After the European Parliament adopted the EU Commission’s proposal to put in place a European public prosecutor (11 February), former French Justice Minister Robert Badinter gave his support for the idea at a hearing in the French parliament.
The idea for a common public prosecutor office in the EU is not new, said Badinter, who authored the law that abolished the death penalty in France.
“The project for a European prosecutor goes back a decade. We are not lacking ideas but political will,” he said, insisting on the necessity of such an institution. However, in practice it seems more complicated.
Two opposite models
Indeed, there are two opposing views on the most suitable way to set up a common public prosecutor.
The European Commission on the one hand foresees the creation of a real ad-hoc institution led by a European prosecutor appointed by the EU Council for a non-renewable eight-year mandate. He would be empowered to effectively engage in prosecution actions and would be assisted by deputy prosecutors, also appointed by the Council, and deputy prosecutors in the member states.
The second view, the Franco-German approach, is less ambitious. Both countries consider that it is far too early for the Commission model. According to Paris and Berlin, it would be preferable to give Eurojust more competencies to deal with cross-border crimes rather than creating a new European body.
“It is better to progress continuously than to make a leap forward too abruptly," said Robert Badinter. In his opinion, the second model is more effective in this respect, especially since the project requires unanimity among the member states.
The Brits are absolutely opposed to it and so the project would then have to be created through enhanced cooperation.
Combating cross-border crime
“Organised crime is organised evil and today criminals take advantage of the difference in the judicial systems in the EU,” Badinter said during his hearing at the European affairs committee of the French Parliament.
“We need a European public prosecutor against organised cross-border crime precisely because crime is cross-border in its most dangerous forms. The prosecution of criminals must be done by a European prosecutor.”
The EU priniciple of subsidiarity has hindered the creation of a European public prosecutor. The principle states that the EU may only intervene if the national or regional bodies are not able to do so.
In October 2013, the French Senate raised the issue that the proposal may infringe this principle, leading to a review of the text by the European Commission.
On 11 February, a majority of the MPs present at the hearing of Robert Badinter seemed favourable to the establishment of a European Public Prosecutor Office, as proposed by France and Germany. Some were more sceptical, such as Jacques Myard, who asked Badinter how the EU could have a prosecutor without a common criminal law.
Towards enhanced cooperation
Some member states already said they were in favour of the project, such as Germany, France, Portugal, Italy, Austria, Belgium, Luxembourg, and the Netherlands.
“Today we need more Europe not less”, the former minister said at the hearing.
Enhanced cooperation, which requires the signature of at least nine member states, would therefore represent a first, more flexible, step than the Commission’s proposal towards a more consolidated Europe.
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.
- March 2014: Vote on an interim report on the creation of a European public prosecutor