Raising the bar? Thoughts on the establishment of the European Public Prosecutor’s Office

The creation of a European prosecuting authority is a historic achievement for the European Union, especially at a time when populism, as epitomised by Brexit, has undermined the process of integration. After nearly four years of negotiations and 20 years of academic and political debate, the Council Regulation setting up the European Public Prosecutor’s Office (EPPO) was approved in October 2017, in the framework of the enhanced cooperation established in April of this year. The EPPO Regulation is probably the most ambitious instrument of EU law adopted so far, since it creates the first EU body with direct powers regarding individuals in the field of criminal law. The Office will be empowered to investigate and prosecute crimes affecting the financial interests of the EU. Recent calls, including those from Commission President Juncker and French President Macron, for an extension of the EPPO’s powers to cases of cross-border terrorism bode well for the likely acceptance of this Office in the EU in years to come. Yet the final text of the Regulation raises several concerns, argue the authors, such as those relating to the impact of supranational investigations on human rights and, more generally, about the expected effectiveness of the Office, given its cumbersome and multi-layered architecture. This paper looks at the main provisions of the Regulation and the challenges it poses, focusing on the structure, powers, and competence of the EPPO. It also considers the judicial review of its acts, the protection of the rights of suspects and accused persons, and relations between the Office and its partners. The analysis shows that the Commission’s innovative vision of a centralised prosecution at EU level, with its echoes of federalism, has been watered down in negotiations in the Council and replaced with the usual intergovernmental, collegiate vision that underpins numerous EU judicial cooperation structures and instruments.