Amaury Bousquet
Herbert Smith Freehills, Paris
​​​​​​​Amaury.Bousquet@hsf.com

Introduction

As the first European prosecutorial authority, the European Public Prosecutor's Office (EPPO) starts operations on 1 June 2021.^[2] The EPPO’s mission will be to prosecute criminal offences affecting the European Union’s financial interests.

Recent culmination of the EPPO project

After many years of negotiations, Regulation 2017/1939^[3] – aimed at implementing enhanced cooperation on criminal matters with 22 participating EU Member States^[4] (including France) – established the EPPO.^[5]

The EPPO was originally scheduled to begin operating in 2020.^[6] It was actually set up at the end of 2020,^[7] headed by Laura Codruţa Kövesi as European Chief Prosecutor (appointed in October 2019)^[8] and staffed by 22 European Prosecutors (appointed in July 2020).^[9] It will now start on 1 June 2021.^[10]

EPPO jurisdiction

Subject matter jurisdiction

The EPPO will have jurisdiction to prosecute criminal offences that affect EU financial interests^[11] and any offences that are ‘inextricably linked’ thereto, only if committed after 20 November 2017. In practice, conduct that comes within the EPPO’s jurisdiction mainly involves the following:

• fraud affecting EU budget/revenue (especially VAT fraud);^[12]
• fraud involving expenditures related to public procurement;
• corruption of a public official;
• misuse of public funds; and
• money-laundering.

The EPPO does not have jurisdiction over criminal offences involving direct national taxes.

Territorial jurisdiction

The EPPO will have jurisdiction if an offence was committed:

• on the territory of one or more Participating Member State; or
• from abroad, by a national of a Participating Member State or by an EU public official.

The EPPO's territorial jurisdiction over offences committed outside a participating Member State is dependent on the territorial jurisdiction of said Participating Member State over the offence in question.

EPPO Organisation

The EPPO is organised into two levels.

Central level

The central level has its headquarters in Luxembourg (near the Court of Justice of the EU), and consists of:

• the European Chief Prosecutor, who will direct the EPPO’s operations;^[13]
• 22 European Prosecutors (one per participating Member State), who will handle: (i) oversight of investigations and prosecutions conducted by EDPs in each case; and (ii) liaising between the permanent chambers and the EDPs;
• a College of Prosecutors, made up of the European Chief Prosecutor and the 22 European Prosecutors, will design the EPPO’s criminal law policy and arbitrate general questions raised by certain cases;^[14] and
• 15 permanent chambers, each made up of three European Prosecutors. The chambers are entrusted with implementing criminal law policy decided on by the College; they (i) oversee investigations and prosecutions by EDPs, (ii) can give strategic orientations and instructions to EDPs, and (iii) make prosecution decisions at the end of the investigations.^[15] They coordinate the investigation in cross-border cases.

The decentralised level

• The decentralised – and operational – level consists of the European Delegated Prosecutors (EDPs), who are entrusted with conducting investigations and prosecutions regarding cases handled by the EPPO.

Ultimately, 140 EDPs should be appointed,^[16] including four in France.^[17] The working language of the EPPO is English.^[18] A venue for reporting offences will be available on the EPPO website.^[19]

EPPO independence

Under Regulation 2017/1939, all EPPO members must act solely in the interests of the EU as a whole, refusing any instructions from a participating Member State, any EU body or institution, or any person external to the EPPO. EPPO independence is also guaranteed through the member appointment process.

EPPO cooperation with other EU bodies and national prosecutor’s offices

The EPPO will work in close coordination with the European Anti-Fraud Office (OLAF)^[20] and with Europol and Eurojust. The OLAF adjusted its operating rules at the end of 2020 for this purpose,^[21] and the EPPO signed two working arrangements with Europol and Eurojust in early 2021.^[22] An agreement with the European Commission is also expected.

The EPPO will report on its activities to EU institutions and will publish an annual report.

Lastly, the EPPO will be invited to cooperate with other EU Member States.

French law consequences of the creation of the EPPO

In France, Law 2020-1672 of 24 December 2020 makes the adjustments to the French Criminal Procedure required by the creation of the EPPO, in order to transpose the rules on EPPO jurisdiction and operations into French law.^[23] As major innovations, it provides that EDPs will have prerogatives equivalent to those of the public prosecutor but these prerogatives will be more like those of an investigating judge (juge d’instruction) if needed.

EDPs status and referral of cases to the EPPO under French law

In France, EDPs now have exclusive jurisdiction to prosecute offences within the competence of the EPPO.^[24] Proceedings taking place under EPPO jurisdiction will be submitted to the criminal courts of Paris for judgment.

Unlike the French public prosecutors, the EDPs are not under the hierarchical authority of the prosecutor-general and French Ministry of Justice, and they cannot be given any instructions.^[25]

EDPs prerogatives

The EDP will conduct investigations in keeping with provisions applicable to police investigations (enquêtes). As an exception, in cases where it is necessary to take investigative action that can only be ordered in the course of a judicial investigation (instruction), the EDP is allowed to conduct his investigations in accordance with the law applicable to instruction.^[26] Hence, in such cases, the EDP can engage in any action normally reserved to investigating judges, including:

• making decisions on charging and questioning, letters rogatory and expert examination; and
• making decisions on judicial supervision or taking defendants into pre-trial custody.^[27]

Parties have the same status (defendants, témoin assisté, or civil party) and the same rights as during a traditional instruction.

Once the investigation is complete, the EDP will close that phase and the EPPO will decide whether to prosecute.