Abstract :
[en] The establishment of the European Public Prosecutor’s Office (EPPO) was preceded by a long, delicate political and legislative process opposing an EU-centred view, advocated by the European Commission and supported by academic research, to a more classical form of cooperation based on mutual recognition and national diversity. The result of this process is an EU body, consisting of a central level and a decentralised level, whose legal framework is profoundly marked by the diverging viewpoints expressed during the negotiations.
This hybrid new judicial actor, which started its operational activities one-and-a-half years ago, is proclaimed independent from national authorities, but at the same time highly dependent on the latter’s cooperation. While Recital 15 of the EPPO Regulation announces that the ‘Regulation is without prejudice to Member States’ national systems concerning the way in which criminal investigations are organised’, the EPPO is based on a clear prosecutorial model that is not necessarily compatible with all national legal systems (e.g. those which still have an investigating judge) and therefore, indirectly, steers Member States toward a common conception of criminal prosecutions. The Regulation, furthermore, also contains legal terms that differ from the ones used at national level; these autonomous concepts might, over time, influence national ones.
Moreover, while the EPPO’s functioning is supposed to be regulated at EU level, the rules laid down in the EPPO Regulation are, in fact, quite patchy. In several respects, they refer to national law, which, to some extent, may be an implementation of other EU law instruments. Consequently, determining which rules apply and how they interact may be a real conundrum. For instance, the common minimum rules on investigation measures are very limited as Member States were averse to further approximation of national criminal procedure. In cross-border EPPO investigations, this has already led to pressing questions, which the CJEU will soon have to answer. Several other questions are expected to follow. For this and other reasons, a future amendment of the EPPO Regulation to clarify certain grey zones is likely.
Yet, in the absence of clear common EU rules, the EPPO’s day-to-day functioning requires a good common understanding of the way in which national systems operate and how criminal cases are handled at Member State level. This is especially true for the Permanent Chambers, which supervise the investigations conducted by the European Delegated Prosecutors and give concrete instructions to the latter. It is therefore probable that the EPPO’s functioning will result in a number of ‘good practices’, i.e. approaches that facilitate future cross-border investigations. Therefore, perhaps ironically, the EPPO may contribute, gradually, to a further approximation of national criminal procedure.
