Ladies and gentlemen, this is the case of United Kingdom vs the European Public Prosecutor’s Office. It is for you, the jury, to decide - once you have heard the case for and against - whether the EPPO standing in the dock with a mysterious smile should be sentenced to death, or remain free to recover the EU’s funds where there has been fraud.
The idea of the EPPO has been around for some time, and my organisation, the Council of Bars and Law Societies of Europe (CCBE), gave its views on the basic principles six months ago. Now the European Commission has published its legislative proposal.
In brief, the EPPO will be a decentralised prosecution office with exclusive competence for investigating, prosecuting and bringing to judgment crimes against the EU budget. It will have uniform investigation powers throughout the EU based on – and integrated into – member states’ legal systems. Experienced prosecutors will be delegated from the national systems to the EPPO. As a rule, it will be the European delegated prosecutors who will act from their locations in the member states, and in line with local law. The EPPO obtains its legal basis from article 86 of the Treaty on the Functioning of the European Union (TFEU), which states: ‘In order to combat crimes affecting the financial interests of the union, the council, by means of regulation adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor's Office from Eurojust."
The case forThe commission believes that the EU’s financial interests are not adequately protected by the current system, where fraud against EU funds is prosecuted by national authorities. National law enforcement is obviously fragmented across member states, and action is not always taken. Effective co-operation is difficult due to different criminal law systems, unclear jurisdiction, cumbersome and time-consuming legal assistance procedures, language problems, lack of resources and varying priorities. Only 1 in 5 cases transferred by the EU leads to a conviction, and conviction rates vary considerably across member states. As a result, only a very small proportion of the total amount lost to fraud is recovered. Fraudsters know that they have a good chance of getting away with their crimes. An average of around €500m of suspected fraud has been committed in the member states in each of the last three years, but the actual amount must be significantly higher because of lack of detection. The UK is among the bottom three (along with Greece and Romania) in recording low conviction rates (23.1%) in such offences between 2006 and 2011. Plus, defendants will benefit from agreed procedural rights.
What’s not to like about a system trying to recover more taxpayers’ money which has been stolen?
The case againstA prosecuting power at member state level, interfering in national legal systems, is being given to a structure that is not a state. What about democratic legitimation, accountability and control, which are already bedevilling the EU in the popular imagination? Once established with powers in member states’ legal systems, human nature means that it is likely that the responsibilities of the office will increase beyond strictly community matters into domestic affairs and national jurisdictional issues. Usually, too, if there is fraud against EU funds, the perpetrator will have committed an offence at national level, and so a situation may arise where two offences are investigated side by side by different authorities. The EPPO may also go forum shopping between the member states, looking for a jurisdiction where it can obtain an easier conviction. It would be better if the role of the EPPO were confined to cases where member states are demonstrably unwilling or unable to prosecute themselves, as applies in other supranational fora.
Is it any wonder that the government is standing up to further encroachments on national sovereignty, and telling the EU that it will not participate? (The UK is entitled to opt out from the start.)
Ladies and gentlemen of the jury, you are not composed of UK citizens alone, or I would put on my black cap and at once send the defendant blindfold to the scaffold. You come instead from all member states, and therefore I predict that the most likely outcome is a majority verdict, since the treaties foresee that a group of at least nine member states may enter into an enhanced co-operation (the same article 86 of TFEU as above), and go it alone. So EPPO may live to recover taxpayers’ money after all.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs