As of June 1, 2021, there is a new international player in the field of criminal corruption and tax law – the European Public Prosecutor’s Office begins its work.
What does this mean in practice? Will there be a public prosecutor’s office that operates on a Europe-wide basis and competes with national authorities?
Legal basis, work and objectives of the authority.
The legal basis for the new European authority at the European level is Article 86 of the TFEU and Council Regulation (EU) 2017/1939 of October 12, 2017 on the implementation of enhanced cooperation to establish the European Public Prosecutor’s Office (EUStA for short). In Germany, the (directly applicable) Regulation was implemented by the European Public Prosecutor’s Office Act of July 10, 2020 (BGBl. I p. 1648). § Section 142b GVG regulates the competence of the European Delegates.
According to its self-description (available in German at: https://ec.europa.eu/anti-fraud/policy/preventing-fraud/european_public_prosecutor_de), the European authority is to act against so-called “major cross-border crime to the detriment of the EU budget”. The authority sees itself as independent (Article 6 of the regulation), and its work will consist of prosecuting money laundering offences, fraud, corruption and tax offences, including in particular VAT carousels. In fact, the competence of the EUStA is limited to defined offences affecting the financial interests of the EU on a large scale (Article 22 et seq. of the Regulation). Close cooperation is planned with OLAF, the European Anti-Fraud Office.
The EUStA is to act both as a central authority at the EU level and to be able to carry out decentralized investigations and prosecutions in the respective EU country, i.e. also in Germany (Article 8 of the Regulation). For the operations within the nation states, the respective national personnel and the national legal codes shall be accessed.
If the EUStA becomes active, national investigations are to take a back seat, but after the indictment, the national courts have jurisdiction. The new § 16 StPO provides regulations for the examination of the local jurisdiction of the court in case of an indictment by the EUStA. According to § 16 (2) StPO, an examination of jurisdiction is possible on objection of the defendant.
Implications for Practice.
After the start of the EUStA’s work had been delayed again and again, it will begin its investigations in June 2021. Currently, according to the BMJV, its work could focus on crimes related to the European Corona aid package (available at: https://www.bmjv.de/SharedDocs/Artikel/DE/2021/0528_Europaeische_Staatsanwaltschaft.html).
However, it remains to be seen what this will mean for the daily practice of criminal defense. Even before it began its work, the new authority was said to lack human and financial resources.
In theory, the authority has been able to investigate, prosecute and bring charges in the Member States, i.e. also in Germany, since June 2021 (Article 86 (2) TFEU). If several Member States are affected by an offense and have corresponding jurisdiction, prosecution is to be based on the focus of the offense. Due to limited resources alone, this can only be implemented in close cooperation with the respective authorities. Cooperation in practice appears to be largely unresolved. This concerns detailed questions of jurisdiction and very concrete practical aspects, such as the granting of the right to inspect files or the exercise of representation at meetings.
Defendant rights at risk.
Wherever new prosecution mechanisms come into force, there is a risk that the rights of the accused will be insufficiently taken into account. This is all the more true because the rights of the accused in criminal proceedings are by no means at a uniform level throughout Europe. The question of where the focus of a crime lies determines not only jurisdiction, but also the applicability of elementary procedural rights.
Also in dealing with investigations of the European authority, you should seek legal assistance at an early stage to counteract any risks at an early stage and effectively exercise rights, such as the possibility of objection under § 16 StPO. We will be happy to advise you on this in our working languages German, English, Spanish, Russian and French.