Authors: Benedetta Ubertazzi, Curzio Fossati
According to Article 2 of the Treaty on European Union, the Rule of Law is one of the fundamental values of EU law.
The Rule of Law requires that all public powers act within the limits set by the law and presupposes respect for the principles of legality, legal certainty, the prohibition of arbitrary action by the executive, effective judicial protection, including access to justice by independent and impartial courts, and the separation of powers.
Over time, the European Union has equipped itself with what is known as the rule of law toolbox, i.e. a set of instruments that can guarantee the protection of the Rule of Law. These instruments can be divided into two groups according to their nature: on the one hand, there are instruments of a political nature (i.e. the mechanism provided by Art. 7 TEU, the so-called Rule of Law Framework and the Regulation No. 2020/2092); on the other hand, there are the instruments of a judicial nature (i.e. the infringement procedure, the preliminary referral to the Court of Justice).
The Commission’s annual report on the Rule of Law could also be mentioned among these instruments. The report is a non-binding instrument that “takes the pulse of the rule of law situation in each Member State and the EU as a whole, detecting and preventing emerging challenges and supporting rule of law reforms” and it also includes specific recommendations to Member States.
In the 2023 Rule of Law report, the EU Commission stresses that an efficient and independent justice system and an anti-corruption framework are two key elements to ensure that the Rule of Law is upheld.
This statement is also supported by the recent judgment of the Court of Justice of the European Union, of 5 June 2023, in the case C-204/21, which ruled on the infringement procedure brought by the Commission against Poland. The ECJ stated that: “Article 19 TEU gives concrete expression to the value of the rule of law stated in Article 2 TEU (….)” and according to “(…) the second subparagraph of Article 19(1) TEU (…) it is for the Member States to establish a system of legal remedies and procedures ensuring for individuals compliance with their right to effective judicial protection in the fields covered by EU law. To ensure (…) such effective judicial protection, maintaining their independence is essential (…)”. The ECJ also ruled that “it is settled case-law that the guarantees of independence and impartiality required under EU law presuppose rules, particularly as regards the composition of a court and the grounds for objection to its members, which are such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. (…)”.
In this framework, the role of EPPO is vital.
First of all, it is well known that the European Public Prosecutor’s Office (EPPO) is an independent prosecution office of the European Union. Its task is to investigate, prosecute and try offences against the EU’s financial interests, including various types of fraud, VAT fraud involving more than €10 million, money laundering, corruption, etc.
The independence of the EPPO is laid down in Article 6 of its founding Regulation. It states that, “the EPPO shall be independent” and its bodies and staff “shall act in the interest of the Union as a whole, as defined by law, and neither seek nor take instructions from any person external to the EPPO, any Member State of the European Union or any institution, body, office or agency of the Union in the performance of their duties under this Regulation”.
Thus, the accession of a Member State to the EPPO’s enhanced cooperation is first and foremost proof of that State’s respect for the Rule of Law. In fact, such accession enables the State to bind itself to a supranational and impartial prosecution body, guaranteeing an effective system for fighting corruption and strengthening the right to effective judicial protection in the areas covered by EU law. It is no coincidence that states such as Hungary and Poland – protagonists of the so-called Rule of Law crisis – did not join the EPPO.
This is confirmed by the recent resolution of the European Parliament of 22 of March 2023 on the 2022 Rule of Law Report, in which it is stressed “the important role of the European Public Prosecutor’s Office (EPPO) in safeguarding the rule of law and in combating corruption in the Union, and (the Parliament) encourages the Commission to closely monitor Member States’ level of cooperation with the EPPO in subsequent reports; calls on the Member States which have not yet done so to join the EPPO”.
Furthermore, the EPPO plays a crucial role in the Rule of Law Conditionality Regulation. This Regulation, in force since January 2021, introduces a new system of conditionality that allows the EU to take measures – such as suspension of payments or financial corrections – against Member States that have failed to respect the Rule of Law, the sound financial management of the EU budget and the effective use of EU funds.
According to Article 4 of this Regulation, breaches of the principles of the Rule of Law concern, inter alia, “the proper functioning of investigation and public prosecution services in relation to the investigation and prosecution of fraud, including tax fraud, corruption, (…) the prevention and sanctioning of fraud, including tax fraud, corruption (…) and the effective and timely cooperation with OLAF and (…) with EPPO in their investigations or prosecutions pursuant to the applicable Union acts in accordance with the principle of sincere cooperation”.
It follows that a Member State which has an effective system for preventing and combating corruption, based on the timely and effective cooperation of its national authorities and the European Public Prosecutor (as well as with OLAF), can avoid the procedure provided for in the Regulation.
On the contrary, if the authorities of a Member State do not cooperate with the European Public Prosecutor’s investigations, this could be considered by the Commission as a sign of a breach of the Rule of Law.
Finally, through the fight against financial crime, the EPPO can also play a crucial role in the fight against the mafia, one of the first enemies of the Rule of Law.
In this context, it is worth mentioning that on 23 May 2023, on the occasion of the 31st anniversary of the “Strage di Capaci”, the President of the European Parliament, Roberta Metsola, stressed the importance of “cultivating a model of society based on trust, legality and the rule of law, (where) the new generations will no longer have to be afraid and the mafia will always lose”. The European Chief Prosecutor Laura Kövesi at the closing conference “EPPO and the Rule of Law” at University of Milano Bicocca, also remarked that “organised crime has to be fought with outmost determination at all times as its ultimate development stage is State capture under rule of terror. Organised crime is the most acute threat to rule of law in Europe”.
Nevertheless, it is worth noting that there has also been some doubt in the academic community about whether the EPPO is actually a strengthening of the rule of law.
The main concerns relate to the fact that the EPPO’ regulations are not sufficiently detailed and comprehensive – for example in terms of the competence of the EPPO and in terms of the choice of the forum for prosecution – and this may lead to a lack of legal certainty and predictability, protection against executive arbitrariness and effective judicial protection.
In this sense, the role of both national jurisprudence and the jurisprudence of the Court of Justice is fundamental, as they are called upon to clarify the provisions of the EPPO’ regulation in order to ensure greater legal certainty, and strengthening the respect of the Rule of Law.
 Judgment of the Court of Justice of 29 April 2004, CAS Succhi di Frutta, C-496/99 P, ECLI:EU:C:2004:236, paragraph 63; Judgment of 12 November 1981, Amministrazione delle finanze dello Stato v Srl Meridionale Industria Salumi and others Ditta Italo Orlandi & Figlio and Ditta Vincenzo Divella v Amministrazione delle finanze dello Stato. Joined cases 212 to 217/80, ECLI:EU:C:1981:270, paragraph 10; Judgment of 21 September 1989, Hoechst, Joined cases 46/87 and 227/88, ECLI:EU:C:1989:337, paragraph 19; Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses v Tribunal de Contas C-64/16, ECLI:EU:C:2018:117, paragraphs 31, 40-41; judgment of 25 July 2018, LM, C-216/18 PPU, ECLI:EU:C:2018:586, paragraphs 63-67; Judgment of 10 November 2016, Kovalkovas, C-477/16, ECLI:EU:C:2016:861, paragraph 36; Judgment of 10 November 2016, PPU Poltorak, C-452/16, ECLI:EU:C:2016:858, paragraph 35; and Judgment of 22 December 2010, DEB,C-279/09, ECLI:EU:C:2010:811, paragraph 58.
 Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget.
 Ex multis PECH, The Rule of Law in the EU: The Evolution of the Treaty Framework and Rule of Law Toolbox (March 30, 2020), RECONNECT, Working Paper No. 7 — March 2020, available at SSRN: https://ssrn.com/abstract=3608661 or http://dx.doi.org/10.2139/ssrn.3608661
 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, 2023 rule of law report, available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2023:800:FIN&qid=1688825511863
 Ib., p. 2.
 Judgment of the Court of Justice of 5 June 2022, Commission v Poland Commission v Poland (Indépendance et vie privée des juges) C‑204/121, ECLI:EU:C:2023:442, paragraph 70.
 Ib., paragraph 71.
 Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (the EPPO).
 As noted by the European Chief Prosecutor, Laura Kövesi, “the European Public Prosecutor’s Office is independent. This is a fundamental principle of rule of law: only an independent judiciary can enforce the law equally for everybody. The public concerns related to financial frauds, corruption and rule of law have grown stronger than ever. By protecting the European Union’s budget, we will play an essential role in making the European citizens’ trust in the Union stronger than ever” (https://www.eppo.europa.eu/en/news/european-chief-prosecutor-and-22-european-prosecutors-take-oath-court-justice-european-union ).
 DE MATTEIS, Autonomia e indipendenza della Procura europea come garanzia dello Stato di diritto, Questione giustizia, n. 2, 2020.
 UITZ, The Rule of Law in the EU: Crisis–Differentiation–Conditionality, in Uitz, The Rule of Law in the EU: Crisis – Differentiation – Conditionality (April 11, 2022), BRIDGE Network Working Paper No. 20 (2022), available at SSRN: https://ssrn.com/abstract=4081601 or http://dx.doi.org/10.2139/ssrn.4081601 p. 8-9; PECH, KOCHENOV, Strengthening the Rule of Law within the European Union: Diagnoses, Recommendations, and What to Avoid (June 13, 2019), RECONNECT Policy Brief No. 1, 2019 (Leuven), University of Groningen Faculty of Law Research Paper No. 28/2019, available at SSRN: https://ssrn.com/abstract=3403355, p. 11.
 Motion for a resolution on the 2022 Rule of Law Report – the rule of law situation in the European Union, 22 March 2023, available at https://www.europarl.europa.eu/doceo/document/B-9-2023-0189_EN.html .
 Ft. 2.
 PECH, KOCHENOV, Strengthening, p. 11. It was also argued by Federica Iorio at the conference “The EPPO and other bodies joining force” held at University of Milano Bicocca on 3 April 2022.
 The full video of the conference is available at https://www.steppo-eulaw.com/2023/04/18/the-full-video-of-the-closing-conference-eppo-and-the-rule-of-law-18-04-23/)
 MITSILEGAS, European prosecution between cooperation and integration: The European Public Prosecutor’s Office and the rule of law, Maastricht Journal of European and Comparative Law 28.2 (2021), p.245-264. Also Pietro Suchan, speaking at the above-mentioned closing conference, expressed doubts about the respect of the Rule of Law by the regulatory framework of the EPPO.
 In this respect, the recent request for a preliminary ruling from the Oberlandesgericht Wien is an important opportunity (Opinion of Advocate General Capeta delivered on 22 June 2023, C281/22 G.K.).