Author: Viola Ludovica Alma Melone
Committee: Academic Committee
Date: 17/05/2024

The Academic Subcommittee plays an important role in promoting knowledge and research, stimulating academic debate on the EPPO, and helping to strengthen its effectiveness in combating fraud and financial crime in the EU. Its goal is to raise awareness among academics about the importance of the European Public Prosecutor’s Office and to extend its jurisdiction beyond substantive criminal law.
On the basis of Articles 82 and 83 TFUE, it is possible to ascertain limited legislative competence in substantive and procedural criminal law at EU level. Despite there being European directives and regulations concerning criminal procedure, most of the legal framework remains a matter of national competence, which is why the European Public Prosecutor’s Office operates in a legal context primarily consisting of national substantive and procedural criminal law, harmonized only to a small extent at the EU level. This is why criminal proceedings are conducted before national judicial authorities.
The main problem in the context of national criminal procedure concerns the lack of a unified criminal procedural code in the EU, despite the establishment of a single European prosecutor’s office operating across the EU territory. The fragmentation of rules results in a lack of uniformity and consistency, as laws should be predetermined and uniform for the purpose of fair justice. The annual report for 2022 highlights how an efficient European Public Prosecutor’s Office must not only conduct timely investigations but also respect the fundamental rights of suspects and the applicable laws of all Member States involved. However, the current regulation has gaps regarding the EPPO’s jurisdiction, as it does not clearly specify the criteria for the selection of delegated European prosecutors and confers upon EPPO Permanent Chambers a very wide discretionary power as to allocate jurisdiction among EDP of different Member States. This creates uncertainty and contradicts the fundamental principle of the pre-establishment of the natural judge and the principle of the mandatory nature of criminal law: the first principle ensures the judge’s connection to the location of the crime’s commission, which in the exercise of the jurisdictional function can encompass all the socio-cultural values involved in the process, further guaranteeing impartiality. The requirement of mandatory prosecution imposes on prosecutors to exercise criminal action every time elements of evidence supporting the accusation in court emerge in relation to a report of a crime.
Delegated European prosecutors must first apply the rules of the EPPO Regulation and for matters not regulated by this legislation, resort to national criminal and procedural law. In the case of concurrent legislation, the precedence of EU rules is recognized. In criminal matters, most rules are purely national law; therefore, the fundamental principle of consistent (with EU Law) interpretation, compliance with which is instead imposed in relation to national law enacted in implementation of EU law, is not applicable. The EDP are bound to respect the Charter of Fundamental Rights under Article 51, which contains several provisions in criminal matters and Article 5 of the EPPO Regulation which refers to fundamental rights.
The evidential discipline is also not uniform, making it difficult to determine the validity of collected evidence, and on this aspect, the involvement of Eurojust, a greatly supportive agency for EPPO, is envisaged to create a single European standard of proof and achieve a balance between the regulatory provisions governing the normative assumption of evidence in the state of collection and the legislation of the state that must recognize its usability in court.
The problem in the functioning of EPPO concerns the fact that the offenses under its jurisdiction are not directly provided for in a regulation but, differently, in the 2017 PIF Directive, this entails various transposition laws in each of the Member States, resulting in inevitable differences. There is a triple order of criticalities: first, delegated European prosecutors and lawyers practicing criminal law may not find national law norms transposing the 2017 PIF Directive, as PIF offenses are already provided for in the various national legal systems. Furthermore, in case of incomplete transposition of the directive at the national level, some conducts would be qualified as offenses under EU law but not at the national level, with the impossibility further established by the Court of Justice to invoke the direct effect. Lastly, the case of incorrect transposition of the PIF Directive into national law is problematic.

In view of this framework, remedies indicated by Article 41 are highlighted, which provide three levels of guarantees represented by the Charter of Fundamental Rights, procedural rights provided by non-harmonized national law, and five directives on the rights of defendants implemented by national law including fundamental aspects recognized to the defendant. Further guarantee is provided by the principle of consistent interpretation.
In the context of transnational offenses, another issue arises regarding which national law, among the 23 participating Member States, should apply to a given procedure. The criteria established by Article 26 are invoked, which refer to the center of criminal activity and the Member State where the most crimes were committed. However, these criteria are subject to derogations, and the Permanent Chamber has a very wide discretion as to deciding to transfer the jurisdiction of the investigation from one state to another in the general interest of justice. This margin of discretion raises concerns regarding the violation of the right to defense, since a change in jurisdiction may require a new defensive strategy, contrary to the principle of procedural economy. By its judgment C-281/22 the European Court of justice has clarified the interpretation of Articles 31 and 32 of the EPPO Regulation in response to a question regarding the degree of control that a judge can exercise over the validity and justification of an investigative measure carried out in the Member State of the assisting EDP. The Court has established that control over investigative measures lies exclusively with the country of the European delegated prosecutor responsible for the investigation (handling EDP), while the judicial authority of the assisting Member State can assess only the aspects related to the conditions of execution of the measure. This ensures that each State relies on judicial cooperation from other States without reviewing the merits of measures to be carried out on its own territory. In conclusion, given the absence of a European Criminal Code, there is a clear need for harmonization and close cooperation among Member States to address and overcome regulatory challenges. The Academic Subcommittee can contribute to ensuring more effective and uniform application of European and national laws in the context of the EPPO Regulation through various actions: from research and development, focusing on harmonizing regulations, promoting academic research, and identifying useful interpretative solutions in response to issues highlighted by scholarly articles; in the field of training and awareness, the committee can organize seminars and workshops to better understand the EPPO regulation and national laws; it can also formulate recommendations and guidelines regarding procedural and substantive aspects to promote greater coherence and cooperation between the EPPO and national authorities; finally, comparative analyses can be conducted to identify differences and contrasts and provide possible consultations. The interpretative and applicative problems of the EPPO Regulation could lead to a request for its review addressed to the European Commission; however, such a review of the EPPO Regulation would require several years to be adopted and enter into force.

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