In this article in The Legal 500 (Legalease)‘s In-house Lawyer magazine, winter 2022 edition, Partner Alexandru Terta and Managing Associate Stefan Diaconescu highlight the essential role that the European Public Prosecutor’s Office (EPPO) will play in criminal investigations aimed at preventing and sanctioning individuals and/or legal entities who perpetrate crimes against the financial interests of the European Union (EU), as well as the competence of the European prosecutors delegated to perform criminal investigation activities in such cases.
Furthermore, they analyse the competence of the EPPO prosecutors in new or ongoing criminal cases, as well as different procedural incidents which might occur during the investigation (for example: conflicts between the competence of the EPPO delegated prosecutor and the national prosecutor).
Background
The institution of the EPPO was established to increase protection of the financial interests of the EU, as the already existing competent authorities, namely the European Anti-Fraud Office, Europol and Eurojust lacked the necessary competence to start, perform, and finalise criminal investigations. They could only inform the authorities of each member state regarding the results of ongoing investigations and each national authority would independently decide whether or not to start a criminal investigation.
The limited competence of these three institutions led to inconsistent national case law in member states, in the sense that different and sometimes contradictory rulings were rendered in similar cases.
The establishment of the EPPO was necessary also because the competence of these criminal investigation authorities was limited to the national territory of each state. An effective co-operation between member states was therefore difficult, given the extra-territorial elements of such crimes and the high value of damages caused.
EPPO regulation
It was on the offset of this background that the EPPO was established (through Regulation no. 2017/1939 EPPO Regulation), as the generally competent authority with power to investigate and indict persons and/or legal entities who perpetrate criminal activities against the budget of the EU in all member states, through European delegated prosecutors (EU prosecutors). Such EU prosecutors will perform criminal investigations in their own states, co-operating with judicial authorities and auxiliary national authorities, and applying national law.
The EPPO Regulation was transposed in Romania through Law no.6/2021 (Romanian EPPO Law), in order to apply the dispositions relating to the EPPO.
General aspects regarding EPPO competence
The EPPO is structured on two levels: a central and a national level. The central level is composed of the European chief prosecutor and a college of prosecutors. The national level is composed of EU delegated prosecutors and permanent chambers (each permanent chamber is composed of three EU prosecutors, one of which supervises the investigations).
The permanent chamber, in its capacity as a collective organism charged with the supervision of EU prosecutors, has the role of a national superior prosecutor.
The EPPO investigates, charges and indicts participants to crimes against the financial interests of the EU or in relation to these, perpetrated on the territory of a state or multiple member states.
For example, the EPPO competence can extend to crimes strictly related to crimes against the financial interests of the EU (transposed in Romania in articles 181-185 of Law no.78/2000), but also to crimes of corruption, VAT fraud, money laundering (if it relates to amounts of money or goods resulting from crimes which affected the financial interests of the EU) and diversion of funds (obtained from the EU budget or from budgets administered by the EU).
You can read more here EPPO regulation in Romania: a new chapter in criminal investigations of fraud with EU funds.
