Author: Serena Cacciatore,Costanza De Caro, Alejandro Hernández López, Cristina Ruiz López, Ana María Vicario Pérez, Celia Carrasco Perez.
Committee: Interviews Committee
Date: 06/05/2024
Interview Olga Vicente Sarasúa: Investigadora predoctoral en la Universidad del País Vasco/Euskal Herriko Unibertsitatea
Beneficiaria del Programa Predoctoral de Formación de Personal Investigador No Doctor del
Departamento de Educación del Gobierno Vasco
- ¿Cómo se ha acogido la creación de la Fiscalía Europea en el ámbito laboral de referencia?
The academic field has received the creation and setting up of the EPPO with curiosity and excitement. Every professional in the field studying EU Law, European integration, judicial cooperation in criminal matters and even Criminal Procedural Law understands the ground-breaking nature of the EPPO as an EU organism who will investigate and prosecute PIF crimes directly in the participating Member States´ territory. However, there are still some questions regarding the interpretation of some provisions contained in the EPPO Regulation, but every day we learn more about the EPPO and we deepen our understanding of it.
- ¿Qué delitos PIF se constatan mayoritariamente en la experiencia judicial dentro del país o de la zona geográfica de referencia?
According to the data in the EPPO´s Annual Report of 2022, the highest number of investigated PIF offences committed in Spain are non-procurement expenditure fraud, procurement expenditure fraud and Value Added Tax revenue fraud. Within the first category, criminal conduct seems to focus on agriculture and rural development programmes. These data seem to be in line with the ones obtained in different studies, such as the one published on the 31st of July 2021 on the Impact of Organised Crime on the EU´s Financial Interests. This study pointed out that Spain had been at the top of the amount of cases of fraud detected in the areas of European Structural Investment Funds and Common Agriculture Policy from 2015 to 2019.
- ¿Qué cuestiones se derivan de las disposiciones que regulan la competencia material de la FE prevista en el Reglamento (UE) 1939/2017?
Firstly, I would like to point out, as many authors have already done before me, that the main disadvantage stemming from those Articles is the fragmentation caused by the fact that the material competence of the EPPO is determined by the PIF Directive and, therefore, by the transposing national legislation of the participating Member States. Secondly, other issues that may arise from them are those related to the conflicts of competence between national authorities and the EPPO, for example, regarding the inextricably linked offences. Such a situation took place in Spain between the EPPO and the “Fiscal General del Estado” (the Spanish General Prosecutor). The last one decided that the competence for these linked offences lied with the national authorities -with the “Fiscalía Anticorrupción” (the Spanish Anti-Corruption Bureau)-, and not with the EPPO. A decision that the European General Prosecutor found worrisome due to the fact that it considered the “Fiscal General del Estado” partial to the proceedings (as it was the hierarchical superior of the “Fiscalía Anticorrupción”) and because the decision had been adopted without hearing both parties.
In my view, these are probably the most important issues concerning the material competence of the EPPO, through which it must navigate on a daily basis in order to make sure that the organism is effective and fair when fulfilling its mission.
Other issues could also be mentioned, like the possibility of extending the EPPO´s material competence to other crimes either related to or unrelated to the PIF crimes, like terrorism or human trafficking. In 2018 the Commission proposed extending the material competence of the EPPO to transnational terrorism, which may provoke certain difficulties regarding the organisation and functioning of the EPPO, as some authors have pointed out, since it has been established and oriented towards the investigation and prosecution of PIF crimes.
4. ¿Aportan las disposiciones relativas a la investigación transfronteriza un valor añadido en comparación con los mecanismos de cooperación internacional ya en vigor?
Article 31 of the EPPO Regulation establishes a dialogue between the European Delegated Prosecutors when conducting transnational investigations. It allows them to have recourse to other existing judicial cooperation instruments as well, like the European Investigation Order or the European Arrest Warrant. In that sense, the system established by the EPPO seems to be of added value compared to the previous situation. However, this dialogue might prove cumbersome too. For instance, the ECJ has already been presented with a request for a preliminary ruling on the correct interpretation of Article 31, paragraph 3, of the EPPO Regulation, on the need for judicial authorization on investigation measures in cross-border investigations (Case C-281/22). In addition to this, as some authors have noted, while this system might be effective for the European Delegated Prosecutors involved, it might not be so for the suspects, whose procedural guarantees contained both in national legislation and in EU Directives -a matter that has not been harmonized by the EPPO Regulation-, may or may not be applicable in transnational cases. A perfect example of this is the Directive on legal assistance, which does not recognize the possibility for the suspect to have legal representation appointed in all the Member States concerned in cross-border investigations, whereas this is possible when a European Arrest Warrant has been emitted.
5. ¿Representa la EPPO una medida útil para contrarrestar las conductas corruptas perpetradas por las organizaciones criminales para drenar ilícitamente los fondos de la Unión Europea (véanse los Planes Nacionales de Recuperación y Resiliencia)?
The EPPO´s impact on combating crimes against the financial interests of the EU committed by criminal organizations is undeniable, since it is the first EU organism with the competence to directly investigate and prosecute them; unlike OLAF, who can only issue recommendations to the Member States. This novelty alone makes the EPPO a very powerful and useful organism, capable of tackling these issues effectively. Nevertheless, I believe it is still early to come to a definitive conclusion on the matter and so, we will have to wait and observe the EPPO´s daily work and how the issues it is presented with (like the ones we have mentioned so far) are dealt with.
6. ¿Consideraría conveniente que la Fiscalía Europea ampliara su ámbito de competencia material a delitos no circunscritos a la protección de los intereses financieros de la UE o a la pertenencia a organizaciones criminales?
As I have already stated, the Commission proposed in 2018 extending the EPPO´s material competence to cover transnational terrorism. Certainly, it would be a good idea to have a powerful EU organism with the ability to directly operate in the territory of the Member States and confront these behaviours, but I am afraid such a change may not be too convenient, nor very likely, in the near future. The biggest reason for this is the fact that it was necessary to use the enhanced cooperation mechanism to agree on an EPPO like the one we have today, that is, focused on and built to face PIF crimes. And some Member States still do not participate in it. Therefore, it seems very improbable that an agreement is reached among the Member States to further extend the EPPO´s competence.
7. Polonia, Hungría, Dinamarca, Irlanda y Suecia no participan del Reglamento, ¿cree necesaria una normativa reguladora de procedimientos de investigación de desviación de fondos europeos para estos países?
It is a difficult question, as the problems that have arisen from the relations of the EPPO with each of these countries are also different and so have been the solutions adopted thus far. As a matter of fact, the EPPO has subscribed a working agreement with Hungary, whereas cooperation with Sweden has been managed through the setting up of a Joint Investigation Team with Eurojust´s help. And cooperation with other non-participating countries has proven to be much more challenging. Such is the case of Ireland, who has refused to cooperate with the EPPO because it does not recognize it as a competent authority. Therefore, and because there are not that many non-participating Member States, a uniform and common set of rules for all of them may not be ideal in this scenario and, at least for now, it would be better if the EPPO maintained the individualistic approach it has followed up to this day.
8. En España sigue vigente el modelo de instrucción a cargo del órgano jurisdiccional, ¿qué problemas prácticos puede suponer de cara a aplicar el nuevo modelo de Fiscalía Europea? ¿Es suficiente con la regulación de la Ley Orgánica 9/2021, de 1 de julio, de aplicación del Reglamento (UE) 2017/1939 del Consejo, de 12 de octubre de 2017, por el que se establece una cooperación reforzada para la creación de la Fiscalía Europea?
I do not think the Spanish prosecution system, by which a judge conducts the investigation of the offences, is too problematic per se. Investigation procedures conducted by the Public Prosecutor´s Office are not new, as such a system has been in place in Spain for a long time in the case of the prosecution of offences committed by minors. Having said that, other issues have stemmed from this law. We have already mentioned the conflicts between the Spanish Prosecutor´s Office and the EPPO. However, I would like to focus on another problem, which is that of the judicial control of the EPPO acts and whether the system envisaged in both instruments (in the Spanish Law and in the EPPO Regulation) are compatible with each other and with the Treaties. Right now, a request for a preliminary ruling on the interpretation of Article 42.1 of the EPPO Regulation is pending before the ECJ, as some judicial acts that would be reviewable under it were not under the Spanish Law (Case C-292/23).
There has been a big push in Spain for the assimilation of the Spanish prosecution system to the most common one in the rest of the EU Member States, that is, one where the prosecutors are in charge of the investigation of the crimes. However, while practical, this assimilation does not necessarily have to be the only nor the best course of action. What really needs to be taken into account when making such a decision is what system combines effectiveness in the prosecution and respect for procedural guarantees and fundamental rights of all the parties involved.
9. ¿Desea añadir algún comentario más?
Despite the way the EPPO has finally been created, that is, via enhanced cooperation and with some Member States still not taking part in it, I believe it will prove to be a useful addition to the EU. Since its creation, the EPPO has adopted new rules regarding its functioning and day-to-day work, which can solve some of the issues that emerged in the EPPO Regulation in relation to the existing EU Law and instruments in the field of judicial cooperation in criminal matters. In fact, these rules have helped clarifying some of the uncertainties on the EPPO´s structure. However, now that the EPPO is active, questions related to its performance are more present and must be dealt with, the answer to which will come from the progress of the EPPO´s activities. That way we will be provided with the necessary information to analyse the EPPO´s work and examine the organism´s virtues and points in need of improvement.
