Abstract :
[en] With the European Prosecutor’s Office (EPPO), a new player has entered into the field of cross-border investigations of customs offences, thereby translating the EU legislator’s will to better protect the Union’s financial interests through criminal law. Pursuant to the EPPO Regulation, the EPPO has the power to initiate criminal proceedings and to give instructions to national authorities, including customs authorities. Nevertheless, the Regulation refers to national law for several matters. Consequently, despite being an EU body, the EPPO’s functioning is, in part, governed by national criminal procedure.
In many Member States, customs authorities only have administrative enforcement powers. Yet in at least two Member States – Belgium and Luxembourg – customs law is characterised by a hybrid enforcement system: Customs officials do not only have administrative investigative and sanctioning powers, they also have the power to bring criminal charges, thereby side-lining the public prosecutor’s office. In addition, the pivotal point where administrative proceedings become criminal is in practice hard to determine because customs authorities have the same set of investigative powers in either situation. These powers are broad and highly repressive, offering less high procedural safeguards to suspects. With the creation of the EPPO, the question arises whether this particular enforcement system can be maintained.
Interestingly, the Belgian legislator opted in February 2021 for a minimal intervention instead of fundamentally reforming the powers of the customs administration. As a result, the customs administration retains its own investigative and prosecution powers in EPPO cases, but will exercise them under the authority of the EPPO. Whether this approach is fully compliant with EU law is questionable. Moreover, the EPPO’s prosecution strategy is likely to clash with the enforcement strategy of the customs authorities, which is primarily aimed at recovering unpaid duties to meet the Member State’s financial obligations toward the EU. And most importantly, in ‘mixed’ EPPO cases, involving both customs and other PFI offences, different procedural safeguards will apply – the ones provided by customs law and those applicable in ‘regular’ criminal investigations.
This contribution critically analyses the relation between the EPPO and national customs authorities, from a legal and practical perspective, taking Belgium as a case study. In doing so, it will pay special attention to the essential conditions for effective enforcement of the Union’s financial interests and the need to adequately safeguard suspects’ fundamental rights.
