Author: Serena Cacciatore, Costanza De Caro
How has the establishment of the European Prosecutor’s Office been received in your field of work?
Well, generally speaking it can be said that after a long period of having little knowledge of the subject matter, I would say as much on the part of the fellow magistrates, and especially on the part of the legal profession, which had reacted initially even with a relative hostility to the project, then, once and only after the EPPO actually started its operations the attention was turned on the European Prosecutor’s Office. For a long time, it seemed like a project destined for an endless construction site which never came to fruition.
Then suddenly, after the adoption of the regulation in October 2017 and especially after it came into operation on June 1st, 2021, it drew a lot of attention and curiosity, which I also noticed from the several initiatives that were put in place by the professional bodies of lawyers.
So, the interest is there, obviously everyone is trying to understand what this will mean for their respective activities: as far as the magistrates are concerned, of course, it is a issue of competence; as far as the legal profession is concerned, it is a problem of equipping themselves to be able to respond to this new challenge.
Here in Naples, there have been several meetings and I also participated in others through Italy as well. Well, during most of these round tables among lawyers and experts the idea that emerged is that the importance of the challenge is understood, however doubts remain on how exactly experts should equip themselves to respond to it.
Earlier you mentioned the competence of the EPPO and in fact I was going to ask you later if you have knowledge of any issue that has been raised with respect to the discipline on competence, which as we know in the EPPO regulation is outlined with the referral to Directive 1371 of 2017, the PIF directive.
Well, I have no first-hand information about that. Obviously, I don’t have any practical experience with this, since it is my fellow European Delegated Prosecutors who are dealing with these issues on a day-to-day basis. Certainly, the text of the regulation compared to the initial proposal of the Commission looks considerably more complex in its application, particularly with regard to inherently inextricably linked offenses.
Then, other problems are associated with the provisions of the regulation which provide for priority jurisdiction in cases where the damage caused to the Union’s financial interests exceeds the one caused to other parties.
It is agreed on that, in short, they can be problematic aspects even the EPPO has already pointed them out to the Commission as aspects to work on. I agree with the idea that the lines here are quite complex to be drawn concretely.
This may lead to conflicts also with the national judicial authorities, with a possible referral of the question to the College. But it could lead to the involvement of the Supreme Court of Cassation, which has been appointed in our country as the competent authority to decide when problems of overlapping of competence arise due to lack of clarity of the provisions.
Therefore, is it possible that these conflicts might arise when national prosecutors claim their competence?
Yes, just to specify, the competent authority is not the Court of Cassation but the General Prosecutor before the Court of Cassation. About that, It should be made clear if there are legal problems on this choice, precisely if this is the competent authority for a referral of a preliminary question to the Court of Justice which might be requested to give its interpretation of the provisions.
My personal opinion, which I have already publicly expressed, is that the Regulation entrusts Members States with the identification of competent authorities to resolve conflicts of jurisdiction. Therefore, this referral directly legitimates all these authorities. In the Italian case the General Prosecutor’s Office before the Court of Cassation must be allowed to start a preliminary ruling procedure because otherwise, we would be deprived of the possibility for the competent authority to resolve conflicts of jurisdiction by turning to the Court of Justice for its interpretation. Others argue the opposite on the basis of the traditional case law of the Court, whereby the prosecutor’s authorities are not legitimized.
I apologize for being inaccurate earlier on. In light of the PIF directive, which types of offences do you think will mostly emerge in your territory?
Well, here in the in the district of the Court of Appeal in Naples we have a lot of VAT frauds, carousel frauds and also of agricultural frauds. These offences used to be subject to the statute of limitations, partly due to the complexity of the investigations but also for the little attention national authorities used to give them. This is exactly the reason why the Commission felt the need for a European Prosecutor who might acknowledge the importance of these offences.
As far as cross-border investigations are concerned, do you believe that the provision under Article 31 of the Regulation represents an added value in respect to already existent judicial cooperation mechanisms?
Well, certainly the direct delegation of investigations to colleagues and the smooth dialogue between them is an added value compared to the use of mutual recognition instruments. Certainly at least some difficulties have been reported on the aspects concerning the judicial authorizations. According to the regulation, the authorizations might even be two, one given by the authority of the State of the requesting EDP and one by the authority of the State required to execute the measure.
In that sense, the coexistence of two judicial procedures might aggravate the investigations more than another mechanism such as the European investigation Order might do. I hear that the problem has already been reported to the Commission.
The mechanism should definitely be simplified, and the necessary authorization should only be one in order to avoid a double judicial control. Besides, a preliminary question was referred to the Court of Justice on the matter so we shall wait to see what the Court will decide.
Do you believe that the EPPO represents a useful tool to counter corrupt practices, which we know that can be frequently put in place by organized crime in order to illicitly achieve European funds? I am thinking about the vast amount of financial resources that Member States are receiving from the European Union which here in Italy flow into the Recovery and Resilience National Plan.
Well, corruption is one of the offences within the scope of the competence of the EPPO with greater relevance and impact as it easily goes along with fraudulent behaviors. It was also acknowledged by the 1996 First Protocol to the PIF Convention that the link between the two offences is undisputed.
The EPPO is certainly a useful tool; indeed, the exclusive jurisdiction over PIF crimes also allows you to go deep into corruption investigations, so that all the increased attention and priority that precisely in the given to the protection of financial interests is also transmitted to any related conduct. In my view, EPPO represents an added value.
It is desirable that conflicts of competence do not arise in relation to these crimes, but when corruption is related to the commission of acts of fraud, in my view the regulation is unquestionably in favor of the EPPO jurisdiction.
So, there could also be cases where the involvement of an organized group emerges so that the EPPO might be able to investigate other cases as well.
About that there is the provision in the regulation that talks about focus of the criminal activity: this is the typical provision on which – especially in Italy where obviously the focus on criminal organizations, where we have the anti-mafia district directorates, National Anti-Mafia Directorate is at its maximum, there could be conflicts of competence. Hence, the extreme importance of being able, for the public prosecutor here to be able to also possibly ask the Court for an interpretation of the definition “focus of the criminal activity”.
Well, I’m not aware of any in this area so far, but since the beginning and since the conclusion of the regulation the area of mafia-type organizations is the one where most of the contrasts might arise.
The hypothesis in which a mafia-type organization only commits EU frauds seems to me to be unlikely. But of course, we have to distinguish mafia organization from criminal organization in technical terms, therefore and so nothing excludes that an organization that does not have those characteristics of mafia groups which root the jurisdiction within Anti-mafia districts, may instead have an activity actually focused on the commission of PIF crimes.
So, in short, let’s wait and see what happens in practice, I am confident that the loyal cooperation between EDPs and our national prosecutors, especially those in the districts, will lead to the mathematical solution to the problem.
Do you think that the European Public Prosecutor should extend its jurisdiction over crimes that are not limited to the ones against the financial interests of the European union inn line with what Art. 86 TFEU provides for, such as terrorism crimes? This was discussed by the European Commission in its proposal of 2018.
Yes, we all thought about terrorism, especially after the attacks that occurred in Spain in August 2018. There was an immediate request in August 2018 to extend the same jurisdiction over these crimes, even before the EPPO started its operations. This was supported by minister of justice, by President Macron himself and President of the Commission Juncker.
The first impressions on the results of the activity of EPPO are that it is proving very good efficiency in conducting investigations into PIF cases, but of course in order for the competence to be extended EPPO must show that it’s working effectively in the areas of its competence and it seems to me that it is doing so. The 5-year deadline for the Commission to draw a report on the activity of the EPPO propose innovations seems a bit long to me, probably given the stress on the emergency represented by terrorism, but also in environmental crimes.
Now, someone suggests that the EPPO shall have competence on the implementation of EU sanction regimes such as the ones imposed on Russia.
Here, let’s say that the risk is a little bit that in order to face the emergency of the moment, the EPPO turns into the simplest response. Of course, EPPO si proving it is working well, partly because it has a fairly limited scope of expertise, and any extension of expertise under Art. 86 § 4 would have to involve a significant upsizing of EPPO’s resources, because otherwise we would end up with an overcharged office with no material and personal resources.
Personally, I am in favor of a future extension of the competence if the EPPO will continue to show that it is working well and prove efficiency in prosecuting crimes under his jurisdiction. Only in that case, its jurisdiction can be expanded to those criminal phenomena that are typically transnational and that, in the interest of the whole Union, will guarantee to prosecute through greater coordination of investigations. But we have to be aware of the fact that, beside extremely complex procedure within the Council to reach unanimity, the increase of the resources should also be considered.
Hopefully the functions of the EPPO will not be debased also by the fact that it was concluded by means of enhanced cooperation. Indeed, there are some states that do not take part in the project. Do you think it will be necessary to conclude ad hoc agreements with Member States but also third countries, as in fact it has already been done for some countries?
We have to distinguish, because some protocols of cooperation have already been put in place, for example with Hungary, which can specify the terms of cooperation. With non-participating EU countries, we have a whole series of negotiations within the Council of Europe, where they are trying to figure out whether and to what extent the 1959 Convention on mutual legal assistance can be used. Many states have opposed the designation of prosecutors by individual states participating in the enhanced cooperation as competent authorities under the 1959 Convention. Switzerland has recently regulated this issue by adopting domestic legislation to this effect. However, an ad hoc agreement will be probably needed.
I personally do not understand these doubts. In my opinion, since the EDPs are based within the national judicial system, they can be designated as competent authorities for the purpose of cooperation between states.
This definitely is not enough to solve the problem; however I think that through the cooperation of Eurojust, the problem somehow will be regulated.