The European Commission is confident it can establish a European Prosecutor’s Office among a small group of EU member states since only eleven countries have stated their opposition to the plans, including France and Britain.
The EU executive wants to improve the prosecution of criminals who defraud EU taxpayers by establishing a European Public Prosecutor's Office and by reinforcing the procedural guarantees of the anti-fraud office, Olaf.
The measure would strengthen Olaf's governance and reinforce procedural guarantees when its representatives are in the field, performing investigations.
Olaf's role also changes considerably under the Commission proposal, as the EU's anti-fraud office would no longer carry out administrative investigations into EU fraud, leaving this power within the proposed European Public Prosecutor's Office.
However, Olaf would remain responsible for investigations in areas which don't fall under the authority of the European Public Prosecutor. These include irregularities affecting the EU's financial interests, and serious misconduct or crimes committed by EU staff without an impact on the EU's finances.
British Conservatives said they would opt out of the plan.
Britain's ruling Conservatives rejected the idea when it was proposed in July this year, leaving the remaining 27 EU members with the option of continuing without Britain, using the so-called 'enhanced cooperation' procedure (see background).
11 countries opt out
An EU official made clear that eleven EU countries had sent reasoned opinions by the prescribed deadline stating they did not want to participate in the European Public Prosecutor's Office.
They are: Cyprus, the Czech Republic, France, Hungary, Ireland, Malta, the Netherlands, Romania, Slovenia and the UK. Denmark will not participate as a result of its opt-out from treaty protocols on justice.
“It is thus likely that the European Public Prosecutor's Office will have to start without these Member States,” the official said.
“The measure was firmly opposed by the UK when it was published in July so it had always been clear that the European Public Prosecutor's Office would have to be established by enhanced cooperation. This is explicitly foreseen by the Treaty,” the EU source said.
However the Commission is bullish that it can proceed by enhanced cooperation, the official said, since “the national Parliaments of a clear majority of Member States have not issued reasoned opinions and can thus be counted among the probable participants to the European Public Prosecutor's Office.”
Establishing the European Public Prosecutor's Office requires at least nine member states’ support.
“In view of the positive outcome of the first discussion in the Justice Council in early October, the Commission is confident that the next steps towards a strong European Public Prosecutor's Office will be taken in 2014 under the Greek and Italian [EU] presidency,” the official said.
The European Public Prosecutor's Office would be responsible for investigating, prosecuting and bringing to justice those who damage assets managed by or on behalf of the EU.
The European Council may adopt a decision extending the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension.
The discussion on the European Prosecutor found its way into the European Convention, and ultimately, the Lisbon Treaty. For the first time, Article 86 of the Treaty on the Functioning of the EU allows for the possibility of establishing the European Public Prosecutor's Office.
The Commission has already done preparatory work in this area, starting with the well known 'Corpus Juris' study.
The European Public Prosecutor's Office may be established from Eurojust by adopting a series of regulations following a special legislative procedure. This requires the Council to act unanimously after obtaining the consent of the European Parliament.
In the absence of unanimity, a group of at least nine EU countries can go ahead with the project, by establishing enhanced cooperation.
- Nov.-Dec. 2013: Commission to set in motion proposal by enhanced cooperation for European Prosecutor
- Press release: Protecting taxpayers’ money against fraud: Commission proposes European Public Prosecutor's Office and reinforces OLAF procedural guarantees (17 July 2013)