The legal research library on the European Public Prosecutor's Office

Introduction to the EPPO Regulation

Hans-Holger Herrnfeld

A. Establishing the EPPO: Council Regulation (EU) 2017/1939

After four years of intensive negotiations, the Council Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (EPPO Reg.) was adopted on 12 October 2017 and entered into force on 20 November of the same year. In accordance with Art. 20 of the EPPO Regulation the Commission was responsible for the initial administrative operation of the EPPO. Work on the setting up of the EPPO’s central office commenced in 2018 in consultation with a group of experts composed of representatives of the Member States (Art. 20(4) EPPO Reg.). Following the appointment of Laura Codruța Kövesi as the first European Chief Prosecutor in October 2019 as well as the European Prosecutors in July 2020, the EPPO took up its operational work on 1 June 2021.

B. Legislative history of the EPPO Regulation

The legislative history of the EPPO Regulation began on 17 July 2013 when the European Commission published its Communication “Better protection of the Union’s financial interests: Setting up the European Public Prosecutor’s Office and reforming Eurojust”, presenting a package of measures addressing institutional aspects of protecting the Union’s financial interests. This package consisted of two legislative proposals: a “Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office” as well as a “Proposal for a Regulation on the establishment of the European Agency for Criminal Justice Cooperation (‘Eurojust’)”. The package also included a Communication on “Improving OLAF’s governance and reinforcing procedural safeguards in investigations: A step-by-step approach to accompany the establishment of the European Public Prosecutor’s Office”. The presentation of the 2013 package followed up to an earlier Commission communication on the subject matter of protection of the Union’s financial interest, as well as the Commission’s proposal for the so-called “PIF-Directive”, harmonizing, to some extent, the relevant criminal law provisions on the protection of the Union’s financial interests .

The proposal to establish the EPPO as a new Union body with an exclusive competence for the investigation and prosecution of crimes committed against the financial interest of the Union was the core element of the package proposed by the Commission in July 2013. The Commission’s intention behind the proposal to replace the Council Decision on Eurojust by a new Eurojust Regulation was to create synergies between the EPPO and Eurojust ,as well as to overcome deficiencies in the existing legal framework for Eurojust . The Communication on OLAF sketched out further legislative measures which the Commission considered necessary to further amend the OLAF Regulation, which had already been under revision at that time , with a view to adjusting the legislative framework on OLAF in light of the future competences of the EPPO and the needs for an effective cooperation between OLAF and the EPPO. Following the adoption of the PIF Directive in July 2017 and the EPPO Regulation in October 2017, negotiations on the proposal for a new Eurojust Regulation were concluded in 2018 and the amendment of the OLAF Regulation was finalized in 2020.

Even prior to the presentation of the proposal by the Commission, discussions had started at the EU level as well as between Member States, in particular on the appropriate design of the EPPO as a new European judicial body, which evidently would assume competences previously exercised by national authorities. Against this background, the idea of establishing the EPPO met different degrees of enthusiasm when the Commission presented its proposal for the EPPO Regulation. Under the so-called “yellow card procedure” in accordance with Protocol (No 2) “on the Application of the Principles of Subsidiarity and Proportionality”, 14 parliaments of 12 Member State voiced their opinion on the proposal and questioned the proper observance of the subsidiarity principle. The Commission, in accordance with Article 7(2) of that Protocol, provided its reply to the parliaments on 2 December 2013, essentially stating that in its view, the “proposal complies with the principle of subsidiarity enshrined in Article 5(3) TEU, and that a withdrawal or an amendment of that proposal is not required”and thus maintained its proposal.

Formal negotiations in the Council Working Group COPEN started in October 2013 and were largely concluded in that format by October 2016. During that period, the Justice and Home Affairs Council regularly received reports from the Presidency with a view to a possible “partial general approach” on certain sections or articles of the draft regulation, and eventually obtained at least a “broad conceptual approach” on the text presented. Several controversial issues that were still unresolved in October 2016 were then further discussed in other formats. A consolidated version of the full draft text was presented to the December 2016 Justice and Home Affairs Council for agreement. While the majority of Member States expressed at least “general support” for the draft text and commitment to participate in the establishment of the EPPO, some Member States still had certain concerns with the proposal. In line with its intervention at the Council meeting in December, Sweden formally stated in January 2017 that it would, at the present time, refrain from participating in the establishment of the EPPO. This announcement provided the basis for the Council to formally register the absence of unanimity, required under Article 86(1) TFEU for the adoption of the EPPO Regulation. This was subsequently confirmed by the meeting of the European Council on 9 March 2017 – thus giving way to the possibility for establishing the EPPO under the enhanced cooperation procedures.

In parallel to this process, the Slovak and the Maltese Council Presidencies continued efforts to reach agreement (between the “willing” Member States) on the full text of the EPPO Regulation. By letter of 3 April 2017, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Germany, Greece, Lithuania, Luxembourg, Portugal, Romania, Slovakia, Slovenia and Spain notified the European Parliament, the Council and the Commission that they wished to participate in an enhanced cooperation on the establishment of the EPPO. In accordance with the third subparagraph of Article 86(1) TFEU, the authorisation to proceed with enhanced cooperation thus was “deemed to be granted”. Subsequently, also Latvia, Estonia, Austria and Italy indicated their wish to participate in the enhanced cooperation to establish the EPPO. The fact that the Regulation would thus be binding only for the “participating Member States” required some further amendments to the draft Regulation. Also, a few of the Member States that eventually expressed their willingness to participate in the enhanced cooperation had requested some further amendments to the draft text. Negotiations were finally concluded in May 2017. Following the European Parliament’s approval given on 5 October 2017, the EPPO Regulation was adopted by the Justice and Home Affairs Council (the 20 participating Member States ) at its meeting on 12 October 2017.

As a consequence, not only the adoption of the EPPO Regulation, but also all further decisions by the Council in the implementation of the EPPO Regulation or its future amendment are taken with only the participating Member States enjoying a right to vote (cf. Article 330 TFEU). Any other Member State may at any point in time express its wish to participate in the enhanced cooperation (cf. Article 331 TFEU). Subsequent to the adoption of the EPPO Regulation by 20 Member States in October 2017, the Netherlands and Malta have joined the group (cf. Article 120 EPPO Reg.), following the necessary approval by the Commission (Article 331 TFEU). Establishing the EPPO by way of enhanced cooperation means that “non-participating Member States” are not bound by the EPPO Regulation (cf. Article 20(4) TEU), and the participating Member States – as well as the EPPO created by their decision – “shall respect the competences, rights and obligations” of the non-participating Member States while, in turn, the latter are obliged not to impede the enhanced cooperation (cf. Article 327 TFEU). As the EPPO was to be established by enhanced cooperation, the Council considered it appropriate to specifically clarify by way of a definition (cf. Article 2 No. (1) EPPO Reg.) that the term “Member State” used in the Regulation normally only refers to the participating Member States with some exceptions in particular in Chapter VIII, where certain provisions on data protection also refer to (but not impose obligations on) non-participating Member States. The definition of the term “Member State” as applying only to participating Member States is particularly relevant for the scope of the EPPO’s territorial and personal competence (cf. Art. 23 EPPO Reg.). The fact that the EPPO was to be established by way of enhanced cooperation also required the insertion of specific provisions on the cooperation between the EPPO and non-participating Member States (cf. Article 105 EPPO Reg.) as well as on the financing of the EPPO by the participating Member States (cf. Article 91(7) and (8) EPPO Reg).

C. Major elements of the EPPO Regulation

1. Material competence of the EPPO

As provided for in Article 86(2) TFEU, the EPPO Regulation, aside from a general description of the EPPO’s tasks (cf. Article 4), determines its “material competence” in Article 22. It does so not by way of independent and complete substantive criminal law provisions on offences within the competence of the EPPO. Instead, it refers primarily to the PIF-Directive “as implemented by national law” (cf. Article 22(1) EPPO Reg.). In addition, the Regulation provides the EPPO with competence regarding the offence of participation in a criminal organization if – and only if – the focus of the criminal activity is to commit PIF offences (Art. 22(2) EPPO Reg.). Also, the Regulation allows the EPPO to extend its investigations and prosecutions in a particular case to other types of criminal conduct that is “inextricably linked” to a PIF offence under investigation/prosecution (cf. Art. 22(3) EPPO Reg.). The EPPO Regulation determines the “territorial and material competence” of the EPPO, which builds on but does not affect the jurisdictional principles of the Member State’s criminal law (cf. Art. 23 EPPO Reg.). The competences of the EPPO are in principal shared with national authorities; different from the Commission proposal, the Regulation does not award the EPPO with an exclusive competence. Thus, the national authorities are not excluded from the possibility to initiate an own investigation in respect of offences for which the EPPO is (also) competent. The EPPO’s competence, however, has priority whenever it decides to exercise its competence (cf. Art. 25(1) EPPO Reg.). In addition to the definition of the EPPO’s competences in Articles 22 and 23 EPPO Reg., the Regulation provides in Art. 25 paragraphs 2 and 3, rules obliging the EPPO to refrain from exercising its competence i.a. in respect of minor cases involving only a limited damage to the Union’s financial interests.

In line with Article 86(1) TFEU, Article 22 of the Regulation only provides the EPPO with a competence to investigate and prosecute offences affecting the financial interest of the Union. While paragraph 1 of Art. 22 EPPO Reg. contains a “dynamic reference” to the PIF Directive, the wording used here (“competent in respect of criminal offences affecting the financial interest of the Union”) as well as in Art. 4 EPPO Reg. would ensure that the scope of the legal basis of Article 86(1) TFEU is observed even if the legislator were to subsequently amend the PIF Directive to include also offences in respect of which it may be questionable whether they actually do affect the financial interests of the Union. Any extension of the EPPO’s material competence beyond the scope of Article 86(1) TFEU would require an amendment of this Treaty provision. Article 86(4) TFEU does allow for such an amendment by way of a simplified procedure, authorizing the European Council to amend paragraph 1 of Article 86 TFEU. In order to do so, the European Council would have to decide unanimously, including the Member States not participating in the EPPO . On the basis of such an amended provision of Article 86(1) TFEU, the Council – acting in the format of the Member States participating in the enhanced cooperation – could then, again by unanimous decision, amend the EPPO Regulation in order to extend its material competences accordingly. Already on 12 September 2018, the Commission presented a communication , “inviting” the European Council to take such a decision on the amendment of Article 86(1) TFEU with a view to extending the EPPO’s competence to terrorist offences affecting more than one Member State. While, under the Treaty provisions, the Commission does not have a formal “right of initiative” for making such amendments, the Commission considered that this does not prevent it from presenting an initiative . So far, the European Council has refrained from taking up this Commission initiative. Apparently, there is a wide-spread understanding that the EPPO, as a new Union body, should first become fully functional and provide proof of its effectiveness, before an extension of competences to such a vital matter as the fight against terrorism could be considered.

2. Structure of the EPPO and cooperation with national authorities

The Regulation provides the EPPO with a rather complex structure in its Central Office in Luxemburg, consisting in particular of the European Chief Prosecutor and two Deputy European Chief Prosecutors (Art. 11 EPPO Reg.), European Prosecutors (one from each Member State, Art. 12 EPPO Reg.), an Administrative Director (Art. 18 EPPO Reg.) and additional support staff (Art. 8(5) EPPO Reg.). The EPPO also has a “decentral level” composed of European Delegated Prosecutors (“EDPs”) in the Member States. In line with Article 86(1) TFEU, the EPPO Regulation prescribes a role for the EDPs to lead the investigations to be undertaken by the EPPO (cf. Art. 13(1) and 28(1) EPPO Reg.). While the EPPO is a Union body operating as one single office (cf. Art. 8(1) EPPO Reg.), the EPPO will, nevertheless, to a large extend need to rely on national authorities for carrying out investigation measures. As provided for in Article 28(1) EPPO Reg., the EDPs may either undertake the investigation measures and other measures on their own or instruct the competent authorities in their respective Member State to do so. In addition, the EPPO may invite and/or request Eurojust (cf. Article 100(2) EPPO Reg.), OLAF (cf. Art. 101(3) EPPO Reg.) and Europol (cf. Article 102(2) EPPO Reg.) to provide certain types of assistance within their respective mandates, which, however, does not include the taking of criminal investigation measures on behalf of the EPPO. Also, and different from the original Commission proposal , the members of the EPPO’s Central Office are not intended to undertake investigation measures in the Member States – aside from a limited possibility for the “supervising European Prosecutor” (Art. 12 EPPO Reg.) to assume the role of an EDP of his/her Member States in exceptional circumstances by deciding to conduct the investigations personally (cf. Art. 28(4) EPPO Reg.). Thus, even though the Central Office may have certain staff members who can, on request in an individual case, support the investigations conducted by the EDPs, the success of the EPPO will to a large extent depend on the competent national authorities, their availability, their resources (cf. Art. 91(5) EPPO Reg.) and their commitment, all of which are necessary to actively assist and support the investigations conducted by the EPPO. And while the EPPO Regulation “is without prejudice to Member States’ national systems concerning the way in which criminal investigations are organized” (cf. Recital 15 EPPO Reg.), it nevertheless may require national legislative implementation measures in this respect in particular, where the national prosecution service is not necessarily responsible for leading criminal investigations, but traditionally shares that role with other actors such as police or customs authorities or the juge d’instruction.

3. Procedural law framework for the EPPO

Article 86(3) TFEU provides that the regulation establishing the EPPO “shall determine the general rules applicable to the European Public Prosecutor’s Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions”. Much consideration has been given to the needs and possible content of an own code of criminal procedure for the EPPO. The Commission had provided financial support to a project chaired by the University of Luxembourg to draft “European Model Rules for the Procedure of the future European Public Prosecutor’s Office”. However, following in this respect the underlying concept of the Commission’s proposal for the EPPO Regulation , the legislator decided to take a different path. The EPPO Regulation does contain procedural rules on initiating (Art. 26 and 27 EPPO Reg.), conducting (Art. 28 to 33 EPPO Reg.) and termination (Art. 34, 35, 39 and 40 EPPO Reg.) of investigations, on the prosecution before national courts (Art. 36 EPPO Reg.), the admissibility of evidence (Art. 37 EPPO Reg.), procedural safeguards (Art. 41 EPPO Reg.) and judicial review (Art. 42 EPPO Reg.). Many of these provisions go into great detail in respect of internal responsibilities and decision-making competences – a result, perhaps, of the difficult negotiations in the Council Working Group on the question of a proper structure for the EPPO and the roles to be played by its different actors and organizational layers. However, on substance, many of these provisions are not “self-standing” as such but refer to applicable national law in order to specify the conditions or procedures for their application. Furthermore, Art. 5(3) EPPO Reg. clearly shows that the EPPO Regulation is not expected to provide final answers to all questions of criminal procedure law when it states that “national law shall apply to the extent that a matter is not regulated by this Regulation”.

The extensive references in the EPPO Regulation to the applicable national law has been criticized by some as attempts to retain national sovereignty and to ensure conformity of EPPO activities with relevant national law . The fact that, to a large extent, national criminal procedure law will need to be applied by the EPPO in conducting investigations essentially means that the EPPO will not work in a “single legal area” and its “playing field” will not be as “level” as it – perhaps – could and should be . One could argue that it would not have been necessary to include numerous specific “national links” in the Regulation’s provisions. However, even if that had not been done, Art. 5(3) EPPO Reg. – following a similar provision in Art. 11(3) of the original Commission proposal – does leave room for a rather broad range of interpretation of the condition set out therein for such applicability, i.e. that “a matter is not regulated by this Regulation”. The specific references to national law in many of the articles of the Regulation may now help clarifying the extent to which a matter is regulated by the Regulation and where it does, indeed, leave room for an application of national law. Furthermore, the original Commission proposal did not really clarify, in situations where more than one Member State is involved in a case, which Member State’s law applies in addition to or in the absence of relevant provisions of the Regulation . Art. 5(3) EPPO Reg. now clarifies that – in principle – this is the law of the Member State whose European Delegated Prosecutor is handling the case in accordance with Art. 12(1) EPPO Reg. Also, the Regulation no longer allows that the European Chief Prosecutor may conduct investigations himself/herself. And where, in exceptional circumstances, a European Prosecutor, in accordance with Art. 28(4) EPPO Reg., decides to conduct the investigations in a particular case, he/she assumes the “powers, responsibilities and obligations” of an EDP of that Member State – thus providing for subsidiary application of that Member State’s national law in terms of Art. 5(3) EPPO Reg. in such cases as well.

The fact that the EPPO will not operate in a “single legal area” and that not only the applicable substantive criminal law will depend on the Member State in which the EPPO conducts an investigation and decides to prosecute the case , but also the applicable procedural law depends on which EDP is conducting the investigations, gave reason for the Council to provide for criteria on the choice of the Member State whose EDP is competent to initiate and conduct the investigations. These give preference to the Member State, “where the focus of the criminal activity is” and allow for a deviation from that principle only where “duly justified” and taking into account a number of criteria set out in Art. 26(4) EPPO Reg.. That decision shall normally also be adhered to when the EPPO decides – amongst two or more possibilities – about the Member State where the case is to be brought to trial (cf. Art. 36(3) EPPO Reg.) and should be subject to a possible judicial review by the national courts”. While these provisions may be criticized as still being rather “flexible” and the criteria as rather “vague”, the Regulation in this respect now should provide more legal certainty for suspects and should help to avoid the impression that the EPPO, operating as a “single office”, may freely choose the Member State and thus the legal framework in which it intends to prosecute the case.

Nevertheless, the EPPO Regulation, with its intensive reliance on the “applicable national law”, cannot avoid that the rights of suspects and accused persons may differ depending on the Member State in which the EPPO conducts the investigation and prosecution, despite some harmonization efforts (cf. Art. 41(2) EPPO Reg.). Perhaps this – as well as other difficulties arising from the multifaceted legal framework in which the EPPO will need to operate – will at some point give rise to further considerations on providing for a more comprehensive and unified procedural law for the EPPO. While such a development would help to avoid unequal treatment and frictions within the legal framework applicable to investigations/prosecutions by the EPPO, it would inevitably create unequal treatment and frictions within the individual Member States as the applicable procedural law would depend on whether the investigation/prosecution is carried out by an EDP or by a public prosecutor of that Member State. It could lead to new difficulties if the rules applicable to the EPPO investigations in the pre-trial phase are not well attuned to the national criminal law provisions applicable in the trial phase. And any such EPPO-specific code of criminal procedure would not necessarily provide for higher standards in terms of procedural rights of the suspect compared to those applicable in purely national proceedings, and applicable to the EPPO now (cf. Art. 41(2) and (3) EPPO Reg.).

D. Implementation of the EPPO Regulation

Following the entry into force of the EPPO Regulation in November 2017, the EU institutions adopted several decisions necessary for the implementation of the Regulation. In particular, these included decisions concerning the appointment of the members of the EPPO at the Central Office. The selection panel provided for in Art. 14(3) EPPO Reg. was appointed by a decision of the Council on 18 September 2018 . The Council Implementing Decision on the operating rules of the selection panel was published on 12 November 2018 .

Following an open call for candidacies for the position of European Chief Prosecutor, published in November 2018, Laura Codruța Kövesi, was appointed as the EPPO’s first European Chief Prosecutor on 14 October 2019 . With some delays and only after a slight amendment of the Council’s operating rules on the selection panel , the European Prosecutors were appointed by the Council on 27 July 2020 . The European Prosecutors thus could only take up their functions in September 2020 and could begin to exercise their functions as members of the EPPO’s College. In accordance with Art. 11(2) EPPO Reg., the EPPO College appointed two Deputy European Chief Prosecutors to assist the ECP in the discharge of her duties .

As provided for in Art. 49(3), 115 and 116 EPPO Reg., a technical amendment of the EPPO Regulation was enacted by a Commission Delegated Regulation of 7 October 2020, essentially adding an Annex to the EPPO Regulation concerning the protection of personal data .

In particular the College of the EPPO was charged with the adoption of numerous implementing rules including the EPPO’s Internal Rules of Procedure (cf. Art. 21 EPPO Reg.). The majority of these College decisions can be found on the EPPO’s official website in a chronological order. A systematic overview of these EPPO documents is provided in the “Document Library” of the EPPO-LEX website. Furthermore, relevant excerpts of the EPPO’s Internal Rules of Procedure as well as the texts of other relevant College Decisions are embedded in the “Annotated Regulation” on the EPPO-LEX website.

Although the Regulation applies directly (Art. 288(2) TFEU), legislative implementation measures were also necessary in the EU Member States: in view of the subsidiary application of national law (Art. 5(3) EPPO Reg.), Member States, on the one hand, may have needed to declare certain national provisions inapplicable as the EPPO Regulation conclusively regulates the matter. On the other hand, national law needed specific amendments in order to meet the requirements of the EPPO Regulation and ensure its proper application. The extent to which such amendments where necessary also depended on the degree to which the EDP’s role in leading the criminal investigations differs from the traditional tasks of public prosecutors in that Member State.

In addition to such legislative measures, Member States in accordance with Art. 117 EPPO Reg. were required to address certain notifications to the EPPO as well as to EU institutions concerning the implementation of the EPPO Regulation. Also, Member States were obliged to undertake necessary measures to notify the EPPO as a competent judicial authority for the purpose of judicial cooperation between the EPPO and judicial authorities of third countries (Art. 104(4) EPPO Reg.), and of EU Member States not participating in the establishment of the EPPO (Art. 105(3) EPPO Reg.).

In accordance with Article 120(2) of the Regulation, the EPPO was to assume its operational work on a date to be determined by a decision of the Commission. By Implementing Decison of 25 May 2021 the Commission determined the 1st of June 2021 as the date on which the EPPO assumes its investigative and prosecutorial tasks. As also specified in Article 120(2) EPPO Reg, the EPPO shall, however, exercise its competence already with regard to any offences committed after the date on which the Regulation has entered into force , thus any offences committed on or after 20 November 2017 .

Protocol (No 2)

on the application of the principles of subsidiarity and proportionality the high contracting parties, wishing to ensure that decisions are taken as closely as possible to the citizens of the Union, resolved to establish the conditions for the application of the principles of subsidiarity and proportionality, as laid down in Article 5 of the Treaty on European Union, and to establish a system for monitoring the application of those principles, have agreed upon the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

Article 1

Each institution shall ensure constant respect for the principles of subsidiarity and proportionality, as laid down in Article 5 of the Treaty on European Union.

Article 2

Before proposing legislative acts, the Commission shall consult widely. Such consultations shall, where appropriate, take into account the regional and local dimension of the action envisaged. In cases of exceptional urgency, the Commission shall not conduct such consultations. It shall give reasons for its decision in its proposal.

Article 3

For the purposes of this Protocol, “draft legislative acts” shall mean proposals from the Commission, initiatives from a group of Member States, initiatives from the European Parliament, requests from the Court of Justice, recommendations from the European Central Bank and requests from the European Investment Bank, for the adoption of a legislative act.

Article 4

The Commission shall forward its draft legislative acts and its amended drafts to national Parliaments at the same time as to the Union legislator.

The European Parliament shall forward its draft legislative acts and its amended drafts to national Parliaments.

The Council shall forward draft legislative acts originating from a group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank and amended drafts to national Parliaments.

Upon adoption, legislative resolutions of the European Parliament and positions of the Council shall be forwarded by them to national Parliaments.

Article 5

Draft legislative acts shall be justified with regard to the principles of subsidiarity and proportionality. Any draft legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality. This statement should contain some assessment of the proposal’s financial impact and, in the case of a directive, of its implications for the rules to be put in place by Member States, including, where necessary, the regional legislation. The reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators. Draft legislative acts shall take account of the need for any burden, whether financial or administrative, falling upon the Union, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved.

Article 6

Any national Parliament or any chamber of a national Parliament may, within eight weeks from the date of transmission of a draft legislative act, in the official languages of the Union, send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity. It will be for each national Parliament or each chamber of a national Parliament to consult, where appropriate, regional parliaments with legislative powers.

If the draft legislative act originates from a group of Member States, the President of the Council shall forward the opinion to the governments of those Member States.

If the draft legislative act originates from the Court of Justice, the European Central Bank or the European Investment Bank, the President of the Council shall forward the opinion to the institution or body concerned.

Article 7

1. The European Parliament, the Council and the Commission, and, where appropriate, the group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, shall take account of the reasoned opinions issued by national Parliaments or by a chamber of a national Parliament.

Each national Parliament shall have two votes, shared out on the basis of the national Parliamentary system. In the case of a bicameral Parliamentary system, each of the two chambers shall have one vote.

2. Where reasoned opinions on a draft legislative act’s non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the draft must be reviewed. This threshold shall be a quarter in the case of a draft legislative act submitted on the basis of Article 76 of the Treaty on the Functioning of the European Union on the area of freedom, security and justice.

After such review, the Commission or, where appropriate, the group of Member States, the European Parliament, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision.

3. Furthermore, under the ordinary legislative procedure, where reasoned opinions on the non- compliance of a proposal for a legislative act with the principle of subsidiarity represent at least a simple majority of the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the proposal must be reviewed. After such review, the Commission may decide to maintain, amend or withdraw the proposal.

If it chooses to maintain the proposal, the Commission will have, in a reasoned opinion, to justify why it considers that the proposal complies with the principle of subsidiarity. This reasoned opinion, as well as the reasoned opinions of the national Parliaments, will have to be submitted to the Union legislator, for consideration in the procedure:

(a) before concluding the first reading, the legislator (the European Parliament and the Council) shall consider whether the legislative proposal is compatible with the principle of subsidiarity, taking particular account of the reasons expressed and shared by the majority of national Parliaments as well as the reasoned opinion of the Commission;

(b) if, by a majority of 55 % of the members of the Council or a majority of the votes cast in the European Parliament, the legislator is of the opinion that the proposal is not compatible with the principle of subsidiarity, the legislative proposal shall not be given further consideration.

Article 8

The Court of Justice of the European Union shall have jurisdiction in actions on grounds of infringement of the principle of subsidiarity by a legislative act, brought in accordance with the rules laid down in Article 263 of the Treaty on the Functioning of the European Union by Member States, or notified by them in accordance with their legal order on behalf of their national Parliament or a chamber thereof.

In accordance with the rules laid down in the said Article, the Committee of the Regions may also bring such actions against legislative acts for the adoption of which the Treaty on the Functioning of the European Union provides that it be consulted.

Article 9

The Commission shall submit each year to the European Council, the European Parliament, the Council and national Parliaments a report on the application of Article 5 of the Treaty on European Union. This annual report shall also be forwarded to the Economic and Social Committee and the Committee of the Regions.

Article 49 of the EPPO Regulation

Processing of operational personal data

(…)

3. The Commission shall be empowered to adopt delegated acts in accordance with Article 115 to list the categories of operational personal data and the categories of data subjects referred to in paragraph 2 of this Article and to update such a list in order to take account of developments in information technology and in the light of the state of progress in the information society.

Where imperative grounds of urgency so require, the procedure provided for in Article 116 shall apply to delegated acts adopted pursuant to this paragraph.

(…)

Article 115 of the EPPO Regulation

Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 49(3) shall be conferred on the Commission for an indeterminate period of time from 20 November 2017.

3. The delegation of power referred to in Article 49(3) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect on the day following the date of publication of the decision in the Official Journal of the European Union or on a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement on Better Law Making of 13 April 2016.

5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

6. A delegated act adopted pursuant to Article 49(3) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of 2 months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by 2 months at the initiative of the European Parliament or of the Council.

Article 116 of the EPPO Regulation

Urgency procedure

1. Delegated acts adopted under this Article shall enter into force without delay and shall apply as long as no objection is expressed in accordance with paragraph 2. The notification of a delegated act to the European Parliament and to the Council shall state the reasons for the use of the urgency procedure.

2. Either the European Parliament or the Council may object to a delegated act in accordance with the procedure referred to in Article 115(6). In such a case, the Commission shall repeal the act immediately following the notification of the decision to object by the European Parliament or by the Council.

Article 42 of the EPPO Regulation

Judicial review

1. Procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties shall be subject to review by the competent national courts in accordance with the requirements and procedures laid down by national law. The same applies to failures of the EPPO to adopt procedural acts which are intended to produce legal effects vis-à-vis third parties and which it was legally required to adopt under this Regulation.

The Court of Justice shall have jurisdiction, in accordance with Article 267 TFEU, to give preliminary rulings concerning:

(a) the validity of procedural acts of the EPPO, in so far as such a question of validity is raised before any court or tribunal of a Member State directly on the basis of Union law;

(b) the interpretation or the validity of provisions of Union law, including this Regulation;

(c) the interpretation of Articles 22 and 25 of this Regulation in relation to any conflict of competence between the EPPO and the competent national authorities.

3. By way of derogation from paragraph 1 of this Article, the decisions of the EPPO to dismiss a case, in so far as they are contested directly on the basis of Union law, shall be subject to review before the Court of Justice in accordance with the fourth paragraph of Article 263 TFEU.

4. The Court of Justice shall have jurisdiction in accordance with Article 268 TFEU in any dispute relating to compensation for damage caused by the EPPO.

5. The Court of Justice shall have jurisdiction in accordance with Article 272 TFEU in any dispute concerning arbitration clauses contained in contracts concluded by the EPPO.

6. The Court of Justice shall have jurisdiction in accordance with Article 270 TFEU in any dispute concerning staff-related matters.

7. The Court of Justice shall have jurisdiction on the dismissal of the European Chief Prosecutor or European Prosecutors, in accordance, respectively, with Article 14(5) and Article 16(5).

8. This Article is without prejudice to judicial review by the Court of Justice in accordance with the fourth paragraph of Article 263 TFEU of decisions of the EPPO that affect the data subjects’ rights under Chapter VIII and of decisions of the EPPO which are not procedural acts, such as decisions of the EPPO concerning the right of public access to documents, or decisions dismissing European Delegated Prosecutors adopted pursuant to Article 17(3) of this Regulation, or any other administrative decisions.

Article 36 of the EPPO Regulation

Prosecution before national Courts

1. When the European Delegated Prosecutor submits a draft decision proposing to bring a case to judgment, the Permanent Chamber shall, following the procedures set out in Article 35, decide on this draft within 21 days. The Permanent Chamber cannot decide to dismiss the case if a draft decision proposes bringing a case to judgment.

2. Where the Permanent Chamber does not take a decision within the 21-day time limits, the decision proposed by the European Delegated Prosecutor shall be deemed to be accepted.

3. Where more than one Member State has jurisdiction over the case, the Permanent Chamber shall in principle decide to bring the case to prosecution in the Member State of the handling European Delegated Prosecutor. However, the Permanent Chamber may, taking into account the report provided in accordance with Article 35(1), decide to bring the case to prosecution in a different Member State, if there are sufficiently justified grounds to do so, taking into account the criteria set out in Article 26(4) and (5), and instruct a European Delegated Prosecutor of that Member State accordingly.

4. Before deciding to bring a case to judgment, the competent Permanent Chamber may, on the proposal of the handling European Delegated Prosecutor, decide to join several cases, where investigations have been conducted by different European Delegated Prosecutors against the same person(s) with a view to prosecuting these cases in the courts of a single Member State which, in accordance with its law, has jurisdiction for each of those cases.

5. Once a decision on the Member State in which the prosecution shall be brought has been taken, the competent national court within that Member State shall be determined on the basis of national law.

6. Where necessary for the purposes of recovery, administrative follow-up or monitoring, the Central Office shall notify the competent national authorities, interested persons and the relevant institutions, bodies, offices and agencies of the Union of the decision to prosecute.

7. Where, following a judgment of the Court, the prosecution has to decide whether to lodge an appeal, the European Delegated Prosecutor shall submit a report including a draft decision to the competent Permanent Chamber and await its instructions. Should it be impossible to await those instructions within the deadline set by national law, the European Delegated Prosecutor shall be entitled to lodge the appeal without prior instructions from the Permanent Chamber, and shall subsequently submit the report to the Permanent Chamber without delay. The Permanent Chamber shall then instruct the European Delegated Prosecutor either to maintain or withdraw the appeal. The same procedure shall apply when, in the course of the court proceedings and in accordance with applicable national law, the handling European Delegated Prosecutor would take a position that would lead to the dismissal of the case.

Article 34 of the EPPO Regulation

Referrals and transfers of proceedings to the national authorities

1. Where an investigation conducted by the EPPO reveals that the facts subject to investigation do not constitute a criminal offence for which it is competent under Articles 22 and 23, the competent Permanent Chamber shall decide to refer the case without undue delay to the competent national authorities.

2. Where an investigation conducted by the EPPO reveals that the specific conditions for the exercise of its competence set out in Article 25(2) and (3) are no longer met, the competent Permanent Chamber shall decide to refer the case to the competent national authorities without undue delay and before initiating prosecution at national courts.

3. Where, with regard to offences which caused or are likely to cause damage to the financial interests of the Union of less than EUR 100 000, the College considers that, with reference to the degree of seriousness of the offence or the complexity of the proceedings in the individual case, there is no need to investigate or to prosecute a case at Union level and that it would be in the interest of the efficiency of investigation or prosecution, it shall in accordance with Article 9(2), issue general guidelines allowing the Permanent Chambers to refer a case to the competent national authorities.

Such guidelines shall also allow the Permanent Chambers to refer a case to the competent national authorities where the EPPO exercises a competence in respect of offences referred to in points (a) and (b) of Article 3(2) of Directive (EU) 2017/1371 and where the damage caused or likely to be caused to the Union’s financial interests does not exceed the damage caused or likely to be caused to another victim.

To ensure coherent application of the guidelines, each Permanent Chamber shall report annually to the College on the application of the guidelines.

Such referrals shall also include any inextricably linked offences within the competence of the EPPO as referred to in Article 22(3).

4. The Permanent Chamber shall communicate any decision to refer a case to national authorities on the basis of paragraph 3 to the European Chief Prosecutor. Within 3 days of receiving of this information, the European Chief Prosecutor may request the Permanent Chamber to review its decision if the European Chief Prosecutor considers that the interest to ensure the coherence of the referral policy of the EPPO so requires. If the European Chief Prosecutor is a Member of the relevant Permanent Chamber, one of the Deputy European Chief Prosecutors shall exercise the right to request the said review.

5. Where the competent national authorities do not accept to take over the case in accordance with paragraph 2 and 3 within a timeframe of maximum 30 days, the EPPO shall remain competent to prosecute or dismiss the case, in accordance with the rules laid down in this Regulation.

6. Where the EPPO considers a dismissal in accordance with Article 39(3), and if the national authority so requires, the Permanent Chamber shall refer the case without delay to that authority.

7. If, following a referral in accordance with paragraph (1), (2) or (3) of this Article and Article 25(3), the national authority decides to open an investigation, the EPPO shall transfer the file to that national authority, refrain from taking further investigative or prosecutorial measures and close the case.

8. If a file is transferred in accordance with paragraph (1), (2) or (3) of this Article and Article 25(3), the EPPO shall inform the relevant institutions, bodies, offices and agencies of the Union, as well as, where appropriate under national law, suspects or accused persons and the crime victims of the transfer.

Article 35 of the EPPO Regulation

Termination of the investigation

1. When the handling European Delegated Prosecutor considers the investigation to be completed, he/she shall submit a report to the supervising European Prosecutor, containing a summary of the case and a draft decision whether to prosecute before a national court or to consider a referral of the case, dismissal or simplified prosecution procedure in accordance with Article 34, 39 or 40. The supervising European Prosecutor shall forward those documents to the competent Permanent Chamber accompanied, if he/she considers it to be necessary, by his/her own assessment. When the Permanent Chamber, in accordance with Article 10(3), takes the decision as proposed by the European Delegated Prosecutor, he/she shall pursue the matter accordingly.

2. If the Permanent Chamber, based on the reports received, considers that it will not take the decision as proposed by the European Delegated Prosecutor, it shall, where necessary, undertake its own review of the case file before taking a final decision or giving further instructions to the European Delegated Prosecutor.

3. Where applicable, the report of the European Delegated Prosecutor shall also provide sufficient reasoning for bringing the case to judgment either at a court of the Member State where he/she is located, or, in accordance with Article 26(4) at a court of a different Member State which has jurisdiction over the case.

Article 39 of the EPPO Regulation

Dismissal of the case

1. Where prosecution has become impossible, pursuant to the law of the Member State of the handling European Delegated Prosecutor, the Permanent Chamber shall, based on a report provided by the European Delegated Prosecutor handling the case in accordance with Article 35(1), decide to dismiss the case against a person on account of any of the following grounds:

(a) the death of the suspect or accused person or winding up of a suspect or accused legal person;

(b) the insanity of the suspect or accused person;

(d) immunity granted to the suspect or accused person, unless it has been lifted;

(e) expiry of the national statutory limitation to prosecute;

(f) the suspect’s or accused person’s case has already been finally disposed of in relation to the same acts;

(g) the lack of relevant evidence.

2. A decision in accordance with paragraph 1 shall not bar further investigations on the basis of new facts which were not known to the EPPO at the time of the decision and which become known after the decision. The decision to reopen investigations on the basis of such new facts shall be taken by the competent Permanent Chamber.

3. Where the EPPO is competent in accordance with Article 22(3), it shall dismiss a case only after consultation with the national authorities of the Member State referred to in Article 25(6). If applicable, the Permanent Chamber shall refer the case to the competent national authorities in accordance with Article 34(6), (7) and (8).

The same applies where the EPPO exercises a competence in respect of offences referred to in points (a) and (b) of Article 3(2) of Directive (EU) 2017/1371 and where the damage caused or likely to be caused to the Union’s financial interests does not exceed the damage caused or likely to be caused to another victim.

4. Where a case has been dismissed, the EPPO shall officially notify the competent national authorities and shall inform the relevant institutions, bodies, offices and agencies of the Union, as well as, where appropriate under national law, the suspects or accused persons and the crime victims, of such dismissal. The dismissed cases may also be referred to OLAF or to the competent national administrative or judicial authorities for recovery or other administrative follow-up.

Article 40 of the EPPO Regulation

Simplified prosecution procedures

1. If the applicable national law provides for a simplified prosecution procedure aiming at the final disposal of a case on the basis of terms agreed with the suspect, the handling European Delegated Prosecutor may, in accordance with Article 10(3) and Article 35(1), propose to the competent Permanent Chamber to apply that procedure in accordance with the conditions provided for in national law.

Where the EPPO exercises a competence in respect of offences referred to in points (a) and (b) of Article 3(2) of Directive (EU) 2017/1371 and where the damage caused or likely to be caused to the Union’s financial interest does not exceed the damage caused or likely to be caused to another victim, the handling European Delegated Prosecutor shall consult national prosecution authorities before proposing to apply a simplified prosecution procedure.

2. The Permanent Chamber shall decide on the proposal of the handling European Delegated Prosecutor taking into account the following grounds:

(a) the seriousness of the offence, based on in particular the damage caused;

(b) the willingness of the suspected offender to repair the damage caused by the illegal conduct;

(c) the use of the procedure would be in accordance with the general objectives and basic principles of the EPPO as set out in this Regulation.

The College shall, in accordance with Article 9(2), adopt guidelines on the application of those grounds.

3. If the Permanent Chamber agrees with the proposal, the handling European Delegated Prosecutor shall apply the simplified prosecution procedure in accordance with the conditions provided for in national law and register it in the case management system. When the simplified prosecution procedure has been finalised upon fulfilment of the terms agreed with the suspect, the Permanent Chamber shall instruct the European Delegated Prosecutor to act with a view to finally dispose of the case.

Article 28 of the EPPO Regulation

Conducting the investigation

1. The European Delegated Prosecutor handling a case may, in accordance with this Regulation and with national law, either undertake the investigation measures and other measures on his/her own or instruct the competent authorities in his/her Member State. Those authorities shall, in accordance with national law, ensure that all instructions are followed and undertake the measures assigned to them. The handling European Delegated Prosecutor shall report through the case management system to the competent European Prosecutor and to the Permanent Chamber any significant developments in the case, in accordance with the rules laid down in the internal rules of procedure of the EPPO.

2. At any time during the investigations conducted by the EPPO, the competent national authorities shall take urgent measures in accordance with national law necessary to ensure effective investigations even where not specifically acting under an instruction given by the handling European Delegated Prosecutor. The national authorities shall without undue delay inform the handling European Delegated Prosecutor of the urgent measures they have taken.

3. The competent Permanent Chamber may, on proposal of the supervising European Prosecutor decide to reallocate a case to another European Delegated Prosecutor in the same Member State when the handling European Delegated Prosecutor:

(a) cannot perform the investigation or prosecution; or

(b) fails to follow the instructions of the competent Permanent Chamber or the European Prosecutor.

4. In exceptional cases, after having obtained the approval of the competent Permanent Chamber, the supervising European Prosecutor may take a reasoned decision to conduct the investigation personally, either by undertaking personally the investigation measures and other measures or by instructing the competent authorities in his/her Member State, where this appears to be indispensable in the interest of the efficiency to the investigation or prosecution by reasons of one or more of the following criteria:

(a) the seriousness of the offence, in particular in view of its possible repercussions at Union level;

(b) when the investigation concerns officials or other servants of the Union or members of the institutions of the Union;

In such exceptional circumstances Member States shall ensure that the European Prosecutor is entitled to order or request investigative measures and other measures and that he/she has all the powers, responsibilities and obligations of a European Delegated Prosecutor in accordance with this Regulation and national law.

The competent national authorities and the European Delegated Prosecutors concerned by the case shall be informed without undue delay of the decision taken under this paragraph.

Article 29 of the EPPO Regulation

Lifting privileges or immunities

1. Where the investigations of the EPPO involve persons protected by a privilege or immunity under national law, and such privilege or immunity presents an obstacle to a specific investigation being conducted, the European Chief Prosecutor shall make a reasoned written request for its lifting in accordance with the procedures laid down by that national law.

2. Where the investigations of the EPPO involve persons protected by privileges or immunities under the Union law, in particular the Protocol on the privileges and immunities of the European Union, and such privilege or immunity presents an obstacle to a specific investigation being conducted, the European Chief Prosecutor shall make a reasoned written request for its lifting in accordance with the procedures laid down by Union law.

Article 30 of the EPPO Regulation

Investigation measures and other measures

1. At least in cases where the offence subject to the investigation is punishable by a maximum penalty of at least 4 years of imprisonment, Member States shall ensure that the European Delegated Prosecutors are entitled to order or request the following investigation measures:

(a) search any premises, land, means of transport, private home, clothes and any other personal property or computer system, and take any conservatory measures necessary to preserve their integrity or to avoid the loss or contamination of evidence;

(b) obtain the production of any relevant object or document either in its original form or in some other specified form;

(c) obtain the production of stored computer data, encrypted or decrypted, either in their original form or in some other specified form, including banking account data and traffic data with the exception of data specifically retained in accordance with national law pursuant to the second sentence of Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council ¹);

(d) freeze instrumentalities or proceeds of crime, including assets, that are expected to be subject to confiscation by the trial court, where there is reason to believe that the owner, possessor or controller of those instrumentalities or proceeds will seek to frustrate the judgement ordering confiscation.

(e) intercept electronic communications to and from the suspect or accused person, over any electronic communication means that the suspect or accused person is using;

(f) track and trace an object by technical means, including controlled deliveries of goods.

2. Without prejudice to Article 29, the investigation measures set out in paragraph 1 of this Article may be subject to conditions in accordance with the applicable national law if the national law contains specific restrictions that apply with regard to certain categories of persons or professionals who are legally bound by an obligation of confidentiality.

3. The investigation measures set out in points(c), (e) and (f) of paragraph 1 of this Article may be subject to further conditions, including limitations, provided for in the applicable national law. In particular, Member States may limit the application of points (e) and (f) of paragraph 1 of this Article to specific serious offences. A Member State intending to make use of such limitation shall notify the EPPO of the relevant list of specific serious offences in accordance with Article 117.

4. The European Delegated Prosecutors shall be entitled to request or to order any other measures in their Member State that are available to prosecutors under national law in similar national cases, in addition to the measures referred to in paragraph 1.

5. The European Delegated Prosecutors may only order the measures referred to in paragraphs 1 and 4 where there are reasonable grounds to believe that the specific measure in question might provide information or evidence useful to the investigation, and where there is no less intrusive measure available which could achieve the same objective. The procedures and the modalities for taking the measures shall be governed by the applicable national law.

Article 31 of the EPPO Regulation

Cross-border investigations

1. The European Delegated Prosecutors shall act in close cooperation by assisting and regularly consulting each other in cross-border cases. Where a measure needs to be undertaken in a Member State other than the Member State of the handling European Delegated Prosecutor, the latter European Delegated Prosecutor shall decide on the adoption of the necessary measure and assign it to a European Delegated Prosecutor located in the Member State where the measure needs to be carried out.

2. The handling European Delegated Prosecutor may assign any measures, which are available to him/her in accordance with Article 30. The justification and adoption of such measures shall be governed by the law of the Member States’ of the handling European Delegated Prosecutor. Where the handling European Delegated Prosecutor assigns an investigation measure to one or several European Delegated Prosecutors from another Member State, he/she shall at the same time inform his supervising European Prosecutor.

3. If judicial authorisation for the measure is required under the law of the Member State of the assisting European Delegated Prosecutor, the assisting European Delegated Prosecutor shall obtain that authorisation in accordance with the law of that Member State.

If judicial authorisation for the assigned measure is refused, the handling European Delegated Prosecutor shall withdraw the assignment.

However, where the law of the Member State of the assisting European Delegated Prosecutor does not require such a judicial authorisation, but the law of the Member State of the handling European Delegated Prosecutor requires it, the authorisation shall be obtained by the latter European Delegated Prosecutor and submitted together with the assignment.

4. The assisting European Delegated Prosecutor shall undertake the assigned measure, or instruct the competent national authority to do so.

5. Where the assisting European Delegated Prosecutor considers that:

(a) the assignment is incomplete or contains a manifest relevant error;

(b) the measure cannot be undertaken within the time limit set out in the assignment for justified and objective reasons;

(d) the assigned measure does not exist or would not be available in a similar domestic case under the law of his/her Member State,

he/she shall inform his supervising European Prosecutor and consult with the handling European Delegated Prosecutor in order to resolve the matter bilaterally.

6. If the assigned measure does not exist in a purely domestic situation, but would be available in a cross-border situation covered by legal instruments on mutual recognition or cross-border cooperation, the European Delegated Prosecutors concerned may, in agreement with the supervising European Prosecutors concerned, have recourse to such instruments.

7. If the European Delegated Prosecutors cannot resolve the matter within 7 working days and the assignment is maintained, the matter shall be referred to the competent Permanent Chamber. The same applies where the assigned measure is not undertaken within the time limit set out in the assignment or within a reasonable time.

8. The competent Permanent Chamber shall to the extent necessary hear the European Delegated Prosecutors concerned by the case and then decide without undue delay, in accordance with applicable national law as well as this Regulation, whether and by when the assigned measure needed, or a substitute measure, shall be undertaken by the assisting European Delegated Prosecutor, and communicate this decision to the said European Delegated Prosecutors through the competent European Prosecutor.

Article 32 of the EPPO Regulation

Enforcement of assigned measures

The assigned measures shall be carried out in accordance with this Regulation and the law of the Member State of the assisting European Delegated Prosecutor. Formalities and procedures expressly indicated by the handling European Delegated Prosecutor shall be complied with unless such formalities and procedures are contrary to the fundamental principles of law of the Member State of the assisting European Delegated Prosecutor.

Article 33 of the EPPO Regulation

Pre-trial arrest and cross-border surrender

1. The handling European Delegated Prosecutor may order or request the arrest or pre-trial detention of the suspect or accused person in accordance with the national law applicable in similar domestic cases.

2. Where it is necessary to arrest and surrender a person who is not present in the Member State in which the handling European Delegated Prosecutor is located, the latter shall issue or request the competent authority of that Member State to issue a European Arrest Warrant in accordance with Council Framework Decision 2002/584/JHA ²).

¹) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (OJ L 201, 31.7.2002, p. 37).

²) Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States (OJ L 190, 18.7.2002, p. 1).

Article 26 of the EPPO Regulation

Initiation of investigations and allocation of competences within the EPPO

1. Where, in accordance with the applicable national law, there are reasonable grounds to believe that an offence within the competence of the EPPO is being or has been committed, a European Delegated Prosecutor in a Member State which according to its national law has jurisdiction over the offence shall, without prejudice to the rules set out in Article 25(2) and (3), initiate an investigation and note this in the case management system.

2. Where upon verification in accordance with Article 24(6), the EPPO decides to initiate an investigation, it shall without undue delay inform the authority that reported the criminal conduct in accordance with Article 24(1) or (2).

3. Where no investigation has been initiated by a European Delegated Prosecutor, the Permanent Chamber to which the case has been allocated shall, under the conditions set out in paragraph 1, instruct a European Delegated Prosecutor to initiate an investigation.

4. A case shall as a rule be initiated and 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 EPPO have been committed, the Member State where the bulk of the offences has been committed. A European Delegated Prosecutor of a different Member State that has jurisdiction for the case may only initiate or be instructed by the competent Permanent Chamber to initiate an investigation where a deviation from the rule set out in the previous sentence is duly justified, taking into account the following criteria, in order of priority:

(a) the place of the suspect’s or accused person’s habitual residence;

(b) the nationality of the suspect or accused person;

5. Until a decision to prosecute under Article 36 is taken, the competent Permanent Chamber may, in a case concerning the jurisdiction of more than one Member State and after consultation with the European Prosecutors and/or European Delegated Prosecutors concerned, decide to:

(a) reallocate the case to a European Delegated Prosecutor in another Member State;

(b) merge or split cases and, for each case choose the European Delegated Prosecutor handling it,

if such decisions are in the general interest of justice and in accordance with the criteria for the choice of the handling European Delegated Prosecutor in accordance with paragraph 4 of this Article.

6. Whenever the Permanent Chamber is taking a decision to reallocate, merge or split a case, it shall take due account of the current state of the investigations.

7. The EPPO shall inform the competent national authorities without undue delay of any decision to initiate an investigation.

Article 27 of the EPPO Regulation

Right of evocation

1. Upon receiving all relevant information in accordance with Article 24(2), the EPPO shall take its decision on whether to exercise its right of evocation as soon as possible, but no later than 5 days after receiving the information from the national authorities and shall inform the national authorities of that decision. The European Chief Prosecutor may in a specific case take a reasoned decision to prolong the time limit by a maximum period of 5 days, and shall inform the national authorities accordingly.

2. During the periods referred to in paragraph 1, the national authorities shall refrain from taking any decision under national law that may have the effect of precluding the EPPO from exercising its right of evocation.

The national authorities shall take any urgent measures necessary, under national law, to ensure effective investigation and prosecution.

3. If the EPPO becomes aware, by means other than the information referred to in Article 24(2), of the fact that an investigation in respect of a criminal offence for which it could be competent is already undertaken by the competent authorities of a Member State, it shall inform these authorities without delay. After being duly informed in accordance with Article 24(2), the EPPO shall take a decision on whether to exercise its right of evocation. The decision shall be taken within the time limits set out in paragraph 1 of this Article.

4. The EPPO shall, where appropriate, consult the competent authorities of the Member State concerned before deciding whether to exercise its right of evocation.

5. Where the EPPO exercises its right of evocation, the competent authorities of the Member States shall transfer the file to the EPPO and refrain from carrying out further acts of investigation in respect of the same offence.

6. The right of evocation set out in this Article may be exercised by a European Delegated Prosecutor from any Member State whose competent authorities have initiated an investigation in respect of an offence that falls within the scope of Articles 22 and 23.

Where a European Delegated Prosecutor, who has received the information in accordance with Article 24(2), considers not to exercise the right of evocation, he/she shall inform the competent Permanent Chamber through the European Prosecutor of his/her Member State with a view to enabling the Permanent Chamber to take a decision in accordance with Article 10(4).

7. Where the EPPO has refrained from exercising its competence, it shall inform the competent national authorities without undue delay. At any time in the course of the proceedings, the competent national authorities shall inform the EPPO of any new facts which could give the EPPO reasons to reconsider its decision not to exercise competence.

The EPPO may exercise its right of evocation after receiving such information, provided that the national investigation has not already been finalised and that an indictment has not been submitted to a court. The decision shall be taken within the time limit set out in paragraph 1.

8. Where, with regard to offences which caused or are likely to cause damage to the Union’s financial interests of less than EUR 100 000, the College considers that, with reference to the degree of seriousness of the offence or the complexity of the proceedings in the individual case, there is no need to investigate or to prosecute at Union level, it shall in accordance with Article 9(2), issue general guidelines allowing the European Delegated Prosecutors to decide, independently and without undue delay, not to evoke the case.

The guidelines shall specify, with all necessary details, the circumstances to which they apply, by establishing clear criteria, taking specifically into account the nature of the offence, the urgency of the situation and the commitment of the competent national authorities to take all necessary measures in order to fully recover the damage to the Union’s financial interests.

9. To ensure coherent application of the guidelines, a European Delegated Prosecutor shall inform the competent Permanent Chamber of each decision taken in accordance with paragraph 8 and each Permanent Chamber shall report annually to the College on the application of the guidelines.

Article 12 of the EPPO Regulation

The European Prosecutors

1. On behalf of the Permanent Chamber and in compliance with any instructions it has given in accordance with Article 10(3), (4) and (5), the European Prosecutors shall supervise the investigations and prosecutions for which the European Delegated Prosecutors handling the case in their Member State of origin are responsible. The European Prosecutors shall present summaries of the cases under their supervision and, where applicable, proposals for decisions to be taken by the said Chamber, on the basis of draft decisions prepared by the European Delegated Prosecutors. The internal rules of procedure of the EPPO shall, without prejudice to Article 16(7), provide for a mechanism of substitution between European Prosecutors where the supervising European Prosecutor is temporarily absent from his/her duties or is for other reasons not available to carry out the functions of the European Prosecutors. The substitute European Prosecutor may fulfil any function of a European Prosecutor, except the possibility to conduct an investigation provided for in Article 28(4).

2. A European Prosecutor may request, on an exceptional basis, on grounds related to the workload resulting from the number of investigations and prosecutions in the European Prosecutor’s Member State of origin, or a personal conflict of interest, that the supervision of investigations and prosecutions of individual cases handled by European Delegated Prosecutors in his/her Member State of origin be assigned to other European Prosecutors, subject to the agreement of the latter. The European Chief Prosecutor shall decide on the request based on the workload of a European Prosecutor. In the case of a conflict of interests concerning a European Prosecutor, the European Chief Prosecutor shall grant that request. The internal rules of procedure of the EPPO shall lay down the principles governing that decision and the procedure for the subsequent allocation of the cases concerned. Article 28(4) shall not apply to investigations and prosecutions supervised in accordance with this paragraph.

3. The supervising European Prosecutors may, in a specific case and in compliance with applicable national law and with the instructions given by the competent Permanent Chamber, give instructions to the handling European Delegated Prosecutor, whenever necessary for the efficient handling of the investigation or prosecution or in the interest of justice, or to ensure the coherent functioning of the EPPO.

4. Where the national law of a Member State provides for the internal review of certain acts within the structure of a national prosecutor’s office, the review of such acts taken by the European Delegated Prosecutor shall fall under the supervisory powers of the supervising European Prosecutor in accordance with the internal rules of procedure of the EPPO without prejudice to the supervisory and monitoring powers of the Permanent Chamber.

5. The European Prosecutors shall function as liaisons and information channels between the Permanent Chambers and the European Delegated Prosecutors in their respective Member States of origin. They shall monitor the implementation of the tasks of the EPPO in their respective Member States, in close consultation with the European Delegated Prosecutors. They shall ensure, in accordance with this Regulation and the internal rules of procedure of the EPPO that all relevant information from the Central Office is provided to European Delegated Prosecutors and vice versa.

Article 331 TFEU

1. Any Member State which wishes to participate in enhanced cooperation in progress in one of the areas referred to in Article 329(1) shall notify its intention to the Council and the Commission.

The Commission shall, within four months of the date of receipt of the notification, confirm the participation of the Member State concerned. It shall note where necessary that the conditions of participation have been fulfilled and shall adopt any transitional measures necessary with regard to the application of the acts already adopted within the framework of enhanced cooperation.

However, if the Commission considers that the conditions of participation have not been fulfilled, it shall indicate the arrangements to be adopted to fulfil those conditions and shall set a deadline for reexamining the request. On the expiry of that deadline, it shall re-examine the request, in accordance with the procedure set out in the second subparagraph. If the Commission considers that the conditions of participation have still not been met, the Member State concerned may refer the matter to the Council, which shall decide on the request. The Council shall act in accordance with Article 330. It may also adopt the transitional measures referred to in the second subparagraph on a proposal from the Commission.

2. Any Member State which wishes to participate in enhanced cooperation in progress in the framework of the common foreign and security policy shall notify its intention to the Council, the High Representative of the Union for Foreign Affairs and Security Policy and the Commission.

The Council shall confirm the participation of the Member State concerned, after consulting the High Representative of the Union for Foreign Affairs and Security Policy and after noting, where necessary, that the conditions of participation have been fulfilled. The Council, on a proposal from the High Representative, may also adopt any transitional measures necessary with regard to the application of the acts already adopted within the framework of enhanced cooperation. However, if the Council considers that the conditions of participation have not been fulfilled, it shall indicate the arrangements to be adopted to fulfil those conditions and shall set a deadline for re-examining the request for participation.

For the purposes of this paragraph, the Council shall act unanimously and in accordance with Article 330.

EPPO-LEX