Abstract
This contribution tries to analyse one of the main challenges to be faced for establishing an efficient and powerful European Public Prosecutor’s Office: the real consequences of its material competence and the concurrence of this competence with the current national systems. Indeed, this new European Agency will have to determine in practice the competences provided by the Regulation. The concurrence of these competences with the national ones will determine the measure of its powers and efficiency.
Starting from the competences defined for the EPPO in the Treaty of the European Union and in the Regulation, this study will try to analyse the scope of the material competence of this new EU Agency. The scope is defined through cross-references between the EPPO’s Regulation and the PIF Directive. As the PIF Directive defines the crimes against the financial interest of the Union, indirectly establishes the competence’s framework for the European Public Prosecutor Office, including the controversial issue of VAT frauds. Finally, the study will address the complicated system of the distribution of competences and sharing of information between the different relevant investigating institutions, which can lead to problems between the EPPO and the national authorities, in particular when PIF crimes are connected to non-PIF crimes. As the author has been directly and actively involved during the negotiations of the Regulation as a representative of the Spanish Government, this contribution will provide an interesting perspective on the real powers the new EPPO is granted.
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Notes
- 1.
Council Regulation (EU) 2017/1939 of 12 October 2017, implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (“the EPPO”), 31.10.2017, L 283/1. In the same sense, Herrnfeld (2017), p. 387.
- 2.
On the provisions regarding the competence in the Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, 17.7.2013, COM (2013) 534 final, see, among others, Moreno Catena (2014), pp. 41–50; Bitzilekis (2015), pp. 112–119; Herrnfeld (2017), pp. 387–392; Sicurella (2016), pp. 109–137, in particular pp. 119 ff.
- 3.
Article 86(2) TFUE: “The European Public Prosecutor’s Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union’s financial interests, as determined by the regulation provided for in paragraph 1…”
- 4.
- 5.
The link between both Articles is not straightforward. For example, the Commission has always considered that Article 325 is the proper legal basis of the proposal for a directive for the protection of the financial interests of the Union (hereinafter PIF), because this Article would replace the former Article 280(4) of the Treaty establishing the European Community (TEC) which contained the sentence “These measures shall not concern the application of national criminal law or the national administration of justice.” This wording was deleted by the Lisbon Treaty. So Article 325 would introduce a sort of special regime for these matters in the field of criminal law. The Council Legal Service issued a legal opinion dated 22th October 2012. “The proposed Directive pursues the objective expressed in Article 83(2) TFEU which is to ensure the effective implementation of a Union policy submitted to harmonisation measures with the aim of ensuring the effective implementation of this policy through the establishment of “minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.” The deletion of Article 280(4) would be compensated for by introducing the new wording of Article 83(2).
- 6.
Regulation (EU, Euratom) No. 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No. 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No. 1074/1999 (OJ L 248 of 18.9.2013).
- 7.
On the functioning of OLAF see the evaluation report of 2.10.2017, prepared in accordance with Article 19 of the Regulation: Report from the European Commission to the European parliament and the Council “Evaluation of the application of the Regulation”, accessible at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2017:589:FIN.
- 8.
- 9.
Commission Staff Working Document Executive Summary of the Impact Assessment. Accompanying the document Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, Brussels 17.7.2013, COM(2013) 534 final; accesible under http://eur-lex.europa.eu/legal-content/ES/TXT/?uri=CELEX%3A52013SC0275.
- 10.
On the added value of the future EPPO see Bachmaier Winter (2015), pp. 121–144.
- 11.
In the same sense, see Klement (2017), pp. 196–199.
- 12.
Speech given at the University of the Sorbonne of 28.9.2017, accessible under http://www.elysee.fr/declarations/article/initiative-pour-l-europe-discours-d-emmanuel-macron-pour-une-europe-souveraine-unie-democratique/.
- 13.
Jean-Claude Juncker on the “State of the Union”, Brussels 13.9.2017, accessible at http://europa.eu/rapid/press-release_SPEECH-17-3165_en.htm.
- 14.
Directive (EU) 2017/1371, on the fight against fraud to the Union’s financial interests by means of criminal law, of 5 July 2017, OJ 28.7.2017, L 198/29.
- 15.
On the lack of harmonization and the resulting implementation patchwork on the PIF offences so far, see Vervaele (2017), pp. 421–425.
- 16.
Ivo Taricco and others C-105/14, judgment of 9 September 2015.
- 17.
In particular, Article 2(1) of the 2014/335/EU Euratom Council Decision of 26 May 2014 on the system of own resources of the European Union (OJ L 168, 7.6.2014) describes as own sources of the Union all revenues from the following:
-
(a) traditional own resources consisting of levies, premiums, additional or compensatory amounts, additional amounts or factors, Common Customs Tariff duties and other duties established or to be established by the institutions of the Union in respect of trade with third countries, customs duties on products under the expired Treaty establishing the European Coal and Steel Community, as well as contributions and other duties provided for within the framework of the common organization of the markets in sugar;
-
(b) without prejudice to the second subparagraph of paragraph 4, the application of a uniform rate valid for all Member States to the harmonized VAT assessment bases determined in accordance with Union rules. For each Member State the assessment base to be taken into account for this purpose shall not exceed 50% of gross national income (GNI), as defined in paragraph 7;
-
(c) without prejudice to the second subparagraph of paragraph 5, the application of a uniform rate, to be determined pursuant to the budgetary procedure in the light of the total of all other revenue, to the sum of GNI of all the Member States.
-
- 18.
Articles 301, 305(3), 306, 308, 390, 419 to 421 and 432 of the Spanish Criminal Code and Articles 2(1) and 2(3) b) of the Spanish Organic Act for repression of smuggling (Ley Orgánica 12/1995, of 12 December, de Represión del Contrabando).
- 19.
From a practical point of view, this set of offences is not statistically frequent in Spain. According to the most reliable statistics from the Spanish Public Prosecutor’s Office, there have been approximately 1000 such annual proceedings, some of them involving only small frauds.
- 20.
Over the period 2007–13, a reduced rate of 0.225% for Austria, 0.15% for Germany and 0.10% applies to the Netherlands and Sweden. 0.15% applies to the Netherlands, Germany and Sweden from 1 January 2014 until 2020.
- 21.
The Explanatory report on the Convention on the protection of the European Communities’ financial interests (Text approved by the Council on 26 May 1997, 97/C 191/01, OJ C 191, 23.6.1997) states that revenues does not include revenue from application of a uniform rate to Member States’ VAT assessment base, as VAT is not an own resource collected directly for the account of the Communities. Nor does it include revenue from application of a standard rate to the sum of all the Member States’ GNP.
- 22.
In fact, and in order to illustrate the context it should not be forgotten that in Spain, in 2014, VAT was able to raise 56,174 million euros, more than 30% of total tax revenues, and in 2015 over 60,000 million, exceeding 6% of the GDP.
- 23.
C-539/09, Eu:c: 2011:733, paragraph 72.
- 24.
- 25.
On the substantial divide the VAT issue has long caused in the EU, see also Vervaele (2017), p. 425.
- 26.
Eurojust’s competence shall cover related criminal offences. The following offences shall be regarded as related criminal offences:
-
a) criminal offences committed in order to procure the means of perpetrating acts listed in Annex 1;
-
b) criminal offences committed in order to facilitate or carry out acts listed in Annex 1;
-
c) criminal offences committed to ensure the impunity of acts listed in Annex 1.
-
- 27.
See, although with regard to the Proposal Regulation EPPO of 2013, Nieto and Muñoz Morales (2015), pp. 120–155, in particular, pp. 146–152.
- 28.
On the problems relating the deferral of the case to the national authorities, see Caianello, in this volume.
- 29.
On the criteria for exercising competence, see also Satzger in this volume.
- 30.
It should be noted that this text, though reasonable, generated intense discussions because some delegations wanted a higher monetary threshold, which would imply two different regimes between harmonised offences.
- 31.
Germany and France, among others, included the damage criteria with the aim of excluding these crimes, because they incur a national debt bigger than the European one. However, this criterion is not applicable to other PIF crimes.
- 32.
On the reporting system see extensively Pérez Enciso in this volume.
- 33.
In the same sense, Csonka et al. (2017), pp. 125–133, p. 128.
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Vilas Álvarez, D. (2018). The Material Competence of the European Public Prosecutor’s Office. In: Bachmaier Winter, L. (eds) The European Public Prosecutor's Office. Legal Studies in International, European and Comparative Criminal Law, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-93916-2_2
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