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1. Introduction

Europe - European Criminal law and Comparative Criminal Law Prof. Andre Klip (The Netherlands), Prof. Daniel Flore (France) , Prof. Paul De Hert (Belgium), Prof. Kai Ambos (Germany) etc. - European Public Prosecutor's Office  Project Prof. Katalin Ligei (Luxcembourg) , Martijn Zwiers (The Netherlands), Eurojust  etc. Japan Prof. Y Suemichi (Nanzan University) etc..
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2. The European Public Prosecutor's Office(EPPO) Project
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2.1 Current Major Prosecution Systems in Europe with Complexity and Diverse Nature Fundamental Difference: Adversarial System vs. Inquisitorial System 1. Common Law 2. Civil Law 1 French Law 3.1  Civil Law 2 German Law 3.2  Civil Law 3 German Law: Italian Law 4.  East European Law Outside of this research scope
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System (England and Wales, and Ireland) Horizontal System Adversarial System •1) Position of Prosecution: A relatively lenient hierarchical system with a semi- independnt position (monitored  by the Attorney General bound by Parliament and Cabinet) •2) Wide Range of  Prosecution's Discreation: Almost no Discreation in a pre-trial stage: Police can decide to prosecute or not based on suffucient evidence •3) Balance of Power between the Police and the Public Prosecutor Police have a strong and independent power to investigate and to charge a suspect except certain crimes in an investigative and a pre-trial stage Exception: More complex crimes such as organized crimes particularly in relation to drug trafficking and money laundering
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Inquisitorial Systems: •1) Position of Prosecution: A strong and centralized executive power Prosecution services under the Minister of Justice •2) Prosecution's Discreation: High Discretion under strict ministerial contol in accordance with  ‘the Principle of Opportunity’ •3) Balance of Power between the Police and the Public Prosecutor Prosecution service controls the police in an investigative stage Main actors in a pre-trial stage in the French law system: Investigating judge(Juge d'instruction, prosecutors(procureur), and police In practice, only 10 %  for which Juge d'instruction's leadership is necessary such as complex and serious cases after the prosecutors or victims ( partie civil ) 2.1.3.1 Civil law 2 German Law System (Germany, Hungary, Austria etc) Centralized and Vertical Structure ● 1) Position of Prosecution: Federal and State officer Under the Ministry of Justice ● 2) Prosecution's Discreation: Narrower  discretion under stricter Ministrial contol in line with  the Mandatory prosecution ‘Principle of Legality’  if there is sufficient evidence except under certain circumstances ● 3) Balance of Power between the Police and the Public Prosecutor Prosecutors control the whole pre-trial stage The police can investigate  under the legal control of prosecutors In practice, the police completely  investigates the great majority of cases on their own initiatives
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•   1) Position of Prosecution: Full independence of exceutive and legislative powers (Principle of Legality) •   2) Prosecutor's Discretion: Very Narrow Discretion: A Strict Mandatory Prosecution (Principle of Legality) Judge's Permission is necessary to dismiss all cases (Article 112 of Italian Constitution) •   3) Balance of power between the Police and the Public Prosecutor Merely public prosecutors can initiate the investigation and proceed in pre-trial and trial stage Police may investigate under the Ministry of Internal Affairs 13
●|→ The EPPO needs to unify  and arrange among these different systems •  →Analysis of existing EU criminal and judicial cooperation organizations such as OLAF, Europol and Eurojust, is the KEY for the purpose of a future Criminal Justice Integration mechanism in Europe
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2.2 Is  the idea of the EPPO a new concept? This is not a new concept but rather has long been considered since the 1997 Corpus Juris
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Blue Colour: Aquis Communautaire in relation to crimes affecting Financial Interests of the EU
EPPO Ratione Materiae Competence (Subject-Matter Jurisdiction ) - PFI Convention and its Protocol I and II 1)Fraud 2)  Corruption   3)  Money Laudering  - highly possible • Market rigging, conspiracy • Article 84 (4) of TFEU: Future crimes such as  human trafficking and cybercrimes Ratione Loci Competemce (Territorial Jurisdition) – Green Paper Article 26 (2) of Corpus Juris 1) Territorial Principle:  the state where the greater part of evidence is found 2) Nationality Principle: the state of residence or nationality of the accused 3) Passive Personality Principle: the state where the economic  18 impact of the offense is the areatest
(Based on the Commission Proposal published in July  2013) • A decentralized structure integrated into national judicial systems • Cost-efficient structure based on existing resources • National courts will be entrusted with the judicial review on the European Public Prosecutors' acts • Strong procedural rights from the protection of human rights point of view such as: the right to remain silent and to be presumed innocent, to legal aid, to present evidence, and to hear witnesses
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• Chief Public Prosecutor: EPPO •  Deputy Public Persecutors in each Member State In order to secure a tied link between the EU mechanism and the National legal systems
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Express a view on the authority exercising the national prosecution function or the judge of freedoms. Figure  1
2. Investigation stage (2) = Acts of investigation reviewable by judge of freedoms Mutual recognition in Member States (3) = Acts of investigation ordered by judge of freedoms Common investigation/prosecution area The acts of investigation are given by way of example Figure 2
3. Prosecution stage Common investigation/prosecution area Preferred solution: single court. The European Public Prosecutor could also commit for trial in several Member States. Figure 3
Pre-Lisbon Pillar Structure Post-Lisbon Structure Picture 2

nature?
● The EPPO still has Intergovernmental nature? - 2002 Framework decision of the European Warrant Arrest etc. ? ● Or does it have Supranational nature? - Elimination of the third pillar system after the Lisbon Treaty  Article 67 (3)of the TFEU guarantees the high security of , - Police and Judicial matters have been moved to the shared competence but  not explicitly mentioned in Article 86 - → Perhaps lack of consensus during the negotiation of Lisbon Treaty ? : Emergency Clause: Counter-balance of Opt-out System :Article 86 (1) second paragraph.
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● The Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament. (Emergency Clause) ● In the absence of unanimity in the Council, a group of at least nine Member States may request that the draft regulation be referred to the European Council. In that case, the procedure in the Council shall be suspended. ● After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption. ● Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft regulation concerned, they shall notify the European Parliament, the Council and the Commission accordingly. 26
Figure 4
european public prosecutor’s office OVERVIEW OF FUNCTIONAL STRUCT Request for review by EU Court Investigation by the EPPO Judicial control STAGE 2 – INVESTIGATION/ NON-COERCIVE
Request for court wa Warrant granted Figure 6
Figure 7
EUROPEAN PUBLIC PROSECUTOR’S OFFICE Forum choice by EPPO Appeal against Forum Choice Judicial control OVERVIEW OF FUNCTIONAL STRUCTURE stage 3 – prosecution/ bringing to judgment Figure 8
• In order to combat crimes affecting the financial interests of the Union the Council […] may establish a European Public Prosecutor's Office(EPPO) from Eurojust. Why was the term ‘may’ used instead of ‘shall’?
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Research Question: Which organization would undertake the creation of the EPPO? Candidates for the future EPPO: 1. Europol – European Police Office 2. OLAF – L’Office de Lutte Anti Fraude 3. Eurojust – European criminal judicial cooperation unit?
Pros Cons Does not have a motu proprio investigation powers either executive powers in accordance
Conclusion:
Europol would not be the main but the cooperative organization with the EPPO at an investigating and a prosecuting stage 34
Pros Overlapped competence with the EPPO (Article 325) Administrative motu proprio investigative power (Partly Supranational) – human Rights concept should be more considered Long experience and knowhow of fraud in the EU Cons Lack of criminal investigation power Its recommendations do not have affect criminal proceedings of the MS Does not have executing either prosecuting powers
Conclusion:
● OLAF can be the main organization but needs to improve procedural matters in regard to administrative investigation
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• The OLAF's tasks are basically conferred by Article 325 (Combating Fraud) of the TFEU since this comes from the First pillar (more supranational) before the Lisbon Treaty •  OLAF is more close to the EC •  Whereas, the EPPO's tasks are addressed in Article 86 in Chapter 6: Judicial cooperation in criminal matters which is dealt with by Former Third Pillar (Intergovernmental) •  EPPO is more close to the Council →the institutional matters should be solved
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Cons overlapped competence with the EPPO Number of  experiences and knowhow of judicial coordination in the EU Conclusion: Eurojust would not be the main but cooperative organ with the EPPO
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Pros Increased competence :overlapped competence with the EPPO Article 86 states  the EPPO may establishes from Eurojust Motu proprio Criminal investigation in Article 85 (1) Cons To what extent Eurojust have motu proprio criminal investigaiton no executive powers Future Reformed Eurojust would be the most suitable organization for the EPPO
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Conclusion of RQ: Which organization would undertake the creation of the EPPO? 1. Europol- would not be the main organization  but a strong cooperative organization with the EPPO 2. EPPO- can be merged with OLAF OLAF would  become the main part of EPPO organization at an investigating stage 3.  Current Eurojust- would not be the main organization but a strong cooperative organization with the EPPO 4. Future reformed Eurojust- would be the most suitable organization
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•  The establishment of the EPPO is feasible but numerous reforms and changes are necessary • Close cooperation of EPPO and OLAF is indispensable – Institutional law problems should be solved •  Eurojust reform adding an investigating power in accordance with Article 85 is crucial •  Complexity of the decision making process' Unanimity of the Council and the Consent of the EP
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Recent Movement: Q1: Would the U.K. Opt-Out of the EU criminal measures ? Q.2 Is it Relevant to the EPPO project? A1. As of July 2013, the U.K would opt out of EU policing and criminal justice in accordance with Protocol 36 of the TFEU.  However, the scope of the U.K opt-out is limited to the remaining Third Pillar measures before the CJEU acquires jurisdiction A2. Therefore, the U.K opt out under Protocol 36 of the TFEU would not directly link to the EPPO project unless the U.K. breaks away the EU membership.
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As to the police and criminal measures after the Lisbon Treaty The U.K and Ireland will not participate unless they voluntarily and explicitly decide to do so (opt in) in accordance with Protocol 21 of TFEU. Denmark will not either participate in the European Public Prosecutor's Office in accordance with Protocol 22 of TFEU.
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Thank you for your attention. Questions ?
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• K Moriguchi ‘The Establishement of the European Public Prosecutor’s Office after the Lisbon Treaty', September 2012, Institute of European Studies, Free University of Brussels • Center for European Legal Studies `CELS Working Paper No.1 Opting out of EU Criminal law: what is actually involved`, September 2012, Cambridge University ● Picture 1  http://www.dadalos-europe.org/int/grundkurs4/zjip.htm ● Picture 2 http://hum.port.ac.uk/europeanstudieshub/learning/understandingtheeu /module-5-history-of-the-european-union/maastricht/ • Figure 1-3  European Commission ‘Green Paper on criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor’ COM (2001) 715 final p.88-90 ● Figure 4-8 Université du Luxembourg ‘Projet de règles modèles européennes de procédure pénale’(2012)
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