As a member of the EU, the Netherlands is obliged to implement and comply with EU law. The European Commission investigates non-compliance of EU-law, for example by means of a formal infringement procedure. The Dutch ministry of Foreign Affairs informs parliament every three months about infringement procedures, and cases before the Court of Justice of the EU (CJEU). However, not much is known about what happens behind the scenes. For example, how often are there EU Pilot procedures, i.e. informal pre-infringement procedures? And do informal procedures help to resolve possible non-compliance and prevent the Commission from starting a formal procedure? A 2018 report by the European Court of Auditors makes an inventarisation of enforcement instruments of the Commission, but it does not provide empirical evidence. On 15 June 2023 the Netherlands Court of Audit published the report EU-law in practice. It examined all formal and informal procedures between the Commission and the Netherlands regarding incorrect or incomplete implementation of EU-law (2010-2020). It also investigated government coordination regarding compliance with EU-law, and what lessons were drawn from closed procedures. In addition, nine cases were analysed to determine how procedures were conducted in practice, and to understand the problems that arose. The nine cases included such topics as the enforcement of Water Framework Directive, Corona Flight Vouchers, Residence Permit Fees for third-country nationals and the European Arrest Warrant. In this post the main results of the report are discussed.Continue reading “EU-law in practice: Compliance of the Netherlands with EU-law 2010-2020”
On 9 March 2023, the European Court of Justice delivered its long-awaited judgment in the Aquind-case shedding light on the intensity of review conducted by the boards of appeal of European Union agencies. This case concerned the Board of Appeal of the European Agency for the Cooperation of Energy Regulators (ACER) which limited itself to assessing manifest errors of assessment in its decision-making. The Court struck down this limited approach; the ACER Board of Appeal consists of both legal and technical experts and therefore must, in principle, conduct a full review of the agency’s decision. This judgment is significant as it relates to the quality of (quasi-)judicial control of administrative decision-making. This blog post aims to discuss this judgment and its implications for the system of judicial review in the EU.
By Yanfui, Ana, Clara and Sebastian
As the European Union agency for “European integrated border management”, Frontex is the centre for border control activities at the EU’s external borders, sharing intelligence and expertise with all Member States and with neighboring non-EU countries affected by migratory trends and cross-border crime. It plays an active role in return operations. Under Article 3 of Directive 2008/115, return decisions are taken when the stay of the third-country national is declared illegal, which occurs when the person does not fulfill the requirements of that Member State, not carrying the required visa or residence permit.
Regarding the critics to Frontex, according to a report from 2020, Frontex faces two main challenges concerning pushbacks: accountability and transparency. These issues have become increasingly visible in recent years. Nevertheless, the protection of Fundamental Rights has still not been sufficiently improved. This is particularly paradoxical, as this topic has been the subject of countless publications in the legal literature and the EU legislator is also aware of the problematic situation, given that the protection of Fundamental Rights is mentioned more than 230 times in the corresponding Regulation. In the context of this blogpost, we will show where the greatest deficits exist regarding transparency and accountability, and thus where the greatest need for legislative action exists. To wake up the legislator and ultimately to push the legislator to real sustainable action, we will suggest that the Ombudsman could take on a decisive role.
When Borders Become Barriers: The Unintended Consequences of Europe’s Approach to Border Control
In February, the sinking of a vessel carrying 59 refugees from Turkey to Italy was blamed on Greece. With regards to Frontex, it has cooperated in protecting the coast, which made refugees decide on circumventing the Greek islands and taking the more life-risking approach by attempting to reach Italy. Consequently, both Greece and Frontex have been accused of taking part in those deaths, and we still lack information on their participation in this incident during their border protection activity.
Unfortunately, this is only one of numerous examples in which migrants coming in seek of asylum are subject of violence, detained, stripped, confiscated of their belongings, and pushed back to their territory.
No transparency in reality
Despite being an extremely regulated agency, the observable deficits in Frontex’s way of functioning raise doubts about its role as a border control agency. The lack of transparency and accountability in Frontex’s activities has been subject to debate since the Agency was created, with several calls demanding a solution to this issue at a national and European level, with no significant changes to this date.
When Frontex does not meet its transparency obligations, holding it effectively accountable for its actions is further complicated by the non-accessibility of all information. Even though a transparency mechanism can be found in Regulation 1049/2001 -to which Frontex is subject to- access to Frontex’s documents remains highly restricted on account of the nature of the information they contain. This cult of secrecy is further increased by the requisites prescribed in the Regulation: To access Frontex’s documents the person must be a citizen of the European Union. This reduces many potential information requests, as those primarily affected by Frontex’s actions do not meet this requirement.
Moreover, from an accountability point of view much has been reviewed and promised yet no noticeable changes can be seen. Being an EU Agency, Frontex is bound by the Charter, which consequently shields migrants from refoulement and collective expulsions. It also prohibits the conduction of push backs, as well as any sort of participation in them and the omission of acting against them. At first sight, the law is clear, and the system should work. Yet it is still extremely complicated to hold Frontex accountable when it does not comply with said obligation, even when tools created with significant effort such as the ‘individual complaint mechanism’ exist. The reason is not surprising: Frontex’s is formed by multiple actors from quite diverse backgrounds which makes it particularly challenging to allocate responsibility in case of wrongdoing, specifically in the context of pushbacks.
Enhancing political attention as the way forward in addressing the non-accessibility hurdle
The main changes needed to improve accessibility are more or less obvious. The right of access to information must be made more effective by also granting it to non-EU citizens. In addition, the requirements for refusing the right to information on public security grounds must be made more stringent, so that this straightforward way of denying access is no longer available. Since the EU legislator, despite frequent and repeated criticism, has so far not genuinely chosen to strengthen the fundamental rights protection at the expense of less effective border protection, the question arises how the legislator can be pushed to such legislative changes.
For this purpose, the European Ombudsman should be involved to a greater extent by receiving complaints about Frontex activities. The broad mandate from Art. 228 (1) TFEU would allow the Ombudsman to deal with such complaints, to make them public and to enter into an accountability dialogue with Frontex. It is true that here, too, only natural persons residing within the EU can file a complaint, which will probably never be the case in practice regarding persons who have been pushed back. However, legal persons located within the EU can also file corresponding complaints and thus draw the attention of the Ombudsman to deficiencies in the work of Frontex at the border. Such legal persons are non-governmental organizations (NGOs), most of which have a registered office within the EU. These could serve here as a spokesperson for the third-country nationals who have been pushed back. The Ombudsman can then forward the submitted complaints to the European Parliament through so-called special reports, which would ensure that the issue is debated and thus gains political attention.
Even if an EU institution would not be obliged to comply with the Ombudsman’s recommendations, it can be pressured towards compliance through public ‘naming-and-shaming’. Even if immediate changes would fail to materialize due to the lack of far-reaching powers of the Ombudsman, the Ombudsman’s activities and demands could prepare the ground for later secondary legislation changes by increasing political pressure by highlighting the deficiencies to the public. The Ombudsman’s ability to persuade the legislator to amend the legislation has been proven, for instance, by the introduction of the complaint mechanism in Art. 111 of the Frontex Regulation, which was ultimately also based on the suggestion of the Ombudsman.
By Juliette, Ahmed, Katrin and Tom
(Source: European Commission, Migration and Home Affairs, available at: https://home-affairs.ec.europa.eu/agencies_en)
The shared administration, intended as the division of tasks between national authorities and Frontex regarding the protection of the European external borders, has changed over time with the enlargement of Frontex’s powers. This has raised issues of responsibility when a Fundamental Right (hereinafter FR) violation occurs. One possible solution for Frontex to escape this issue is the use of Article 46 of Regulation 2019/1896 (hereinafter the Regulation). We argue that this Regulation lacks a real distinction of responsibility between Frontex and the national authorities. This lack is then profitable to violations of FR because it is hard to sanction and prevent violations if it is not possible to correctly identify a “guilty party”.
Evolution of Frontex’s enforcement powers and shared administration
The recent evolution of Frontex, the European and Coast Guard Agency (EBCG) by the most recent Regulation illustrates a remarkable development in the EU’s institutional landscape with the transformation of Frontex into a new type of organisation equipped with direct decision-making powers. In fact, while the original operational mandate was limited to the planning, coordinating and evaluating the operations, this all changed with the new Regulation which created the permanent staff of the Agency whose executive powers are exercised under the command and control of the Member State hosting the operation. The permanent new staff of Frontex is a new resource to support national border management authorities in exceptional circumstances and in day-to-day operations. This novelty changed the very basic principle and former division of tasks between the Agency and the Member States, according to which the implementation of EU policies, such as the application of the Schengen Borders Code rules, was strictly the responsibility of national border guards or border police.
This increase in Frontex’s mandate and the modified shared administration do not include a specific accountability system between the national authorities and Frontex when the operations are wrongly conducted. The only important addition of the new Regulation is the Article 46 which provides Frontex with the possibility to suspend, terminate or not launch activities especially when there is a risk of a FR violation. This possibility exists when the dignity of its own actions, in the sense of upholding FR, cannot be guaranteed adequately. Frontex has already invoked Article 46 once in the case of Hungary in 2021. While this was an important step, the invocation only occurred after five years of pressure from the Fundamental Rights Officer and a CJEU ruling. This phenomenon clearly shows that Frontex is not prone to withdraw its actions by invoking Article 46.
Fundamental Rights violations
Frontex is required by law to ensure that human rights are upheld during operations under both EU and international law. Nevertheless, OLAF discovered that Frontex repeatedly took active actions to ensure that the human rights crimes that were occurring would not be seen, documented, investigated, or accounted for. More specifically, it demonstrates how Frontex misled the European Commission and Parliament as well as how the Fundamental Rights Officer was side-lined and internal reports on human rights abuses were distorted. Frontex was aware of FR violations by the national authorities and sometimes even participated in it. The EU Agency failed to address and effectively follow up on these violations as to prevent similar foreseeable violations in the future.
Some authors have proposed that Frontex should be held responsible both directly and indirectly, especially concerning the misuse of Article 46 when FR are violated. However, the CJEU has not ruled on this matter yet.
Lack of effective responsibility mechanism under the Regulation of 2019
Hence, while direct enforcement powers of Frontex have grown, methods for holding Frontex accountable and responsible for its actions and violations of FR have not. In the existing system, any wrongdoing by Frontex can effectively be concealed due to its reliance on national authorities who oversee the actions of Frontex’s staff during ground operations.
However, even if Frontex is dependent on the command of national authorities, this does not alleviate the European and Coast Guard Agency from the obligation to respect FR as prescribed in Article 3, paragraph 2 of the Regulation.
Also, as stated above, Article 46 gives the possibility for Frontex to suspend, terminate or not launch activities especially when there is a risk of FR violation. Nevertheless, notwithstanding the numerous reports filed by the Fundamental Rights officer, Frontex did not make use of Article 46 in the 2021 crises affecting the eastern borders of the EU. Frontex was aware of the ground-breaking legislative amendments of the alien’s laws in Lithuania at the time of their deployment. As a matter of fact, these amendments were in complete breach of the European Convention of Human Rights (ECHR) considering that they introduced limitations on accessing asylum procedures; extended the use of detention (up to six months); and restricted individuals’ access to information, interpretation, medical care and legal aid. It is only in July 2022, following a CJEU’s decision which concluded that the above-mentioned amended Lithuanian migration and asylum laws were in breach of EU law, that Frontex decided to terminate its operations when it could have triggered Article 46 much earlier.
It can thus be argued that the lack of real distinction of responsibilities between Frontex and the national authorities, combined with the practice of Frontex to not rely on Article 46, further worsens the underlying tension between the protection of FR and the protection of the external borders of the EU.
Blog post by Nicole, Thirza, Enes
As reiterated by President von der Leyen in her 2021 State of the Union speech: “The EU needs to ensure that every euro and every cent is spent for its proper purpose and in line with rule of law principles. EU funds are not allowed to seep away into dark channels”. If you have wondered which EU bodies are at the forefront of the protection of the Union’s financial interests (PIF) and how their cooperation works, you have come to the right place. In the almost two years the EPPO has been operational, the two Offices have had the first chance to interact and cooperate, as prescribed by their respective Regulations. In this blogpost, we outline the current updated EPPO and OLAF operational cooperation and its future possibilities to find out if teamwork can make the dream work.
PIF: A new player in the game
For more than 20 years, the European Anti-Fraud Office (OLAF), an administrative investigatory body with the mission to “detect, investigate and work towards stopping fraud involving European Union funds”, has been a preeminent actor in the PIF fight. However, in 2017 a new player entered the scene, the European Public Prosecutor’s Office (EPPO). For the first time in EU history, an independent European body has the power to investigate and prosecute PIF crimes (see Figure A). As a result, we have two EU bodies with different sets of powers but with one common goal in mind: “to better protect EU taxpayers’ money and to bring all crimes against the EU budget to justice as quickly as possible.”
Figure A: Missions and Tasks of EPPO. Source: https://www.eppo.europa.eu/en/mission-and-tasks
OLAF and the EPPO in a nutshell
OLAF’s mandate encompasses investigation of fraud and corruption involving EU funds and serious misconduct within the European institutions as well as development of anti-fraud policy for the Commission. OLAF carries out both ‘internal’ or ‘external’ investigations, depending on whether or not they are conducted within institutions, bodies, offices and agencies of the EU (IBOAs). While conducting its investigations OLAF cannot exercise any coercive powers, so it has to rely on cooperation with national competent authorities. At the end of these investigations, OLAF cannot sanction the suspect or bring them to court. Instead, it can draw a report, binding on the IBOAs but not on national prosecutorial or judicial authorities of the Member States (MSs), and issue recommendations. In practice, the indictment rates following OLAF’s recommendations are low and vary significantly among MSs. That is because in some jurisdictions national prosecutors tend to prioritise the national aspects of cases, neglecting their European dimension, for instance, due to their lack of expertise.
In contrast, the EPPO has criminal powers through which it can investigate and also decide to bring a case to judgement before competent national courts until it has been finally adjudicated. Moreover, since the EPPO’s legal basis, Art. 86 TFEU, allows for the mechanism of enhanced cooperation, MSs could choose whether or not to join. Therefore, currently the EPPO counts only 22 “participating” MSs.
The implementation of these powers creates a complex legislative and organisational structure (here you can find a full explanation). Despite being a single office, the EPPO is composed of a central and a decentralised level, where different authorities play a role (see Figure B). As for the legal framework in which the EPPO operates, the EPPO Regulation provides only minimum rules, referring often to national laws especially in regards to its investigatory powers.
Figure B: Structure of the EPPO. Source: Fabio Giuffrida, The European Public Prosecutor’s Office: King Without Kingdom? CEPS Research Report No. 2017/03, February 2017
Abbreviations: ECP: European Chief Prosecutor, EP: European Prosecutor, DCP: Deputy Chief Prosecutor, EDP: European Delegated Prosecutor.
The EPPO and OLAF cooperation: ensuring no case goes undetected
The EPPO’s creation has definitely marked the transition into a new era for European enforcement in the area of PIF. However, in order for its potential to be fully exploited, the “new player” will have to play alongside its well-experienced team-mate OLAF. That’s why, expanding on the few ad hoc provisions contained in their respective Regulations, in 2021 OLAF and the EPPO further specified their obligations to cooperate by signing a Working Arrangement (WA). Considering this combined legal operational framework, let’s describe the most important aspects. First, in line with the principle of non duplication, OLAF needs to terminate its investigation if the EPPO is conducting one into the same facts. However, OLAF may support the EPPO in its investigations by means of operational, forensic, and analytical expertise and tools. Importantly, when providing this support, OLAF needs to respect the stricter criminal procedural safeguards contained in the EPPO Regulation. Additionally, under its own initiative or upon the EPPO request, OLAF can conduct parallel complementary investigations to address essential aspects of the protection of the EU’s financial interests, such as speedy recovery or the adoption of administrative precautionary measures.
Figure C: OLAF and EPPO Joint Enforcement
Moreover, the EPPO and OLAF can mutually exchange information, which enriches the capacities of both offices, enabling them to avoid duplicate investigations, and streamlining their operations. Additionally, the WA sets up a system for the reporting and transmission of potential cases. Since the mandates of OLAF and the EPPO do not fully overlap, this exchange is crucial to ensure that illicit activities detected by the EPPO in non-participating MSs do not escape OLAF’s investigation. Moreover, it guarantees that the EPPO is informed about any criminal offence falling under its mandate even when it was first detected by OLAF. In short, the exchange of both information and cases ensures that the EU’s resources are spent effectively and that every case is tackled by the appropriate authority.
Towards a joint enforcement mechanism?
A closer look at the envisioned OLAF and the EPPO cooperation supports the conclusion that the EU legislator aimed to create more than just two separate EU agencies. On the contrary, it seems that this could be the first step towards a comprehensive joint EU law enforcement system (see Figure C). Indeed, an integrated end-to-end cycle starting with OLAF investigations and ending with the EPPO indictments could be the future of the PIF enforcement in the EU.
Years of cooperation will be necessary to find out if teamwork will make this dream work or if it will remain but a distant dream. So far, it seems that both offices got off on the right foot and the EPPO 2022 annual report enthusiastically highlights the achieved results. Nonetheless, if a lasting relationship is to be built on these foundations, one must not forget that this increase in the powers of EU authorities should be accompanied by both guidance to and cooperation with national authorities and by appropriate guarantees for private individuals.
Even though the digital economy has been around for some time now, there are still doubts concerning, e.g., the way that law should be enforced in the digital context. Hence, the crucial role of expert knowledge in providing relevant insight is understandable. Due to its importance, the question of which sources, and for what reasons, should be considered as providing the relevant expertise is worth examining. In the post, I present the results of an analysis of references from the Commission’s decisions in three cases concerning Google published recently in the form of an article. The goal of the analysis was to identify references to expert knowledge, provide a classification of the roles played by these references, and confront them with the standards that the evidence used by the Commission should fulfil, as presented in the case law of the Court of Justice of the European Union (CJEU) and in doctrine. The results show that due to the variety of roles played by references to expert knowledge in the Commission’s decisions, the importance of following CJEU’s remarks on standards concerning expert knowledge is especially crucial when these sources are:
- used to support authoritative claims about digital technologies and markets, and
- in other cases, when they are indispensable for substantive analysis of the infringement itself or are not corroborating other types of evidence.
The European Commission Legal Service held its first Annual Conference, during which many speakers discussed the crucial changes brought by the entry into force of the Digital Services Act and the Digital Markets Act and debated on the pressing matters of intergenerational justice and climate litigation. This post aims at giving a brief summary of the event.
The first Annual Conference organised by the European Commission Legal Service was held on 17 March 2023 in Brussels. The event was also streamed online, and it represented a timely opportunity to celebrate the 70th anniversary of EU law and of the Legal Service itself. In fact, the creation of the Legal Service came with the entry into force of the Treaty of Paris establishing the European Coal and Steel Community in 1952.
The conference was kicked-off by the welcoming remarks of Mr. Daniel Calleja Crespo, Director-General of the EC Legal Service. The Director-General highlighted the importance of the two topics of the Conference, namely internet and platforms regulation (morning session) and intergenerational justice and climate litigation (afternoon session). Both topics address two Commission’s priorities for the years 2019-2024, notably “A Europe fit for the digital age” and “A European Green Deal”.
Artificial intelligence brings numerous challenges to law enforcement frameworks. As States intend to ever more rely on artificial intelligence, such use remains challenging under European law. The intent of the French government to use algorithmic crowd surveillance reflects such challenges.
By Isabella, Renuka, Thomas, and Yutong
Increasing anti-fraud enforcement: the need to tackle fraud on a broader level
The European Union is a very complex structure, with a budget of a little less than EUR 190 billion for 2023. This could present an ideal environment for fraudsters, who may take advantage of this to commit and mask their crimes. We can give you an example: imagine you sit at one of the highest positions in the European Parliament, and you are approached by certain countries’ representatives willing to pay you so you can lobby in their favour at Parliament’s meetings. That is fraud and it – unfortunately – happened in real life, as seen in Qatargate.
Although Qatargate involved bribes paid to MEPs, constituents of an EU institution, it was not investigated by EU bodies, but by national authorities from Belgium. Therefore we formulated to research the case in-depth and the anti-fraud framework within the EU with the aim of providing an understanding as to why EU anti-fraud bodies, especially the European Anti-Fraud Office (OLAF) and European Public Prosecutor’s Office (EPPO), have not been directly involved in Qatargate.
Although the importance of these institutions in the EU cannot be overstated, the effectiveness of their power is subject to limitations. Firstly, their competencies, whilst broad, do not fully encapsulate the various forms that European financial fraud may take, and secondly, their relationship with the relevant national competent authorities. This was evidenced by the manner in which the investigation into Qatargate was conducted.
Anti-fraud enforcement in the EU: OLAF and EPPO
As already mentioned before, OLAF and EPPO are the two main bodies established to fight fraud in the EU; and even though both bodies pursue a common objective, significant differences exist between the two.
For OLAF, the investigation powers can be classified into external (concerning the area of the Member States and other countries) and internal investigations (focused within the EU institutions), however, it does not have any sanctioning powers. Because of that, there are concerns about its lacking of sufficient criminal enforcement and judicial materialisation of OLAF’s recommendations caused by national prosecutors in certain Member States, who narrow down their investigations to national aspects.
Unlike OLAF, EPPO is granted shared competence to investigate and prosecute offences with an EU dimension which are related to fraud that has a direct impact on the EU finances/budget. Furthermore, EPPO exercises its competence only via an investigation or by deciding to use its right of evocation. If the latter applies, EPPO will determine whether it wants to take over the case initiated by the Member State(s) after deliberation with the respective national authorities. In that case, the national authorities are required to confer the proceedings to EPPO.
Qatargate: a scandal in the EU Parliament and the EU’s anti-fraud enforcement
Currently, Qatargate has only been investigated at the national level, by the Belgian authorities, instead of by OLAF and EPPO, but that does not mean they have not been kept busy. At approximately the same time which Qatargate took over the news, OLAF and EPPO were involved in another investigation into the Parliament.
In December 2022, OLAF issued an investigative report regarding a “suspicion of fraud detrimental to the EU budget, in relation to the management of the parliamentary allowance”, specifically regarding money paid to parliamentary assistants. It is interesting to point out that, as clarified by OLAF Director-General Ville Itälä, “there is no link between the issues investigated by OLAF and the issues under investigation in the ‘Qatargate’. When it comes to the so-called Qatargate, OLAF is following the matter very closely, in line with its investigative experience and analytical expertise. We are in contact with the Belgian authorities on the matter”.
Based on what we have discussed above, the inner logic of such clarification is the fact that, unlike EPPO, OLAF does not have any sanctioning powers. This means that OLAF does not possess the power to conduct criminal investigations and prosecutions; so without a request from national authorities, it cannot initiate an investigation, and can only provide limited information support. Currently, OLAF shows the willingness to support the investigation into Qatargate, but it does not seem to be actively engaged in Qatargate.
The most notable fact is that OLAF is a non-prosecutorial body, and is reliant on the individual Member States for their cooperation. For example, in 2015, Hungarian authorities refused to comply fully with an investigation into bid tenders related to the disbursement of funds under the Economic Operative Programme. In such instances, OLAF cannot compel a Member State to assist in its investigations other than to request the National Competent Authorities (NCAs) do so themselves or for the European Parliament. Progress in this regard has been made, with OLAF and the Office of the Prosecutor General of Hungary, its NCA, signing a cooperation agreement last year to protect EU funds from fraud and embezzlement in the country by strengthening the closeness of its investigations.
A similar problem exists for EPPO, in that Member States retain an ‘opt-out’ from the Area of Freedom, Security, and Justice (AFSJ). Currently, Hungary, Poland, and Sweden have not joined EPPO, with Denmark and Ireland maintaining the opt-out on a case-by-case basis. While negotiations remain ongoing with Denmark and Ireland as to the level of cooperation EPPO can expect from their NCAs, this highlights the issue EPPO, and OLAF, face in an inability to force Member States to cooperate if it simply wishes not to comply.
Having explained why OLAF is not directly involved, EPPO’s reasoning is different. EPPO’s main focus is the protection of the EU budget, and because of that, as there is no evidence, so far, that the wrongdoings investigated in Qatargate have an impact on EU finances, this body – even though it has the power to conduct judicial investigations – was not involved. Yet.
Overlaps between OLAF and EPPO
In addition to the matters raised in the section above, there is another aspect that needs to be considered. Given OLAF and EPPO’s similar roles, there can often be unintentional overlap in the investigations they carry out, see the graph below.
To ensure there are no conflicts, EPPO’s Regulation expressly directs the organisation to maintain a close relationship with OLAF based on mutual cooperation, information exchange, and complimentary support. However, EPPO does not have to inform OLAF of its investigations, per Article 8(1) of the OLAF Regulation, creating a potential lack of communication and duplication of investigative resources. EPPO is only required to consider doing so where there is suspected illegal conduct relating to the financial interests of the EU. This may have occurred with Qatargate given OLAF was investigating Eva Kaili’s parliamentary assistants before EPPOs publication of its investigation.
OLAF and EPPO are considerable investigative forces in the EU, but due to the factors discussed in this blog post, might be possible that fraudulent practices that hurt the EU’s and its citizens’ interests go undetected and unprosecuted, given that fraud is unavoidable to a degree in a Union so large. Therefore, expanding the strength of their investigative and prosecutorial powers and increasing their cooperation, will, in the authors’ opinion, decrease the overall levels of financial mismanagement and fraud in the EU.
By Eloise, Marina and Amber
Imagine you are a national who is a suspect or accused in a criminal proceeding of the EPPO. Are you aware of your exact rights as a defendant?
Defence rights in EPPO proceedings: Who cares?
The European Public Prosecutor’s Office (EPPO) is a powerful body. It can investigate and prosecute the offences that are affecting the EU’s financial interests. The actual prosecution by the EPPO always takes place before a national court in one of the EU Member States. A consequence could be that you as an individual have to take on the battle against the EPPO in a criminal proceeding. Now, it can be noticed that specific defence rights are not laid down in the EPPO Regulation itself. How could you defend yourself properly in this case?
In this blog post, we will provide you with some answers. We will guide you through the problems that we potentially have to deal with in a criminal proceeding by the EPPO. Especially in the case that the proceedings are referred to as a cross-border case. Additionally, we will lay out the arguments that you as the defendant could make. To make sure that in the end, you still stand a chance of effectively arranging your defence.
Criminal proceedings with a cross-border dimension: What to expect, or maybe even fear?
The EPPO has the power to choose a different Member State for prosecution than your own. It might therefore not be foreseeable before which court your trial will be held. Do you have any possibility to request a change of jurisdiction? Or that you will at least be heard before such a jurisdictional change is made? Unfortunately not. You do not have a voice or choice when it comes to the forum selection.
Secondly, in the case of a so-called cross-border prosecution, the investigation and obtaining evidence by the EPPO has taken place in multiple Member States. The delegated prosecutors of the EPPO are allowed to exchange and submit relevant evidence to the case file. Therefore, you as the defendant could be confronted with multiple documents based on different national procedural rules. If you want to argue that a piece of foreign evidence is illegally obtained, you need to take into account that the court will evaluate this argument based on its national procedural law. You could be confronted with the issue that the ‘potentially illegal’ evidence is stipulated as legal under their applicable procedural standards.
Another complexity you should become aware of is that your right to access the case file is limited. There are no uniform standards for handling the information in the case file laid down in the EPPO Regulation. There are no rules regarding access to such case files, nor are there any safeguards to ensure that the content of the information in the case management system always adequately reflects the case file.
Lastly, the EPPO Regulation does refer to the Charter of Fundamental Rights of the European Union as well as the ABC-Directives, to guarantee procedural rights. Therefore, it would seem that you receive enough protection and defence rights against the acts of the EPPO. But do not cheer too quickly. As noted, the national law of the state where the trial is held determines the procedural standards applicable. If a Member State has not implemented specific defence rights from these Directives, you can rely solely on the national procedural safeguards applicable. The level of protection of defence rights will be determined by the procedural rules of the state where the proceedings take place.
How to set up a successful defence
Looking at the issue of forum selection, you should be granted the ability to have more insight into where the proceedings will take place. Especially since this could simplify the process of selecting a lawyer. On this basis, you could use the argument that there should be a right to request a change of jurisdiction. Or at least, you should be granted a chance to be heard before such a jurisdictional change is made. Consideration should be given to your personal circumstances. The issue of foreseeability and the possibility of forum shopping means that the defendant must be guaranteed that there will be no change in the court’s jurisdiction during ongoing proceedings, as it is difficult to predict the court where the trial will be held.
Access to the case file is another important defence element. You could argue that complete access to information is necessary in order to prepare an effective defence strategy. The EPPO Regulation’s limited provision of free exchange of evidence makes it almost impossible for you to become aware of all documents obtained under all various procedural rules. You could use the argument of disproportionality in light of all the knowledge necessary to actually be able to understand the case file. The extra costs for an effective defence due to this complexity can be deemed unbearable.
The same argument can be used to challenge the lack of specific defence rights in the EPPO Regulation itself. As a defendant, it does not seem right to be dependent on the procedural rules of the Member State in which the proceedings take place.
Since you as a defendant are facing the consequences of an EPPO proceeding, you should be protected in all of your rights to be able to set up an effective and fair defence. In light of the difficulties that the defendant could face in a cross-border procedure of the EPPO, the individual needs to be made aware of applicable rights and possibilities to arrange his defence as effectively and successfully as possible. The Charter and the ABC-Directives are well-known instruments for defence rights. However, it would be easier and more efficient to include defence rights provisions, forum selection and a regression clause in the already existing EPPO Regulation. Cross-border prosecution is complex and deserves a general, harmonised and clear defence rights framework.