Procedural safeguards in EPPO cross-border investigations
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Procedural safeguards in EPPO cross-border investigations Elise Martin-Vignerte1
© @ ERA 2020
Abstract In this paper we will discuss the presence of procedural safeguards in the specific context of EPPO cross-border investigation between participating Member States, non-participating Member States and third countries. The various sources of the safeguards will be identified in the EPPO Regulation, other European Instruments and mutual legal assistance international conventions. We will then probe the extent of these procedural safeguards and their efficacy by reviewing the state of play of other instruments of judicial cooperation used in the area of freedom, security and justice. Keywords EPPO · Cross-border investigation · Safeguards · Fundamentals rights
1 Introduction To combat ever-expending fraud threatening the financial interests of the European Union (EU) 22 Member States rallied around an ambitious project to create a transborder prosecution body dedicated to this task. Thus was born the European Public Prosecutor Office (EPPO). In an area where borders have less and less significance, the creation of a transborder authority established specifically to investigate and prosecute offences affecting the financial interests of the EU as defined by the Directive (EU) 2017/1371(PIF Directive)1 appears perfectly adequate. It is 1 Directive (EU) 2017/1371 of 5 July 2017 on the fight against fraud to the Union’s financial interests by
means of criminal law, [2017] OJ L198/29.
B E. Martin-Vignerte
[email protected]
1
Defence lawyer (Ireland and France), MacGuill & Company, Dublin, Ireland
E. Martin-Vignerte
logical that Member States, all of which suffer severe and ongoing economic loss through fraud, should provide the EU with a body able to intervene in various jurisdictions to prosecute offences which by their nature and the interests involved are not bound by borders. In 2019, around 3.3% of Eurojust cases concerned PIF crimes compared to 1.08% in 2017, showing the reality of the growth of cross-border PIF crimes.2 While Member States had the common intention of protecting the financial interests of the EU, the negotiations around the implementation and achievement of their objective would take many years due to the complexity and sensitivity of the issues discussed. This enhanced cooperation resulted in the creation of the EPPO by the Regulation 2017/1939 of 12 October 2017 (the Regulation).3 The creation of such a body, extraordinary in its organisation and its power, calls for certain reservations regarding the protection of defence rights. While the Regulation includes safeguards in its provisions, we must note their restricted number and limited reach (II). As the EPPO is not expected to be in position to open its first investigation until the end of 2020, all propositions in this paper are therefore hypotheses based on observations of practises in other areas of cross-border cooperation. This paper aims to give an overview of the procedural safeguards available in cross-border i
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