Eucrim Issue 01/2021
Total Page：16
File Type：pdf, Size：1020Kb
eucrim 2021 / 1 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM EPPO Now Operational – Perspectives from European Prosecutors Le parquet européen désormais opérationnel – Perspectives des procureurs européens Die EUStA nimmt ihre Arbeit auf – Perspektiven der Europäischen Staatsanwälte Editorial Laura Codruţa Kövesi (European Chief Prosecutor) Perspectives from European Prosecutors: Frédéric Baab (Procureur européen, France) Danilo Ceccarelli (Deputy European Chief Prosecutor, European Prosecutor, Italy) José Eduardo Guerra (European Prosecutor, Portugal) Petr Klement (European Prosecutor, Czechia) Tamara Laptos (European Prosecutor, Croatia) Ingrid Maschl-Clausen (European Prosecutor, Austria) Maria Concepción Sabadell Carnicero (European Prosecutor, Spain) Gabriel Seixas (European Prosecutor, Luxembourg) Kristel Siitam-Nyiri (European Prosecutor, Estonia) Yves Van Den Berge (European Prosecutor, Belgium) Dimitrios Zimianitis (European Prosecutor, Greece) 2021/ 1 ISSUE / ÉDITION / AUSGABE The Associations for European Criminal Law and the Protection of Financial Interests of the EU is a network of academics and practitioners. The aim of this cooperation is to develop a European criminal law which both respects civil liberties and at the same time protects European citizens and the European institutions effectively. Joint seminars, joint research projects and annual meetings of the associations’ presidents are organised to achieve this aim. Contents News* Articles European Union Procedural Criminal Law EPPO Now Operational – Perspec- Foundations 26 Procedural Safeguards tives from European Prosecutors 3 Fundamental Rights 28 Data Protection 5 Reform of the European Union 31 Freezing of Assets 6 Area of Freedom, Security 45 Le parquet européen: un projet entre and Justice Cooperation audace et réalisme politique – Frédéric Baab 8 Schengen 32 Customs Cooperation 8 Legislation 32 European Arrest Warrant 47 A Legal Obstacle in the Regulation? – 37 European Investigation Danilo Ceccarelli Institutions Order 49 The Material Competence of the EPPO 10 Council 37 Criminal Records and the Concept of Inextricably Linked Offences – 12 European Court of Justice 38 Law Enforcement José Eduardo Guerra 12 OLAF Cooperation 14 European Public Prosecutor’s 51 Reporting of Crime Mechanisms and the Office Interaction Between the EPPO and OLAF 15 Europol as Key Future Challenges – Petr Klement 16 Eurojust 17 European Judicial Network Council of Europe 53 EPPO – Diversity and Challenges in Investigation 17 Frontex and Prosecution in 22 Member States – Tamara Laptos 19 Agency for Fundamental Foundations Rights 39 European Court of Human 55 The Permanent Chambers at the Heart Rights of the EPPO’s Decision-Making – Specific Areas of Crime / Ingrid Maschl-Clausen Substantive Criminal Law Specific Areas of Crime 57 The Independence of the European Public 19 Protection of Financial 39 Corruption Interests Prosecutor’s Office – Maria Concepción Sabadell Carnicero 20 Money Laundering Procedural Criminal Law 21 Tax Evasion 42 CCPE 59 Opportunities and Challenges in Cases Involving 22 Counterfeiting & Piracy Proceeds of Crime – Gabriel Seixas 22 Organised Crime 23 Cybercrime 61 EPPO and Digital Challenges – Kristel Siitam-Nyiri 25 Environmental Crime 25 Racism and Xenophobia 63 Role of the Belgian Investigative Judge in EPPO Cases – Yves Van Den Berge 65 EPPO: A Challenging Balance-Striking Exercise in the National and EU Judicial Environment – Dimitrios Zimianitis * The news items contain Internet links referring to more detailed information. These links are embedded into the news text. They can be easily accessed by clicking on the underlined text in the online version of the journal. If an external website features multiple languages, the Internet links generally refer to the English version. For other language versions, please navigate using the external website. Editorial Dear Readers, I have been a prosecutor for half of my life. I have combat- perspective, the EPPO is the ted high-level corruption for many years and possess firsthand first powerful tool to defend the experience in the vital importance of fairness, the willingness rule of law in the EU. to comply with commonly agreed rules, the ability to admin- ister justice − in other words, the rule of law. This is the core Lastly, from my perspective, strength of the European Union for me and, I am sure, for mil- even if I agree that setting up lions of European citizens who grew up under dictatorial re- a prosecutor’s office at the EU gimes in a divided Europe: our only effective way to ensure level is a complex and sensitive the rule of law is true democracy in a globalized world. issue, if we wish to make the EPPO work in an efficient and One of the new instruments that can play a key role in this independent manner, the choic- respect is the European Public Prosecutor’s Office (EPPO). It es to be made are ultimately is the outcome of more than twenty years of convincing argu- straightforward. These are the ments and negotiations, and it marks one of the most ambi- key questions that need to be Laura Codruţa Kövesi tious European integration projects of the last decade. answered before we can assess whether the EPPO is capable of fulfilling its potential: The EPPO is a specialized prosecution office. Any fraud in- Can we agree that the European Delegated Prosecutors volving EU funds or serious cross-border VAT fraud commit- should work full-time for the EPPO? ted in the participating Member States after November 2017 Can we agree how many prosecutors there should be in falls within our jurisdiction. As we have a mandatory com- each of the Member States in order to do the job properly? petence, it is our legal obligation to investigate all new cases What types of support and equipment will they receive? from the day we start operations. What will the overall budget of the EPPO be? Will the EPPO’s central office be able to analyze all the In practice, 22 European Prosecutors in Luxemburg will over- available information in order to genuinely improve cross- see investigations initiated by the European Delegated Pros- border investigations? ecutors in the participating Member States. The European Will the EPPO’s central office be able to improve the iden- Delegated Prosecutors will be active members of the judici- tification of criminal assets, thus helping the Member States ary in their respective national systems, and they will perform improve the recovery of damages? prosecutorial functions before the national courts. Our work is that of true pioneers. I am convinced that we are This is the basic definition and description of the EPPO, but ready. And we are not alone. We can count on the European what does it mean? Court of Justice, with all its authority and decisive jurispru- dence. I am confident that we can also count on our fellow From a magistrate’s point of view, the EPPO is the most excit- prosecutors, judges, and police officers in the Member States. ing challenge of our generation. For the first time, a European Union body will investigate, prosecute, and bring to trial crim- Why will the EPPO be a game changer in the fight against inal offences. Of course, it will not be easy to find solutions fraud involving European funds? for 22 different judicial systems, especially because there is no precedent for a European Public Prosecutor’s Office. Until now, the level of protection of the financial interests of the EU varied across the Member States. In some Member From a political perspective, the EPPO establishes a trans- States, thousands of investigations have taken place, while in fer of sovereignty and a new instrument to protect the Union other Member States, there were two or even fewer cases per budget in the 22 participating Member States. From a citizen’s year. From now on, the investigation and prosecution of these eucrim 1 / 2021 | 1 EPPO NOW OPERATIONal – PERSPECTIVES FROM EUROPEAN PROSECUTORS crimes will be a priority for all the European Delegated Pros- We also adopted our financial regulation, our data protection ecutors. This alone should already increase the overall level of rules, and the rules on public access to documents. protection for European funds. The preparation of internal governance tools, such as the code The second, key expected improvement is the likely increase of good administrative behavior, an anti-fraud strategy, and in the efficiency of investigations. The EPPO will be inde- internal control standards, is well underway. We are also final- pendent from national governments, the Commission, and izing our operational templates in addition to the investigation other European institutions, bodies, and agencies. This is very and prosecution policy of the EPPO and related guidelines. important, because the independence of the institution and the independence of prosecutors is the first premise for obtaining We just signed a working arrangement with Europol and Eu- efficient results when fighting corruption and other serious rojust and expect one with OLAF to be signed soon. Discus- crime. Without this independence, we cannot talk about the sions on cooperation between the EPPO and the Commission rule of law or about equality in the face of the law. Independ- are progressing well. We initiated negotiations on working ence is a crucial, basic rule for the functioning of the EPPO. arrangements with non-participating Member States and are And this should be the model followed by all the national pub- about to sign such an arrangement with Hungary. We decided lic prosecutor’s offices. on the number and composition of the permanent chambers – the true engine of the EPPO. A first version of our case man- The main characteristic of the type of criminality that the agement system has already been developed. EPPO will tackle is the speed with which criminals shift their modus operandi in reaction to law enforcement actions. All in all, at the central level, we are ready. We are now wait- ing for the Member States to nominate enough candidates as The EPPO has unprecedented possibilities to act in this re- European Delegated Prosecutors to be able to start.