The European Public Prosecutor's Office an extended arm or a two-headed dragon? ; [conference on the plans to create a European Public Prosecutor's Office, September 2013

In 2013 the European Commission launched its legislative proposal to create a European Public Prosecutor’s Office. The proposal provoked fierce debates, politically as well as on the academic level. Many national parliaments opposed and submitted formally their grievances to the Commission. Negotiations on the proposal between Member States are still ongoing. The T.M.C. Asser Instituut held the first international conference on this unprecedented proposal. This book reflects the main results of that conference. It provides a concise background of and reasoning for the introduction of this new EU body entrusted with far reaching judicial powers disclosing important legal and policy implications. Within its hitherto limited scope the existing system of judicial cooperation between EU Member States will change fundamentally, directly affecting the functioning of national courts and public prosecutions offices. How will this evolve? This book will help answering fundamental questions involved. ℗ In July 2013 the European Commission launched its legislative proposal to create a European Public Prosecutor ́ s Office (EPPO). The proposal provoked fierce debates, politically as well as on the academic level. Many national parliaments opposed and submitted formally their grievances to the Commission and negotiations on the proposal between Member States are ongoing. As early as September 2013, the T.M.C. Asser Instituut in The Hague, The Netherlands, held the first international conference on this unprecedented proposal. This book reflects the main results of that conference. It provides a concise background of and reasoning for the introduction of this new EU body entrusted with far reaching judicial powers disclosing important legal and policy implications. Within its hitherto limited scope, the existing system of judicial cooperation between EU Member States will change fundamentally, directly affecting the functioning of national courts and public prosecution offices. This book helps answering fundamental questions involved. It provides a solid basis for both academics and practitioners to further structure an EPPO, respecting the interests of all parties involved. ℗ At the time of writing and editing this volume, Leendert Erkelens and Arjen Meij were both Visiting Research Fellow at the T.M.C. Asser Instituut in The Hague, The Netherlands. Marta Pawlik was a Research Assistant in the same Institute. ℗ Front Matter....Pages i-x Introduction....Pages 1-8 Front Matter....Pages 9-9 Presentation of the Commission’s Proposal on the Establishment of the European Public Prosecutor’s Office....Pages 11-20 The European Commission’s Legislative Proposal: An Overview of Its Main Characteristics....Pages 21-38 Front Matter....Pages 39-39 Is the Commission Proposal for a European Public Prosecutor’s Office Based on a Harmonious Interpretation of Articles 85 and 86 TFEU?....Pages 41-51 The European Public Prosecutor’s Office: Certain Constitutional Issues....Pages 53-77 European Public Prosecutor’s Office and Eurojust: ‘Love Match or Arranged Marriage’?....Pages 79-97 Front Matter....Pages 99-99 Some Explorations into the EPPO’s Administrative Structure and Judicial Review....Pages 101-119 Search and Seizure Measures and Their Review....Pages 121-137 The Choice of Forum by the European Public Prosecutor....Pages 139-161 Front Matter....Pages 163-163 The European Public Prosecutor: Issues of Conferral, Subsidiarity and Proportionality....Pages 165-182 A Disappointing First Draft for a European Public Prosecutor’s Office....Pages 183-192 Front Matter....Pages 193-193 Establishing Enhanced Cooperation Under Article 86 TFEU....Pages 195-208 Implications of Enhanced Cooperation for the EPPO Model and Its Functioning....Pages 209-227 Back Matter....Pages 229-285 Foreword; Contents; Abbreviations; 1 Introduction; Abstract; References; Part IPresentation of the Main Featuresof the Proposed EPPO; 2 Presentation of the Commission's Proposal on the Establishment of the European Public Prosecutor's Office; Abstract; 2.1 Introduction; 2.2 Governance Structure of EPPO; 2.3 EPPO Competence; 2.3.1 Exclusive Competence; 2.3.2 Mandatory Prosecution Versus Discretion to Prosecute; 2.3.3 Material Competence--Offences Against the Financial Interests of the Union; 2.3.4 Ancillary Competence; 2.4 Procedural Aspects: Investigative Measures; 2.5 Judicial Review 5 The European Public Prosecutor's Office: Certain Constitutional IssuesAbstract; 5.1 Introduction; 5.2 The EPPO Proposal: The Road to a Compromise; 5.3 Innovative and Ambitious Features of the Proposal; 5.3.1 Binding Powers of the EPPO; 5.3.2 Exclusive Competence of the EPPO; 5.3.3 The EPPO Is a Single European Office; 5.3.4 Free Movement of Evidence; 5.4 Elements of Horizontal Cooperation in the Proposal; 5.4.1 Area or European Territory?; 5.4.2 European Prosecution Service Based on National Laws?; 5.4.3 What Is the Applicable Law?; 5.4.4 No Judicial Control by a European Court? 4.1 Introduction4.2 Criticism About the Possible Creation and Functioning of EPPO at the Beginning of the Century; 4.3 Why Does the Lisbon Treaty Allow for the Creation of EPPO Despite This Criticism and in Particular the Existence of Eurojust?; 4.4 Which Use Has the Commission Actually Made of the Lisbon Treaty?; 4.5 Why Does the Commission Adhere to the Principle of Mandatory Prosecution?; 4.6 Are There Any Better Alternatives to the Commission's Proposal, e.g. Strengthening Eurojust's Role?; 4.7 Final Considerations: Avoiding the Trap of Comparing Apples with Pears; References 3.5 Overview of the European Commission's Proposal3.5.1 An Office at EU Level Directing Double-Hatted European Delegated Prosecutors; 3.5.2 Maximal Competences Within a Limited Scope; 3.5.3 Exchange of Information in the EU Context; 3.5.4 Choice of Forum--A Hybrid System; 3.5.5 Special Relationship with Eurojust; 3.6 Conclusion; Part IIFrom Eurojust to the European PublicProsecutor's Office: A Reversal ofConstitutional Perspective?; 4 Is the Commission Proposal for a European Public Prosecutor's Office Based on a Harmonious Interpretation of Articles 85 and 86 TFEU?; Abstract 3 The European Commission's Legislative Proposal: An Overview of Its Main CharacteristicsAbstract; 3.1 Introduction; 3.2 The Current Framework; 3.2.1 A Shared Constitutional Responsibility; 3.2.2 The Principle of Mutual Recognition; 3.3 Fighting Against Crimes Affecting the EU's Financial Interests Today; 3.4 Points of Attention When Thinking of EPPO; 3.4.1 Enhanced Cooperation; 3.4.2 A Model Integrated in the National Systems; 3.4.3 Clearly Defined Set of Competences; 3.4.4 Adequate Procedural Safeguards and Judicial Review Mechanisms; 3.4.5 From Eurojust 5.5 EPPO `From' or `Next To' Eurojust?