The future judicial cooperation between the EPPO and third countries
| DOI | 10.1177/2032284419856698 |
| Date | 01 June 2019 |
| Published date | 01 June 2019 |
| Author | Nicholas Franssen |
| Subject Matter | Articles |
Article
The future judicial
cooperation between
the EPPO and third countries
Nicholas Franssen
Ministry of Justice and Security, Netherlands
Abstract
The editorial focuses on the need to develop the EPPO’s role in the fight against EU fraud in
relation to third countries. It gives an overview of the relevant international legal framework and of
the various options that the EPPO will have at its disposal to engage in judicial cooperation with
third countries under EU Regulation 2017/1939. It analyses the legal parameters that will deter-
mine the application of these modalities in practice and concludes that there may be room for
having a fresh look at ways of strengthening the external role of the EPPO once it is up and running
and in a position to define its external policy priorities.
Keywords
EPPO, judicial cooperation, third countries, EU fraud, mutual legal assistance
Introduction
This introductory section contains a general introduction to the subject of this editorial, the future
judicial cooperation between the European Public Prosecutor’s Office and third countries, a sub-
section on its extraterritorial competence and a sub-section on mutual legal assistance (MLA).
General introduction
Something perhaps not widely known or self-evident – except to those directly involved – is the
fact that money originating from the European Union’s (EU’s) financial instruments is not just
spent within the territory of its Member States or perhaps in some cases in their overseas territories
but equally in countries outside the EU (third countries). In fact, a recent Council document on
recitals and standard provisions on the protection of the Union’s financial interests in spending
programmes under the new Multilateral Financial Framework contains a list of 17 spending
Corresponding author:
Nicholas Franssen,Ministry of Justice and Security,Turfmarkt 147, 2511DP DenHaag, Netherlands.
E-mail: n.franssen@minjenv.nl
New Journal of European Criminal Law
2019, Vol. 10(2) 168–185
ªThe Author(s) 2019
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DOI: 10.1177/2032284419856698
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programmes under (in-)direct management where the programme is open to third countries.
1
The
implication of this is that the protection of the financial interests of the Union cannot and perhaps
should not even stop at its external borders.
2
As a matter of fact, even investigations concerning
fraud, corruption and any other illegal activity affecting the financial interests of the Union (EU
fraud) committed within the EU itself may bring the need to carry out investigations outside the
EU. The fight against EU fraud thus encompasses a significant external dimension. Needless to say
that dealing with EU fraud that has such an external dimension is an even greater challenge to all
those in charge of tackling EU fraud than it is already proving to be within the Union itself.
3
In
particular, the recovery of ill-spent EU money will be extremely difficult in the situation of third
countries being involved.
4
The external dimension of the fight against EU fraud will equally affect
the EU’s latest weapon to counter this phenomenon, the European Public Prosecutor’s Office
(EPPO). That new EU body was set up by Council Regulation 2017/1939 of 12 October 2017
implementing enhanced cooperation on the establishment of the EPPO.
5
The Regulation entered
into force on 20 November 2017. So far, 22 Member States have chosen to participate in the
project.
6
The EPPO is expected to be up and running by the end of 2020.
In his dissertation for King’s College London submitted as early as 2014,
7
Simon Drew evokes
the fictitious case of a high level EU official who is suspected of having defrauded his institution of
14 million EUR. The money that he obtained as a result of this is eventually moved through a bank
in London to a branch of that same bank in the British Virgin Islands (BVI) and settled into a BVI
Trust. Drew uses this fictitious case to illustrate the numerous problems in obtaining evidence from
Belgium, the United Kingdom and the BVI, prosecuting the suspect in Belgium and recovering the
money from the BVI. One of these issues is that it is unknown whether the BVI will recognise the
EPPO’s authority to take evidence or submit a request to freeze assets.
Not entirely surprisingly perhaps, in real life, examples of EU fraud that have a link to third
countries also occur. Figure 4 in OLAF’s (the European Anti-Fraud Office), annual activity report
for 2017 on concluded investigations into the use of EU funds managed or spent in whole or in part
at national or regional level illustrates this. In 2017, out of 102 investigations concluded in 2017,
no less than 24 concerned a country outside the Union.
8
In addition, figure 5 on ongoing inves-
tigations at the end of 2017, divided by sector, mentions 58 ongoing investigations in relation to
external aid out of a total of 362.
9
The activity report further mentions various forms of EU frauds
1. Council document 5146/19 of 9 January 2019, annex 5, pp. 9–10, approved by Coreper on 23 January 2019, see Council
document 5418/19 of 18 January 2019.
2. See Article 325(1), TFEU: ‘The Union and the Member States shall counter fraud and any other illegal activities
affecting the financial interests of the Union through measures’, an obligation that is not expressly confined to the
territory of the Member States.
3. Cf. Special report 1/2019 of the European Court of Auditors of 10 January 2019, titled ‘Fighting fraud in EU spending:
action needed’, point 105 et seq,p.42et seq.
4. Op. cit., see in particular the section in the report on the challenges the Commission’s Directorate-General for Inter-
national Cooperation and Development (DG DEVCO) faces in this field, points 121–124, pp. 47–49.
5. OJ, L 283 of 31 October 2017, p. 1.
6. At present, Denmark, Hungary, Ireland, Poland, Sweden and the United Kingdom do not participate in the EPPO.
7. Simon Drew, ‘Stress testing the proposed European Public Prosecutor’s Office (‘EPPO’) by scrutinising two areas it has
to get right: its establishment and its relationship with 3rd countries’, p. 42 et seq.
8. See the OLAF report 2017, p. 13.
9. Op. cit.
Franssen 169
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