Europe’s new Chief Prosecutor has her hands full from the outset

On 1 June 2021, the first supranational public prosecution authority, the European Public Prosecutor’s Office (“EPPO”), finally took office with the former chief prosecutor of Romania's National Anticorruption Directorate, Ms Laura Kövesi, being appointed Europe’s first Chief Prosecutor.

The EPPO will act as an independent and decentralised prosecution office with the power to investigate, prosecute and bring to justice crimes against the EU budget, such as fraud (over €10,000), corruption, money laundering and organised crime or cross-border VAT fraud above €10 million. Council Regulation (EU) 2017/1939 (the “Regulation”) sets out the legal framework for the EPPO.

The EPPO is built on two levels. The first is the Central Office, consisting of the European Chief Prosecutor, its two Deputies, the European Prosecutors (one per participating EU country) and the Administrative Director.

The second, decentralised, level consists of European Delegated Prosecutors located in the 22 participating EU countries. Denmark, Sweden, Ireland, Poland, and Hungary have not currently joined the initiative.

The EPPO will work closely together with existing EU bodies, such as OLAF (the European Anti-Fraud Office), Eurojust (the European Agency for criminal justice cooperation) and Europol (the European Police Office), who lack the powers to conduct criminal investigations and prosecutions. Equally, there will be working arrangements with EU Member States which do not participate.

The EPPO may exercise its competence either by initiating its own investigation or by using its right of evocation. If the EPPO becomes aware that an investigation in respect of a criminal offence for which it may be competent is already being undertaken by national authorities, it will consult with those authorities and decide whether to open its own investigation and request the competent authorities to transfer the proceedings to it.

The European Delegated Prosecutors will carry out the investigations of the EPPO in their respective Member States. The Regulation puts a series of specific investigation measures at the disposal of the Prosecutors, provided that the offences are punishable by a maximum penalty of at least four years of imprisonment in the relevant jurisdiction. These measures, which may be subject to limitations in accordance with national law, include obtaining the production of stored computer data (including banking account data and traffic data), the freezing of instrumentalities or proceeds of crime, the interception of electronic communications, and the tracking and tracing of an object by technical means. In addition to the minimum set of investigation measures listed in the Regulation, European Delegated Prosecutors must also be entitled to request or to order any measures which are available to prosecutors under national law in similar national cases. In cross-border cases, the lead European Delegated Prosecutor will be able to rely on assisting European Delegated Prosecutors when measures need to be undertaken in other Member States.

The investigations of the EPPO should, as a rule, lead to prosecution in the competent national courts in cases where there is sufficient evidence and no bars on legal grounds. The grounds for dismissal of a case are exhaustively laid down in the Regulation and include the immunity or amnesty granted to the suspect or accused person, as well as the expiry of the national statutory time limit in which to bring a prosecution.

If the national legal system provides for simplified prosecution procedures, for example in the form of agreements with the suspect or accused person, the European Delegated Prosecutor has the power to apply them in certain situations, such as where the damage or impact caused by the offence is not significant.

The new EPPO will have her hands full. Around 3,000 cases of alleged financial crime involving EU funds are already sitting in her in-tray.