Italy and Germany, and those inspired by the principle
of opportunity, such as France or England and Wales. The article further explores how this balance
is consistent with the emerging principles of international criminal law, where international
tribunals try the most serious crimes only.
European Public Prosecutor’s Office, decision to dismiss, res iudicata, transfer of competence,
criminal investigations, EU financial interests
Introductory remarks
On 12 October 2017, after 20 years of debates and proposals, the Council of the European Union
(EU) finally adopted the regulation establishing the European Public Prosecutor’s Office (EPPO)
Corresponding author:
Michele Caianiello, Department of Legal Studies, University of Bologna, Via Zamboni 27/29, 40126 Bologna, Italy.
New Journal of European Criminal Law
2019, Vol. 10(2) 186–199
ªThe Author(s) 2019
Article reuse guidelines:
DOI: 10.1177/2032284419860221

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