The Framework for Cooperation between the European Public Prosecutor's Office and Non-EU Third Countries
8 min read
The European Public Prosecutor’s Office ("EPPO") is the European Union's ("EU") supranational prosecutorial body that launched its operations on 1 June 2021. The EPPO is charged with investigating and prosecuting economic crimes against the financial interests of the EU. Where conduct within the EPPO’s mandate transcends the borders of the 22 EU Member States participating in the EPPO, it may seek information to support its investigations from enforcement authorities in non-participating non-EU countries. In view of the ever-increasing cross-border cooperation among enforcement authorities in criminal matters, this article provides a high-level overview of the legal framework within which the EPPO may operate to facilitate the exchange of information and cooperation between the EPPO and authorities in third countries outside of the EU.1
The EPPO’s Remit
The EPPO was established by Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (the "EPPO Regulation").2 The EPPO Regulation authorizes the EPPO to investigate, prosecute, and bring to judgement criminal offenses affecting the financial interests of the EU.3 Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interest by means of criminal law (the “PIF Directive”) outlines the conduct that constitutes criminal offenses affecting the Union’s financial interests, placing the following acts within the EPPO’s remit:4
- Fraud relating to EU expenditure and revenues;
- Cross-border value-added tax (“VAT”) fraud involving total damages of at least EUR 10,000,000;
- Passive and active corruption (covering both requesting/receiving bribes by a public official and offering/giving bribes to a public official) that damages, or is likely to damage, the EU’s financial interests;
- Misappropriation of EU funds or assets by a public official;
- Money laundering involving property derived from one of the above-listed offenses; and
- Incitement, aiding and abetting, or attempted commission of the above-listed offenses.5
Under the EPPO Regulation, the EPPO's jurisdiction extends to offenses within its competence committed (1) wholly or partly within the territory of one or more participating Member States or (2) outside the territory of one or more participating Member States by (i) a national of a participating Member State or (ii) a person subject to the EU Staff Regulations or to the EU Conditions of Employment at the time of the offense, in either case if a Member State has jurisdiction for such offenses committed outside its territory.6
The Legal Framework for the EPPO’s Cooperation with Non-EU Third Countries
Cases falling within the EPPO's competence may involve individuals or evidence located outside of the 22 EU Member States participating in the EPPO. For example, one can imagine a public corruption case in one of the 22 EU Member States participating in the EPPO that implicates EU financial interests and creates potential liability for entities subject to the U.S. Foreign Corrupt Practices Act or the U.K. Bribery Act. Given the potential, and indeed likelihood, for such cases to arise, it is useful to examine what mechanisms exist or are contemplated to facilitate information sharing and cooperation between and among the EPPO and enforcement authorities in countries outside of the EU.
Article 104 of the EPPO Regulation establishes a legal framework for the EPPO's cooperation with countries outside of the EU. Article 104(6) allows the EPPO to provide evidence or information in its possession to competent authorities in third countries or international organizations upon request.7 Article 104 also presents a hierarchy of three legal bases under which the EPPO can request assistance in criminal matters from enforcement authorities in non-EU countries.
Under Article 104(3), international agreements to which the EU has acceded,8 or which it has concluded with a third country concerning subject matter within the EPPO’s mandate9 are binding on the EPPO and allow the EPPO to cooperate with third countries that are parties to such agreements.10
In the absence of an applicable international agreement between the EU and a third country, under Article 104(4), multilateral international agreements that address legal assistance in criminal matters between Member States and third countries can provide another legal basis for the EPPO to request legal assistance from countries outside of the EU.11 This path requires the relevant Member State to recognize, and if possible, notify the EPPO as a competent authority under the agreement, and is subject to the third country's approval, where applicable.12 Examples of such tools include mutual legal assistance treaties ("MLATs") between Member States and third countries13 and multilateral treaties such as the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters ("the Convention"). The Convention is comprised of 43 EU and non-EU state signatories, including the 22 EPPO Member States, which undertake to provide each other with mutual assistance in criminal investigations and prosecutions.14 The Convention allows contracting parties to define which authorities they deem competent under the treaty, and as of August 2022, 16 out of the 22 participating Member States have filed declarations recognizing the EPPO as a competent authority for the purpose of issuing requests for mutual assistance and providing information or evidence to a requesting party under the Convention.15
Alternatively, if a participating Member State has not recognized the EPPO as a "competent authority" under that State's relevant multilateral international agreements, the EPPO's European Delegated Prosecutors ("EDPs") acting in their capacity as national prosecutors within a participating Member State may request legal assistance from a third country under an MLAT or other enabling treaty or law applicable in that State.16 In such cases, the EDPs must inform, and obtain consent from, authorities in the country from which they are seeking legal assistance that the EPPO will be the final recipient of the requested assistance.17
Lastly, where the EPPO cannot request legal assistance using the aforementioned mechanisms, the EPPO may simply request legal assistance from a third country without reference to an MLAT or other international agreement.18 There is no guarantee, however, that the country receiving such a request from the EPPO will comply.19
In addition to facilitating cooperation between the EPPO and third countries through applicable international agreements, the EPPO Regulation under Article 99 authorizes the EPPO to collaborate with authorities in third countries by means of working arrangements with law enforcement bodies.20 In a recent example, in July 2022, the EPPO concluded a Memorandum of Understanding and Working Arrangement on Cooperation with the U.S. Department of Justice and Department of Homeland Security ("the Working Arrangement").21 The Working Arrangement promotes cooperation between the signatories in criminal investigations and prosecutions, including through mutual assistance in gathering and sharing information and evidence, enforcing extradition, and participating in joint investigation teams.22
Conclusion
The multi-jurisdictional nature of the offenses within the EPPO's competence likely will require information-sharing and cooperation between and among enforcement authorities from multiple jurisdictions for effective investigations and prosecutions. The EPPO's ability to obtain legal assistance from third countries outside the EU may make or break multi-jurisdictional cases where significant data resides outside of the 22 Member States participating in the EPPO. That the majority of participating Member States have identified the EPPO as a competent authority under the Convention signals a willingness and intent to facilitate and support cooperation between the EPPO and non-EU third countries.
1 This is our third article in a series of pieces about the creation and operation of the EPPO. See White & Case, LLP, EU Public Prosecutor’s Office Launches Operations, June 4, 2021; White & Case, LLP, The Complementary Roles of the European Public Prosecutor's Office and the European Anti-Fraud Office, Feb. 8, 2022.
2 Council Regulation (EU) 2017/1939 of 12 Oct. 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’), 2017 O.J. (L283), [hereinafter “EPPO Regulation”].
3 Id. at Art. 4.
4 Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interest by means of criminal law, 2017 O.J. (L198), [hereinafter “PIF Directive”].
5 Id. at Arts. 3 and 4.
6 EPPO Regulation, Art. 23.
7 Id. at Art. 104(6). In this regard, the EPPO’s Note on participation in Joint Investigation Teams (“JITs”) clarifies that the EPPO can participate in JITs with authorities from third countries, provided that there is a legal basis under Article 104 to establish such cooperation. European Public Prosecutor’s Office Note on participation in JITs, 3, July 22, 2021, [hereinafter “EPPO Note on JITs”].
8 Examples include the United Nations Convention Against Transnational Organised Crime and the United Nations Convention Against Corruption. EPPO Note on JITs at 3.
9 Examples include the Agreement on Mutual Legal Assistance between the European Union and the United States of America and the Agreement between the European Union and Japan on Mutual Legal Assistance in Criminal Matters.
10 EPPO Regulation, Art. 104(3).
11 Id. at Art. 104(4).
12 Id.
13 Examples include the U.S. Treaty with France on Mutual Legal Assistance in Criminal Matters.
14 Second Additional Protocol to the European Convention on Mutual Assistance on Criminal Matters, Art. 6, Feb. 1, 2004.
15 Austria, Belgium, Bulgaria, the Czech Republic, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Romania, Slovakia, and Slovenia have recognized the EPPO as a competent authority under the Convention. Notably, Switzerland has objected to cooperation with the EPPO under the Convention. Reservations and Declarations for Treaty No.182 - Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (ETS No. 182),
16 EPPO Regulation, Art. 104(5).
17 Id.
18 Id.
19 Id.
20 Id. at Art. 99(1), (3).
21 Memorandum of Understanding and Working Arrangement on Cooperation between the EPPO and the U.S. Department of Justice and Department of Homeland Security, July 26, 2022
22 Id.
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