EPPO: new stillborn tool of the European Union?
16 July 2020 /
Reading time: 3 min
The Rule of Law (RoL), one of the European core values, has gotten much attention in the past. The European Parliament and the European Commission have respectively charged Hungary and Poland for not abiding by it. Even though a definition has not been enshrined into the European treaties, the EU’s member states and the European institutions agreed on rule of law criteria provided by the Venice Commission (one of the Council of Europe’s advisory body on constitutional matters). They have worked for more than seven years on a new tool: The European Public Prosecutor Office or EPPO. How is it different than previous EU tools? What are its chances of success? And thirdly, what are its shortcomings from the outset? I had the chance to debate about the EPPO at the European Parliament, getting some clarifications from MEP’ Judith Sargentini and Professor Laurent Pech.
1) What is the EPPO?
The EPPO is an independent European Union body, coming into force on December 1st. It differs from previous EU bodies by its areas of expertise and competences.
First, the EPPO does not focus on the RoL per se. The EU institutions and member states have learned from their mistakes. Indeed, many previous tools were created and failed. Citing a few of them, there are the RoL Framework in 2014 which basically gave Poland two years to adopt reforms (in the end, little was done). The Political dialogue in the Council was another considered tool, but this idea failed as well because the member states that violate RoL principles tend to protect each other. RoL conditionality is still under discussion, but it’s main problem is that it would negatively affect EU citizens because it links EU funds to the respect of the RoL (EU values based on Article 2 TEU). The EPPO has been created to tackle fraud of EU funds within the member states which agreed to participate. To sum up, it “will have the power to investigate, prosecute and bring to judgment crimes against the EU budget, such as fraud, corruption or serious cross-border VAT fraud” according to the European Commission. In 2017, estimated fraud to the EU budget was worth €500 million.
Secondly, contrary to Europol or Eurojust, EPPO has binding powers on member states and is fully independent. This basically means that the personnel of the EPPO has the right to investigate within member states’ territories, systemically scaning of the use of EU funds. As we will see, however, some member states refused to be part of it.
Thirdly, the EPPO is responsible for criminal investigations and will act independently from EU institutions. Based in Luxembourg, it “will combine European and national law-enforcement efforts in a unified, seamless and efficient approach”. It is based on two levels: centralized and decentralized levels. The centralized level is composed of the Chief European Prosecutor, the Romanian Laura Kövesi (47), in addition to her two deputies and 22 European Prosecutors (1 per participating EU country). The decentralized level is composed of the European Delegated Prosecutors, located in the participating EU countries (two per participating EU country).
To sum up, the EPPO has different prerogatives than previous EU tools to enforce the RoL in the member states. Now let us see how its characteristics as an independent body could bring some concrete results even though it is particularly focused on money and corruption, which also is a major shortcoming.
2) Why could it succeed?
Looking at the negotiations leading to the creation of the EPPO, we can understand why it took 7 years to launch it. Compared to previous tools, the EPPO is based on articles 82-86 of the Treaty of the European Union. The Commission made a proposal, in 2013, to create a new EU and autonomous body, not linked to any previous European or national institutions. The difference: it has supranational powers, which means that the sovereign (national) powers are transferred to the supranational level.
Articles 82-86 provide the right to create a new EU body that will have supranational executive powers for prosecution. From now on, only national prosecutors had the right to investigate within their members’ states. The EPPO aims at rulliing out any partiality of national prosecutors. Just a quick reminder: the scope of the EPPO is to protect the budget of the EU and how it is used in the member states. “It will investigate and prosecute fraud and other crimes affecting the EU’s financial interests”, according to the Commision. An important part of its prerogatives is that: “the EPPO can also investigate and prosecute any other illegal activity that is ‘inextricably linked’ to an offence against the EU budget”.
In short: the EPPO will try to tackle corruption, misuse and fraud of EU funds, basically watching over the appropriate use of the EU budget. Regarding the recent allegations about misuse of EU frauds about the Common Agricultural Policy in Italy and Hungary, the EPPO will help to solve the RoL issue and decrease corruption so as EU funds could serve as planned.
3) Which shortcomings?
However, EPPO’s history is also a burden which may let us think that it is already stillborn. From the 2013’ proposal of the European Commission, it turned into a less ambitious Regulation in 2017 with more references to national law. The risk of this re-nationalization of the Regulation is that member states might keep key influence. It allows them to ask the Court of Justice of the European union to dispute decisions from the EPPO. Moreover, national courts are allowed to review procedural acts of the EPPO.
Another shortcoming of the EPPO relies on the absence of some member states to participate (i.e. Ireland, Poland, Hungary, Sweden and Denmark). A major shortcoming of the EPPO is the lack of financial resources and personnel. Chief prosecutor, Laura Kövesi warned: “This simply is not adequate”, stating that by the first of December 2020, the EPPO will have to sift through around 3.000 cases. She criticized the status of part-time prosecutors, leading to a lack of personnel to fully tackle EU fraud: “I have never seen anything such as a part-time prosecutor. That is why I hope Member States will agree to have only full prosecutors because this is very necessary if we are to do the job efficiently”, the Romanian said at the European Parliament.
The absence of means available illustrates the lack of political appetite in some member states to have an efficient tool to tackle EU fraud. This might not be surprising: some member states try to attract multinational corporations and their factories through low taxes and other incentives as a lot of jobs and investments are at stake. Let us hope that European Commissioners Didier Reynders (Justice) and Johannes Hahn (Budget and Administration) will hear Ms. Kövesi’s remarks and convince member states to mobilize further resources.
Thomas Rambaud is a second-year master student, soon graduated from the Institute for European Studies.
This article has originally been published in our print magazine #32 (June 2020). Find the entire magazine here