Dott. Ferrara, former Antimafia and Antiterrorism public prosecutor in Palermo and now one of the two appointed European Delegated Prosecutors in Sicily, welcomed us in his office to discuss about the activities conducted so far and the challenges ahead.
How has the establishment of the European Public Prosecutor’s Office been received in your field of work?
[The EPPO was welcomed] with interest by some, with mistrust by others and with doubts by still others. Nonetheless, our day-by-day duty will be to manage to overcome those controversial aspects that are undeniably there.
Which offences envisaged by Directive (EU) 1371/2017 are most frequently encountered in judicial practice and specifically in the geographical context in which you work?
At this moment and within our territory of competence, which is Sicily and Calabria, the data on the judicial proceedings administrated by our office shows that they concern for the 70-80% frauds against EU resources funding the so-called CAP (Common Agricultural Policy), which represents one of the main pillars of the European Union aiming at supporting farming and involves conspicuous amounts of resources that the EU allocates for these activities.
What issues arise from the provisions governing the material competence of the EPPO as envisaged by Regulation (EU) 1939/2017?
Clearly, there are issues on the competence regime. Nonetheless, we have faced none of this so far: the Italian legislator envisaged a system providing that the competence of the EPPO shall prevail when a PIF offence occurs, that the judicial police must report both to the EPPO and the national public prosecutor and prescribing that the EPPO shall evaluate in the first place whether it falls within its competence. Clearly, the national public prosecutor (…) may file a sort of conflict of jurisdiction before the competent national authority, which it the General Public Prosecutor before the Court of Cassation. The main issue is of course the interpretation of certain expressions, such as “inextricably linked offences” (…). This is because it may occur that during an investigation on organized crime conducted by the national competent authority, some offences falling under the competence of the EPPO emerge which the national public prosecutor has the duty to report. This requires that the competence be carefully considered. I must admit that the guidelines provided for by the central office of the EPPO clearly suggest not to interfere with the proceedings in which national authorities have already put considerable effort into.
Do the provisions on cross-border investigations provide an added value compared to the international cooperation mechanisms already in force?
This should represent the actual added value of the EPPO as it allows to bypass those dispositions on cooperation instruments such as letter rogatory, investigative orders and exchange of information. Working as in a unique office which operates in 22 Member States makes it possible that with the simple participation of the EDP of the assisting Member State we conduct a joint operation (…). There still are some issues, such as the fact that judicial systems across the EU are very different among each other and therefore some activities that in Italy are carried out by the public prosecutor, in another state they must be subject to a judicial request. (…) Just to give an example: in Italy, searches are authorized by the public prosecutor, while in most Member States they are authorized by the judge. If I am conducting an investigation and need for a search to take place in one of those states, shall I issue a decree and ask my colleague to execute the measure, or will he be required to ask for the authorization to the judicial authority in their state?”.
Do you think that the involvement of organized crime in illicitly draining European Union funds could mean the involvement of the European Public Prosecutor’s Office also in this type of investigation?
This represents the main object of our activity in the times ahead since, in light of the regime on the competence of the EPPO, every time that the funds are even in part deriving from the European Union the EPPO can exercise its competence. Once the resources of the PNRR (Piano Nazionale di Ripresa e Resilienza, ndr) are distributed, 90% of the public spending will be of EU origin.
Considers it appropriate for the European Public Prosecutor’s Office to extend its jurisdiction to crimes that are not limited to the protection of the Union’s financial interests or membership of criminal organizations?
In my opinion, this is advisable in the long run. I will probably be in retirement as the process is very long and above all it depends on the outcome of this new body. It is absolutely necessary for certain offences: I am thinking about transnational environmental crimes, which is a big topic under discussion; I am also thinking about terrorism, human trafficking and all those crimes which necessarily involve more than a country. Nonetheless, this would require that national authorities quit their jurisdiction and also an improvement in the organization of the offices.
Some Member States such as Poland, Hungary, Denmark, Sweden and Ireland did not take part in the enhanced cooperation; do you consider it necessary to regulate the investigations on frauds against EU funds?
(…) It would be advisable for every Member State to take part in the EPPO, but this is mostly a political stand more than a judicial one. Agreements have been made with several non-EU countries as several issues arise in this regard, as it is happening with Switzerland. Switzerland has in place some cooperation agreements with Member States; nonetheless, a request casted by the EPPO and a request made by the public prosecutor of Palermo are very different as Switzerland holds that the EPPO is not Italy but a different body and therefore does not cooperate with us. It will be necessary to conclude ad hoc agreements with these countries.
Serena Cacciatore, Costanza De Caro, Alejandro Hernández López, Cristina Ruiz López and Ana María Vicario Pérez.