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May 08, 2017

The road to a European Public Prosecutors Office – an ECBA perspective

Spring Conference, Prague, 22nd April 2017

Introduction

Friends and colleagues
I have a simple message for you today which is that in a very few years part of our everyday legal practice will involve dealing with cases being prosecuted by European Public Prosecutor’s Office (EPPO) - click here for the proposal.

Almost since the establishment of the European Criminal Bar Association itself this has been a topic which has been discussed interminably, and a bit like the West Ham United annual relegation matches has been a staple feature of all ECBA conferences.

However, the talking is over and the Measure will be implemented in the course of this year, with those member states that wish to follow its course obliged to transpose within a further two years.  We know from our discussions that the Measure will be retrospective in the sense that prosecutions in 2019 may relate to crimes allegedly committed in 2017 and earlier.  Accordingly clients currently under investigation may not realise, but will soon learn to their cost, that they are to be prosecuted by this new almost pan- European body.  As a result it behoves all of us to familiarise ourselves urgently with the Measure and to prepare strategies to ensure that our clients are not victimised by the inherent potential for unfairness that it includes.

Even though Ireland is one of those countries who will not opt in, to say nothing of the difficult situation of our colleagues in the United Kingdom, the reality is that my clients will get caught up in EPPO prosecutions due to their activities abroad so I will need to know what it is all about.

Process

As practitioner, I know that many of us are averse to spending too much time looking at draft legislation, on the understandable basis that we can confuse ourselves as to what the law actually is as opposed to what it was proposed to be. However, in the case of the European Public Prosecutor's office and in the context of the work of our Association I think it is worth spending some little time looking at the evolution of the proposal and at the constructive role that we have played in its development.

The proposal derived its political impetus from the belief, unshakeable and misguided in my view, on the part of many Eurocrats that the European Union was being swindled of massive funds by various criminal elements but that national authorities were disinclined to prosecute those offences because it wasn't really taking money from them, only from the European Union.

That analysis proceeds to the belief that if this type of crime was detected and prosecuted more aggressively the fortunes of the Union would be greatly enhanced and all the Union’s inherent financial difficulties would be resolved.

That I regret to say is fanciful but however it is populist

The idea of a special Prosecutor to protect the financial interests of the European Union was certainly current as far back as 2000 and the Corpus Juris study of that year specifically considered the possibility.

Subsequent academic studies notably by the Max Planck Institute and the University of Maastricht gave further consideration to the proposal and ultimately in 2012 a consultation process was initiated by the Commission.  Both the CCBE representing over 1 million lawyers in Europe and the European Criminal Bar Association with an impressive membership of 300 approx. were invited to contribute.

On the one hand it would be easy to be dismissive of the consultation process and to take the view that the governments and politicians were doing no more than a box ticking exercise in consulting persons with a view to express, with no intention of paying more than lip service to those outside opinions.

Continuing that analysis it might be stated that it was a bit of a waste of time for any of us to express our views on the proposal as we were going to be effectively ignored in any event.

My personal view, and I think it is probably shared by others in this room that were involved in the process, is that the Commission understood that the parliamentarians and the member states had a political imperative to appear to be tough on crime and there were no significant counterbalancing voices in the discussion bar defence lawyers and rights bodies such as the Fundamental Rights Agency (FRA).  In this context the opportunity that was presented to the ECBA and the CCBE to review and discuss the proposal as it developed was not alone important from the point of view of professional desire to shape legislation in the common and public interest but also important in the context of the European Union itself which after  all should have  no vested interest in promoting a legal order which is at variance with the principles of natural justice.

Engagement

I hope delegates will be interested in a brief overview of the legislative process that has brought us to where we are today with the proposal to establish a European Public Prosecutor's office.

The consultation process was under way informally throughout the 2000's but more formally from March to June 2012 when the exercise considered “Protecting the EU's financial interest and enhancing prosecutions”.

In addition to the prosecution concept even Model Rules of Procedure (devised in a research project by the University of Luxembourg) were under consideration at this time Views were invited on the developing concept and the CCBE made its observations on 7th February 2017.

The principal concern expressed at that time was that the measure was premature as for instance the work on developing procedural safeguards was incomplete.

Memories of the promises made but never fulfilled upon the introduction of the European Arrest Warrant were still fresh.

While measures A Translation and Interpretation (20/10/10) and B Information.(22/5/12) had been accomplished, the balance were still under discussion and in particular C Access to a Lawyer (eventually finalised 22/10/13) was being drastically diluted.

An equal concern was the competence of the Union in criminal matters. In total 17 areas of concern were highlighted including: 

  • overreach into purely domestic matters
  • forum shopping
  • adopting the ICC model of jurisdiction arising only where national authorities unwilling or unable to investigate/prosecute
  • differential application of evidential principles
  • legal aid
  • detailed list of defendants rights
  • evidence gathering in aid of defence
  • effective interlocutory remedies
  • duty lawyer scheme

In addition there was a critique of the Model Rules which while not subsequently pursued have a clear influence on all that followed.

The full text of those initial observations are as follows... (see attached file for full text).

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