Det hollandske Repræsentanternes Hus' positionspapir om oprettelse af en europæisk anklagemyndighed

House of Representatives of the States General position paper with regard to the
establishment of a European Public Prosecutor’s Office (EPPO)
Introduction
The House of Representatives of the States General considers the effective combat against
fraud with EU funds extremely important, due in part to the importance of efficient spending
of European funds and confidence in the performance of the European Union. It goes
without saying, therefore, that fraud with EU funds should be investigated, prosecuted and
tried. Grants ans subsidies should be withdrawn in the event of fraud and/or if a Member
State fails to investigate, prosecute and condemn such fraud effectively. We note that Article
86 of the Lisbon Treaty provides an opportunity to implement a European Public
Prosecutor’s Office (hereafter referred to as EPPO) and not an obligation for Member States
to accept a proposal thereto, regardless of the content.
Subsidiarity objections
A vast majority of the House of Representatives is of the opinion that investigation,
prosecution and trial is a (primarily) national competence. Transferring this competence
would impair the sovereignty of the national state. In order to assess the scale of the breach
of sovereignty by any proposal it is essential that the competences are clearly delineated.
The present wording of the proposal offers no such delineation, leaving it unclear where the
proposed competences of the EPPO end and those of the Member State begin. In addition,
the democratic legitimacy of the investigative and prosecution authorities (and the trial) is
essential. It is essential to provide democratic accountability within the Member State for
the consequences of investigation and prosecution. It is not acceptable that democratic
control will be exercised solely on the basis of an annual report submitted to the European
Parliament and that democratic control can only be exercised by the European Parliament,
whereas the actual investigative and prosecutorial actions are carried out in the Member
State and by the competent law enforcement authorities of that Member State. Intensive
co-operation between the Member State´s authorities and Eurojust and OLAF would also
enable fraud with EU funds to be tackled more effectively without EPPO. The House of
Representatives furthermore believes that the objective – effective combat against fraud
with EU funds – can be achieved without breaching the sovereignty of the Member States.
These are the primary reasons why the House of Representatives cannot accept the
European Commission’s present proposal to establish an EPPO. Such has been bindingly laid
down for the Dutch Government by MPs Recourt and Van Oosten in a motion requesting the
government not to agree with the establishment or foundation of an EPPO as set out in the
proposal of the European Commission1
.
First and foremost, the objections of the House of Representatives relate to subsidiarity.
Subsidiarity is co-determined by the content and thus the proportionality of the proposal
and both aspects are discussed in this position paper. Having taken note of the proposal by
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32317-189
Europaudvalget 2013
KOM (2013) 0534 Bilag 3
Offentligt
the Greek Presidency2
, the House of Representatives will formulate an alternative which, in
the opinion of a majority of the House of Representatives, could meet the requirements in
terms of subsidiarity and proportionality and could achieve the intended goal: the effective
combat of fraud with EU funds. An EPPO could still be established to enable the application
of the provisions of Article 86 of the TFEU without unnecessarily breaching the sovereignty
of the Member States.
Crucial points regarding subsidiarity
• Investigation and prosecution regarding fraud is (primarily) the responsibility of
national authorities;
• The power to investigate and prosecute criminal offences which damage the financial
interests of the Union are insufficiently defined, making it impossible to determine
the scale of a breach of sovereignty (legality principle);
• Democratic control of the investigative and prosecution authorities must be possible.
The proposed assessment by the European Parliament on the basis of an annual
report is inadequate;
• As the actual investigation and prosecution actions (and trial) are carried out in the
Member State itself, these actions should be democratically controlled by bodies in
the relevant Member State;
• With the aid of Eurojust and OLAF the investigation and prosecution of fraud
affecting EU funds can also be organised without an EPPO;
• The intended objective – the effective combat of fraud with EU funds – can also be
realised without a breach of sovereignty of the Member States by the foundation of
an EPPO as formulated below.
History
European Commission’s proposal
On 17 July 2013, the European Commission published the proposal for a Regulation
concerning the establishment of the European Public Prosecutor’s Office (hereinafter
referred to as EPPO). At the same time, the Regulation to reform the EU Agency dealing with
judicial co-operation in criminal matters (Eurojust) was also published, as well as a
notification on OLAF, the European Anti-Fraud Office3
. This package of draft legislation fulfils
Article 86 of the Treaty on the Functioning of the European Union (TFEU), the Lisbon Treaty.
This Article provides for the possible establishment of an EPPO with the power to
investigate, prosecute and bring to justice those who commit criminal offences affecting the
Union’s financial interests.
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33709-6
3
COM(2013) 534, COM(2013) 535 and COM(2013) 533
The European Commission proposes the establishment of an EPPO with the exclusive
authority (Art. 11) to investigate and prosecute fraud with European funds (Art. 4) and
inextricably related criminal offences (Art. 13), with a European Public Prosecutor heading a
body with a centralised structure (Art. 6) and a power to overrule or prioritise investigation
into fraud with EU funds in the Member States (Art. 11).
Functioning of the subsidiarity mechanism (‘yellow card’)
Together with 13 (chambers of) other parliaments from 11 Member States of the EU, the
House of Representatives has expressed objections to the EPPO. The European Commission
initially responded with a Notification (November 2013). This Notification set out reasons as
to why the parliaments’ objections regarding subsidiarity are unfounded. A letter to each
separate Parliament or House considered the objections submitted which, according to the
European Commission do not relate to subsidiarity and fall outside the field of application of
the subsidiarity control mechanism. With this opinion, the Commission apparently deviates
from the position of 2009 that the limitations of the subsidiarity principle are extremely
difficult to define4
.
The House of Representatives considers the European Commission’s response
unsatisfactory. Even though the arguments put forward by the House of Representatives do
concern the subsidiarity of the proposal. The Treaty allows the European Commission to
disregard the opinion of a large number of parliaments. This is an option which should only
be considered as a last resort, not in the case of justified subsidiarity objections from a large
number of parliaments of the Member States.
Proportionality objections
The proposed competences have not been defined clearly enough and reach too far
The European Commission’s proposal contains a lack of clarity as to the scope of the
competence of an EPPO. The limitation to the authority to act in the event of damage to the
Union’s financial interests should be clearly defined. The present proposal creates a lack of
clarity and leads to competence problems. This is in conflict with the legality principle.
Furthermore, the implicit competence relating to other criminal offences offers too much
scope for the expansion of competences without doing justice to the relevant provisions of
the Lisbon Treaty. This is contrary to legal certainty. The offences for which an EPPO is
competent should be clearly defined in the actual Regulation. A realistic threshold is not
provided as a result of which there is no limit to the competence of EPPO to investigate and
prosecute.
It is unclear to the House of Representatives how the proposed exclusive competence of
EPPO relates to the efforts of the Member States to criminally prosecute fraud on a national
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level. It is strange that Member States wishing to actively prosecute fraud with EU funds
would no longer be able to do so, not even if this would produce results more quickly, more
effective and less expensive. Furthermore, the House of Representatives considers the
EPPO’s power to overrule national authorities problematic, as this would have consequences
for national priorities and the consideration on a national level of how investigative means
can be used most effective. This is also problematic for the democratic control exercised on
the national priorities. The Regulation focuses on co-operation between an EPPO and the
national criminal authorities but is unclear as to how any conflicts between an EPPO and the
national authorities should be resolved. The proposed Regulation is inadequate regarding
the delineation of the EPPO’s authority and the division of the competences between the
EPPO and the Member States.
The Greek Presidency published its own proposal on 17 March 2014. This is based on a
college model. Each Member State would delegate a Public Prosecutor, who subsequently
conducts the investigation and prosecution in it’s own member state. Whilst the House of
Representatives finds the idea interesting, it also realises that a college model could involve
more bureaucracy. In its favour, it would make the EPPO more recognisable and possibly
improve acceptance of decisions made by the EPPO.
European Public Prosecutor’s Office as an ‘ultimum remedium’
The House of Representatives finds that fraud with EU funds generally occurs at national,
regional or local levels. Adequate prosection of this fraud is consequently dependent on
decisive action taken on the corresponding level within the Member States. The House of
Representatives is of the opinion that the optimal use of existing European mechanisms,
including the withdrawal of EU funds, offers sufficient possibilities for the effective combat
against fraud.
First and foremost, the House of Representatives stresses the importance of far-reaching co-
operation between the national investigation and prosecution authorities of the Member
States. In addition, the European Commission could focus more on improving and
strengthening the independence, effectiveness and efficiency of OLAF and Eurojust and
facilitating improved collaboration between these agencies and the Member States. The role
of OLAF, as fraud watchdog, is crucial to the detection of fraud with EU funds. OLAF should
therefore continue to exist in its current form to provide both judicial authorities in the
Member States and an EPPO with information. The discontinuation of OLAF in favour of an
EPPO is undesirable.
A majority of the House of Representatives believes that, in the event of cross-border fraud
or fraud in several Member States, an EPPO, in whatever form, could fulfil a role either at
the request of the Member States or in other circumstances. If no prosecution is brought or
prosecution is not adequately followed through – due to a lack of co-operation or a conflict
between or negligence on the part of national authorities – an EPPO could provide added
value if co-operation within Eurojust does not guarantee the investigation and prosecution.
The task of an EPPO could then be: the supervision of investigation and prosecution in the
individual Member States, advising on such and, as a last resort, to initiate investigation and
prosecution if the Member State fails to take adequate action. The EPPO therefore serves as
an ultimum remedium. The Member State remains competent to initiate investigation and
prosecution. The EPPO may only act in the event that the Member State neglects to do so.
The EPPO advises and supervises. The college model may be an interesting suggestion in this
respect.
A majority of the House of Representatives feels that the European Public Prosecutor’s
Office would consequently play a valuable role in the prosecution of fraud with EU funds
provided that it is organised in such a way that it can be deployed if all other possibilities
have been exhausted. This alternative proposal satisfies the intended objective, the effective
combat of fraud with EU funds, and meets the subsidiarity objections of a large number of
parliaments.
Crucial points regarding proportionality
• The formulation of the proposal for an EPPO is too vague;
• The proposal would lead to the erosion rather than the strengthening of OLAF and
Eurojust;
• OLAF should not be dismantled;
• Fraud prosecution should be in place at the same level at which the fraud occurs:
local, regional or national;
• The exclusive authority of an EPPO is undesirable, especially if the Member State is
itself prepared to undertake the investigation and prosecution;
• The delineation of the exclusive authority is unclear;
• The implicit competences as formulated will lead to a vague and unintended
expansion of competences;
Alternative proposal
• Investigation and prosecution is primarily the task of the Member States;
• An EPPO could offer added value in the role of supervisory authority for investigation
and prosecution in the Member States;
• An EPPO can provide the national authorities with solicited and unsolicited
recommendations regarding effective investigation and prosecution of fraud with EU
funds;
• Eurojust ensures the co-operation between the Member States;
• An EPPO would only have any added value if the co-operation within Eurojust is
inadequate or international implications necessitate that an EPPO be deployed;
• OLAF should continue to exist;
• The EPPO can only take over the investigation and prosecution if the Member State
continues not to undertake investigation or is insufficiently proactive in this respect;
• The EPPO will acquire exclusive competence only in the event of non-performance by
the national authorities of the Member States;
• The Member States can prevent the EPPO from acquiring exclusive competence by
doing what they should do: implementing a strict approach to combating fraud with
EU funds;
• A college model would be interesting provided attention is paid to the increase in
bureaucracy;
• Making these adjustments may meet the subsidiarity objections of the parliaments
and achieve the objective.
The House of Representatives calls on the European Commission to seek, through
consultation with the national parliaments, to realise a proposal that can count on wider
support from the representatives of the citizens of Europe. In addition, the House of
Representatives calls on the Council of Ministers and the European Parliament, when
considering this proposal, to include in their deliberations the objections of the national
parliaments of Member States of the EU and the suggestions for an alternative proposal
submitted by both the Greek Presidency and the House of Representatives of the
Netherlands. With due respect, the House of Representatives asks the national parliaments
of the Member States to include the proposed alternatives in their deliberations and to co-
operate in the realisation of a method acceptable to many, if not all, Member States for the
effective combat against fraud with EU funds. To conclude, the members of the House of
Representatives reserve the right to judge the end result on its merits.
The Hague, 11 April 2014
On behalf of the House of Representatives of the States General
Ard van der Steur
Rapporteur on the European Public Prosecutor’s Office