C oNSTITUTIONAL Conditions for a Public Prosecutor’s Office at the European Level

Walter van Gerven1 Professor at the Universities of Leuven and Maastricht, Belgium and the Netherlands

1. Introduction At the moment there is no European Public Prosecutor’s (hereafter EPP’s) Office and whether there should be one remains a controversial question. It is not the subject of this contribution to discuss the desirability or feasibility of such an Office. As requested by the organizers of this Conference, we want to examine here only the constitutional conditions for such an Office if it were decided to establish one. Nonetheless it should be mentioned at the outset that an effort to organize an EPP Office in legal terms has been undertaken in the Corpus Juris project launched by a group of academics with the support of services of the and members of the .2 The project purports to introduce penal provisions and sanctions to protect the financial interests of the (Articles 1–9) and provisions of criminal procedure (Articles 18–35). The departure point for the Code ‘is the establishment of a single legal area for the purposes of investigation, prosecution, trial and execution of sentences for the offences described in the penal provisions of the Code, this legal area comprising the territory of all the Member States of the European Union. For this purpose, it proposes the creation of a European Public Prosecutor (EPP), made up of a European Director of Public Prosecutions and European delegated Public Prosecutors residing in the capital of every Member State. This EPP is indivisible, implying that any act of any of its members in any Member State is

1 Former Advocate General at the European Court of Justice. Former Member of the Committee of Independent Experts to investigate in the EU Commission. 2 M. Delmas-Marty, ed., Corpus Juris Introducing Penal Provisions for the Purpose of the Financial Interests of the European Union (Paris 1997). In the meantime proposals of amendment have now been prepared: see M. Delmas-Marty, ‘Combatting fraud – Necessity, Legitimacy and Feasibility of the Corpus Juris’, 37 C.M.L. Rev. (2000), at pp. 247–256, and in French: ‘Nécessité, legitimité et faisabilité du Corpus Juris’, 7 AGON (1999), No. Juris 25, at pp. 5–9. 568 walter van gerven taken as an act of the EPP itself (Article 18). It further implies that members of the EPP have competence across the EU and that warrants for arrest, transfers of persons under arrest and judgments have full effect across the EU (Article 24)’.3 The Code also contains provisions for judicial review of acts taken at the preparatory stage of criminal proceedings by an independent and impartial judge appointed by each Member State from the (national) court where the (national) European delegated Public Prosecutor is based (Article 25). This contribution is divided in three parts. First we will describe the existing legal framework at the European level for the investigation and prosecution of fraud affecting the financial interests of the European Community and of transborder crime, organised or otherwise. Then we will examine the legal basis for such investigation and prosecution. Finally we will consider the issue of protection of human rights and of due process.

2. Legal Framework 2.1. The Distinction between Fraud and Administrative Irregularity The European Union’s legal framework relating to the fight against fraud concerns inthe first place the protection of the Communities’ financial interests. In that respect it distinguishes fraud from mere irregularities. According to Article 1(1) a of the ‘Convention on the protection of the ’ financial interest’4 (hereafter ‘PFI Convention’), fraud affecting such financial interests consists of ‘an intentional act or omission’ which has for effect the misappropriation or wrongful retention of funds, or the illegal diminution of resources. In contrast, according to Article 1(2) of Council Regulation 2988/95, irregularity shall mean ‘any infringement of a provision of Community law resulting from an act or an omission’ having for effect to prejudice the general budget of the Communities or budgets managed by them.5 Whilst fraud is mainly, but not necessarily, a matter of criminal law, irregularity is primarily a matter of administrative law.6

2.2. The Relevant Treaty Provisions Article 280 (ex 209a) EC Treaty is the key provision for the fight against ‘fraud and any other illegal activities affecting the financial interests of the Community’ which the ‘Community and the Member States shall counter …

3 Thus the Second Report on Reform of the Commission of Independent Experts of 10 September 1999, at 5.12.14, which endorses the general idea of an EPP (can be found on Doc.EN/ DV/381210EN.doc). 4 Drawn up by Council Act of 26 July 1995, OJ C 316 of 27 November 1995, at pp. 48–57. 5 Council Regulation (EC, Euratom) 2988/95 on the Protection of the European Communities’ financial interests of 18 December 1995, OJ L 318 of 23 December 1995, at pp. 1–4. 6 Second report of the Committee of Independent Experts referred to above in footnote 3, at 5.1.4.