Council Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor's Office ('the EPPO')

On 17 July 2013, the European Commission adopted its legislative proposal for the establishment of the European Public Prosecutor’s Office (EPPO).

The proposal was based on Article 86 TFEU, introduced by the Lisbon Treaty, which allows the creation of such an office through a special legislative procedure. This requires unanimity in the Council and the consent of the European Parliament. Should unanimity not be reached - and eventually it was not reached - the EPPO can still be created under enhanced cooperation if at least nine Member States so agree.

Hence, in early April 2017, sixteen Member States notified the European Parliament, the Council and the Commission that they wished to establish enhanced cooperation on the establishment of the EPPO pursuant to Article 86(1) TFEU. Four other States indicated their wish to participate in the establishment of the enhanced cooperation between April and June. The Regulation was finally adopted in October 2017. For the time being, 8 Member States do not participate in the EPPO: the United Kingdom, Ireland, Denmark, the Netherlands, Malta, Hungary, Poland, and Sweden.

The EPPO shall be responsible for investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices to, criminal offences affecting the financial interests of the Union which are provided for in Directive (EU) 2017/1371.

In this field, the EPPO shall undertake investigations, and carry out acts of prosecution and exercise the functions of prosecutor in the competent courts of the Member States, until the case has been finally disposed of.

The EPPO shall be independent and will have its seat in Luxembourg.

In accordance with Article 8 of the Regulation, the EPPO shall be organised at a central level and at a decentralised level. The latter shall consist of at least two European Delegated Prosecutors located in the Member States. The Central Office, placed within the seat of the EPPO, shall instead consist of the European Chief Prosecutor, the Deputy European Chief Prosecutors, the European Prosecutors (one per Member State), the College (composed by the European Prosecutors and the European Chief Prosecutor), and the Administrative Director.

Responsibilities will be divided as follows:

- The investigations will be conducted by the European Delegated Prosecutors and shall be monitored and directed by the Permanent Chambers, which shall be composed of three members (the European Chief Prosecutor, or a deputy, and two European Prosecutors).

- The European Prosecutors shall supervise the investigations and prosecutions for which the European Delegated Prosecutors handling the case in their Member State of origin are responsible.

- The College shall instead be responsible for the general oversight of the activities of the EPPO and it shall take decisions on strategic matters; it shall not take operational decisions in individual cases.

- Pursuant to Article 35(1), when the European Delegated Prosecutor considers the investigation to be completed, he/she shall submit a report to the supervising European Prosecutor, containing a summary of the case and a draft decision whether to prosecute before a national court or to consider a referral of the case, dismissal or simplified prosecution procedure in accordance with the rules of the Regulation. The supervising European Prosecutor shall forward those documents to the competent Permanent Chamber accompanied, if he/she considers it to be necessary, by his/her own assessment. The Permanent Chamber then decides whether to take the decision as proposed by the European Delegated Prosecutor or to undertake its own review of the case file before taking a final decision or giving further instructions to the European Delegated Prosecutor.

The Regulation includes several provisions related to the functioning of the EPPO, such as: appointment and dismissal of the members of the EPPO (Articles 14-17), rules on investigations, including investigation measures and other measures (Articles 26-33), rules on prosecution, including alternatives to prosecution and simplified procedures (Articles 34-40), rights of the suspects and accused persons (Article 41), judicial review, for which national courts will be mostly competent (Article 42), processing of information and data protection (Articles 43ff-), and relations with the partners (Article 99ff.).