Proposal for EU public prosecutor is designed to appease member states
More rights for persons under investigation.
The European Commission has proposed the establishment of a European public prosecutor to investigate offences against the European Union’s financial interests.
The Commission has designed its proposal to make it more palatable to the member states, many of which have declared their opposition to the idea. Nevertheless, it appears likely that the proposal will be adopted by a group of member states only, under the ‘enhanced co- operation procedure’, rather than by all member states unanimously.
The college of commissioners yesterday (17 July) adopted a proposal to set up a decentralised office of delegated public prosecutors from the member states, with each participating member state having one representative, overseen by a European public prosecutor, with four deputies based at Eurojust, the EU’s judicial co-operative body. The national representative of a given member state would be the only European prosecutor empowered to give instructions to prosecutors in that country, who will investigate the alleged crime according to national law.
The EU’s anti-fraud office, OLAF, would no longer conduct administrative investigations into crimes against the Union’s financial interest, but be restricted to investigating irregularities with EU money and misconduct or crimes committed by EU staff without a financial impact. The bulk of the proposed prosecutor’s office staff would come from OLAF.
The Commission’s proposal foresees stronger procedural rights for persons under investigation by the European prosecutor than exist at national level.
Several member states, including France and Germany, are reluctant to give the EU public prosecutor powers beyond the strict application of national law in the member state concerned. The United Kingdom is hostile to the very idea of a European prosecutor.
The Lisbon treaty provides the option of launching the office using enhanced co-operation of at least nine member states. The treaty does not allowDenmark, which has a special opt-out from the EU’s justice and home affairs measures, to participate in the arrangements for a European public prosecutor.
In March, Sabine Leutheusser-Schnarrenberger, Germany’s justice minister, and Christiane Taubira, her opposite number from France, set out their doubts in a letter to the Commission in March. “We believe that the quick launch of a European public prosecutor at this stage is only possible in the framework and application of applicable national law of the member states,” they wrote.
The project
The proposal for a European public prosecutor has its origin in a 1997 project (‘corpus juris’) run by law scholars, examining how best to protect the EU’s financial interests.
From there, it found its way into the EU’s constitutional treaty and eventually, after that treaty’s ratification was blocked, into the Lisbon treaty, which lays out the office’s main responsibilities as “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”.
However, the Lisbon treaty also foresees the possibility of extending the office’s powers to include serious crimes not involving the EU’s financial interests, provided they have a cross-border dimension – although this would require a unanimous decision by the Council of Ministers. This provision has raised fears in the UK of a powerful European office prosecuting Britons for crimes, using EU law or the law of another member state, undermining Britain’s common law system. “Britain will not participate in the establishment of any European Public Prosecutor,” the coalition agreement between the UK’s Conservatives and Liberal Democrats simply states.
In comments published on Sunday (14 July), Theresa May, the UK’s home secretary, said: “We are completely and utterly opposed to the establishment of a European Public Prosecutor or anything that heads in that direction. We will make sure that Britain does not participate and will not come under the jurisdiction of any such prosecutor.” May’s comments came on the eve of a vote in the House of Commons on a coalition plan to revoke its application of almost 100 EU measures in the field of justice and home affairs.