5.

Emphasises that the powers and practice of the European Public Prosecutor’s Office must respect the body of fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights, and the constitutional traditions of the Member States; therefore calls on the Council to take due account of the following recommendations: (i) the European Public Prosecutor’s Office should operate in strict observance of the right to a fair trial and thus comply with the principle of the natural court, which requires that the criteria determining which competent court is to exert jurisdiction are clearly established in advance; as the current formulation of Article 27(4) grants the European Public Prosecutor’s Office excessive discretion in applying the various jurisdiction criteria, those criteria should be rendered binding and a hierarchy should be created between them in order to ensure foreseeability; in this regard, the rights of the suspect should be taken into account; furthermore, the determination of competence in accordance with those criteria should be subject to judicial review; (ii) the European Public Prosecutor’s Office should be given full independence both from national governments and from EU institutions and should be protected from any political pressure; (iii) the scope of the competence of the EPPO should be precisely determined, to enable the criminal acts that fall within that scope to be identified beforehand; Parliament calls for the definitions set out in Article 13 of the Commission proposal, concerning ancillary competence, to be carefully reviewed as in its current drafting they exceed the limits of the scope of Article 86(1) to (3) TFEU; this should be done in such a way as to ensure that the powers of the European Public Prosecutor’s Office extend to offences other than those affecting the Union’s financial interests only where cumulatively: (a) the particular conduct simultaneously constitutes an offence affecting the Union’s financial interests and other offences; and (b) the offences affecting the Union’s financial interests are predominant and the other are merely ancillary; and (c) the other offences would be barred from further trying and punishment if they were not prosecuted and brought to judgment together with the offences affecting the Union’s financial interests; In addition, the determination of competence in accordance with those criteria should be subject to judicial review; (iv) taking into account the fact that the Directive provided for in Article 12 of the proposal setting out the offences for which the European Public Prosecutor will be competent has not yet been adopted, the text of the proposal should specify that the European Public Prosecutor cannot prosecute offences which are not yet set out in the relevant Member States’ law at the time of the offence; in addition, the EPPO should not exercise its competence with regard to offences committed before it becomes fully operative; in this regard, Article 71 of the proposal should be amended accordingly; (v) the investigative tools and investigation measures available to the EPPO should be uniform, precisely identified and compatible with the legal systems of the Member States where they are implemented; in addition, the criteria for the use of investigative measures should be spelled out in more detail in order to ensure that ‘forum shopping’ is excluded; (vi) the admissibility of evidence and its assessment in accordance with Article 30 are key elements in the criminal investigation; the relevant rules must therefore be clear and uniform throughout the area covered by the European Public Prosecutor’s Office, and should fully comply with procedural safeguards; to ensure such compliance, the conditions for admissibility of evidence should be such as to respect all rights guaranteed by the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights, and the European Court of Human Rights case law; (vii) the right to an effective judicial remedy should be upheld at all times in respect of the European Public Prosecutor’s activity throughout the Union; therefore, decisions taken by the European Public Prosecutor should be subject to judicial review before the competent court; in this regard, decisions taken by the European Public Prosecutor before or independently from the trial, such as those described in Articles 27, 28 and 29 concerning competence, dismissal of cases or transactions, should be subject to the remedies available before the Union Courts. Article 36 of the proposal should be redrafted to avoid the circumvention of the Treaty provisions on the jurisdiction of the Union’s courts and a disproportionate limitation to the right to an effective judicial remedy under Article 47(1) of the Charter of Fundamental Rights; (viii) the provisions of Article 28 of the proposal should clearly state that after the dismissal by the European Public Prosecutor of a case relating to minor offences, the national prosecution authorities are not prevented from further investigating and prosecuting the case should they be allowed to under their national laws; and that where a lack of relevant evidence cannot be foreseeably be remedied by further proportionate investigative steps dismissal is mandatory; in addition, the existence of mandatory dismissal grounds should be checked for as soon as possible in the course of the investigation, and dismissal should follow without undue delay upon the finding that one of the mandatory grounds applies; (ix) arbitrary administration of justice has to be avoided under all circumstances; thus, the condition of ‘proper administration of justice’ as a ground for transaction as set out in Article 29(1) of the proposal should be replaced by more specific criteria; transaction should in particular be excluded as of the time of the indictment, and in any event in cases which can be dismissed under Article 28 of the proposal as well as in serious cases; (x) as the European Public Prosecutor’s powers require not just judicial review by the Court of Justice, but also oversight by the European Parliament and national parliaments, relevant provisions need to be included in particular to ensure effective and coherent practices among Member States and compatibility with the rule of law;