General issues of the jurisdiction of the European Public Prosecutor’s Office (EPPO)
The EU regulation establishing the European Public Prosecutor’s Office (Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’). OJ L 283, 31.10.2017, p. 1–71) clearly defines its jurisdiction, stating that the EPPO can only act in the case of alleged crimes committed on the territory of those member states that had become part of this enhanced cooperation system (Article 2, paragraph 1, Articles 22 and 23). However, based on the provisions of the founding treaties (amended by the Lisbon Treaty), it is not mandatory to become a part of this system. The European Public Prosecutor’s Office, as a concept, was created as an alternative or addition (with the consent of the member state concerned), to replace or supplement the operation of the prosecution authorities of the member state concerned before its sovereign judicial forums. And it is to be applied in the case of commission of certain crimes defined by the European Union – meaning that it is not a general investigative and prosecution institution. The regulation establishing and controlling the activities of the European Public Prosecutor’s Office prescribes this as a basic rule regarding the operation of the EPPO and does not provide any possibility for the EPPO to deviate from these regulations for any reason.
At the same time, it is necessary to stress that the most important feature of the operation of the European Public Prosecutor’s Office is not the possibility of conducting investigations, but the possibility of bringing charges, representing the prosecution of crimes before the courts of the member states.
This somewhat limited jurisdiction continuously led to political tensions concerning corruption-related crimes in some member states, which had chosen not to participate in this cooperation, raising the questions of possibly widening the EPPO’s jurisdiction.
Operation out of its regulation-based jurisdiction?
At the same time, it is necessary to stress that the most important feature of the operation of the European Public Prosecutor’s Office is not the possibility of conducting investigations, but the possibility of bringing charges, representing the prosecution of crimes before the courts of the member states.
In light of the fact of the function of the EPPO of representing prosecution before the courts of the member states, any ideas about the EPPO activating itself in case of crimes committed on the territory of a non-participating member state, raises a lot of questions. As the most significant feature of the operation of the EPPO is prosecution in representation of charges before domestic courts, it is highly questionable if it is able to do this before the courts of a non-participating member state. The reason of this is that a court like that probably cannot provide the European Public Prosecutor’s Office with active litigation legitimacy based on the domestic legislation in force – namely the lack of any legal norms providing so. It would only be possible with relevant member state legislation in force, which could provide the legal conditions for that. In the absence of this, the lack of legislation on the basis of which the domestic court would be able to regulate the activities of the European Public Prosecutor’s Office in the courtrooms, as well as the cooperation requirements of the member state authorities cannot be met, since e.g. Article 28, paragraph 2 of the regulation explicitly refers to the governing power of the provisions of the applicable national legislation.
It is possible to argue – and in theory, this is a valid argument – that in the case of missing domestical legal norms, the EPPO regulation can operate as a directly effective and applicable piece of legislation, but the regulation itself neither can create the missing domestic legislation, nor can it give the EPPO the authority to substitute for the national legislator – it cannot circumvent the problem of the member state not being part of the system.
Additionally, the regulation itself properly and clearly defines its territorial application: according to its definition, a “member state” means “a Member State which participates in enhanced cooperation on the establishment of the EPPO”. Based on this, it is not possible to extend the jurisdiction against the will of a non-participating member state.
Still a possibility to unilaterally extend jurisdiction?
Recently information had appeared before the public about the European Public Prosecutor’s Office possibly investigating an alleged corruption-related crime committed in Hungary (a non-participating member state), via some of its elements having been committed in Belgium (a participating member state), as some of the funds-related application materials in the specific case were submitted to the EU institutions in Belgium. This allegedly might provide jurisdiction for the EPPO, but only to investigate and bring charges in the Belgian justice system, before the Belgian court for an alleged crime committed in Hungary. Theoretically, this seems workable, but in practice, doing this could lead to the Belgian courts facing numerous legal problems. Apart from the one mentioned above, any criminal proceedings initiated this way may conflict with the principle of criminal procedure prohibiting double prosecution (as the territorial state may still claim to exercise its punitive power). This leads to the problem of the Belgian court itself being under the obligation of ending this criminal proceeding.
In the light of this, I consider it highly unlikely that the European Public Prosecutor’s Office would bring any charges in relation to the investigated crimes before the Belgian courts, if it can successfully conclude its investigations at all. At the same time, its investigations on the matter could serve as a base of cooperation with the Hungarian prosecutor service – based on a cooperation agreement those had concluded in 2021.
A possible competence conflict between EU institutions
An interesting conflict of jurisdiction may also arise in a case like that between the European Public Prosecutor’s Office and the European Anti-Fraud Office (OLAF). If the European Public Prosecutor’s Office conducts investigations due to an alleged crime committed in a non-participating member state, that may easily lead to this conflict, as the investigation of these crimes, according to the general rules, clearly falls under the competence of the OLAF, which does not have to observe “participation” as EPPO has to. It has indisputable jurisdiction to investigate even in the case of a crimes committed in the territory of Hungary – it only lacks the capacity to bring charges to the courts.
If the EPPO and OLAF are investigating at the same time, it may lead to a conflict of jurisdiction between the two EU organs, which is not permissible based on the founding treaties. It originates from the principle of institutional cooperation that each European Union institutions must respect each other’s competences and powers. In the case of the EPPO conducting a parallel investigation with the European Anti-Fraud Office, this principle can easily be violated – while its negative effects can be balanced with proper inter-institutional cooperation.
Conclusion
The creation of the European Public Prosecutor’s Office in 2007 was a bold step in strengthening the capacities of the EU against corruption-related crimes, supplementing the capacities of the European Anti-Fraud Office and of the member states’ authorities. Its inclusion in the Lisbon Treaty was a clear sign of willingness of member states to deepen their cooperation on this matter.
Still, this willingness has limits – and this again tells us the usual story of the EU. How much is the organisation willing to become a “federal state”, or to put it more precisely: how much are the member states willing to make it something similar to that? Operation limits of the EPPO, embodied in both the founding treaties and the EPPO regulation give us an answer to this question, even if not always to our liking.