A practical guide on the EPPO for defence lawyers who deal with cases investigated and prosecuted by the EPPO in their day-to-day practice. It includes case studies (download .pdf file).
CHAPTER I: INTRODUCTION 1
1. PRELIMINARY REMARKS 1
2. THE EU’S BUDGET 1
3. PROTECTING EU FINANCIAL INTERESTS THROUGH CRIMINAL LAW 2
4. THE WAY TOWARDS THE CREATION OF THE EPPO 3
5. ESTABLISHMENT, TASKS AND GENERAL PRINCIPLES 4
CHAPTER II: INSTITUTIONAL AND STRUCTURAL ISSUES 8
1. INDEPENDENCE AND ACCOUNTABILITY OF THE EPPO (ARTS 6 AND 7) 8
1.1. INDEPENDENCE OF THE EPPO (ART 6(1)) 8
1.1.1. Institutional and personal external independence 9
1.1.2. European and national external independence 10
1.1.3. External independence safeguards 11
1.1.4. Internal independence safeguards 13
1.2. ACCOUNTABILITY OF THE EPPO 13
1.2.1. Instruments of democratic accountability: annual reports and hearings 13
1.2.2. Budgetary and judicial accountability 14
1.2.3. Lack of personal accountability of the European Chief Prosecutor for the work of the EPPO 14
2. OVERVIEW OF THE STRUCTURE OF THE EPPO 15
2.1. EUROPEAN CHIEF PROSECUTOR 16
2.2. COLLEGE 17
2.3. PERMANENT CHAMBERS 17
2.4. EUROPEAN PROSECUTORS 19
2.5. EUROPEAN DELEGATED PROSECUTORS 20
2.6. ADMINISTRATIVE DIRECTOR 22
2.7. STAFF 22
3. PROCESSING OF INFORMATION AND DATA PROTECTION 23
3.1. DIFFERENT REGIMES OF PERSONAL DATA PROTECTION 23
3.2. DIFFERENCES IN THE PRINCIPLES 24
3.3. DATA PROTECTION BY DESIGN AND BY DEFAULT. IMPACT ASSESSMENT. NOTIFICATION OF A PERSONAL DATA BREACH 25
3.4. CASE MANAGEMENT SYSTEM (CMS) 25
4. CONCISE OVERVIEW OF THE REQUIREMENTS FOR IMPLEMENTATION IN MEMBER STATES 26
4.1. LUXEMBOURG 26
4.1.1. Legal framework in Luxembourg 26
4.1.2. Status of the EDPs 26
4.1.3. Material competence 27
4.1.4. Procedural framework 28
4.2. BULGARIA 30
4.2.1. Implementation of the structure of the EPPO 30
4.2.2. Implementation of the material competence of the EPPO 30
4.2.3. Implementation of procedural competence 31
4.3. CROATIA 32
4.3.1. Implementation of structure of the EPPO 32
4.3.2. Implementation of the material competence of the EPPO 33 i
4.3.3. Implementation of the investigative and prosecutorial powers 33
4.4. ITALY 34
4.4.1. Implementation of structure of the EPPO 34
4.4.2. Implementation of the material competence of the EPPO 34
4.4.3. Implementation of procedural competence 35
4.5. SPAIN 36
4.5.1. Implementation of the structure 36
4.5.2. Implementation of the material competence 37
4.5.3. Implementation of the investigative and prosecutorial powers 37
4.5.4. Examples of the different national systems 38
CHAPTER III: SUBSTANTIVE CRIMINAL LAW ISSUES 39
1. THE MATERIAL SCOPE OF COMPETENCE OF THE EPPO: GENERAL FRAMEWORK 39
2. ART 22 OF THE EPPO REGULATION 41
2.1. PIF OFFENCES 41
2.1.1. General relevant provision 41
2.1.2. EU fraud (Art 3 PIF Directive) 43
2.1.3. Money laundering (Art 4(1) PIF Directive) 43
2.1.4. Passive and active bribery (Art 4(2) PIF Directive) 44
2.1.5. Misappropriation [Art 4(3) PIF Directive] 44
2.2. PARTICIPATION IN A CRIMINAL ORGANIZATION IF FOCUSED ON PIF OFFENCES 44
2.3. ANY OTHER CRIMINAL OFFENCE THAT IS INEXTRICABLY LINKED TO A PIF OFFENCE 45
2.4. PROTECTIVE CLAUSE 46
3. TERRITORIAL AND PERSONAL COMPETENCE 46
4. EXERCISE OF COMPETENCE 47
CHAPTER IV: PROCEDURAL CRIMINAL LAW ISSUES 49
1. BASIC PRINCIPLES FOR THE EPPO’S ACTIVITIES 49
2. INVESTIGATION 50
2.1. INITIATION OF INVESTIGATIONS AND ALLOCATION WITHIN THE EPPO 50
2.2. EXERCISING THE RIGHT OF EVOCATION 50
2.3. RULES ON CONDUCTING THE INVESTIGATION 52
2.3.1. Reallocation to another EDP 52
2.3.2. Investigation by the EP 52
2.3.3. Lifting privileges or immunities 52
3. INVESTIGATION MEASURES AND OTHER MEASURES 53
3.1. INVESTIGATION MEASURES AND OTHER MEASURES IN NATIONAL LEGAL SYSTEM 53
3.2. INVESTIGATION MEASURES AND OTHER MEASURES IN CROSS-BORDER INVESTIGATIONS 54
3.2.1. Undertaking of measures by the assisting EDPs 54
3.3.2. Pre-trial arrest and surrender in cross-border cases 55
4. PROSECUTORIAL DECISIONS 55
4.1. PROSECUTION BEFORE NATIONAL COURTS 56
4.2. DISMISSAL OF THE CASE 57
4.2.1. Grounds for the dismissal 57
4.2.2. Reopening of the investigation 57
4.3. REFERRALS AND TRANSFERS OF PROCEEDINGS TO THE NATIONAL AUTHORITIES 58
4.4. SIMPLIFIED PROSECUTION PROCEDURES 60
5. PROSECUTORIAL REVIEW OF THE EPPO DECISIONS 61
5.1. REVIEW BY THE SUPERVISING EUROPEAN PROSECUTOR 61
5.2. REVIEW BY THE PERMANENT CHAMBERS 61 ii
5.3. REVIEW BY THE EUROPEAN CHIEF PROSECUTOR OR HIS/HER DEPUTY 62
6. PROCEDURAL SAFEGUARDS FOR SUSPECTS, ACCUSED OR OTHER PERSONS 62
7. ADMISSIBILITY OF EVIDENCE 63
7.1. EVIDENCE 63
7.2. ADMISSIBILITY OF EVIDENCE 64
7.2.1. A court 64
7.2.2. Presented by the defendant or the prosecutors of the EPPO 64
7.2.3. Evidence shall not be denied admission on the mere ground that it was gathered in another Member State or in accordance with the law of another Member State 64
7.3. RESPECT OF FUNDAMENTAL RIGHTS AND PRINCIPLES 65
7.3.1. Charter of Fundamental Rights of the EU 66
7.3.2. ECHR 66
7.4. ASSESSMENT OF EVIDENCE 67
7.5. ISSUES 68
7.5.1. Defence’s ability to collect and present cross-border evidence 68
7.5.2. Evidence gathered in administrative proceedings 68
8. JUDICIAL REVIEW OF EPPO MEASURES 69
8.1. COMPETENCE OF NATIONAL COURTS 70
8.1.1. Scope of competence 70
8.1.2. Exercise of competence 72
8.1.3. Effective remedies 72
8.2. COMPETENCE OF THE CJEU 73
8.2.1. Preliminary rulings in accordance with Art 267 TFEU 73
8.2.2. EPPO decisions to dismiss a case 75
8.2.3. Other competences 76
CHAPTER V: EPPO RELATIONS WITH ITS PARTNERS AND NON-PARTICIPATING MEMBER STATES 79
1. COMMON PROVISIONS 79
1.1. COOPERATIVE RELATIONS 80
1.2. EXCHANGE OF INFORMATION 80
1.3. WORKING ARRANGEMENTS 80
2. RELATIONS WITH EUROJUST 80
2.1. GENERAL OVERVIEW OF EUROJUST’S COMPETENCE 81
2.2. FORMS OF COOPERATION 81
2.2.1. Institutional cooperation 81
2.2.2. Operational cooperation 82
2.2.3. Administrative cooperation 83
3. RELATIONS WITH OLAF 83
3.1. GENERAL OVERVIEW OF OLAF’S COMPETENCE 83
3.2. NO PARALLEL ADMINISTRATIVE INVESTIGATION BY OLAF 84
3.2.1. Forms of cooperation 84
4. RELATIONS WITH EUROPOL 85
4.1. GENERAL OVERVIEW OF EUROPOL’S COMPETENCE 85
4.2. FORMS OF COOPERATION 86
4.2.1. Request for information and analytical support 86
4.2.2. Mode of cooperation 86
5. RELATIONS WITH NON-PARTICIPATING MEMBER STATES (NPMS) 87
5.1. DUTY OF SINCERE COOPERATION 87
5.2. FORMS OF COOPERATION 87
5.2.1. Working arrangements 87
5.2.2. Contact points facilitating cooperation 88
5.2.3. Notification of the EPPO as a competent authority for Union acts on judicial cooperation in criminal matters 88 iii
6. CHALLENGES 88
CHAPTER VI: CASE STUDIES 90
CASE STUDY 1, PHASE I (RELATED TO CH. II) 91
CASE STUDY 1, PHASE II (RELATED TO CH. II) 92
CASE STUDY 1, PHASE III (RELATED TO CH. II) 94
CASE STUDY 2 (RELATED TO CH. III) 96
CASE STUDY 3 (RELATED TO CH. III ) 98
CASE STUDY 4 (RELATED TO CH. IV) 99
CASE STUDY 5 (RELATED TO CH. IV) 102
CASE STUDY 6 (RELATED TO CH. IV) 104
CASE STUDY 7 (RELATED TO CH. IV) 109
CASE STUDY 8 (RELATED TO CH. V) 111
CASE STUDY 9 (RELATED TO CH. V) 114
REFERENCE LIST 117 iv