Abstract
The establishment of the European Public prosecutor would mark the birth of the first truly European form of prosecution. The European Prosecutor would investigate on a case and then bring it in front of a national court for adjudication. The paper discusses how the national adjudicating forum should be chosen for cases handled by the future European Public Prosecutor. It first looks at the current rules on overlapping of national jurisdictions. Then it considers what general overarching fundamental principles spelled out in national constitutions and European covenants are applicable and what their practical implications are. Finally it critically discusses the rules which have been approved, making where possible some interpretative suggestions for improvement.
Michele Panzavolta is Associate Professor at the KU Leuven and Guest Professor at the University of Hasselt.
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Notes
- 1.
A comprehensive analysis of the topic is contained in the book edited by Luchtman (2013a).
- 2.
The concept of ‘jurisdiction to prescribe’ and its difference with ‘jurisdiction to adjudicate’ and ‘jurisdiction to enforce’ is explained—albeit very briefly—later in this paragraph. See also infra, footnote n. 7.
- 3.
Calasso (1957), pp. 13 ff.
- 4.
See an interesting discussion on the roots of the formula in Ullmann (1949), pp. 1–33.
- 5.
Bodin (1581), p. 161 “la première marque du prince souverain, c’est la puissance de donner loi à tous en général, et à chacun en particulier; mais ce n’est pas assez, car il faut ajouter, sans le consentement de plus grand, ni de pareil, ni de moindre que soi”.
- 6.
- 7.
On the difference between these three concepts of jurisdictions (jurisdiction to prescribe, to enforce and to adjudicate) see Böse (2013), pp. 73–87.
- 8.
The preamble of the Convention states: “Considering it useful to this end to ensure, in a spirit of mutual confidence, the organization of criminal proceedings on the international level, in particular, by avoiding the disadvantages resulting from conflicts of competence”. It must be pointed out that despite the declaration in the preamble the Convention does not properly solve all conflicts of jurisdictions. By allowing a State to transfer its competence to a new State the convention creates a new ground for jurisdiction in the requested (or receiving) State (see articles 2 and 7). But the Convention provisions could narrow down the problems of conflicts of jurisdictions in all cases where the requested/receiving country could both take action on the basis of their own rules on jurisdiction to prescribe (see articles 7 and 8).
- 9.
Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings [2009] OJ L328/42. On the framework decision see the general illustration of Rafaraci (2010), pp. 121–150 at 146.
- 10.
- 11.
Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime [2002] OJ L63/1 as amended by Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Council Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime [2009] OJ L138/14.
- 12.
In the case of Spasic (27 May 2014, C-129/14) the European Court of Justice has ruled the enforcement condition to be in line with the CFR and, in particular, to be respectful of Articles 50 and 52 of the Charter. In the literature, see the critical reflections of Wasmeier (2014), pp. 533–554.
- 13.
The European Court of Justice was asked to consider whether the exceptions listed in Article 55 are compatible with Article 50 CFR and with the limitations to the Charter’s rights allowed by Article 52 CFR (case C-468/14, Kossowski). The Court did not provide an answer to the question as the decision on a preliminary issue made the point no longer relevant (CJEU, Grand Chamber, 29 June 2016, C-468/14). It remains likely that the issue be soon taken again in front of the higher European Court.
- 14.
On the origin of the project and its reception by governments see Spencer (2012), pp. 363–380 at 367 ff.
- 15.
- 16.
According to Article 6 § 3 TFEU, “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”.
- 17.
I have more extensively elaborated upon these issues (the value of the safeguard of the previously established judge in comparative law, the case-law of the European Court of Human Rights, the difference between ECHR and CFR) in ‘Il giudice naturale nell’ordinamento europeo tra presente e futuro’, in Panzavolta (2005), pp. 107 ff. and later in Panzavolta (2013), pp. 143–166.
- 18.
For a more detailed analysis of these issues, I refer again to my works cited in the previous footnote.
- 19.
See my Panzavolta (2013), pp. 143–166.
- 20.
- 21.
It is exactly for this reason that I have connected the come into being of the right to a previously established jurisdiction (as part of the right to a previously established judge) to the full tightening of the ne bis in idem principle.
- 22.
The dichotomy is instead emphasized by Böse (2013), pp. 73–87. The author concludes that rules on jurisdiction to enforce are procedural in nature and hence the need for flexibility should prevail over legal certainty. At European level, however, the rules on the identification of the competent national judge have a double nature, because they are procedural in nature but they also affect the applicable substantive national law.
- 23.
The more flexible the rules on the choice of venue, the more swifter and efficient the repression. On the other hand, avoiding abusive choices requires predefined and stiffer rules and forms of judicial control, which inevitably make the handling of a criminal case more cumbersome and slower.
- 24.
The reference goes to my Panzavolta (2013), pp. 143–166 at 160.
- 25.
- 26.
European Parliament Resolution of 12 March 2014 on the proposal for a Council regulation on the establishment of the European Public Prosecutor’s Office (P7_TA(2014)0234, point n. 5 (i), stating that the EPPO should “comply with the principle of the natural court, which requires that the criteria determining which competent court is to exert jurisdiction are clearly established in advance”.
- 27.
Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, Brussel, 17 July 2013, COM(2013)534final.
- 28.
Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, Brussel, 17 July 2013, COM(2013)534final. See also point 30 of the preamble: “Article 86 of the Treaty requires the European Public Prosecutor’s Office to exercise the functions of the prosecutor, which includes taking decisions on a suspect’s indictment and the choice of jurisdiction. (…) The jurisdiction of trial should be chosen by the European Public Prosecutor on the basis of a set of transparent criteria.”
- 29.
Wasmeier (2015), pp. 139–164 at 150 observing that “other criteria may be of high relevance, such as the nationality and/or civil servant status of concerned persons (in view of consistency with relevant EU instruments, the seat of the EU and/or national institution or body managing the relevant budget and/or other places of important economic impact.” The Author still concludes that the list of criteria should be read exhaustively.
- 30.
Delmas-Marty (1997).
- 31.
Article 26 of the draft of the corpus Juris (in the version agreed in 2000 in Florence) reads “Each case is judged in the Member State which seems most appropriate in the interest of efficient administration of justice, any conflict of jurisdiction being settled according to the rules set out hereafter (Article 28). The principal criteria for the choice of jurisdiction are as follows: a) the State where the greater part of the evidence is found; b) the State of the residence or of nationality of the accused (or the principal persons accused); c) the State where the economic impact of the offence is the greatest.” The text can be consulted in Delmas-Marty and Vervaele (2000), p. 207.
- 32.
Manacorda (2000), pp. 207, 327–346, at 345.
- 33.
See Delmas-Marty and Vervaele (2000), p. 207, Appendix II, 188, where the principle is explained in the following terms: “the territory of the Member States of the Union constitutes a single area, called the European judicial area. The competence ratione loci of the EPP and of national prosecutors to issue warrants and judgements pursuant to the Corpus Juris extends to the entire European judicial area. The EPP brings investigations across the territory of the Union (…) and judgements delivered by the courts and tribunals of the Member States of the Union are enforceable throughout the territory of the Union”. The explanation adds: “The EPP chooses the national jurisdiction of judgement, under the supervision of the European Court of Justice”; “The necessary corollary of the European territoriality is the unconditional recognition of the rule of ne bis in idem”. See also Delmas-Marty (2000), pp. 37 ff.
- 34.
Although this latter possibility was introduced only in the second version of the Corpus juris (version 2000, adopted in Florence in May 1999; see Delmas-Marty and Vervaele 2000, p. 171) and was absent in the initial 1997 draft.
- 35.
The project was guided by Professor Ligeti of the University of Luxembourg in the period February 2010–March 2012. Rule 64 reads: “1. The EPPO shall prosecute the case in the jurisdiction which is most appropriate, taking into consideration, in the following sequence: a) the Member State in which the greater part of the conduct occurred, b) the Member State of which the perpetrator(s) is (are) a national or resident, and c) the Member State in which the greater part of the relevant evidence is located. 2. If none of the criteria listed in subsection (1) apply, the case shall be prosecuted in the jurisdiction where the EPPO has its seat. 3. The accused and the aggrieved party may appeal against the EPPO’s choice of forum to the European court.”
- 36.
Lohse (2015), pp. 165–182 at 181; Manacorda (2015), pp. 255–272 at 261; Allegrezza (2013), p. 9. See also similar critical remarks (by K. Ligeti and H. Matt) in the Conclusions of the conference organised by the Lithuanian Presidency in cooperation with the European Commission and the Academy of European Law (Vilnius, 16–17 September), Council doc. 13863/13 (Brussels 20 September 2013).
- 37.
European Parliament Resolution of 12 March 2014 on the proposal for a Council regulation on the establishment of the European Public Prosecutor’s Office (P7_TA(2014)0234, point n. 5 (i), criticizing the Commission proposal for granting the EPPO “excessive discretion”. See also the proposal of modification at point n. 4.
- 38.
Wasmeier (2015), pp. 139–164 at 152.
- 39.
This is in fact the proposal of Wasmeier (2015).
- 40.
The final text of Article 26 has been slightly modified when compared with a previous version of the negotiated draft dating back to June 2015 (Council doc. No. 9372/15, Brussels, 12 June 2015). Article 21 section 4 of that text read: “A case shall in principle be handled by a European Delegated Prosecutor from the Member State where the focus of the criminal activity is or, if several connected offences within the competences of the Office have been committed, the Member State where the bulk of the offences has been committed. A Permanent Chamber may only instruct a European Delegated Prosecutor of a different Member States to initiate an investigation where that Member State has jurisdiction for the case and where a deviation from the above mentioned principles is duly justified, taking into account the following criteria, in order of priority: (a) the place where the suspect or accused person has his/her habitual residence; (b) the nationality of the suspect or accused person; (c) the place where the main financial damage has occurred.”
- 41.
See in particular para (a) and (e) of Article 10 section 4. See also Recital 87. According to Article 10, section 9, the European Prosecutor does not have a right to vote in the decision taken by the Permanent Chamber. The rationale seems to exclude any bias that the supervising European prosecutor might have with regard to having the case prosecuted (or not prosecuted) in his/her Member State.
- 42.
See supra note 38.
- 43.
Wasmeier (2015), pp. 139–164.
- 44.
Espina (2010), p. 118: “la mejor solución para este tipo de problemas pasa por intentar conseguir la mayor aproximación posible entre las legislaciones de los Estados partícipes de la Fiscalía Europea, así como por el establecimiento de reglas claras obligatorias a seguir por el Fiscal a la hora de tomar una decisión acerca de cual sea la jurisdicción competente para un determinado caso”. On a similar vein, Zwiers (2011), pp. 406–407.
- 45.
As already noted by Bachmaier Winter (2015), p. 142.
- 46.
Article 25 of the Commission proposal reads: “For the purpose of investigations and prosecutions conducted by the European Public Prosecutor’s Office, the territory of the Union’s Member States shall be considered a single legal area in which the European Public Prosecutor’s Office may exercise its competence.” The importance of the principle of territoriality in the Commission proposal is particularly emphasized by Mitsilegas (2016), pp. 11–33, at 20 ff.
- 47.
The reasons behind the Commission’s choice are illustrated by Csonka (2015), pp. 249–254. In short they are: the intent to ensure uniformity with the trial phase, by placing the judicial controls of the preliminary phase at the same national level; the aim to emphasize the role of national courts as first protectors of citizens’ liberties (la “primauté du juge national comme protecteur des droits dans l’ordre juridique européen”); the intent to avoid solutions too European oriented, in light of the ‘yellow cards’ issued to the proposal by several national Parliaments for breach of subsidiarity. Vervaele (2014b), pp. 45–46, argues that “a choice for judicial control at the European level is (…) not fully provided for by the Lisbon Treaties”.
- 48.
See also Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, Brussel, 17 July 2013, COM(2013)534final, 7 and points 37 and 38 of the preamble.
- 49.
For critical remarks on this issue see Manacorda (2015), pp. 264 ff.; Pawlik and Klip (2015), p.187 note that the concept of territoriality remains unclear; Franssenand and Vandebroek (2014), p. 533. An interpretative attempt to establish a European form of judicial control on the choice of forum within the context of the Commission proposal has been made by Wasmeier (2015), pp. 155–156, grounded on the need to respect the general principles of legality, foreseeability and fair trial and on article 263 and 267 TFEU.
- 50.
According to Allegrezza (2013), p. 5, the proposal has two souls: one more audacious and more European, a second more conservative and inclined toward the protection of national prerogatives.
- 51.
Caianiello (2013), p. 121.
- 52.
Allegrezza (2013), p. 6.
- 53.
Article 37 of the Regulation states that: “Evidence presented by the prosecutors of the EPPO or the defendant to a court shall not be denied admission on the mere ground that the evidence was gathered in another Member State or in accordance with the law of another Member State”. Despite its strictly mandatory tone, it is to be doubted that such a provision can operate without derogations, particularly when the rights of defendants are at stake. The rules on the gathering of evidence are part of a national whole: when a piece of evidence is taken out of its national context and used elsewhere, the risks of gaps and harm to the rights of defence increases.
- 54.
Wasmeier (2015), pp. 139–164 at 149: “a switch to another jurisdiction and legal system may require a reorientation of the course of the investigation and/or of the steps taken”.
- 55.
See the English fluctuation between an “initiatory” approach and a “terminatory theory” in Massa (2011), pp. 103–121.
- 56.
Wasmeier (2015), pp. 139–164 at 143.
- 57.
In Belgium the objectieve ubiquiteitsheorie (objective ubiquity theory) is consistently upheld by both scholars and courts. The case-law of the Belgian Court of cassation is clear in stating that an offence is considered to be committed if one of its constituent elements took place on Belgian territory (see, for instance, Hof van Cassatie, 2de Kamer, 7 June 2011, Tijdschrift voor Strafrecht, 2012, 23). Even an aggravating circumstance would be considered sufficient: Cour de cassation, 2e ch., 24 June 2001, P.00.1627.F, Revue de droit penal, 2001, 721. At times the Court tries to avoid that these already broad criteria are interpreted even more extensively (see Dewulf 2012, pp. 69–72), but the fact remains that the ubiquity theory allows Belgian courts to extend national jurisdiction to many cases which had only a minimal connection with the country.
- 58.
The Criminal code does not clarify what is meant by crime committed in the Netherlands (article 2). But the case-law has clarified that the commission of one constituent element in the Netherlands would suffice (“indien nast in ook buiten Nederland gelegen plaatsen kunnen gelden als plaats waar een strafbaar feit is gepleegd, is op grond van de hiervoor genoemde wetsbepaling [scil. Art. 2 Sr.] vervolging van de strafbare feit in Nederland mogelijk, ook ten aanzien van de van dat strafbare feit deel uitmakende gedragingen die buiten Nederland hebben plaatsgevonden”): see Hoge Raad, 2 February 2010, 08/02915, Nederlandse Jurisprudentie, 2010, 89; Id., 27 October 1998, 108895, in Nederlandse Jurisprudentie, 1999, 221. See Jorg et al. (2012), p. 215. See also Massa (2011), p. 109.
- 59.
According to Article 113-1 of the French criminal code “L’infraction est réputée commise sur le territoire de la République dès lors qu’un de ses faits constitutifs a eu lieu sur ce territoire”.
- 60.
Article 6 section 2 of the Italian criminal code states that the offence is considered to be committed in the territory of the State if the conduct (or the omission) took place in whole or in part on Italian territory or if the event which is the consequence of the conduct has taken place on the territory (“quando l’azione o l’omissione, che lo costituisce, è ivi avvenuta in tutto o in parte, ovvero si è verificato l’evento che è la conseguenza dell’azione od omissione”).
- 61.
See Massa (2011), pp. 103–121 at 108.
- 62.
Reference to an even workload between European Prosecutors is made in several points of the preamble of the Regulation (see points 25, 27, 29), showing that it was a point of concern during the negotiations.
- 63.
For instance, the question is whether the crime of Article 3, section 2, (a), (i) of directive 2017/1371/EU is located where the fraud was devised, or where one false or incomplete document was submitted, or where the last false or incomplete document was submitted, or where the funds or assets of the Union misappropriated or wrongfully retained. Or to give another example, where is passive corruption (Article 4, section 2, (a) of directive 2013/1371/EU) exactly to be located? Where the public official requests the advantage—or accepts the promise of it—or where the advantage is received?
- 64.
Directive 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law [2017] OJ L198/29. The directive has also undergone a long period of negotiation from the moment of the first commission Proposal in 2012: see Proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union’s financial interests by means of criminal law (COM/2012/0363 final—2012/0193 (COD)), Brussels 11 July 2012.
- 65.
- 66.
Article 11 reads: “1. Member States shall take the necessary measures to establish their jurisdiction over the criminal offences referred to in Title II where: (a) the offence is committed in whole or in part within their territory; or (b) the offender is one of their nationals. 2. For the case referred to in point (b) of paragraph 1, Member States shall take the necessary measures to ensure that their jurisdiction is not subordinated to the condition that the prosecution can only be initiated following a report made by the victim in the place where the offence was committed, or a denunciation from the State of the place where the offence was committed. 3. Member States shall ensure that their jurisdiction includes situations where an offence is committed by means of information and communication technology accessed from their territory.”
- 67.
See also point n. 87 and 88 of the preamble.
- 68.
If read too literally, the text of the provision could even cast doubt as to whether the decision to choose a Member state as the country of investigation/prosecution falls thereunder. It seems sensible to answer the question in the affirmative. In any case it is most likely that States ensure a form of judicial control at the latest at the trial stage, when the adhered court has to determine whether it is competent to adjudicate on the case.
- 69.
The argument has been clearly illustrated by Wasmeier (2015), pp. 139–164.
- 70.
The specificity of this decision (in terms of its intrinsic supranational feature) is acknowledged also by Csonka (2015), pp. 249–254 at 253–254, who remains open to the introduction of a form of European judicial control on it.
- 71.
This is the approach taken by the European Parliament Resolution of 12 March 2014 on the proposal for a Council regulation on the establishment of the European Public Prosecutor’s Office (P7_TA(2014)0234, point n. 5 (i) and more strongly by the European Parliament Resolution of 29 April 2015 on the proposal for a Council regulation on the establishment of the European Public Prosecutor’s Office (P8_TA(2015)0173), point n. 24. In the last resolution the Parliament “affirms that the right to a judicial remedy should be upheld at all times in respect of the EPPO’s activity”, but it draws a difference between decisions taken by the EPPO and investigative or procedural measures. In the first case, the Parliament “believes (…) that any decision taken by the EPPO should be subject to judicial review before the competent court” and in particular it “stresses that the decisions taken by the Chambers, such as the choice of jurisdiction for prosecution, the dismissal or reallocation of a case or a transaction, should be subject to judicial review before the Union courts”. On the contrary, judicial review for investigative or procedural measures could be deferred to national courts (see point n. 25 of the Resolution). On this point see also Parizot (2015), pp. 538–545.
- 72.
As explicitly suggested by Lohse (2015), pp. 165–182 at 181.
- 73.
- 74.
On the concept of judicial control and on the different forms of it, see Allegrezza (2015), pp. 35–53.
- 75.
The relationship between flexible rules on the choice of forum and judicial control (of a European Court) was already well highlighted by the drafters of the Corpus juris: “the flexibility makes it even more necessary to have the possibility of control. In the system retained, this would mean eventual a posteriori control by the ECJ. (…) But such a process would be cumbersome and slow. An a priori control by the pre-trial chamber [scil. European pre-trial chamber] would be preferable”: Delmas-Marty (2000), p. 95.
- 76.
See Article 325 TFEU, particularly section 4 which demands the European institutions to ensure “effective and equivalent protection” of those interests.
- 77.
Vervaele (2014b), pp. 45–46, talking of ‘quality standards’. For a recent example of the willingness of the CJEU to enforce such uniformity, see case C-105/14, 8 September 2015, Taricco (concerning an inadequate statute of limitations with regard to tax frauds).
- 78.
Meaning essentially the venue of the trial. But the same would be true with regard to the country where the strategic decisions of the investigations are taken (e.g. decision to prosecute, decision to dismiss, decision to out the suspect in pre-trial custody, etc., with exclusion of course of the investigative activities which inevitably need to be conducted where the evidence is).
- 79.
It could then be argued whether an exception to this interpretation could be allowed for the case of multiple suspects/defendants in the same case who have different nationality and/or residence and who all simultaneously request that the trial be held in their country of residence/nationality.
- 80.
It appears slightly more difficult to reach the same interpretation with regard to the phase of the investigation, given that the defence might not even be informed of the existence of an ongoing investigation at the moment of the choice of the forum. It could be argued that the defence ought to be informed beforehand of the choice during the investigations, in order to be given the chance to express her view and to express her preference for one country. Nevertheless the interpretation might collide with the principle of the secrecy of the investigations that is still upheld in the majority of countries and might at times even endanger the efficiency of investigations.
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Further Readings
Erkelens L, Meij AWH, Pawlik M (eds) (2015) The European Public Prosecutor’s Office. An extended arm or a two-headed dragon? Asser Press, The Hague
Giudicelli-Delage G, Manacorda S, Tricot J (eds) (2015) Le contrôle judiciaire du parquet européen. Nécessité, Modèles, Enjeux. Société de législation comparée, Paris
Grasso G, Illuminati G, Sicurella R, Allegrezza S (eds) (2013) Le sfide dell’attuazione di una procura europea: definizione di regole comuni e loro impatto sugli ordinamenti interni. Giuffré, Milano
Nowak C (ed) (2016) The European Public Prosecutor’s Office and national authorities. Wolters Kluwer-Cedam, Milano
White S (2013) Towards a decentralised European Public Prosecutor’s Office? New J Eur Crim Law 4:22–39
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Panzavolta, M. (2018). Choosing the National Forum in Proceedings Conducted by the EPPO: Who Is to Decide?. In: Bachmaier Winter, L. (eds) The European Public Prosecutor's Office. Legal Studies in International, European and Comparative Criminal Law, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-93916-2_4
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