National Parliaments Issue Yellow Card against the European Public Prosecutor’s Office

Some time ago, I discussed here the European Commission’s proposal on the establishment of the European Public Prosecutor’s Office (‘EPPO proposal’). As I pointed out, this proposal adopts a ‘federal’ logic, aiming at an EU-wide criminal law enforcement of fraud against the financial interests of the Union (in short: EU fraud). The EPPO, when and if created, would have exclusive competence to investigate and prosecute EU fraud,[1] thereby excluding any prosecutorial discretion at national level. What is more, the involvement of Eurojust would be reduced to an absolute minimum, even though Eurojust has acquired a lot of expertise over the years in coordinating and supporting criminal investigations and prosecutions of EU fraud. With this proposal, the Commission clearly wants to move away from the ‘old’ intergovernmental approach of the pre-Lisbon era.

As one could expect, the Commission’s federal approach triggered many negative reactions. By the deadline of 28 October 2013, national Parliaments of fourteen Member States expressed their critical concerns regarding the Commission’s EPPO proposal. Eleven of them even formally submitted a reasoned opinion, objecting that, for a variety of reasons (infra), the proposal does not respect the principle of subsidiarity. By using the Early Warning System laid down in Article 7 of Protocol No 2 to the Lisbon Treaty on the application of the principles of subsidiarity and proportionality, these national Parliaments issue a so-called ‘yellow card’ against the EPPO proposal. Strictly speaking, the German Bundesrat did not issue a reasoned opinion, but its report clearly shares some concerns of subsidiarity. Similarly, the Polish Senate criticizes the EPPO’s exclusive competence for not being in compliance with the principle of proportionality. Lastly, the Austrian National Council does not reject the EPPO proposal, but nonetheless identifies four major points of concern.

It is worthwile to have closer look at the specific objections which were formulated by national Parliaments. For a start, some Parliaments (such as the British, Dutch, Irish and the Hungarian) raise the traditional argument that criminal investigations and prosecutions are primarily a matter of national sovereignty and that the establishment of a supranational EPPO would limit the national competence in a disproportionate way. More in particular, the EPPO’s exclusive competence appears to be a sore point (e.g. the Polish Senate, Romanian Chamber of Deputies, Dutch Senate, Hungarian National Assembly, German Bundesrat and the British House of Lords). Other opinions point out that many offences affecting the financial interests of the EU are situated at a purely national level and are often linked to other types of fraud or criminality, hence criticizing the EPPO’s wide ancillary competence for offences which are inextricably linked with EU fraud (e.g. the Romanian Chamber of Deputies, Dutch Senate, German Bundesrat and the Cyprus House of Representatives). Interestingly, Germany argues that the subsidiarity principle would be violated if not all Member States participate in the EPPO adventure, thereby implicitly ruling out the possibility of enhanced cooperation. Ironically, a similar point is raised by the British House of Lords. Furthermore, the Czech Republic and Cyprus highlight that the fundamental rights of suspects are not sufficiently guaranteed by the EPPO proposal (cf. Austria’s plea in favour of more uniform procedural rules). Almost all Member States openly question why the Commission did not first maximize the existing possibilities of cooperation between Member States and await the effects of recently proposed and/or adopted adjustments strengthening Eurojust and OLAF, as well as the pending proposal of Directive on EU Fraud. Finally, a couple of opinions are quite sceptical about the ‘double hat’ which Delegated European Public Prosecutors would be wearing (e.g. the Hungarian National Assembly and the Romanian Senate), and the fact that the EPPO’s orders could easily override national priorities (e.g. the British House of Lords and the Dutch Senate).

The event of national Parliaments holding up a ‘yellow card’ is quite exceptional,[2] and has substantial consequences. In accordance with Article 7(2) of Protocol No 2 to the Lisbon Treaty , the Commission must review its proposal when at least a quarter of all votes allocated to national Parliaments[3] reject a legislative proposal submitted on the basis of Article 76 TFEU (i.e., any proposal regarding judicial cooperation in criminal matters) for not being in compliance with the principle of subsidiarity. After such review the Commission may decide to amend or withdraw the initial proposal, and give reasons for doing so. In theory, the Commission could also choose to stand by its initial proposal, without modifying it, but that option does not seem very likely.

In short, this yellow card means either that the EPPO proposal is dead in the water, or that it will have to be revised significantly in order to meet legitimate national concerns. From a legal point of view, a third option is still possible, namely that of enhanced cooperation (Article 86(1) para. 3 TFEU). However, as I argued before, and as the German and British Parliaments also emphasize, the idea of enhanced cooperation is completely at odds with the Commission’s core argument that EU fraud needs to be combated in a more uniform way throughout the whole Union.

[1] It should be noted, though, that the Council (i.e., the Member States) reduced the scope of the EPPO’s competence signifcantly as they expressly excluded VAT fraud from the Commission’s initial proposal of directive on the fight against fraud to the Union’s financial interests by means of criminal law. See Article 2 para. 2 Revised proposal of the Council, No. 10729/13, 10 June 2013.

[2] In fact, this is only the second yellow card since the entry into force of the Lisbon Treaty. The first yellow card ever was used against a Commission proposal on the right to strike in September 2012, after which the European Commisison decided to drop its plans.

[3] Basically, each Member State has 2 votes. In unicameral systems, the national Parliament has 2 votes, whereas in bicameral parliamentary systems each Chamber receives 1 vote.