European prosecution between cooperation and integration: The European Public Prosecutor’s Office and the rule of law

Abstract

The article will examine the challenges that the establishment of the European Public Prosecutor’s Office poses for the rule of law – a question which has been underexplored in the policy and academic debate on the establishment of the EPPO, which focused largely on questions of structure and powers of the EPPO and the battle between intergovernmental and supranational visions of European prosecution. The implications of the finally adopted legal framework on the EPPO on the rule of law will be analysed primarily from the perspective of the rule of law as related to EPPO investigations and prosecutions and their consequences for affected individuals – in terms of legal certainty and foreseeability, protection from executive arbitrariness, effective judicial protection and defence rights. The article will undertake a rule of law audit of the EPPO by focusing on three key elements of its legal architecture – the competence of the EPPO, applicable law and judicial review – and the interaction between EU and national levels of investigation and prosecution that the EPPO Regulation envisages. The analysis will aim to cast light on the current rule of law deficit in a hybrid system of European prosecution located somewhere between co-operation and integration.

Transnational Crime and EU Law: Towards Global Action against Cross-Borders Threats to Common Security, Rule of Law and Human Rights

“…However, this new body is a 'model of hybrid prosecution' leading to serious rule of law deficits in terms of detail and legal certainty (Mitsilegas, 2021).…”

Effective Judicial Protection and the Regulation Implementing Enhanced Cooperation on the Establishment of the European Public Prosecutor's Office

“…Several concerns are present in the debate regarding the judicial review of EPPO's procedural acts -firstly, these concerns are related to the limited jurisdiction of the CJEU with regard to the EPPO's acts. They do not necessarily focus on the issue whether there is judicial review as such in the participating Member States, they mainly address the fact that even if there is such review, it might not be as sufficient as it would be in the case of the CJEU (Mitsilegas, 2021). 21 In this regard, we may encounter even proposals for a court or a tribunal as an European Union body which would decide solely the matters of the EPPO.…”

“…Mitsilegas (2021) points out that by establishing very limited jurisdiction of the CJEU in reviewing EPPO's acts, the EPPO Regulation presents a significant rule of law deficit in terms of judicial protection.22 Article 42(3) of the EPPO Regulation states: "By way of derogation from paragraph 1 of this Article, the decisions of the EPPO to dismiss a case, in so far as they are contested directly on the basis of Union law, shall be subject to review before the Court of Justice in accordance with the fourth paragraph of Article 263 TFEU. "…”

The establishment of the European Public Prosecutor’s Office: integration with limited supranationalisation?

“…The institutional design of the EPPO is not the only element to determine its degree of supranationalisation, but certainly the most outstanding one. 2 Whereas descriptive assessments of the supranational versus intergovernmental character of the EPPO have been undertaken elsewhere (Mitsilegas, 2021;Öberg, 2021), this article uncovers the political processes leading to the establishment of this highly complex body. A critical examination of how conflicting norms and interests were accommodated, elucidating what allowed all involved actors to agree on a result and why the EPPO looks the way it does, is so far missing from the literature.…”

“…The contribution of this study to EU integration literature is threefold. First, while there is a considerable body of legal literature on the EPPO, including studies that have addressed some of the above aspects (Bachmaier Winter, 2018;Harding & Öberg, 2021;Mitsilegas, 2016Mitsilegas, , 2021, a systematic analysis of the political dynamics within the Council during EPPO The Commission presented a Proposal 6 on establishing the EPPO in July 2013 which quickly met opposition: in October 2013, national parliaments in eleven member states 7 expressed concerns regarding the respect of the subsidiarity principle, triggering a "yellow card" (Fromage, 2016). The Commission nevertheless maintained its Proposal, arguing that the subsidiarity principle was not breached.…”