One of the latest and most ground-breaking developments in EU law concerns the proposed establishment of the European Public Prosecutor’s Office (EPPO). This Office will deploy criminal law measures in order to combat fraud affecting the EU’s budget. Importantly, no criminal court will be made available at the European level so prosecutions will take place before national courts. Also, the proposed rules do not provide for investigative measures or other elements of criminal procedure.
The exception to this is the actual prosecutorial decision, in which regard the proposal opts for the principle of mandatory prosecution. If a criminal offence can be proven, the EPPO is obliged to instigate criminal proceedings. However, the proposed framework also contains a set of provisions about complete dismissal of cases and consensual settlement forms, thus providing possibilities for out of court settlement. Further rules regulate the selection of jurisdiction, in the event that multiple member states have jurisdiction to adjudicate. Creating substantial policy room for prosecutorial decision-making, such rules present considerable deviations from the principle of mandatory prosecution.
This ambiguity may turn out to be problematic, given the fact that the proposal also states that national judges should regard the EPPO as if it were a national judicial authority. Judicial review of prosecutorial decision-making is an aspect of criminal procedural law that is highly variable across Europe. Standards for review represent an important aspect in this regard. These standards can take the form of certain (unwritten) principles, namely those of proportionality, equality or non-discrimination, and legitimate expectations. These are principles that have been recognized by criminal courts in some European countries, most clearly in countries in which the prosecution enjoys a substantial scope of policy freedom. Under the principle of mandatory prosecution, these principles are absent or have a more modest role because prosecutors are expected to refrain from policy-making. Furthermore, principles such as proportionality and legitimate expectations have been recognized by the European Court of Justice as general principles of Union law.
It could be that there is some common ground here. The question is, does the content of these principles, in the way that they are accepted in different legal systems, overlap in some way? And, how could these principles play a role in judicial review of European prosecutorial decision-making?
As said, the proposed regulation states that the EPPO should be seen as a national authority for purposes of judicial review. Therefore, national criminal courts may be inclined to deploy their own brand of judicial review and accompanying standards. However, as the EPPO will be established under European Union law, an argument could also be made for using Union standards. That would mean that European prosecutorial decisions may be checked against general principles of Union law, which may differ in important aspects from their counterparts in national legal systems. Such a state of affairs could be problematic both for the courts in their role as a check on prosecutorial power, as well as for the EPPO, for it will not have certainty as to the standards by which its actions will eventually be judged. Perhaps these problems can be overcome if legal principles such as proportionality and legitimate expectation turn out to be not so different at all. In that case, an overarching set of standards could be identified for judicial review of the EPPO’s decision-making. But what would that look like? This is a question that will be discussed during one of the workshops on Wednesday, 21 January 2015 at Leiden University.