The European Public Prosecutor’s Office (EPPO), with its seat in Luxembourg, is currently in the process of being set up with the aim of becoming operational at the end of 2020.
Of the 27 member states, two – Denmark and Ireland – are not joining as they have exercised their opt-outs from the Area of Freedom, Security and Justice (AFST). Hungary, Poland and Sweden have declined to participate, leaving only 22 members, including Malta (which joined in 2018), among its ranks.
The overriding objective of the EPPO is to investigate, prosecute and bring to court crimes against the European Union budget, the so-called Multi-Annual Financial Framework (MAFF), and other EU financial matters. It would be a mistake to suppose that it is an anti-corruption body in any other areas, such as cross-border money-laundering.
Currently, only national authorities can investigate and prosecute fraud against the EU budget, but their powers stop at national borders.
Existing EU bodies, such as Europol and OLAF, lack the necessary powers to carry out criminal investigations and prosecutions of anti-budget crimes, such as subvention fraud, budget corruption or cross-border VAT fraud above €10 million.
The EPPO will be organised on two levels: the central and the national level.
The central level will consist of a European chief prosecutor, two deputies and 22 European prosecutors, one for each participating EU country.
The national level will consist of European delegated prosecutors (with at least two prosecutors per participating state), who will be located in the EU country. The central level will supervise the investigations and prosecutions carried out at the national level.
As a rule, it will be the European delegated prosecutors who will actually carry out the investigation and prosecution in their own country. In essence, the EPPO will operate as a single office across 22 participating member states in a unified approach.
Malta has thus far failed to nominate three eligible candidates for consideration for selection to the EPPO, despite a government call for applications from suitable candidates.
The European Commission is naturally concerned that the lack of selection of a nominated Maltese candidate will hold up the planned start of the EPPO at the end of this year.
It claims that until there is a Maltese nominee to the EPPO it will be unable to adopt its internal rules and other administrative protocols, such as rules on transparency and access to documents. With more than six months to go, it seems difficult to believe that this is a real game-changer.
What may be more relevant, however, are two factors.
First, for Malta to find three suitable prosecutor nominations to put forward may genuinely be stretching the country’s capacity to find people of the right experience and, more importantly, the right calibre. But European pay and conditions are generous and they must be found. The government has said it is in regular contact with the European Commission for a solution to be hammered out.
Second – of greater relevance – Malta, with a new prime minister and a new minister for justice, is straining every sinew to restore its reputation on compliance with the highest standards on the constitution and the rule of law.
Indeed, it has taken a significant step forward in its recently announced plans on judicial and other senior appointments in a bid to come in line with the Venice Commission’s recommendations.
Though not directly connected, it would be seen as a retrograde step if Malta were seen to be dragging its feet on the EPPO.