The European Public Prosecutor: Quintessential supranational criminal law?
| Author | Jacob Öberg |
| Published date | 01 April 2021 |
| DOI | 10.1177/1023263X211005980 |
| Date | 01 April 2021 |
| Subject Matter | Articles |
Article
The European Public
Prosecutor: Quintessential
supranational criminal law?
Jacob O
¨berg*
Abstract
This article critically examines the extent to which the European Public Prosecutor’s Office can be
claimed to constitute a prime example of supranational criminal law. The article observes that
among policymakers and commentators, the Office appears to be a hallmark of the transformation
of EU criminal law from an intergovernmental paradigm to a strong federal and supranational
polity. The article discusses the scope, nature and limits to the powers of the European Public
Prosecutor’s Office, as well as its operating structure in light of Article 86 TFEU and the recently
adopted EPPO Regulation. It departs from the basic assumption that the EPPO stands in the midst
of supranationalism and intergovernmentalism. Whilst the EPPO is envisaged to be independent of
the Member States, the Office’s complicated, multifaceted and vertical structure means that
Member States are able to direct, to some extent, its activities. The article argues, however, that a
general assessment of the Office’s operational and strategic direction (where its operational
activities are managed and supervised by centralized ‘European’ prosecutors), and the type (direct
criminal enforcement powers) of powers it has makes it distinctive as the most ‘integrated’ and
‘supranational’ EU agency.
Keywords
EPPO, EU criminal policy, supranationalism, intergov ernmentalism, EU criminal law, European
prosecution, EU competences, justification for EU action, transnational interests
1. Introduction
The European Public Prosecutor’s Office (EPPO), which (at this stage of writing) will commence
its operation in the very near future, appears to be an emblem for the transformation of EU criminal
*O
¨rebro University, O
¨rebro, Sweden
Corresponding author:
Jacob O
¨berg, O
¨rebro University, Fakultetsgatan 1, 702 81 O
¨rebro, Sweden.
E-mail: jacob.oberg@oru.se
Maastricht Journal of European and
Comparative Law
2021, Vol. 28(2) 164–181
ªThe Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X211005980
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MJ
law from an intergovernmental paradigm to a strong supranational polity. The fashioning of such a
body in this sensitive policy field has, however, been a slow and contested process.
1
The seeds for
the EPPO were prefigured in the mid-1990s in the work of Corpus Juris. This project – which was
an early step towards a ‘federal’ approach to EU criminal law
2
– had suggested a scheme of
measures to counter the non-enforcement of offences against the EU’s budget, including sugges-
tions of a single set of offences applicable throughout the Union, a common set of procedural rules
for the prosecution of such offences and the establishment of a European Public Prosecutor.
3
The
rationale for creating a European Public Prosecutor emerged from legitimate concerns over exten-
sive ‘internal’
4
mismanagement and misappropriation of EU funds.
5
This, in conjunction with the
strategic importance of protect ing the EU budget, made a compelling ca se for establishing a
centralized European prosecution authority.
6
It is, however, conventional wisdom that the ambitious vision of the EPPO as an integrated
prosecution agency must be singled out as an extremely sensitive issue in political terms.
7
Member
States have voiced fierce opposition towards the establishment of such an office, viewing the
EPPO as a further encroachment on national sovereignty, and have expressed concerns over the
far-reaching implications of such an office on the functioning of national criminal justice systems.
8
More importantly, prior to Lisbon there was no treaty mandate to create such an office. Whilst such
an office was suggested by the European Convention,
9
the failure of the Constitutional Treaty
meant that it was impossible to constitutionally defend the establishment of a supranational
prosecutor with powers to develop a more ‘integrated’ EU criminal law.
10
Nevertheless, the prospect of creating a European Public Prosecutor derived real impetus from
the successful negotiation of the new Article 86 TFEU, which was enshrined in the Lisbon Treaty.
1. Described as a ‘rocky’ road’ in V. Mitsilegas, EU Criminal Law After Lisbon: Rights, Trust and the Transformation of
Justice in Europe (Hart Publishing, 2016) Chapter 4.
2. C. G´omez-Jara D´ıez, ‘Models for a System of European Criminal Law: Unification vs. Harmonization’, 1 New Journal
of European Criminal Law (2010), p. 385.
3. M. Delmas Marty and J.A.E. Vervaele, The Implementation of the Corpus Juris in the Member States –Penal Pro-
visions for the Protection of European Finances (Intersentia, 2001). See also Commission, Green Paper on criminal-
law protection of the financial interests of the Community and the establishment of a European Prosecutor, COM
(2001) 715 final, for a preliminary discussion on the design of a European Public Prosecutor.
4. C. Harding and J. Banach-Gutierrez ‘The Emergent EU Criminal Policy: Identifying the Species’, 37 European Law
Review (2012) p. 758 for the use of ‘external’ and ‘internal’ threats when describing EU criminal policy.
5. M. Wade, EuroNEEDs – Evaluating the Need for and the Needs of a European Criminal Justice System – Preliminary
Report (Max Planck Institute for Foreign and International Criminal Law, 2011) for an extensive report analysing the
need for a European Public Prosecutor.
6. See Commission, Commission Staff Working Document, Impact Assessment, Accompanying the Proposal for a
Council Regulation on the establishment of the European Public Prosecutor’s Office, SWD (2013) 274, p. 7; K. Ligeti
and M. Simonato, ‘The European Public Prosecutor’s Office: Towards a Truly European Prosecution Service?’, 4 New
Journal of European Criminal Law (2013), p. 7.
7. A. Weyembergh and C. Bri `ere, Towards a European Public Prosecutor, Policy paper for the European Parliament,
LIBE Committee, 2016, p. 9.
8. The yellow card issued by national parliaments against the EPPO Proposal is compelling evidence for this proposition:
Commission, Communication from the Commission to the European Parliament, the Council and the National Par-
liaments on the review of the proposal for a Council Regulation on the establishment of the European Public Prose-
cutor’s Office with regard to the principle of subsidiarity, in accordance with Protocol No 2, COM (2013) 851 final.
9. Draft Treaty Establishing a Constitution for Europe, [2004] OJ C 310/121, Articles 3–274.
10. 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.
O
¨berg 165
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