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International Regulatory Enforcement

At last…the European Public Prosecutor’s Office (EPPO) is getting real!

Dreamed of by some for a long time, the creation of the EPPO marks a dramatic shift in the fight against crimes affecting the EU’s budget and an important step towards creating a common criminal justice area in the European Union as a whole.  Following the July 27th decision of the European Council, this dream of some (and possibly the nightmare of others) is becoming a reality.

On July 27th, the European Council appointed the first set of European Prosecutors of the European Public Prosecutor’s Office (EPPO), headed by Mrs, Laura Kovesi since the beginning of 2020.    

The 22 public prosecutors have been nominated by the member states participating in the EPPO (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Romania, Slovenia, Slovakia, Spain), while 5 countries (Denmark, Ireland, Hungary, Poland and Sweden) have so far refused to join (see https://www.consilium.europa.eu/en/press/press-releases/2020/07/27/eu-public-prosecutor-s-office-eppo-council-appoints-european-prosecutors/).

The EPPO, which is expected to start its operations by the end of this year, will operate as an independent body of the EU responsible for investigating, prosecuting, and bringing to judgment crimes against the financial interests of the Union (e.g., fraud, corruption, cross-border VAT fraud above 10 million euros). It is built on two levels: the central level and the decentralized level. The central level consists of the European Chief Prosecutor and the 22 European Prosecutors appointed on July 27th.  Its role will be to supervise the investigations and prosecutions in each EU participating country and ensure independence, effective coordination, and a uniform approach throughout the participating countries. The decentralized level will consist of European Delegated Prosecutors who will be located in the participating EU countries. These Prosecutors will be the ones carrying out the prosecutions of investigations in each country using national staff and generally applying national law.  Matters will be brought by European Delegated Prosecutors in front the relevant national courts.

 National authorities will have to report any relevant criminal conduct to the EPPO.  In the future, if the EPPO was to take up an investigation, national authorities will have to stand back.

While the EPPO will be responsible for criminal investigations, the European Anti-Fraud Office (OLAF) will continue its administrative investigations into irregularities and fraud affecting the EU's financial interests, in all EU countries. The EPPO and OLAF are expected to work very closely together.

It is much too soon to assess if the collaboration between OLAF and EPPO will be as smooth as envisaged and how domestic law enforcement authorities will coexist with this first supranational enforcement authority, but for all cross-border practitioners, the up and running of the EPPO will be a fascinating experience that could open up a wide range of challenges and opportunities.