Does the EU need a public prosecutor?

Written by Hugo Brady [1], 01 February 2010

Viviane Reding, the EU's new justice commissioner, wants to begin her term with a bang by setting up the office of a European public prosecutor (EPP). An EPP would direct cross-border investigations and prosecutions, principally in cases of fraud against the EU's budget. The office would emerge from Eurojust, an EU unit of national prosecutors which currently co-ordinates cross-border criminal investigations but cannot start cases in national courts.

As one of the more controversial changes made possible by the Lisbon treaty, an EPP can only be established if every EU country agrees or if nine or more countries want to establish a common prosecutor in an avant-garde group.

Supporters of an EPP have long argued that European governments do not have strong enough incentives to clamp down on fraud involving EU funds. If abuse is proven, the national government – not the guilty party – has to pay the stolen money back to the EU. Some think the logical solution would be to make fraud against the EU budget a 'federal crime', punishable under a single European criminal code. The code would be enforced by an independent EU prosecutor that could press cases in national courts.

Opponents view the notion of a European public prosecutor as a pet project of European federalists. They think a fraud-fighting EPP would be a Trojan horse for the establishment of an entire Corpus Juris, a single EU criminal code that would gradually replace national criminal laws and court procedures. This fear is overdone. If an EPP were highly successful in fighting fraud, some member-states would indeed call for its remit to be widened to tackle other EU-wide problems such as terrorism and organised crime. But, oddly, the Lisbon treaty says that any expansion of the EPP's powers can be vetoed even by those member-states that do not participate.

Nevertheless, to succeed in establishing an EPP, Reding would still have to find convincing answers to the following questions. First, is fraud against the EU budget so serious that an EPP is needed to tackle it? Confusingly, the body responsible for fighting eurofraud is not Eurojust, but the super-secretive European Anti-Fraud Office (or OLAF) in the European Commission. OLAF figures for 2008 show that EU budget “irregularities”, a term that includes fraud, cost the member-states around €783 million. That is a significant sum, but hardly enough to persuade national governments to take the unprecedented step of setting up a federal prosecutor. By contrast, the member-states think existing EU rules and national prosecutors are sufficient to tackle VAT fraud, which costs national coffers an estimated €50 billion a year.

Second, is the project politically viable? France and Germany, though traditionally among the more integrationist member-states, remain unconvinced of the case for a pan- European prosecutor. Countries like Italy, Spain and Belgium seem tempted by the idea. But when they realise that participating countries would be required to change their constitutions, they could have second thoughts. And the idea of an EPP is anathema to common law countries, such as the UK and Ireland, which instinctively oppose it as a step towards a Corpus Juris. These countries also value the service they receive from Eurojust. If the body morphed into a federal prosecuting authority, they would be forced to stand aloof.

Third, is the timing right? Over the past decade, Europe's interior ministers have rolled out a plethora of EU agencies, databases and common criminal laws – all for the purpose of bringing to justice terrorists and criminals who seek to exploit the abolition of internal border controls. For example, Eurojust itself is set to receive new powers this year, when member-states will have to give reasons if they refuse to pursue a case referred to them by the agency. Governments need time to absorb such changes. They should prioritise building trust between their policemen, judges and prosecutors instead of embarking on bold new initiatives.

Reding would do more to combat fraud by proposing a merger of OLAF and Eurojust. In time, this enlarged body could be given the power to press cases involving fraud against the EU budget, if all its 27 national representatives agreed. Europe's interior ministers would probably welcome such a proposal as more politically realistic – and more productive – than an abstract and distracting debate on the merits of a European public prosecutor. The time for that argument has not yet arrived.