The future judicial cooperation between the EPPO and non-participating Member States

Published date01 September 2018
Date01 September 2018
Subject MatterEditorial
The future judicial cooperation
between the EPPO and non-
participating Member States
Council Regulation 2017/1939 of 12 October 2017 implementing enhanced cooperation on the
establishment of the European Public Prosecutor’s Office (EPPO)
entered into force on 20
November 2017. Twenty Member States initially agreed to be part of this enhanced cooperation.
Since then, the Netherlands
and Malta
have also joined the enhanced cooperation. This implies
that, to date, six Member States rem ain outside the scope of the enhanc ed cooperation. This
number includes the United Kingdom, that is, for the time being still on course to exiting the
European Union (EU) on 29 March 2019. The other five Member States are Denmark, Hungary,
Ireland, Poland and Sweden. In spite of all that, it is very well conceivable that the EPPO will in
practice have to seek (judicial) cooperation with at least some of these individual non-participating
Member States (NPMS) once it has taken up office or vice versa. The present contribution seeks to
identify a number of legal issues, in the author’s view still largely unsolved, which may come up
when the EPPO and NPMS engage in judicial cooperation in the near future.
The road from the 2013 European Commission
proposal to Regulation 2017/1939
When the European Commission (hereafter, the Commission) published its original proposal for a
Council Regulation on the establishment of the European Public Prosecutor’s Office on 17 July
it appears to have done so under the assumption that all Member States, except perhaps the
United Kingdom and Denmark,
would be keen to join the project. In fact, looking at the text of the
proposal, one is struck by the fact that it does not envisage the situation that one or more Member
1. OJ, L 283, p. 1 of 31 October 2017.
2. Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Italy, Latvia,
Lithuania, Luxembourg, Portugal, Romania, Slovakia, Spain and Slovenia.
3. Decision (EU) 2018/1094 of the Commission of 1 August 2018, OJ, L 196, p. 1 of 2 August 2018.
4. Decision (EU) 2018/1103 of the Commission of 7 August 2018, OJ, L 201, p. 2 of 8 August 2018.
5. COM(2013) 534 final.
6. See the Commission press release of 17 July 2013, where Commissioner Viviane Reding is quoted as follows:
Finally let me add one comment, to make it crystal clear from the start. Not all EU Member States are concerned by this proposal.
Denmark will not participate in this proposal. The UK – already in its government coalition agreement – has decided not to be
part of the European Public Prosecutor’s Office. While Ireland still has to decide if it wants to opt in. Icall on Member States and
the European Parliament to now rally behind this important project so that the European Public Prosecutor’s Office can assume
its functions as of 1 January 2015 (sic).
New Journal of European Criminal Law
2018, Vol. 9(3) 291–299
ªThe Author(s) 2018
Article reuse guidelines:
DOI: 10.1177/2032284418800851

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