In a departure from its previous statements on the establishment of a European Public Prosecutor’s Office, Malta has decided to opt out of the European Commission initiative aimed at improving the prosecution of criminals who defraud EU taxpayers by reinforcing the procedural guarantees of OLAF, the EU’s anti-fraud office.
An EU official this week was quoted as saying that a total of 11 EU countries had sent reasoned opinions by the prescribed deadline stating they did not want to participate in the European Public Prosecutor’s Office (EPPO).
Parliamentary Secretary for Justice Owen Bonnici recently told Parliament’s Foreign Affairs Committee that the government was in favour of the implementation of the EPPO, as long as the functions of the Attorney-General would not be weakened as a result. Malta had also been reported as having been lobbying for a Maltese citizen to be appointed as European Public Prosecutor.
Nevertheless, Malta has joined Cyprus, the Czech Republic, France, Hungary, Ireland, the Netherlands, Romania, Slovenia and the UK in opting out from participation. The 11th country, Denmark, will not participate as a result of its opt-out from treaty protocols on justice.
As such, the European Commission is expected to establish the European Prosecutor’s Office without the dissenting states.
In addition to establishing the Office, the measure would also strengthen Olaf’s governance and reinforce procedural guarantees when its representatives are in the field, carrying out investigations. Olaf’s role also changes considerably under the Commission proposal, as the EU’s anti-fraud office would no longer carry out administrative investigations into EU fraud, leaving this power within the proposed EPPO.
However, Olaf would remain responsible for investigations in areas that do not fall under the authority of the European Public Prosecutor. These include irregularities affecting the EU’s financial interests and serious misconduct or crimes committed by EU staff that do not have an impact on the EU’s finances.
Under the Commission’s proposals, the EPPO will be an independent EU body with the authority to investigate and prosecute EU fraud. The establishment of the EPPO will bring about substantial change in the way the Union's financial interests are protected. It will combine European and national law-enforcement efforts in a unified, seamless and efficient approach to counter EU-fraud.
Currently, only national authorities can investigate and prosecute EU-fraud. Their competences stop at their national borders. Existing Union bodies (such as OLAF, Eurojust and Europol) do not have, and cannot be given, the mandate to conduct criminal investigations.
The EPPO is intended to fill this institutional gap, and it will have exclusive and EU-wide jurisdiction to deal with suspicions of criminal behaviour falling within its remit.
The EPPO will be headed by a European Public Prosecutor. Its investigations will, in principle, be carried out by European Delegated Prosecutors located in each participating member state. The number of these delegated prosecutors will be left to member states, but they should have at least one. They will be an integral part of the EPPO but will also continue to exercise their functions as national prosecutors. When acting for the EPPO, they will be fully independent of the national prosecution bodies.
The EPPO will pool the investigative and prosecutorial resources of the member states with clear hierarchical lines to ensure swift decision-making. It will have uniform investigative powers throughout the Union, based on and integrated into the national legal systems of the member states. There will be strong safeguards to guarantee the rights of those involved in the EPPO’s investigations as laid down in national law, Union law and the Charter of Fundamental Rights.
Investigation measures that touch mostly on fundamental rights such as telephone interception will need prior authorisation by a national court and the EPPO’s investigations will be subject to judicial review by the national courts.