Towards a Decentralised European Public Prosecutor's Office?

DOI10.1177/203228441300400103
Published date01 March 2013
Date01 March 2013
Subject MatterArticle
22 Intersentia
TOWARDS A DECENTRALISED EUROPEAN
PUBLIC PROSECUTOR’S OFFICE?
S W*1
ABSTRACT
e author puts forward three models for the implementation of a European Public
Prosecutor’s O ce, taking into account the legislative progress that has been made in
the area of the European Criminal Law since the initial project wa s proposed in the late
1990s. She argues that the project is evolving towards a decentralised version of its
former self, to  t in not only with legislative developments but also with the Zeitgeist,
which calls for projects focus sing resources on the EU Member States.
Keywords: creation of large institution; decentralisation; Eurojust; European Public
Prosecutor (EPP); OLAF
e cre ation of a Eu ropea n Publ ic Pro secut or’s O ce seems now to be in sight, at lea st
from an EU-constitutional point of view. However, there promises to be at least two
major stumbling blocks , which can be summarised a s austerity and complexity. With
the climate of  nancial austerity in the EU, the Zeitgeist provokes considerations of
reduction and economy, rather than expansion and creation of new EU institutions
on a vertical model. Finding a politically palatable solution to  t in with the present
EU institutional structure and fast-evolving European criminal law framework is
di cult. Given political will (and/or a sudden event precipitating the need for an
EPPO), these stumbling blocks a re surmountable.
* Simone White is a Le gal O cer in OLA F, the Anti-Fraud O ce of t he EU, and an Hon. Research
Fellow at the Inst itute of Advanced Legal St udies in London.  e vie ws contained in thi s article are
not intended to represent tho se of the European Commi ssion.  is paper summarises some of the
issues raised at an IALS seminar held on 12December 2011. Speakers included Aled Williams,
Chairman of Eurojust, Peter Csonka, DG JUST Eu ropean Commission, Professor John Spencer,
Selwyn Col lege Cambridge and Chair of the U K European Criminal Law Association, Profe ssor
Katalin Ligeti and Valentina Covolo, Department of Law at t he University of Luxembourg.  e
author thank s Jan Inghelram , Lothar Kuhl and H ans Nilsson for their c omments on a dra .
Towards a Decentralised European Public Prosec utor’s O ce?
New Journal of Eu ropean Crimina l Law, Vol.4, Issue 1–2, 2013 23
From an EU-constitutional poi nt of v iew, Ar ticles85 and 86 of the Treaty on the
Functioning of the Eu ropean Union now appear in the chapter on judic ial cooperation
in crimina l matters of the Treaty on the Functioning of the European Union.1 ey
dea l wit h the possi ble ex tensi on of Eu rojus t’s powe rs2 and with t he conditions for the
creation of a European Public Prosecutors O ce (EPPO).  e need for the
strengthening of Eurojust and for the creation of an EPPO is being argued through
position papers and impact asse ssments. Nilsson comments:
I believe that we wi ll have to make a real impac t assessment, and not only an e valuation on
the funct ioning of Eurojust, and in pa rticular see whe ther there is a need for an EPP in the
light of how Eurojust works a nd how judicial cooperation in t he protection of the  nancial
interests of the Union works . Member States will not, at the present stage , be prepared to
go through what w ill be extremely complex a nd no doubt very lengthy disc ussions that wil l
be required before an E PP can start to funct ion, unless a real need has be en demonstrated
in an unambig uous manner.3
Since the original model for European Public Prosecution was formulated in 1997,
European crim inal law has progressed.  e EU now has a European Arrest Warrant4
and a European Evidence Warrant,5 e ven if t he latt er is re stric ted in func tional ity a nd
has only been implemented by two Member States. More convergence is expected
with a European Investigation Order6 and a set of EU procedural rights. It has been
argued that harmonisation was necessary to create the conditions of mutual trust
necessary to the smooth functioning of mutual recognition, so European criminal
law has progressed through mutual recognition, buttressed by harmonisation
whenever necessary.  e Char ter of EU Fundamental Rights is now an integ ral part of
the EU Treaty and the EU is on the road to becoming a party to the European
Convention on Human Rights.7
1 OJ (2008) C 115Consolid ated versions of the Treaty on Eu ropean Union and the Treaty on the
Functioning of t he European Union.
2 Eurojust was set up by C ouncil Decision 2002/187/JHA (OJ (2002) L 63/1) as a body of the Europ ean
Union with the mi ssion to stimulate a nd to improve coordina tion and cooperat ion between competent
judicial authorities of the Member States.  is Decision was subsequent ly amended by Council
Decision 2003/659/JH A (OJ (2003) L 245/44) and Council Deci sion 2009/426/JH A (OJ (2009) L 138/14.
See www.eurojust.europa.eu/press_releases/annual_reports/2010/Annual_Report_2010_EN.pdf.
3 H. Nilsson (2011), Judicial cooperatio n in the EU: Eurojust and the Europea n Public Prosecutor.
4 Framework Decision 2 002/584/JHA OJ (2002) L 190/1.
5 Council Framework Decision 200 8/978/JHA of 18 December 2008 on the European evidence
warrant for t he purpose of obtai ning objects , documents and dat a for use in proceedi ngs in crimi nal
matters OJ (2008) L 350/72.
6 See for example J. Black stock (2010), e European Investigatio n Order, New Journal of European
Criminal Law, Vol. 1, 4, 481–498; A. Farries (2010), ‘ e European I nvestigation Order, Stepping
forward wit h care’, New Journal of European C riminal Law, Vol. 1, 4, 425–432.
7 S. White (2010), ‘ e EU’s accession to the Convention on Human R ights: A new era of closer
cooperation bet ween the Council of Europe and t he EU?’, NJECL, Vol. 1, 4, pp. 425–432. T. Lock
(2011), ‘A critic al account of the accession of the Eu ropean Union to the European Conve ntion on

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