The Conflict of Competence between the European Public Prosecutor’s Office and Spanish Prosecutors – Lessons Learned

• Date: 06 February 2023
• Year: 2023
• Author: dr. Balázs Márton
• Pages: 68
• DOI: https://doi.org/10.30709/eucrim-2022-021

I. Introduction: Rules on the Division of Competences between the European Public Prosecutor’s Office and National Authorities

The European Public Prosecutor’s Office (EPPO) became operational in the 22 EU Member States that have joined the effort via enhanced cooperation on 1 June 2021. The organisational setup and functioning of the EPPO is governed by Council Regulation (EU) 2017/1939.¹ A source of EU law containing normative orders which is directly applicable in the Member States, this regulation forms an integral part of the national law of the EU Member States without – in principle – necessitating a separate legal implementation act.²

Regulation 2017/1939 provides for a system of shared competence between the EPPO and national authorities in combating crimes affecting the financial interests of the European Union.³ One way of exercising its competence is the EPPO’s right of evocation, which will see the EPPO “take over” a case that has been initiated by a national authority of the participating Member States. However, an informed decision on whether or not to exercise this right of evocation requires the national authorities to submit the necessary information. When a judicial or law enforcement authority of a Member State initiates an investigation in respect of a criminal offence for which the EPPO could exercise its competence, that authority must without undue delay inform the EPPO. The same applies when, at any time after the initiation of an investigation, it appears to the competent judicial or law enforcement authority of a Member State that an investigation concerns such an offence.⁴ While it goes without saying that the EPPO is also under an obligation to provide information to the Member State in accordance with the principle of loyal cooperation, this is of no further relevance to the topic at hand and will thus be disregarded.

Next to taking over an investigation, the EPPO may also exercise its competence by initiating its own proceedings where it has reasonable grounds to suspect a criminal offence that falls under its competence. In such instances, a European Delegated Prosecutor (EDP) in the Member State that has jurisdiction in accordance with its national legislation initiates an investigation and registers the case in the case management system, flagging it as a potential EPPO matter.⁵ The EPPO must inform the national authorities of its decision to open an investigation without undue delay.⁶

In the event of a conflict of competence between the EPPO and the Member State authority, Regulation 2017/1939 also contains provisions that should be followed by both the EPPO and the Member State authority concerned. Drawing an analogy to the theory of public administration, a conflict of competence can be described as a situation in which the question of which authority is responsible for the administration of a case is contested. A distinction needs to be made between positive and negative conflicts of competence. In a positive conflict of competence, several authorities may wish to act on the same case. However, such situations are relatively rare compared to negative conflicts of competence, which occur when neither authority considers itself responsible. It needs to be noted that any conflict of competence between the EPPO and a national authority represents a dispute between a Member State and a supranational EU body.

A number of legal experts have previously pointed out inaccuracies and difficulties of interpretation of Art. 24 of Regulation 2017/1939, which regulates the exercise of the EPPO’s material competence.⁷ The premise of the Regulation is that in the event of the EPPO deciding to exercise its competence, the authorities of the Member States may no longer exercise their own competence in respect of the same criminal conduct.⁸ Consequently, the EPPO’s competence has priority. However, a seemingly unambiguous legal situation is complicated by several exceptions stipulated by the Union legislator with regard to the exercise of competence in Art. 25 of Regulation 2017/1939, turning the issue into a Gordian knot. The most obvious of these exceptions concerns offences not classified as “pure” PIF offences, with the EPPO entitled to exercise its competence over a number of offences which are only related to the “pure” PIF offences under Art. 22(1) of Regulation 2017/1939, such as the “inextricably linked offences” as defined in Art. 22(3). In this case, Art. 22(3) refers to Art. 25(3), according to which the EPPO must refrain from exercising its competence and refer the case to the national authority if the sanction for the PIF offence under the relevant national law is not sufficiently severe compared to the inextricably linked offence, unless the latter offence has been instrumental to commit the PIF offence.⁹ Likewise, the EPPO should refrain from exercising its competence if the damage caused to the financial interests of the Union by the offence giving rise to the EPPO’s material competence does not exceed the damage caused to another victim by the same offence (except for some offences defined in the PIF Directive).¹⁰ In addition, Art. 25 of Regulation 2017/1939 states that for offences that cause less than €10,000 in damages, the EPPO may only exercise its competence if certain conditions are met (for example if EU officials are involved) – even if a criminal offence generally falls within the EPPO’s competence.¹¹

A particularly controversial point is that in disputes arising from these special rules, the Union legislator no longer upholds the above-mentioned priority of the EPPO’s competence. Instead, it stipulates that in case of disagreement between the EPPO and the national prosecution authorities over whether criminal conduct falls within the EPPO’s competence, the national authorities who are responsible for determining the competent body for prosecution at national level also decide who may exercise their competence in this case.¹² As interpretation of EU law is required, Regulation 2017/1939 specifies that the Court of Justice of the European Union, in accordance with Art. 267 TFEU, has jurisdiction to give a preliminary ruling...