Catarina Vilarinho (Master in EU Law, School of Law, University of Minho)

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1. Initial thoughts

The start of operation of a new European body such as the European Public Prosecutor’s Office, hereinafter EPPO, on 1 June 2021 is a sign that the Member States of the European Union (EU) are increasingly aligning themselves to create a stronger and more resilient Union, perhaps, in this case, due to the need to combat transnational crime, for which we will not find a sufficiently effective solution without strong and structured intervention at European level^[1].

In this way, the battlefield is prepared for a battle of equal arms, as cross-border crime can now be tackled by an equally cross-border authority^[2].

However, despite the numerous advantages that the operation of a European Public Prosecutor’s Office would bring in terms of the security of Member State’s citizens^[3], its material competence has been limited to criminal offences against the Union’s financial interests^[4], due to a set of diffuse reasons.

This essay will, therefore, analyze the possible need and the possibility of extending the material scope of competence of the European Public Prosecutor’s Office to terrorism, trafficking in human beings and drug trafficking, asking whether these crimes could (and should) fall under the competence of the European Public Prosecutor’s Office, and whether the latter would not be better prepared to provide a more appropriate response to this type of serious, transnational crime.

2. The need of an EPPO

In the proposal it presented in 2013^[5], the European Commission defined the EPPO material competence in Article 12, limiting it to the protection of the EU’s financial interests. For Margarida Santos, this decision revealed the need to obtain political consensus, given the existing arguments, which directly or indirectly reflected the will to “maintain the criminal sovereignty of the Member States, seen, if we interpret it correctly, as the basis of the State’s criminal jurisdiction“^[6]. Faced with resistance to the need to establish a EPPO, the Commission justified the material scope of the EPPO action in defense of the Union’s financial interests by the need to deal with the context of economic and financial crisis and the need to control the public budget in general and the Union’s in particular^[7].

Another factor that supports the needing of an EPPO is the fact that European crimes pose problems for prosecutors due to their specific complexities, something that would be overcome with the specialized and territorially expanded investigations that the EPPO could carry out, since the difficulty of combating European crimes lies essentially in gathering evidence of criminal activity, which is usually dispersed across more than one Member State, thus exceeding the jurisdiction of any national prosecutor’s office^[8]. For the normal development of a case up to the trial stage, it is essential that, at the end of the investigation phase, the prosecutor has obtained sufficiently solid evidence that can be used in court to demonstrate the nature and extent of the criminal activity. To further complicate the already arduous task of investigating transnational crimes, it should be borne in mind that European cases may, of course, also involve non-EU states, meaning that their territorial coverage may be very broad indeed, meaning that prosecutors investigating aspects of such cases may face very significant geographical and jurisdictional challenges. Having said this, it may be understood that obtaining assistance from other jurisdictions is therefore a critical issue^[9]. In this way, the EPPO would be better prepared to respond to the adversities that European crimes raise.

In fact, the creation of a EPPO would reduce the difficulties observed in conducting criminal investigations covering different Member States, such as: a) lengthy communication, and b) the different rules of evidence in each Member State. Furthermore, the EPPO’s action would put an end to situations in which the judicial authorities of one Member State would not open criminal investigations, following indications from equivalent authorities in another Member State, which would significantly reduce the chances of preventing such crimes^[10].

Another factor proving the need for this new European body is the fact that the EU’s agencies have so far failed, especially in this type of cooperation. There seems to be no doubt as to the difficulty experienced in obtaining a fair and comprehensive exchange of information, which also extends to crime reports and investigative measures between the authorities of different Member States. In this regard, it seems that national authorities do not effectively cooperate with each other, as envisaged by the principle of mutual trust, and this is reflected in the flows of reports arriving at Eurojust. These seems, according to many national organizations, to be insufficient and sometimes reticent^[11].

Given that the EPPO would have the task of acting as a single Public Prosecutor’s Office for the whole Union, i.e. covering a geographical area much greater than that covered by the territory of a single Member State, the EU would be a whole and indivisible territory for the EPPO, in which it could exercise its powers independently, intervene promptly and rapidly transmit the information required for investigations^[12]. It is easy to see the advantages of this type of action, which would definitively overcome both the problem of sending and obtaining evidence and that of conducting criminal proceedings in transnational cases, since the EPPO would be able to collect certain pieces of evidence without having territorial limits in its investigations.

Thus, there can be no doubt that the EPPO’s action will, on the one hand, make it possible to go beyond the existing cooperation instruments and achieve more effective results and, on the other hand, complement and strengthen the operational judicial instruments for cooperation in criminal matters, making a better contribution to achieving the objective than that currently provided by Eurojust^[13].

3. Extension of the EPPO´s material competence

The process of integration into the EU has brought new challenges and opportunities for those responsible for fighting organized crime. Individual Member States are increasingly dependent on cross-border cooperation at EU level, especially in view of the abolition of border controls, which allows any individual to move freely from one Member State to another^[14].

It is worth mentioning that, despite the progress made by Member States over the years in combat of organized crime, the threat posed by this groups remains high and methods of combating them insufficient, as they are constantly adapting their modus operandi, using new technologies and seizing opportunities to make illicit profits, and, by comparison, the “development of effective means of preventing and curbing these criminal activities is proceeding at a slow pace, almost always out of step with them”^[15].

The abovementioned situation is reflected in the crimes of terrorism, as Europe is currently facing a new and vicious form of international terrorism, marked by the clear shift in the strategy of the Islamic State to carry out attacks with a special focus on Europe, as well as the increasing number of foreign terrorist fighters. These constitutes some of the new challenges that the Union and its Member States face in terms of fighting terrorism^[16].

In addition to terrorism, trafficking in human beings is another serious crime that concerns and affects Member States citizens all over the Europe. It is a gross violation of human rights, which can be classified as a contemporary form of slavery^[17]. It is also relevant to note that trafficking networks show increasing levels of professionalism and specialization, i.e. organized crime groups involved in trafficking in human beings have well-structured criminal networks and operate internationally, sometimes with a set of cross-border smugglers and specialized groups. Furthermore, the increasing misuse of information technology by offenders is a concern and a challenge for authorities combating trafficking in human beings^[18] as new technological means are often used to recruit and sell victims, mostly women and girls, and to lure children^[19]. Thus, despite the progress made, it is still essential that the Member States step up their efforts to combat trafficking in human beings effectively^[20].

Another serious concern for EU Member States is drug trafficking, essentially because the measures adopted so far to combat this criminal act are ineffective. One of the main problems is that parallel investigations are mostly uncoordinated. These are very common in the EU, particularly in cases involving drug trafficking, as organized crime groups do not limit their operations to one country but need to organize purchase, transport and distribution, usually on a large scale, in several countries. While coordinated parallel proceedings are legitimately considered beneficial and effective in combating this type of crime, uncoordinated parallel investigations may have the opposite effect and lead to waste of time and resources, duplication of work, raise issues of violation of the ne bis in idem principle and may also jeopardize each other’s investigations^[21].

Regarding the above mentioned and admitting that the creation of a European organization such as the EPPO is part of the development and strengthening of the field of judicial cooperation in criminal matters^[22], it would be important to consider the possibility of extending its scope of action. The primary legal basis of the new EPPO is based on Article 86 of the TFEU, which grants the EPPO powers to investigate, prosecute and bring to judgment the authors of offences against the Union’s financial interests. However, this law also covered the possibility of extending the competence of this new European body, as set out in Article 86(4) of the TFEU. This provision allows the European Council, on the basis of a unanimous decision, after obtaining the consent of the European Parliament and after consulting the European Commission, to extend the EPPO’s material competence^[23] to include “serious crime with a cross-border dimension“^[24]. In accordance with the provisions of Article 83 of the TFEU, terrorism and trafficking in human beings and drugs fall within the scope of the crime in question. Therefore, there is no legal obstacle to extending the EPPO’s material competence to cover the above-mentioned types of crime. Moreover, extending the EPPO’s material competence to cover crimes such as terrorism, drug trafficking and trafficking in human beings would represent a considerable step forward towards the creation of a genuine area of freedom, security and justice and would offer greater security to European citizens^[25].

To corroborate the above, one need only look at the fact that the issue of extending the EPPO’s material competence to serious cross-border crime has already received support in both political and academic circles^[26]. Former European Commission President Jean-Claude Junker, in his 2017 State of the Union speech, stated that the EU must be stronger in the fight against terrorism because, despite real progress over the past years, the means to act quickly on cross-border threats are still lacking^[27], which is, for Jean-Claude Junker, a strong argument in favor of tasking the new EPPO with prosecuting cross-border terrorist crimes^[28].

In the same vein, the President of the French Republic, Emmanuel Macron, spoke at the initiative for a Sovereign, United and Democratic Europe. He said that in the face of global terrorism, Europe’s security needs to be the shield of Europeans, because terrorists are infiltrating all over Europe, and their networks are there. It is therefore necessary to act together, from prevention to repression. On this basis, he stressed that we need to create an EPPO for organized crime and terrorism, in addition to the current EPPO competences^[29].

To conclude, it may be stated that without an EPPO with competence for combating serious crime with a cross-border dimension operating throughout the territory of the Union, ensuring the security of the Union’s citizens may fall short of what is required. The current system of fight and repression carried out independently by each Member State allows offenders to choose the place where criminal activity will operate or the Member State to which they will move freely after committing a serious crime. Precisely in this historical period, the EPPO seems more than ever necessary to protect European citizens from trafficking in human beings, drug trafficking and the threat of terrorism, whose activity offends the fundamental values and human rights at the core of the EU^[30].

4. Conclusion

At the end of this reflection, we can draw the clear conclusion that the national states have insufficient means and resources to combat serious cross-border crime, in particular terrorism and trafficking in human beings and drugs. It is not at all surprising that this should be the case, since combating organized crime groups spread throughout Europe with national weapons is an almost impossible task^[31].

It has also been noted that the troubled circumstances of the current historical period facilitate the criminal activity of various organized groups^[32], hence the need, especially now, to further strengthen the security of European citizens and prevent the constant attacks on the fundamental values and human rights that underpin the EU^[33].

It is safe to say that the threat posed by organized crime groups remains high and the methods of combating them inadequate^[34]. If this continues over time, it could lead to an EU that is fragile, insecure and incapable of taking action; in essence, a EU sabotaged by its own Member States.

It is somewhat inevitable to conclude that the best way of guaranteeing public safety would therefore be through transnational action that overcomes the obstacles that borders, however invisible, place in the fight against terrorism, human trafficking and drug trafficking. Extending the EPPO’s material competence to cover the abovementioned forms of “serious crime with a cross-border dimension” is a solution that can address this scourge and, at the same time, contribute to the existence of a genuinely united Europe with a real area of freedom, security and justice.

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^[1] NATO, ALESSANDRO, “The European Public Prosecutor’s Office between counter-terrorism and strengthening of the European citizens’ safety”, in Civitas Europa, no. 37, ed. IRENEE, 2016, p. 325. Available: https://www.cairn.info/revue-civitas-europa-2016-2-page-317.htm (last visited on 29/12/2021).

^[2] Ibidem, p. 324.

^[3] Ibid.

^[4] Cf. Article 22 of Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation for the establishment of the European Public Prosecutor’s Office, OJ – L 283/1, 30 October 2017.

^[5] Proposal for a Council Regulation establishing a European Public Prosecutor’s Office, COM (2013) 534 final, Brussels, 17/07/2013. Available: https://eur-lex.europa.eu/legal-content/PT/TXT/PDF/?uri=CELEX:52013PC0534&from=pt (last visited on 29/12/2021).

^[6] SANTOS, MARGARIDA, Para um (novo) modelo de intervenção penal na União Europeia: uma reflexão a partir do princípio da legalidade como limite material de atuação da Procuradoria Europeia, ed. Rei dos Livros, 2016, p. 296.

^[7] Ibidem.

^[8]  L. WADE, MARIANNE, “A European public prosecutor: potential and pitfalls”, in Crime, Law and Social Change, ed. Springer, 2013, p.449. Available: https://link.springer.com/content/pdf/10.1007/s10611-012-9406-x.pdf (last visited on 29/12/2021).

^[9] Ibidem.

^[10] NATO, ALESSANDRO, “The European Public Prosecutor’s Office between counter-terrorism and strengthening of the European citizens’ safety”, in Civitas Europa, n.º 37, ed. IRENEE, 2016, p. 324. Available: https://www.cairn.info/revue-civitas-europa-2016-2-page-317.htm (last visited on 12/12/2021).

^[11] Ibidem.

^[12] Ibidem, pp. 324 and 325.

^[13] Ibidem, p. 321.

^[14] LUYTEN, KATRIEN; VORONOVA SOFIJA, European Parliamentary Research Service, “Understanding the EU response to organised crime”, in EU policies – Insights, 2020, p. 6. Available: https://www.europarl.europa.eu/RegData/etudes/BRIE/2020/652043/EPRS_BRI(2020)652043_EN.pdf (last visited on 12/12/2021).

^[15] SOUSA, ALFREDO JOSÉ DE, “A Criminalidade Transnacional na União Europeia – Um Ministério Público Europeu?”, ed. Almedina, 2005, p. 79.

^[16] Visit website: : https://www.europol.europa.eu/about-europol/european-counter-terrorism-centre-ectc (las visited on 29/12/2021).

^[17] Cf. the article “Open your eyes to trafficking!”, from the Council of Europe’s Human Rights Channel. Available at: https://www.coe.int/en/web/human-rights-channel/european-anti-trafficking-day (last visited on 29/12/2021).

^[18]   Report from the Commission to the European Parliament and the Council, third report on progress made in the fight against trafficking in human beings, adopted on 20 October 2020, p. 4. Available: https://eur-lex.europa.eu/legal-content/PT/TXT/HTML/?uri=CELEX:52020DC0661&from=EN (last visited on 29/12/2021).

^[19] Ibidem.

^[20] Visit website: https://ec.europa.eu/anti-trafficking/eu-policy/first-report-progress-made-fight-against-trafficking-human-beings-2016_en (last visited on 29/12/2021).

^[21] Eurojust Report on Drug trafficking – Experiences and challenges in judicial cooperation, April 2021, p. 19. Available: https://www.eurojust.europa.eu/sites/default/files/Documents/pdf/2021_04_15_drug_trafficking_casework_report.pdf (last visited on 29/12/2021).

^[22] NATO, ALESSANDRO, “The European Public Prosecutor’s Office between counter-terrorism and strengthening of the European citizens’ safety”, in Civitas Europa, n.º 37, ed. IRENEE, 2016, p. 320. Available: https://www.cairn.info/revue-civitas-europa-2016-2-page-317.htm (last visited on 12/12/2021).

^[23] Ibidem, p. 322.

^[24] Cf. Article 86(4) of the Treaty on the Functioning of the European Union, JO – C 326/47, 26 October 2012. Available: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=EN (last visited on 29/12/2021).

^[25] NATO, ALESSANDRO, “The European Public Prosecutor’s Office between counter-terrorism and strengthening of the European citizens’ safety”, in Civitas Europa, n.º 37, ed. IRENEE, 2016, p. 321. Available: https://www.cairn.info/revue-civitas-europa-2016-2-page-317.htm (last visited on 12/12/2021).

^[26] GIUFFRIDA, FABIO, “Cross-Border Crimes and the European Public Prosecutor’s Office” in eucrim – The European Criminal Law Associations’ Forum, 2017, p. 149. Disponível: https://eucrim.eu/media/issue/pdf/eucrim_issue_2017-03.pdf (last visited on 29/12/20221).

^[27] Speech by former European Commission President Jean-Claude Junker on the State of the Union 2017. Available: https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_17_3165 (last visited on 29/12/2021).

^[28] Ibidem.

^[29] Speech by the President of the French Republic, Emmanuel Macron, “Pour une Europe Souveraine, Unie, Démocratique” in 2017 at the Sorbonne University. Available: https://www.elysee.fr/front/pdf/elysee-module-795-fr.pdf (last visited on 29/12/20221).

^[30] Statement by the members of the European Council following the informal meeting of the Heads of State or Government on 12 February 2015. Available: https://www.consilium.europa.eu/en/press/press-releases/2015/02/12/european-council-statement-fight-against-terrorism/ (last visited on 29/12/2021).

^[31] NATO, ALESSANDRO, “The European Public Prosecutor’s Office between counter-terrorism and strengthening of the European citizens’ safety”, in Civitas Europa, n.º 37, ed. IRENEE, 2016, p. 325. Available: https://www.cairn.info/revue-civitas-europa-2016-2-page-317.htm (last visited on 12/12/2021).

^[32] 10th General Report on Greta’s Activities covering the period from 1 January to 31 December 2020, p. 31. Available: https://rm.coe.int/10th-general-report-greta-activities-en/1680a21620 (last visited on 29/12/2021).

^[33] Statement by the members of the European Council following the informal meeting of the Heads of State or Government on 12 February 2015. Available: https://www.consilium.europa.eu/en/press/press-releases/2015/02/12/european-council-statement-fight-against-terrorism/ (last visited on 29/12/2021).

^[34] SOUSA, ALFREDO JOSÉ DE, “A Criminalidade Transnacional na União Europeia – Um Ministério Público Europeu?”, ed. Almedina, 2005, p. 79.

Picture credits: martaposemuckel.