The European Public Prosecutor’s Office and its Relationship With the UK

The European Public Prosecutor’s Office (“EPPO”) has been fully operational since June 2021. The EPPO, established under Council Regulation (EU) 2017/1939[1] (“the EPPO Regulation”) and underpinned by Directive (EU) 2017/1371[2] (“the Directive”), is the EU’s new independent public prosecution office whose mandate is to investigate and prosecute crimes against the EU’s financial interests. Article 2 of the Directive defines financial interests as “all revenues, expenditure and assets covered by, acquired through or due to” the Union budget, and the budgets of Union institutions, bodies, offices, and agencies established pursuant to the Treaties, or budgets (directly or indirectly) managed and monitored by such parties. Articles 3 and 4 of the Directive then define the crimes captured by the EPPO’s mandate; these include but are not limited to cross-border VAT fraud resulting in total damages of at least EUR 10m (a threshold prescribed in Article 2 of the Directive), misappropriation of EU funds or assets by public officials, and corruption that is likely to or actually damages the EU’s financial interests.

The EPPO operates at two levels. Centrally, it comprises the European Chief Prosecutor, 22 European Prosecutors (each appointed by participating EU countries), and the Administrative Director. At national level, within participating EU countries, there are then European Delegated Prosecutors who operate independently from national authorities and are supervised by the EPPO. The main difference between the EPPO and the European Anti-Fraud Office (OLAF), which also investigates offences against the EU’s financial interests, is that OLAF has no law enforcement powers or reach at national level. The EPPO, by contrast, operates directly across member states and is envisaged as an agency that will allow for expedient and direct action. The EPPO can investigate crimes committed after 20 November 2017 and its starting caseload included 3,000 cases.

Relationship with the UK

An overarching element of the relationship between the EPPO and the UK authorities is that the UK continues to receive EU funding under the EU’s spending framework.[3] The EPPO is therefore expected to have access to mechanisms that enable it to investigate crimes committed by nationals of participating member states or EU officials who are within the UK. The frameworks affecting the EPPO’s relationship with the UK authorities are set out below.

Relevant provisions under the Trade and Cooperation Agreement

The EU has notified the UK that the EPPO is a competent authority for the purposes of Titles VIII and XI of Part Three of the Trade and Cooperation Agreement (“TCA”). Title VIII deals with matters of mutual assistance while Title XI deals with freezing and confiscation proceedings.[4]

In the context of Title VIII of Part Three of the TCA, requests for mutual legal assistance will have to take a form to be specified by the Specialised Committee of Law Enforcement and Judicial Cooperation, and conditions of assistance will entail meeting requirements of necessity and proportionality, as well as evidence that the investigative measure(s) within the request could have been ordered under the same conditions in a similar domestic case. Time limits for requests require the recipient state of a request for mutual legal assistance to determine its execution or lack thereof within 45 days after receipt.[5]

In the context of Title XI of Part Three of the TCA, cooperation between the UK and designated Union bodies (of which the EPPO is one) is provided for in Article LAW.CONFISC.1. Forms of assistance within the ambit of Title XI include, but are not limited to, any measure providing and securing evidence in connection with any aspect of (i) property or properties used or intended to be used, wholly or in part, to commit a criminal offence; (ii) proceeds from such property; and (iii) any other property.[6]

Relevant provisions under the Eurojust Regulation

Cooperation between the UK and Eurojust (the EU’s agency for coordination of work of national authorities in investigating and prosecuting transnational crime) is provided for in Title VI of Part Three of the TCA, which specifies that Eurojust and competent authorities of the UK are to cooperate in combating serious crimes which include, but are not limited to, terrorism and money-laundering activities.[7]

UK authorities may encounter the EPPO while cooperating with Eurojust.[8] In accordance with Article 50 of Regulation (EU) 2018/1727 (“Eurojust Regulation”), Eurojust is to address any EPPO request for support without undue delay, and it also is to inform the EPPO of, and, where appropriate, associate it with its activities concerning cross-border cases. [9]

Outlook

The precise relationship between the EPPO and UK authorities remains to be crystallised. Politically, the UK remains relatively tight lipped on any pronouncements, with the Minister for Future Borders and Immigration merely confirming that the UK would consider any mutual legal assistance requests from the EPPO on a case-by-case basis.[10]

The Minister’s statement comes at a time where a proposed Regulation at EU level seeks to increase support by Europol towards EPPO investigations[11]. The proposal has prompted scrutiny by UK parliamentarians, as it envisages that Europol (whose cooperative relationship with UK authorities is specifically envisaged in Title V of Part Three of the TCA) will process large datasets to support the EPPO, potentially including personal data that UK authorities share with Europol for the purposes of cooperation in investigations.[12]

Generally, UK practitioners advising beneficiaries of EU funding in the UK will need to be mindful of the possibility of encountering the EPPO directly or indirectly (via its relationship with Europol, for example).

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[1] https://eur-lex.europa.eu/eli/reg/2017/1939/oj

[2] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2017.198.01.0029.01.ENG

[3] https://www.gov.uk/guidance/getting-eu-funding

[4] CELEX_22020X1231(02)_EN_TXT

[5] Article LAW.MUTAS.115 – Article LAW.MUTAS.120 of the Trade and Cooperation Agreement

[6] Article LAW.CONFISC.3 of the Trade and Cooperation Agreement

[7] Article LAW.EUROJUST.61, Annex LAW-4 of the Trade and Cooperation Agreement

[8] “Cooperation with EU agencies and bodies under the EU–UK Trade and Cooperation Agreement1: Eurojust, OLAF and the EPPO”, by Niblock R. in New Journal of European Criminal Law 2021, Vol. 12(2) 277–282

[9] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018R1727

[10] http://europeanmemoranda.cabinetoffice.gov.uk/files/2021/04/15042021_Letter_from_Minister_Foster_to_ESC_Chair.pdf

[11] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020PC0796

[12] https://publications.parliament.uk/pa/cm5802/cmselect/cmeuleg/121-i/12109.htm