On 5 October 2022, the European Union has notified the Secretary-General of the United Nations of the modification of the extent of its competences for the United Nations Convention against transnational organised crime (UNTOC) and the United Nations Convention against corruption (UNCAC), respectively. These notifications have been registered with the depositary on 13 October 2022.
Therefore, the European Public Prosecutor’s Office (EPPO) was duly notified as a competent authority under UNTOC and UNCAC, which means that, to the extent applicable, the EPPO may use these UN conventions as legal basis for mutual legal assistance with non-EU states Parties to these universal instruments.
UN CONVENTION AGAINST CORRUPTION
With the entry into force of the Treaty of Lisbon, the powers of the European Union that succeeded the European Community have changed. The EU acquired new criminal law competences under Title V of the Treaty on the Functioning of the European Union (Articles 82 and 83 TFEU). The EU has exercised its competences by legislating in various policy areas relevant to the Convention.
For instance, anti-money laundering, integrity of financial markets, and fight against insider dealing, market manipulation and other forms of abusive behaviour in financial markets, freezing, management and confiscation of assets related to corruption, fight against corruption in the private sector by means of criminal law, fight against criminal offences affecting the financial interests of the Union and the protection of reporting persons (‘whistleblowers’).
The Union has also acquired the competence to establish the European Public Prosecutor’s Office (EPPO) (Article 86 TFEU). Established with Regulation (EU) 2017/19392, the EPPO is competent to investigate, prosecute and bring to judgment the perpetrators of, and accomplices to, criminal offences affecting the Union’s financial interests. In accordance with that Regulation, this includes: money laundering involving property derived from such offences, corruption that damages or is likely to damage the Union’s financial interests, and misappropriation that damages such interests.
In the areas mentioned above, as far as it has adopted measures, it is exclusively for the Union to enter into external undertakings with other countries or competent international organisations in so far as such undertakings may affect those measures or alter their scope.
In the sphere of development cooperation, the European Union has competence to carry out activities and conduct a common policy. This includes support to partner countries in the ratification and implementation of the United Nations Convention against Corruption and the use of provisions to combat fraud and corruption in agreements with partner countries. The exercise of this competence shall not result in Member States being prevented from exercising theirs. The Union’s development cooperation policy and that of the Member States reinforce each other.
UN CONVENTION AGAINST TRANSNATIONAL ORGANISED CRIME
The UNTOC and its Protocols are mixed competence agreements. They contain provisions that fall both within exclusive competence of the EU and within shared competence jointly together with EU Member States.
The new EU’s competences comprise important aspects of judicial cooperation in criminal matters (including mutual recognition of judicial decisions between EU Member States) and of police cooperation (Articles 87(2) and (3), and 89 TFEU). As regards substantive criminal law, competences under Article 83(1) TFEU extend to particularly serious crime with a cross-border dimension. The EU has exercised its competence by legislating in policy areas that are relevant to the Convention and its Protocols, including in relation to smuggling of migrants, environmental crimes and the freezing and confiscation of assets. Furthermore, the EU has established bodies responsible for investigating, prosecuting crimes against the Union’s financial interests.
The recently established EPPO is also competent for offences regarding participation in a criminal organisation as defined in Framework Decision 2008/841/JHA6, as implemented in national law, if the focus of the criminal activity of such a criminal organisation is to commit any of the above-mentioned offences affecting the Union’s financial interests.
- C.N.334.2022.TREATIES-XVIII.14 (Depositary Notification);
- C.N.349.2022.TREATIES-XVIII.12.b (Depositary Notification);
Author: Antony Zhilkin
Vice-President Steering Committee