EPPO: A future Counter-terrorism Actor?

By Karenza, Chiraz and Mary

First, some background information about the new European Public Prosecutor’s Office

Introduction

When you first stumble on the idea of of Article 86(1) TFEU establishing a European Public Prosecutor Office (EPPO) you might think that, finally, the EU created this supranational hero that will solve all cross-border crimes and make the world a better place. Sorry to disappoint but EPPO Regulation limits the investigation and prosecution competences of EPPO to crimes affecting the financial interests of the Union. These limitations are directly linked to the good old national sovereignty concept. It is deemed to be the gatekeeper of criminal law as it reflects the Member States’ (MSs) national values and constitutional traditions: MSs are thus not big fans of conferring EU powers to European agencies in the first place. As politically sensitive and controversial such delegation can be, the inclusion of cross-border terrorism crimes along with financial crimes seems essential. First because both sets of crimes can be related, as in the case of money laundering for terrorism financing, and second the fight against terrorism could benefit from the efficiency and effectiveness that the EPPO could provide. Don’t you agree? Ok, now imagine that a terrorist attack affected two countries which do not have the resources to respond to the attack and other countries do not want to get involved in the fight against terrorism: what can the affected countries do? Well, if EPPO were competent to intervene, the investigation and prosecution of the attack could be swift and effective due to EPPO’s decentralized nature. Accordingly, the functional necessity of extending EPPO’s competences seems, once again, evident. Thus, could the scope of EPPO’s competences be legally extended to cross-border terrorism crimes?

But why extend the scope to terrorism?

Because fighting terrorism is a top priority for the EU!

Terrorism not only affects the EU citizens, but also affects the values the EU is built upon. Living in an era of digitalization, there are new forms of terrorist attacks occurring. Online propaganda and social media have become a powerful tool for terrorists for recruiting EU citizens, radicalization and fundraising. In 2020, Europol published that in 2019 a total of 1.004 individuals were arrested under suspicion of terrorism-related crime. Certain MSs and executive branches are calling for more action to ensure the protection of EU citizens and EU values. France, for example, is calling for a closer tie between the intelligence services. Italy is in favor of giving the European Prosecutor more power to fight terrorism. And the European Commission, in its 2018 Communication, is calling for a stronger and united Union with an explicit call for the EPPO to be granted jurisdiction on cross-border terrorism cases.

But how does the EPPO fit in this top priority?

When the material scope of the EPPO is extended to fighting terrorism, EPPO will be able to provide a new European perspective to tackle the fight against terrorism. A direct relationship with the MSs and Union actors (such as Eurojust and Europol) will be created, where communication is the main feature. Accordingly, EPPO will close the gaps of investigation and prosecution between MSs. For example, the EU is still looking at better ways to collect and share information between the MS. Additionally, EPPO will bring together the national legal orders of MSs allowing an easier overview of the current terrorism situation and its cross-border criminal activity. The EPPO will be in a central position to request and collect the relevant evidence and prosecute terrorist offences.

So, is the EPPO ready to prosecute terrorism now?

Considering the above, one would say yes, EPPO can start prosecuting terrorism. But the necessary changes should be made. Both article 86 TFEU and article 22 of the EPPO Regulation should be reviewed to include terrorism in EPPO’s scope. Article 86 TFEU is the legal basis used to establish EPPO and it sets EPPO’s investigation and prosecution powers. It also refers to the kind of cases that EPPO can work on and if the powers of EPPO can cover other cases. While article 22 of EPPO regulation is more detailed on the kind of cases that EPPO can work on and refers to the set laws.

The possibility to extend the scope of EPPO is found in article 86 (4) TFEU. This article allows for a decision to amend article 86 (1) TFEU to add requirements to fight terrorism. For example, one could think that the requirement of ‘serious crimes having a cross-border dimension’ will be added. It also allows for a decision to amend article 86 (2) TFEU considering the fight against terrorism. If these changes are made, the TFEU will give EPPO the possibility to investigate and prosecute terrorism.

The next step would be to make the necessary changes in articles 2 and 22 of EPPO Regulation. For article 2 EPPO Regulation, this means an introduction of the definition of terrorism and the offences hereof. For article 22 EPPO Regulation this means a new paragraph with a reference to the Directive 2017/541 on combatting terrorism, to give EPPO the power to investigate and prosecute terrorist offences. This means the current structure of EPPO and the controls on its tasks would have to be amended, because EPPO’s amount of work will increase, and it will need members with understanding of terrorism crimes. These members would then be supervised by the Central Office of EPPO.

The political chances of amending article 86 TFEU depends on the European Council, a political body of the EU. As this article states, for EPPO to be given more powers, the the European Council must first approve the amendment to article 86 (1) TFEU, without any opposition from any MS. However, there are limited chances that the European Council approves the amendment of article 86 TFEU, because terrorism is a sole national security agenda. For instance, during the European Council meeting in Sibiu on 9 May 2019, the topic to amend article 86, to give the EPPO power to investigate and prosecute terrorism was neither discussed nor agreed on. This shows that, the European Council is not ready to open the book on matters about the EU’s national security agenda.

To Extend or not to Extend?

So, now the burning question: could the scope of EPPO’s competences be legally extended to cross-border terrorism crimes? It is possible. Based on the call by some MSs and EU executive branch, one can expect the introduction of terrorism in the material competence of the EPPO, especially since there is a legal basis for the decision of the European Council to extend the material scope of EPPO. Besides, this extension should also be driven by concerns of security and protection of EU citizens within its borders. Indeed, these concerns are part of the main goals promoted by the EU, and terrorism is a significant threat to both objectives. Accordingly, delegating to EPPO the necessary competences to investigate and prosecute terrorism-related crimes, even though at the detriment of national sovereignty, seems needed. However, because the EPPO is established through enhanced cooperation the question remains whether a unanimous decision by all the MS is necessary in order the extent the scope of the EPPO’s competence. It is an important question as extending the scope of the EPPO to terrorism can be impossible if a unanimous decision by all MS is needed. Yet, it remains to be seen if the politics could recognize the functional necessity the EU seems to portray and only extent the scope of the EPPO through a unanimous decision by the MS participating in this enhanced cooperation.