The EPPO and the pitfalls of actuarial justice
| Author | Marianne L. Wade |
| Published date | 01 April 2021 |
| Date | 01 April 2021 |
| DOI | http://doi.org/10.1177/1023263X211006516 |
| Subject Matter | Articles |
Article
The EPPO and the pitfalls of
actuarial justice
Marianne L. Wade*
Abstract
The article offers a critique of the current structure of the EPPO from a victim rights perspective. It
observes that the creation of the EPPO revolutionizes the institutional set-up of EU criminal justice
by creating a supranational body to address the enforcement gaps identified in the protection of
the financial interests of the EU. Unsurprisingly, this breakthrough has met with resistance from
the Member States, which have directed their scepticism into the structural, procedural and
substantive provisions for this new office. By consequently tying the EPPO to national law in a
plethora of instances, they have created a body which primarily addresses serious financial crimes
within the framework of domestic criminal justice systems. However, these approaches are, in
turn, heavily marked by a pragmatic concept of actuarial justice, with negotiation and plea-
bargaining as the dominant practices across Europe. Article 40 of the EPPO Regulation ensures
that there is scope for such practice to be adopted for cases falling within the EPPO’s competence.
Highlighting the problems associated with prosecutorial deal-making, the article reflects upon the
appropriateness of adopting such practice for the EPPO. It tentatively argues that a more honest
recognition of the supranational nature of the EPPO (also reflected in its procedural rules) and of
the type of victimization it seeks to address, might have instigated a productive dialogue ensuring
the EPPO’s work is framed with reference to serving a community and securing victim protection.
Above all, this would have constituted a significant step towards ensuring that the EPPO’s work is
legitimate and perceived as such by the EU citizens it seeks to serve and protect from victimization.
Keywords
EPPO, victims, case disposals, legitimacy, actuarial justice
* University of Birmingham, Birmingham Law School, Birmingham, UK
Corresponding author:
Dr Marianne L. Wade, University of Birmingham, Birmingham Law School, Edgbaston. B15 2TT, Birmingham, UK.
E-mail: m.l.wade@bham.ac.uk
Maastricht Journal of European and
Comparative Law
2021, Vol. 28(2) 265–280
ªThe Author(s) 2021
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DOI: 10.1177/1023263X211006516
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1. Introduction: The nascent European Public Prosecutor’s Office as a
champion of victim rights?
The Establishment of the European Public Prosecutor’s Office (EPPO) is a revolution. The cre-
ation of a Prosecutor’s Office at the EU level is a clear expression of supranational sovereignty in a
core area usually reserved for (and jealously guarded by) the Member States.
1
The EU now
features an agency wielding the ultima ratio of power over citizens. At the time of writing the
Chief European Prosecutor (CEP) has been appointed and recruitment processes for European
Delegated Prosecutors are under way. It is impossible to overstate the importance of this moment
in terms of the institutional development of the EU.
2
As will become clear, however, it is also
impossible not to recognize the distinctly EU nature of this revolution.
3
The creation of the EPPO is the major EU act conceptualized as contributing to the countering
of impunity within the EU.
4
At the heart of any such idea is the aim to ensure comprehensive
criminal justice. Modern conceptions of this are as a service to society in general and victims
specifically.
5
This unique, evolutionary development thus lends itself to an examination of how far
the Union’s practical deeds mirror the verbal and legislative commitments to victims’ rights and
interests that have formed a distinct characteristic of EU work in this policy area thus far.
6
In
undertaking this examination, within the context of this special issue, this article analyses the
EPPO (in the specific form created) as a factual triumph of (implemented) intergovernmentalism
even in the face of strong supranationalization. Whilst the EPPO is undeniably the pinnacle of
supranationalization, as we shall see, the reality of what is achieved (like the devil) is in the detail.
This article will examine what this means in terms of the EPPO’s likely standing in relation to
victims and their rights. The reality explored is one in which EPPO practice is strongly oriented
towards that in national criminal justice systems. These in turn will be demonstrated as far from
exemplary in terms of how they conceptualize and treat victims in relation to financial crimes,
adhering as they do to principles of actuarial justice.
7
The victory of factual intergovernmentalism
will be highlighted as encouraging the transfer of bad criminal justice governance habits. This will
be shown above all in relation to the case-disposal powers regulated for the EPPO in Article 40 of
1. See V. Mitsilegas, EU Criminal Law after Lisbon (Hart, 2016) p. 44 et seq. for an account of the enduring nature of this
desire amongst some Member States.
2. See J. O
¨berg, ‘The European Public Prosecutor: Quintessential supranational criminal law’ in this special issue.
3. For an account of its evolution, see the contribution of J. O
¨berg and C. Harding, ‘The journey of EU criminal law on the
ship of fools – what are the implications for supranational governance of EU criminal justice agencies?’ in this special
issue.
4. See L. Marin and S. Montaldo, The Fight Against Impunity in EU Law (Hart Publishing, 2020), p. 8.
5. Within the German system the concept of ‘Rechtsfrieden’ (literally ‘legal peace’ but an idea of society at peace under the
law) is recognized as the overarching goal of the criminal law M. Jahn, Loewe-Rosenberg: Die Strafprozessordnung und
das Gerichtsverfassungsgesetz: StPO, Band 1: Einleitung; §§ 1-47 (Beck, 2018) I, Margin Nr. 5. Ian Dennis identifies
just decisions as the core of a legitimate criminal justice system – see e.g. I. Dennis, ‘Rethinking Double Jeopardy:
Justice & Finality in Criminal Process’, Criminal Law Review (2000), p. 944.
6. See e.g. Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum
standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/
220/JHA, [2001] OJ L 315/57.
7. M. Feeley and J. Simon, ‘Actuarial Justice: the Emerging New. Criminal Law’, in D. Nelken (ed.), The Futures of
Criminology (Sage, 1994).
266 Maastricht Journal of European and Comparative Law 28(2)
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