The relations between the European Public Prosecutor’s Office and the Member States that do not participate in the enhanced cooperation
| Published date | 01 March 2023 |
| DOI | http://doi.org/10.1177/20322844231157080 |
| Author | Fabio Giuffrida |
| Date | 01 March 2023 |
| Subject Matter | Special Issue Articles |
Special Issue Article
New Journal of European Criminal Law
2023, Vol. 14(1) 80–99
© The Author(s) 2023
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DOI: 10.1177/20322844231157080
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The relations between the
European Public Prosecutor’s
Office and the Member States
that do not participate in the
enhanced cooperation
Fabio Giuffrida
European Commission, Brussels, Belgium
Abstract
The first of June 2021 marked the start of the operational activities of the European Public Prosecutor’s
Office (EPPO). Established by Regulation (EU) 2017/1939 (‘EPPO Regulation’), the EPPO is the Eu-
ropean Union body competent to investigate, prosecute and bring to judgment the perpetrators of
criminal offences affecting the Union’sfinancial interests. The EPPO was established by means of
enhanced cooperation. At the time of writing, five Member States do not participate in the EPPO:
Denmark, Ireland, Poland, Hungary and Sweden. The effective action against crimes affecting the Union
budget requires however smooth cooperation between the EPPO and its counterparts not only in the
Member States that participate in the enhanced cooperation, but also in the non-participating Member
States. This contribution delves into such cooperation and the several issues it raises, first providing for
some introductory remarks on the choice of some Member States not to join the enhanced cooperation
on the EPPO. It then analyses the two main provisions of the EPPO Regulation concerning the EPPO’s
relations with non-participating Member States, Article 99 and, most importantly, Article 105. Finally,
this contribution shortly addresses the relevant role played by Eurojust in this context.
Keywords
EPPO, enhanced cooperation, judicial cooperation, European investigation order, Eurojust
Corresponding author:
Fabio Giuffrida, European Commission, Rue du Luxembourg 40, Brussels 1000, Belgium.
Email: fab.giuffrida@gmail.com
Introduction
The first of June 2021 marked the start of the operational activities of the European Public
Prosecutor’sOffice (EPPO). Established by Regulation (EU) 2017/1939 (‘EPPO Regulation’),
1
the
EPPO is the European Union body competent to ‘investigate, prosecute and bring to judgment’
2
the
perpetrators of criminal offences affecting the Union’sfinancial interests (hereinafter referred to also
as ‘PIF crimes’).
3
The EPPO was established by means of enhanced cooperation. At the time of
writing, five Member States do not participate in the EPPO (hereinafter referred to as ‘non-
participating Member States’): Denmark, Ireland, Poland, Hungary and Sweden. The effective
action against crimes affecting the Union budget requires, however, smooth cooperation between
the EPPO and its counterparts not only in the Member States that participate in enhanced co-
operation, but also in the non-participating Member States. This contribution delves into such
cooperation and the several issues it raises.
The next section provides for some introductory remarks on the choice of some Member States
not to join the enhanced cooperation on the EPPO and is followed by the analysis of the two main
provisions of the EPPO Regulation concerning the EPPO’s relations with non-participating Member
States, Article 99 and, most importantly, Article 105. Before drawing some conclusions, the relevant
role played by Eurojust in this context is als addressed.
The choice of some Member States not to participate in the enhanced
cooperation: Introductory remarks
The reasons for non-participation in the enhanced cooperation are different among the five above-
mentioned Member States. On the one hand, under Protocol No 22 to the Treaties, Denmark has
a permanent opt-out from measures adopted in the context of the area of freedom, security and
justice, and therefore from those relating to criminal matters, although Denmark may inform the
other Member States that it no longer intends to make use of that Protocol in whole or in part.
4
In
a similar vein, Protocol No 21 to the Treaties provides that Ireland, which actively participated in the
negotiations that led to the adoption of the EPPO Regulation, does not participate in the measures
relating to the area of freedom, security and justice but may decide to exercise the right to opt-in at
any time. No such right has been exercised so far with regard to the enhanced cooperation on the
EPPO.
On the other hand, the choice of Poland and Hungary (and to some extent Sweden) not to
participate in the EPPO seems largely motivated by political concerns specifically related to the
establishment of a new European prosecuting authority. Poland and Hungary chose not to par-
ticipate in the EPPO for reasons that seem to be mostly rooted in their concerns about sharing their
sovereignty with the Union in such a sensitive field.
5
As for Sweden, the Swedish Parliament was
one of the national parliaments that objected that the Commission proposal for an EPPO Regulation,
1. CouncilRegulation (EU) 2017/1939 of 12 October 2017 of 12 October 2017 implementing enhanced cooperation on the
establishment of the European Public Prosecutor’sOffice (‘the EPPO’) [2017] OJ L283/1.
2. Article 4 of the EPPO Regulation.
3. PIF is the acronym for ‘protection des int´
erˆ
ets financiers’.
4. Article 7 of Protocol No 22.
5. See the statements by the Hungarian Minister of Justice and the Polish Deputy Minister of Justice in Edit Inotai et al,
Democracy Digest: Hungary and Poland Refused to Join EU Justice League (4 June 2021) <https://balkaninsight.com/
2021/06/04/democracy-digest-hungary-and-poland-refuse-to-join-eu-justice-league/>.
Giuffrida 81
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