GREEN PAPER on criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor

(presented by the Commission)

Contents

1. Introduction

1.1. The origins of the Commission's proposal to establish a European Prosecutor

1.2. Reasons for presenting a Green Paper at this stage

1.2.1. Fraud against the Community's financial interests: a phenomenon that needs to be repressed

1.1.2. The question of a European Public Prosecutor: an ongoing debate

1.3. Objectives of the Green Paper

1.3.1. To extend the debate to all interested circles

1.3.2. To explore the proposal's feasibility

2. The premises of the debate

2.1. Value added by the European Public Prosecutor: the arguments for the Commission's 2000 proposal

2.1.1. Overcoming the fragmentation of the European criminal law-enforcement area

2.1.2. Move beyond the cumbersome and inappropriate traditional methods of judicial cooperation between Member States

2.1.3. The judicial follow-up to administrative investigations

2.1.4. Reinforce the organisation and effectiveness of investigation activities within the Community institutions

2.2. Respect for fundamental rights

2.3. Relationship with Europe's political priorities in matters of justice and home affairs

2.3.1. Complementarity with the objectives of the Tampere European Council

2.3.2. Specific features of the proposal in terms of the objectives of the Tampere European Council

2.4. Legal basis

3. General outline

3.1. Material jurisdiction confined to the protection of the Community's financial interests

3.1.1. Specific responsibility of the Communities

3.1.2. Maintaining the current scope of protection of the Community's financial interests

3.2. Towards a common investigation and prosecution area

3.2.1. The powers of the European Public Prosecutor: centralised direction of investigation and enforcement

3.2.2. A harmonious relationship with national systems of criminal law

4. Legal status and internal organisation

4.1. Status of the European Public Prosecutor

4.1.1. Principle of independence

4.1.2. Conditions for appointment and removal from office

4.1.3. Hierarchical role of the European Public Prosecutor

4.2. Decentralised organisation of the European Prosecution Service

4.2.1. Principle of decentralised Deputy European Public Prosecutors

4.2.2. Subordination to the chief European Prosecutor

4.3. Means of action of the European Prosecution Service

5. Substantive criminal law

5.1. Choice of legislative technique: Community unification or harmonisation of national legislation

5.2. Common definitions of offences

5.2.1. Offences for the protection of the Community's financial interests, on which the Member States are already in agreement

5.2.2. Offences above and beyond the protection of the Community's financial interests

5.2.3. Offences that might be envisaged for the protection of the Community's financial interests

5.3. Common penalties

1.4. Liability of legal persons

1.5. Rules of limitation

6. Procedure

6.1. Information and referral

6.2. The preparatory stage

6.2.1. Fundamental rights

6.2.2. Opening of investigations and enforcement proceedings

6.2.3. Conducting investigations

6.2.4. Outcome of prosecution

6.3. Trial stage

6.3.1. Choice of Member State of trial

6.3.2. Exercise of the prosecution function

6.3.3. The European Communities, victims in accordance with the ordinary law

6.3.4. Law of evidence

6.3.5. Factors causing early termination of prosecution

6.3.6. Execution of the judgment

6.4. Guarantee of the involvement of a court

6.4.1. Functions of the court

6.4.2. The designation of the judge of freedoms

6.4.3. Designation of the court to review the committal

7. Relations with the other parties involved

7.1. Cooperation with Member States' authorities

7.2. Relations with those involved in cooperation in criminal matters in the European Union

7.2.1. Eurojust

7.2.2. Europol

7.2.3. European Judicial Network

7.3. Relations with Community institutions and other bodies

7.3.1. General

7.3.2. Future role of OLAF

7.4. Relations with third countries

8. Judicial review of acts of the European Public Prosecutor

8.1. Reviewable acts of the European Public Prosecutor

8.1.1. Acts of investigation entailing a restriction or deprivation of personal liberty

8.1.2. Other acts of investigation

8.1.3. Case closed or not pursued

8.1.4. Committal for trial

8.2. Right to review

8.2.1. Review under domestic law

8.2.2. Review by the Court of Justice

9. Conclusion

1. Introduction

The need to prosecute perpetrators of fraud affecting the financial interests of the European Communities more effectively has led the Commission to propose establishing a European Public Prosecutor with responsibility in this field. Its proposal deserved closer attention and wide debate, which is why the Commission is presenting this Green Paper today.

Although it is based on a general proposal already adopted by the Commission, this paper is offered as a basis for consultation like any other Green Paper. At a second stage, the idea is that a better-informed view can be taken on the principle following closer preliminary thought about the possibilities for its implementation.

1.1. The origins of the Commission's proposal to establish a European Prosecutor

In the context of the Nice Intergovernmental Conference, the Commission proposed, as a response to fraud against the Community's finances, to remedy the fragmentation of the European law-enforcement area by establishing a European Public Prosecutor. [1] The protection of the Community's financial interests is a specific enough concern to warrant a specific response transcending the limits of traditional judicial cooperation.

[1] Additional Commission contribution to the Intergovernmental Conference on institutional reforms - The criminal protection of the Community's financial interests: A European Prosecutor, 29.9.2000, COM(2000) 608. See Annex 1. This contribution amplifies the Commission's Opinion given under Article 48 of the Union Treaty on the convening of a Conference of Representatives of the Governments of the Member States to amend the Treaties, Adapting the institutions to make a success of enlargement, 26.1.2000, COM (2000) 34, point (5)(b).

Historically, the idea of specifically furthering criminal-law protection of the Community's financial interests arose following the allocation of own resources to the Community, with a first draft amendment to the Treaty dating from 6 August 1976. [2] It evolved further with the signing of agreements and similar instruments, and in particular the Convention of 26 July 1995, [3] adopted in the context of justice and home affairs cooperation (the third pillar) but not yet ratified by all the Member States. It was first formalised in the Amsterdam Treaty, which provided a legal basis for the Community legislature to establish rules of limited scope for the criminal protection of the Community's financial interests. On this basis, the Commission recently adopted a proposal for a Directive. [4] This specificity of the criminal-law protection of the Community's financial interests lies at the basis of the proposal to establish a European Public Prosecutor.

[2] Former draft Treaty amending the Treaties establishing the European Communities so as to permit the adoption of common rules on the protection under criminal law of the financial interests of the Communities and the prosecution of infringements of the provisions of those treaties, COM(76)418, OJ C 222, 22.9.1976.

[3] Convention of 26 July 1995 on the protection of the European Communities' financial interests (OJ C 316, 27.11.1995, p. 49) and its additional protocols (OJ C 313, 23.10.1996, p. 1; OJ C 221, 19.7.1997, p. 11; OJ C 151, 20.5.1997, p. 1).

[4] Proposal for a Directive of the European Parliament and of the Council on the criminal-law protection of the Community's financial interests, presented by the Commission on 23.5.2001 (COM(2001) 272).

This proposal was preceded by detailed preparatory work. For almost ten years now, at the request of the European Parliament and the Commission, groups of experts in criminal law from all the Member States have been working on the subject of the criminal-law protection of the Community's financial interests. [5] The result of their work, welcomed by the European Parliament [6] and the Commission, was a proposal for a set of rules for the criminal-law protection of the Community's financial interests, the well-known "Corpus Juris". They were based on a vast comparative study of national systems of criminal law which concluded that the project was feasible. [7]

[5] Comparative analysis of the reports by the Member States on the measures taken at national level to combat waste and the diversion of Community resources: Summary paper, European Commission, 13.11.1995, COM(95)556 ; see also several studies commissioned by the Commission: Comparative study on the protection of the Community's financial interests, 3 volumes, 1992-1994; Study on systems of administrative and criminal penalties in the Member States of the European Communities, 2 volumes, 1994; Out-of-court settlements in the European Union, 1995.

[6] Resolution on the creation of a European legal and judicial area to protect the European Union's financial interests against international crime, European Parliament, 12.6.1997 (OJ C 200, 30.6.1997, p. 157).

[7] Corpus Juris introducing penal provisions for the purpose of the financial interests of the European Union, under the responsibility of M. Delmas-Marty, Economica, Paris, 1997. In response to these recommendations, the experts more recently revised the Corpus Juris (http://www.law.uu.nl/wiarda/corpus/index1.htm) and completed a comparative study on the need for it and its legitimacy and feasibility, analysing the potential impact of a European Prosecutor on national prosecution systems: The Implementation of the Corpus Juris in the Member States, M. Delmas-Marty / J.A.E. Vervaele, Intersentia, Utrecht, 2000 (4 volumes). For the purposes of this Green Paper, all references are to this second version, known as the "Florence version", of the Corpus juris, unless otherwise specified.

But the debate cannot stop there. In 2000 the Commission presented its contribution. It is conducting its reflections, not proceeding from any particular national model but seeking the system best matching the specific requirements of the objective of protecting the Community's financial interests and aiming at the highest levels of protection of fundamental rights.

1.2. Reasons for presenting a Green Paper at this stage

The Commission's contribution to the Intergovernmental Conference for revision of the EC Treaty to provide a legal basis for the establishment of the European Public Prosecutor [8] was not taken up by the European Council at Nice in December 2000. In the first place the Intergovernmental Conference was not given the necessary time to examine the proposal. The need for more detailed study of the practical implications was also expressed.

[8] COM(2000) 608, already referred to.

But the underlying philosophy remains unchanged. And there were some encouraging reactions. In accordance with its action plan for 2001-03 on protecting the Communities' financial interests, [9] the Commission therefore undertook to adopt this Green Paper in order to clarify its ideas and to widen the debate.

[9] COM (2000) 254

The point is to respond to the scepticism which has all too often greeted its proposal by explaining it in practical terms and considering the possibilities for the implementation of a solution which might rightly be seen as ambitious and innovatory.

1.2.1. Fraud against the Community's financial interests: a phenomenon that needs to be repressed

Fraud is a phenomenon that needs to be stamped out. In the current general context of a stronger international fight against financial crime, the scale of illegal activity to the detriment of Community funds is worth remembering.

The proportion of all the cases of irregularity detected by the Commission and the Member States which entail criminal proceedings - i.e. where there is intent - was estimated by the Commission and the Member States in 1999 at around 20% of known cases and nearly 50% of the corresponding amounts. The scale of fraud affecting the Community's financial interests detected by the Member States and by the European Anti-Fraud Office (OLAF) in 1999 was estimated to account for a total of EUR413 million. [10]

[10] European Commission, Protection of the Communities' financial interests and the fight against fraud, annual report 1999, COM(2000) 718, points 4 and 5.

>TABLE POSITION>

Overall, these cases represented fraud with an impact on European own resources of some EUR122 million (or 0.9 % of traditional own resources) and on expenditure of EUR291 million (or 0.3 % of the budget), EUR170 million of which was in the area of agricultural expenditure, EUR73 million concerned external action by the Communities and EUR48 million in the field of structural actions.

Every year since 1991 the Commission has given a description of the fraud phenomenon with statistics and examples in its annual report on the protection of the Community's financial interests and the fight against fraud. [11]

[11] European Commission, Annual report 2000: protection of the Communities' financial interests and the fight against fraud, COM (2001) 255.

The administrative detection facilities in the Community have been refined over the years. [12] There has also been an enhanced effort to prevent fraud in the context of the reform of the administration of the Commission, of which OLAF's anti-fraud strategy is a component.

[12] The Cologne European Council in June 1999 welcomed the rapid creation of OLAF and the legal framework accompanying it, called for by the Vienna European Council in December 1998.

But prevention and detection are not enough by themselves. The need for effective enforcement activities remains. It is known that organised crime has been involved in numerous cases that have come to the knowledge of the Commission departments over the years, and especially of the Unit for the Coordination of Fraud Prevention (UCLAF) set up in 1988 and replaced in 1999 by the European Anti-Fraud Office (OLAF), with independent investigative powers. Fraud affecting the Community's financial interests primarily concerns major cases involving the criminal courts of several Member States. They are complex and distinctly transnational in nature.

A problem on this scale must be met with an appropriate response. This is a specific form of crime which calls for a specific response. Given its nature, the response must include a repressive dimension, in accordance with the requirements introduced by the Treaty of Amsterdam. Article 280 of the EC Treaty now requires protection of the Community's financial interests to be effective, dissuasive and equivalent in all the Member States. In these circumstances, the Community must guarantee to Member States and Europe's taxpayers that offences of fraud and corruption are genuinely prosecuted in the courts. Otherwise the credibility of European integration to public opinion could be seriously compromised.

1.2.2. The question of a European Public Prosecutor: an ongoing debate

The debate on the establishment of a European Prosecutor did not wait for the Green Paper before taking off.

At European level, the limitations on national law-enforcement areas faced with transnational economic and financial crime have been denounced for years now by practitioners, judges, police forces and lawyers. From the Geneva appeal on 1 October 1996 to the recent Trier declaration on 15 September 2001 in favour of relaunching the question of the European Public Prosecutor in the run-up to enlargement of the Union, via the Strasbourg Manifesto of 20 October 2000, professional circles have taken the subject up in several Member States. In a more latent way, the question is now near the top of the list of popular concerns, no longer being confined to specialist or academic circles. [13]

[13] An annual opinion poll conducted by the Institut Louis-Harris in eight Member States in December 2000 for Le Monde revealed that 68% of respondents supported harmonisation of court systems in the Member States.

The European Parliament has played a leading role here, repeatedly calling since the 1990s for this proposal to be implemented, in order to ensure effective follow-up at the criminal prosecution stage to the prevention and administrative detection of fraud. [14]

[14] See in particular Resolution on the Commission's annual report for 1996 (JO C 339; 10.11.1997 p. 68); Resolution on criminal procedures in the European Union (Corpus Juris), 13.4.1999; Resolution of 19 January 2000 on the establishment of criminal protection for the financial interests of the Union (OJ C 304, 24.10.2000, p. 126); Resolution of 13.4.2000 for the Intergovernmental Conference; Resolution of 16.5.2000 of the Commission's annual report for 1998 on the protection of the Community's financial interests; Resolution of 13.12.2000 on the Commission's antifraud strategy (OJ C 232, 17.8.2001, p.191); Resolution of 14 March 2001 of the Commission's annual report for 1999 on the protection of the Community's financial interests.

More recently, the Committee of Independent Experts, [15] the Committee of Wise Men [16] and the OLAF Supervisory Committee, [17] each in its own area of concern, recommended in 1999 that a European Public Prosecutor be established with powers to act here.

[15] Second report on the reform of the Commission, 10.9.1999, recommendation 59.

[16] Report by Mr Dehaene, Mr Simon and Mr Von Weizsäcker, 18.10.1999, point 2.2.6.

[17] OLAF Supervisory Committee, Opinions 5/99 and 2/2000, in Report July 1999 - July 2000 (OJ C 360, 14.12.2000).

At national level, the political debate hotted up, in some Member States at least. Without claiming to be exhaustive, let us report on a few expressions of opinion here.

In the United Kingdom, the House of Lords published its enquiry into prosecuting fraud on the Communities' finances, conducted by its Select Committee on the European Communities. [18] The Chairman of this Committee, while not endorsing the conclusions of the Corpus Juris, recognises that the introduction of a special regime for prosecuting fraud should be considered if the efforts still to be made on intergovernmental judicial cooperation were to be delayed or to fail.

[18] Prosecuting fraud on the Communities' finances - The Corpus Juris, 8.5.1999, Select committee on the European Communities, House of Lords, London.

In France, the National Assembly delegation on the European Union, considering the fight against fraud in Europe, portrays the question of a European Public Prosecutor as one aspect of the choice in the field today. [19] Its rapporteur concludes that the effectiveness of prosecution in this area is a real problem and that a European Public Prosecutor is essential.

[19] Rapport d'information sur la lutte contre la fraude dans l'Union européenne, Délégation de l'Assemblée nationale pour l'Union européenne, 22.6.2000, No 2507.

In Germany, the Federal Government replied to a question from a group of members of the Bundestag regarding possible criminal-law developments at Community level, in particular with a view to protecting the financial interests of the Communities. [20] The reply was that, despite serious reservations on the general part of the Corpus juris study, the establishment of a European Public Prosecutor should be planned in the context of a possible sectoral unification of substantive and procedural criminal law and proceed from experience with the establishment of Eurojust, regarded by the German Government as the embryo of a future European Public Prosecutor.

[20] Bundestagsdrucksache 14/4991, 14.12.2000, p. 32 et seq.

The Dutch Minister of Justice has described the Commission contribution to the Intergovernmental Conference as interesting. He considers that they can usefully contribute to a discussion on the substance of measures to improve the fight against fraud in the Community and is ready to cooperate. [21]

[21] Letter to the Legal Affairs Committee of the Dutch Parliament concerning judicial cooperation in criminal matters, 5.7.2001.

In the broader context of the fight against crime in the European Union, certain Heads of Government now refer to various versions of the concept of a European prosecution service when speaking of their vision of Europe's future. [22]

[22] SPD motion on Europe, presented by Chancellor Schröder on 30.4.2001 and adopted in November 2001; speech on the future of the European Union by Prime Minister Jospin, 23.5.2001.

These opinions are, if nothing else, evidence both of the interest in the subject and of the need for a more in-depth debate of how a European Public Prosecutor should operate. The Commission is proposing an innovatory solution that is both narrower and more specific, in order to meet a specifically common need. Hence the reason for this Green Paper.

1.3. Objectives of the Green Paper

The nature of the Green Paper distinguishes it from earlier preparatory work. It seeks to both broaden and deepen the debate on the Commission proposal with a view to its being considered by the Convention which is to prepare for the next Treaty revision.

1.3.1. To extend the debate to all interested circles

With this end in mind, the first objective of the Green Paper is to initiate as wide a consultation process as possible throughout 2002 with all interested circles - Community and national public authorities, crime-related professions, academic circles, relevant non-governmental organisations. The consultations will relate to the possible duties and operation methods of a European financial Prosecution Service. The Green Paper will enable the debate to be structured along a number of themes and will give it a wide audience, in the spirit of good governance.

The themes are the following:

- The premises of the debate (Chapter 2)

- General outline (Chapter 3)

- Legal status and internal organisation (Chapter 4)

- Substantive law (Chapter 5)

- Procedural law (Chapter 6)

- Relations with other parties involved (Chapter 7)

- Judicial review (Chapter 8)

On each of these themes, the Commission begins by setting out the facts that can underlie the debate. It then sets out a number of options and sometimes expresses a preference reflecting the current state of its thinking. Lastly, it raises questions on which it would be glad to have the views of interested circles. While the Commission's preferences, taken as a set, would produce a coherent system, there is no reason to believe this is the only possible system, and the debate is not closed in advance.

1.3.2. To explore the proposal's feasibility

The Green Paper also gives the Commission an opportunity to spell out its ideas looking beyond the preparatory studies that have been conducted for several years now. In its Communication of 29 September 2000, the Commission proposed including in the Treaty only the essential characteristics of the European Prosecutor (appointment, removal, duties and independence), leaving the rules and mechanisms governing the Prosecution Service's operation to be regulated by secondary legislation.

What this Green Paper is specifically about is to outline a possible scenario for the secondary legislation. This legislation should, in particular, establish Community-level definitions of offences (fraud, corruption, money-laundering, etc.) and penalties relating to activities that harm the Community's financial interests. It should determine how the Community legislation will mesh with the national systems of criminal law. It should deal with the procedures for laying cases before the European Public Prosecutor, his powers of investigation and the opening and outcome of detection activities. It should also provide for judicial review of acts done by the European Public Prosecutor.

While the debate in 2000 focused on the legitimacy of and reasons for creating such an office, the Green Paper extends it to the feasibility and the possible mechanisms for ensuring the operation of the European Prosecutor. Beyond the principle, already set out by the Commission in its Communication, the purpose here, out of a concern for the transparency of legislative preparatory work, is to consider the practical conditions for actually implementing the measures it proposes.

The Commission therefore invites your comments on this Green Paper and in particular on the questions set out in boxed items and listed in an annex.

To facilitate exchanges of views, a website is opened, hosting this Green Paper and a series of relevant links.

http://europa.eu.int/olaf/livre_vert

Until 1 June 2002, answers may be given, preferably to the following address:

olaf-livre-vert@cec.eu.int

or by post to:

European Commission

European Anti-Fraud Office (Unit A.2)

Answer to Green Paper on the European Public Prosecutor

Rue Joseph II, 30

B-1049 Brussels

Comments received will be published on the website unless their author specifically asks for them to be treated as confidential.

There will be a public hearing for those interested in 2002. The Commission will present conclusions, and possibly a fresh contribution, in 2003, on the basis of the answers it receives, in connection with its preparations for revision of the Treaties.

2. The premises of the debate

In its contribution to the Nice Intergovernmental Conference, the Commission for the first time set out the reasons why the European Public Prosecutor would be an effective form of criminal protection for the Community's financial interests. The proposal is linked to a series of conditions which are worth recalling as a preliminary to the debate. Provided the Treaties are revised (point 2.4), it offers value added in relation to the current situation (2.1) with full respect for fundamental rights (2.2) and specifically complements Europe's political priorities in matters of justice (2.3).

2.1. Value added by the European Public Prosecutor: the arguments for the Commission's 2000 proposal

The exercise of the detection and prosecution functions at Community level would add value in relation to the current situation. However legitimate and irreplaceable they may be, existing systems, in the absence of a specific Community institutional structure, do not allow sufficiently effective enforcement. The Commission communication of 29 September 2000 develops and illustrates a number of arguments, which are merely outlined here. [23]

[23] See Annex 1.

2.1.1. Overcoming the fragmentation of the European criminal law-enforcement area

The involvement of organised crime in fraud against the Community's financial interests and the transnational nature of such fraud imply cooperation with seventeen legal orders applying different rules of substance and procedure. [24] With the enlargement of the Union, these difficulties will increase as the number of Member States and the number of operators and administrations involved in the management of Community funds rise.

[24] Some Member States have several national legal orders, as is the case of the United Kingdom (England & Wales, Scotland, and Northern Ireland).

The shortcomings of the current arrangements lie above all in the fragmentation of the European criminal law-enforcement area. True, exceptions from the principle of national territoriality now appear in international conventions to which the Member States are parties. [25] But the police forces and courts of the Member States still basically have jurisdiction solely in their own territory. This fragmentation between authorities has lead to competing or incomplete investigations, and in some cases to none at all.

[25] Example: Schengen Implementing Convention of 19 June 1990 (Articles 39 et seq: observation and hot pursuit); Convention of 18 December 1997 on mutual assistance and customs cooperation between customs administrations (Naples II); Convention of 29 May 2000 on mutual judicial assistance in criminal matters (controlled deliveries, joint investigation teams, covert investigations).

This is borne out by the example of completed or abandoned prosecutions cited by the Commission at paragraph 1.1 of its Communication to the Nice Intergovernmental Conference (see Annex 1).

In more specific terms, before the adoption of the Amsterdam Treaty, the signing of the Convention of 26 July 1995 and its additional protocol constituted a first major step towards the criminal protection of the Community's financial interests. But not all these instruments have yet come into force, as they have not been ratified by all the Member States. [26] This was one of the reasons why on 23 May 2001 the Commission presented the proposal for a directive to enact the provisions contained in third-pillar instruments on the basis of Article 280 of the EC Treaty. [27]

[26] At the end of September 2001 three Member States had still not notified their ratification of the Convention on the protection of financial interests, and eight still had to ratify the Protocol of 19.6.1997.

[27] COM(2001) 272, referred to above.

But these provisions will not suffice on their own to overcome the fragmentation of the European criminal law-enforcement area since the prosecution function will still be exercised at national level.

Thus, while retaining seventeen separate systems of criminal courts, this Green Paper sets out to show that as a result of the European Public Prosecutor and the centralised management of detection and prosecution activities the Community would enjoy effective and equivalent protection of its financial interests throughout the Union, as demanded by the Treaty.

2.1.2. Move beyond the cumbersome and inappropriate traditional methods of judicial cooperation between Member States

Some forms of international cooperation in criminal matters already exist; it can be expected that the strengthening of judicial cooperation as part of the third pillar will facilitate this process. But none of the instruments currently in force or at proposal or negotiation stage gives an adequate response to the specific question of criminal proceedings for acts to the detriment of the Community's financial interests.

Organised crime harmful to these interests has developed in such a way that the conventional tools of mutual judicial assistance are no longer suited to the task, and the progress so far made in judicial cooperation is limited. These inadequacies are the cause of delays, dilatory actions and even impunity. This is particularly harmful for attempts to reconstitute financial circuits upstream of fraud.

This is illustrated by the example of successive prosecutions cited by the Commission at paragraph 1.2 of its Communication to the Nice Intergovernmental Conference (see Annex 1).

As will be seen below, the European Public Prosecutor would help to overcome these difficulties. He would provide an interface between the Community and the national judicial authorities. In transnational fraud cases, this would make it easier to avoid the destruction of evidence and the disappearance of suspects, both of which are currently assisted by the absence of judicial cooperation between the Community and the Member States.

2.1.3. The judicial follow-up to administrative investigations

Accumulated operational experience shows how difficult it is for administrative investigations on the ground to culminate in proceedings in court. In the current state of Community law, [28] however effective the detection and coordination work done by the European Anti-Fraud Office, which now has a Judicial Advice Unit, criminal prosecution remains uncertain. The Community does not have a criminal prosecution function to supplement preventive action and administrative investigation.

[28] Parliament and Council Regulation (EC) No 1073/99 and Council Regulation (Euratom) No 1074/99 of 25.5.1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ L 136, 31.5.1999); Commission Decision of 28.4.1999 establishing the European Anti-fraud Office (OLAF) (OJ L 136, 31.5.1999); Interinstitutional Agreement of 25.5.1999 concerning internal investigations by the European Anti-fraud Office (OLAF) (OJ L 136, 31.5.1999); Regulation (Euratom, EC) No 2185/96 of the Council concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities' financial interests against fraud and other irregularities, OJ L 292, 15.11.1996. Council Regulation (EC, Euratom) No 2988/95 of 18.12.1995 on the protection of the European Communities financial interests: OJ L 312, 23.12.1995, p.1.

The transmission of information between Member States and between them and OLAF comes up against a series of barriers in the form of differing rules governing criminal prosecutions in the Member States. If, for the same offence, the inquiry is handled in some Member States by a judge but in others by an administrative authority, direct contact between the two is generally impossible in both fact and law. Moreover, not all the relevant national authorities even have access to information under the various national rules, in particular those concerning the secrecy of tax and business information [29] or the confidentiality of criminal investigations. The integration of the investigation and prosecution functions that the establishment of the European Public Prosecutor would achieve would iron out these difficulties.

[29] Final report on the first evaluation exercise devoted to judicial assistance in criminal matters, approved by the Council on 28.5.2001 (JO C 216, 1.8.2001), heading III(e) (Tax offences): "The evaluations showed that the issue of tax offences remained such a sensitive one that mutual assistance could, on this basis be limited and slowed down or at worst be refused."

And the diversity of national rules on evidence often means that evidence gathered in one Member State cannot be used in courts in another.

This is borne out by the example of inadmissible evidence, cited by the Commission at paragraph 1.3 of its Communication to the Nice Intergovernmental Conference (see Annex 1).

All trial courts apply the rules in force in their own country (principle that forum regit actum), particularly as regards evidence. They do not necessarily recognise the rules of the place where acts of investigation took place if those rules are different, with the effect that evidence gathered in that context may be inadmissible. This situation can ruin investigation efforts in transnational fraud cases.

A typical fraud case in the absence of recognition of evidence rules

In a recent case, an importer of olive oil was suspected of presenting false customs declarations to avoid paying agricultural duties (Community resources evaded). He had used a series of companies in several Member States for transport, distribution, sales and financing. The evidence was scattered over Community territory. The completeness of the prosecution file depended on being able to use the results of administrative investigations carried out by OLAF among other bodies, and judicial investigations, including the results of international letters rogatory.

When the case came to trial, the criminal in the Member State where the case was being heard held that the bulk of the evidence was inadmissible as it had been obtained by an administrative authority (OLAF) or by law-enforcement officers (crime investigation police) and not by a prosecution service or examining judges. Statements by private individuals (lorry drivers), duly recorded by law-enforcement officers, were also excluded.

This is just one case among many others. In certain Member States the rules of evidence are even stricter as regards documentary evidence and require direct oral testimony in the courts.

This Green Paper shows that the establishment of a common investigation and prosecution area guided by the principle of mutual admissibility of evidence would help to overcome this barrier. Evidence gathered as a result of acts of investigation by administrative and judicial authorities under the direction of the European Public Prosecutor, if necessary with a warrant from the judge of freedoms, would be recognised as admissible evidence in criminal courts throughout the Community. [30]

[30] Cf. point 6.3.4 (evidence).

2.1.4. Reinforce the organisation and effectiveness of investigation activities within the Community institutions

For the moment there is no European judicial body with jurisdiction to conduct investigations within the Community institutions. The European Anti-fraud Office (OLAF) is still an administrative investigation service, despite the assistance it can already offer the judicial authorities. Proceedings in cases internal to Community bodies still depends on the goodwill of the national enforcement authorities in the headquarters State.

An example: fraud within the Community institutions

An internal investigation by OLAF with judicial follow-up in several Member States concerned a situation where officials were suspected of being involved in the award of Community grants to firms in which they had interests. These firms were in several Member States and even in financial centres outside the Communities.

Several obstacles have been encountered in this type of case. OLAF's administrative prerogatives are too limited to allow it to handle all the facts of the case, which may require it to question witnesses, order house searches and examine bank records, and even issue international letters rogatory.

The question of determining the national enforcement authorities before whom the same facts must be laid where several may have jurisdiction is currently a source of difficulty. The disparity between the relevant national laws is a great source of complexity where testimony gathered by OLAF is to be used in the courts as, for example, the procedural requirements of one Member State for the protection of individual rights may be regarded as inadequate in criminal proceedings in another Member State. The diversity of limitation rules can also have the effect that cases are referred out of time. And a judicial authority might decide to close a case with no further action on the grounds that the disciplinary penalties and the fact that the official has left his post remove the need for proceedings.

The organisation and effectiveness of internal investigations in the institutions would inevitably be boosted by the establishment of a European Public Prosecutor. [31] The Commission's proposal accordingly acts more specifically on the European Parliament's repeated request for an initiative for the establishment of a European Public Prosecutor with jurisdiction within the European Union institutions. [32]

[31] See Opinion No 3/2001 of the OLAF Supervisory Committee of 6.9.2001 on the possible establishment of a European Public Prosecutor responsible for internal investigations.

[32] Resolution of the European Parliament of 16.5.2000 on the Commission's annual report for 1998 on the protection of the European Communities' financial interests and the fight against fraud, point 2; Resolution of 13.12.2000 on the Commission's antifraud strategy, point 12 (OJ C 232, 17.8.2001, p. 192); recital 14 of the proposal for a Directive on the criminal-law protection of the Community's financial interests, as amended by the European Parliament on 29.11.2001 (PE 305.612)..

2.2. Respect for fundamental rights

The European Public Prosecutor would be required, in the exercise of his functions, to respect the fundamental rights guaranteed by Article 6 of the Union Treaty, the fundamental principles of Community law upheld by the Court of Justice of the European Communities (the "Court of Justice"), the Charter of Fundamental Rights of the European Union [33] and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

[33] OJ C 364, 18.12.2000.

In particular, as will be seen below, all acts involving an element of compulsion carried out by the European Public Prosecutor should be subject to review by a court designated by the Member State as the "judge of freedoms". [34]

[34] See below at point 6.4 (freedom secured by the courts).

The establishment of a European Public Prosecutor would, of course, have the effect that offenders who currently go unpunished would be brought to justice: that is the purpose of the exercise. But the proposed system would also help to improve the position of accused persons. [35] By definition, it would reduce the accumulation of national proceedings. It would allow the preparatory stages of the procedure to be speeded up, thus speeding up proceedings generally. It should also have the effect that the national authorities would have less need to remand suspects in pre-trial custody or order other measures in restraint of freedom designed to ensure that the accused person does not leave the national territory, for there would be a substantial boost to the effectiveness of Community-wide proceedings.

[35] In the Green Paper the concept of accused person is used in a generic sense and may correspond to various forms of status depending on the legal terminology in the different Member States. Accused person here means a person who is suspected of an offence and who has been notified by the European Public Prosecutor of the charges against him.

2.3. Relationship with Europe's political priorities in matters of justice and home affairs

One of the objectives of the European Union defined by the Amsterdam Treaty is its development "as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to ... the prevention and combating of crime". [36]

[36] Article 2 of the Union Treaty.

The Tampere European Council on 15 and 16 October 1999 attached high political priority to establishing this area.

The Commission contribution to the Intergovernmental Conference in 2000 was conceived as a contribution to the same general objective. It does not in any way contradict the spirit of Tampere. It complements the efforts made to boost judicial cooperation, of which the establishment of Eurojust is the latest manifestation, [37] by furthering integration in a specific area of shared powers between the Community and the Member States (Article 280 EC).

[37] Cf. point 7.2.1 (Eurojust)

2.3.1. Complementarity with the objectives of the Tampere European Council

On many points, the proposal to establish a European Public Prosecutor is supported by the Tampere guidelines.

The diagnostic underlying the Commission's proposal is basically the same. The European Council recognised that "Criminals must find no ways of exploiting differences in the judicial systems of Member States". [38]

[38] Presidency Conclusions, Tampere European Council, 15 and 16 October 1999, point 5.

Certain general objectives are also in common, since the overriding aim is to contribute to the "area of freedom, security and justice" called for by the Amsterdam Treaty. The proposal to establish a common investigation and prosecution area would make a significant contribution in the specific matters of protection of the Community's financial interests. At the same time the guarantee of fundamental rights, the importance of which has already been referred to, is to balance out the stronger effectiveness of enforcement measures flowing from the establishment of the European Public Prosecutor, in accordance with the Tampere conclusion that "A balanced development of unionwide measures against crime should be achieved while protecting the freedom and legal rights of individuals and economic operators". [39]

[39] Conclusions, point 40.

One of the main vectors of the establishment of an enforcement system for the criminal protection of the Community's financial interests while fully maintaining the jurisdiction to try and judge cases at national level is the principle of mutual recognition of court decisions between Member States. This principle presupposes mutual trust in the Member State' legal systems and a shared fundamental basis. It implies that there would be no further need for additional decisions to validate or register judgments for enforcement. The European Council has made the principle of mutual recognition the "cornerstone of judicial co-operation in both civil and criminal matters within the Union", specifying that it will "also apply to pre-trial orders, in particular to those which would enable competent authorities quickly to secure evidence and to seize assets which are easily movable". [40]

[40] Conclusions, points 33 and 36.

One of the instruments available to enhance the action taken by the European Public Prosecutor will be the European arrest warrant. Identified as a priority task at Tampere, there is now a Commission proposal for a Framework Decision in a broader context, [41] and keen interest has been shown by all the Community institutions, which have declared that "The European Union will accelerate the implementation of a genuine European judicial area, which will entail, among other things, the creation of a European warrant for arrest and extradition, in accordance with the Tampere conclusions, and the mutual recognition of legal decisions and verdicts". [42] The proposal to establish a European Public Prosecutor is part of this dynamic.

[41] Commission proposal for a Framework Decision on the European arrest warrant and the procedures for surrender between Member States of the European Union, COM(2001)522.

[42] Joint Declaration by the Heads of State or Government of the European Union, the President of the European Parliament, the President of the European Commission and the High Representative for the common foreign and security policy, 14.9.2001.

2.3.2. Specific features of the proposal in terms of the objectives of the Tampere European Council

But in other respects, the proposal amplifies the Tampere guidelines. It is on a limited scale and in no way competes with the more general initiatives that are being made in the context of the third pillar. On the contrary, it extends them by other means into the Community context of the first pillar, adapting them to the specific features of the criminal-law protection of the Community's financial interests.

While Eurojust, according to the Tampere conclusions, is to exercise powers conferred on it in a wide-ranging judicial cooperation context, the European Public Prosecutor would be a Community authority with his own enforcement powers in the specific area of protection of the Community's financial interests.

Regarding justice more generally, the European Council asked the Council and Commission to launch "work ... on those aspects of procedural law on which common minimum standards are considered necessary". [43] As for the means, the Commission goes further, as regards the preparatory stage of trials relating specifically to offences against the Community's financial interests, proposing a degree of procedural harmonisation. Acts done by the European Public Prosecutor, subject to review by the national judge of freedoms designated for the purpose, would then be valid in all Member States as acts done by a common body.

[43] Tampere Conclusions, point 37.

Basically, the establishment of a common investigation and enforcement area for the protection of the Community's financial interests is not an initial experimental measure prefiguring a future component of the area of freedom, security and justice. Rather, it is the logical culmination of the process of Community integration. The effect of the internal market and the Community policies that accompany it is that the Communities now enjoy extensive financial resources of their own, and protecting them against crime now requires there to be a Community enforcement function. Where there are basically common interests, there must also be common protection.

In a nutshell, then, the European Public Prosecutor for the criminal protection of the Community's financial interests would be part of the "Europe of justice" but less concerned with justice "in Europe" than with justice "for Europe".

2.4. Legal basis

The proposal considered here requires that there should be a legal basis for it. Article 280 of the EC Treaty provides that measures adopted by the Community legislature to combat illegal activities to the detriment of the Community's financial interests "shall not concern the application of national criminal law or the national administration of justice". The EC Treaty and a fortiori the Euratom Treaty, unchanged on this point since Maastricht, do not currently provide a legal basis for a European law-enforcement area involving a common judicial authority such as a Prosecutor.

The Community Treaties would accordingly have to be amended. This is the only way of giving the proposal its proper legitimacy. The Commission has proposed inserting a new Article 280a in the EC Treaty. The proposal is that the requisite amendment of the Treaty be confined to what is necessary to lay down the conditions for the European Public Prosecutor's appointment and resignation and to determine his tasks and the main features of his function. If the EC Treaty was so amended, similar provisions to those of the proposed Article 280a of the EC Treaty would also have to be written into Article 183a of the Euratom Treaty.

The Convention to prepare the next Treaty revision would do well to consider this question.

The amended Treaties would then leave it for secondary legislation to regulate the status and operation of the European Public Prosecutor. The proposed Article 280a accordingly provides for the European Parliament and the Council of the European Union acting by a qualified majority, to adopt the following provisions by the codecision procedure.

« 2. ... The Council, acting in accordance with the procedure of Article 251, shall determine the general rules applicable to the European Public Prosecutor.

3. The Council, acting in accordance with the procedure laid down by Article 251, shall lay down the general conditions governing the performance of the functions of the European Public Prosecutor and shall adopt, in particular:

(a) rules defining the facts constituting criminal offences relating to fraud and any other illegal activity prejudicial to the Community's financial interests and the penalties incurred for each of them;

(b) rules of procedure applicable to the activities of the European Public Prosecutor and rules governing the admissibility of evidence;

(c) rules applicable to the judicial review of procedural measures taken by the European Public Prosecutor in the exercise of his functions.

These rules of secondary legislation are precisely what this Green Paper is about and should at the same time determine the relationship between the Community rules and the national systems of criminal law. In this context the Green Paper should facilitate discussion of two crucial questions: how the European Public Prosecutor can be established without also establishing a special Community court with jurisdiction top review acts done by him and how far it is necessary to harmonise the law for him to be able to operate effectively.

3. General outline

Under Article 280a of the EC Treaty as proposed by the Commission, the European Public Prosecutor would be "responsible for detecting, prosecuting and bringing to judgment the perpetrators of offences prejudicial to the Community's financial interests and their accomplices and for exercising the functions of prosecutor in the national courts of the Member States in relation to such offences in accordance with the rules provided for by" the relevant Community legislation.

To gain a sound understanding of the position, it is necessary to begin by considering the general approach of the proposal. The Commission is adopting the following guidelines here. The European Prosecutor must have only the jurisdiction expressly conferred on him, confined to what has already been described here. In accordance with the principles of subsidiarity and proportionality, this jurisdiction would remain limited to the minimum necessary in order to ensure effective and equivalent prosecution of unlawful conduct harmful to the Community's financial interests anywhere in the Community (Article 280 of the EC Treaty).

In this Green Paper the Commission is only proposing that Community law should determine the minimum needed for the European Public Prosecutor to operate effectively. The principle is therefore that national law applies except in duly substantiated cases where, on the ground that the European Public Prosecutor cannot operate effectively, Community law will apply.

In this spirit, the possible material scope of the jurisdiction of the European Public Prosecutor (point 3.1), acting in a common investigation and prosecution area (point 3.2), is outlined here. In particular his main powers (point 3.2.1.) and his status in relation to the national legal systems (point 3.2.2.) are set out.

3.1. Material jurisdiction confined to the protection of the Community's financial interests

The Commission proposes that the European Prosecutor's jurisdiction be limited to the protection of the Community's financial interests as now limited by the provisions of Article 280 of the EC Treaty.

There are, of course, other basically common interests, such as the single currency, the European public service, the Community trademark etc. But following the same line as in its September 2000 contribution, the Commission is proposing no extension of the European Public Prosecutor's jurisdiction to offences beyond the scope of the protection of the Community's financial interests (other offences committed by Community staff in the exercise of their functions [44] or euro counterfeiting, a wholly new but no less important class of offence). [45] This Green Paper merely mentions these topics as hypothetical examples, to ensure that the debate is properly informed.

[44] Cf. point 5.2.3 (offences above and beyond the protection of the Community's financial interests).

[45] Articles 3 and 4 of the Council Decision of 29.5.2000 to increase protection by providing for criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro, OJ L 140, 2.6.2000.

3.1.1. Specific responsibility of the Communities

The European Communities have a heightened responsibility for the protection of their financial interests. The Treaty of Amsterdam introduced an express reference to this responsibility, alongside that of the Member States, in Article 280 EC.

The European Communities have been provided with a budget since the start of European integration. Under Articles 274 and 276 of the EC Treaty, the Commission is responsible, before the Budgetary Authority made up of the European Parliament and the Council of the European Union, for implementing the budget.

As regards the protection of the Community's financial interests more specifically, the EC Treaty sets tough requirements. Protection must be effective, dissuasive and equivalent in all Member States. Effectiveness presupposes that beyond the administrative detection of fraud, penalties will be genuinely imposed and enforced. Experience has shown that a credible deterrent depends on being able, in the most serious cases, to come up not only with an administrative response but also with a criminal-law response, including mandatory investigation measures and penalties extending as far as prison sentences. Lastly, equivalence implies that enforcement is homogeneous throughout the Community.

These particularly tough requirements are fully justified by the fact that Community funds have from the start of European integration constituted essentially shared interests.

However, these interests are the target of financial crime, which, in the most serious cases, is organised. This category of crime uses all the latest communication techniques. It cares nothing for frontiers and is distinctly transnational. In these circumstances, the Communities must guarantee that offences of fraud and corruption are genuinely prosecuted in the courts. The financial interests of the Communities justify particular means of protection.

3.1.2. Maintaining the current scope of protection of the Community's financial interests

There is no question of the establishment of the European Public Prosecutor extending the substantive competence of the Communities. The Community's financial interests would remain defined exactly as in Article 280 of the EC Treaty.

It should be pointed out that the financial interests of the Communities requiring protection comprise the general budget, budgets administered by the Communities or on their behalf and certain funds not covered by the budget, [46] and which are administered for their own account by Community bodies which do not have institutional status. [47] The protection of the Community's financial interests concerns not only the management of budget appropriations, but currently extends to all measures affecting or liable to affect its assets. [48]

[46] The Development Funds administered by the Commission and the European Investment Bank, for instance, are included.

[47] Explanatory report on the Convention on the protection of the European Communities' financial interests, approved by the Council on 26.5.1997, section III.1.1 (OJ C 191, 23.6.1997, p. 1).

[48] Second recital of Regulations Nos 1073/99 and 1074/99.

On the expenditure side, this basically means expenditure managed by the Member States subsidies paid for the purposes of agricultural guarantees [49] and structural operations. [50] Secondly, there is the expenditure directly managed by the Communities. [51]

[49] European Agricultural Guidance and Guarantee Fund, Guarantee Section

[50] European Social Fund, European Regional Development Fund, European Agricultural Guidance and Guarantee Fund - Guidance Section, Financial Instrument for Fisheries Guidance, Cohesion Fund.

[51] Policies in a variety of fields such as training, youth, culture, information, energy, environment, internal market, trans-European networks, research, external activities, etc.

An example of a case with an internal component: diversion of funds intended for external aid programmes

Following suspicions regarding the final destination of humanitarian aid under four contracts awarded by the Humanitarian Office (ECHO), UCLAF conducted an administrative investigation. [52] One of the contracts concerned the African Great Lakes Region, and the other three concerned the former Yugoslavia, in the period from 1993 to 1995. The funds allocated to company X responsible for their performance and to offshore companies linked to it totalled ECU 2.4 million.

[52] This example has already been published. European Commission, Protection of the Communities' financial interests and the fight against fraud, annual report 1999, COM(1999) 590, point 2.2.5.2.

Initial checks in Member States A and B in 1997 revealed that part of the funds had been used to illegally finance external personnel working for the Commission in its premises and elsewhere.

An inspection mission in ex-Yugoslavia in 1998 revealed that the three contracts concerning that region had not actually been performed and that neither the scheduled staff nor the equipment has been deployed for the purposes indicated.

Disciplinary measures were taken against several Community officials for receiving payments from companies directly involved in the case where work contracted for was wholly or partly unperformed. The penalties ranged from downgrading to dismissal with part-loss of pension rights.

Although attempts were made to reconstitute the relevant expenditure, the resources deployed in the administrative investigation were inadequate to ascertain where all the money went. For example, an on-the-spot inspection into company X in Member State B on the basis of Regulation No 2185/96 in 1998 revealed no accounting records to justify the amounts paid under the contracts.

Such facts as were likely to be used as a basis for criminal proceedings were transmitted to the national prosecution authorities in Member State A and C. Court proceedings are still in motion at the time of writing.

On the resources side, this means first, revenue from duties in respect of trade with non-member countries in the framework of the common agricultural policy and contributions provided for under the common organisation of the markets in sugar, [53] and second, customs duties in respect of trade with third countries. The Prosecution Service's responsibility should also extend to revenue from the application of a uniform rate to the Member States' VAT bases, especially in transnational cases which are found to be particularly worthwhile treating at Community level. But the European Public Prosecutor would not have jurisdiction for revenue from the application of a uniform rate to the total GNP of Member States.

[53] The first two categories of own resource mentioned in Article 2(1) of Council Decision 94/728/EC, Euratom of 31 October 1994 on the system of the European Communities' own resources.

An example of an external case: VAT fraud

Apart from certain routine types of fraud (taxes evaded on sales or unjustly deducted on fictitious purchases), there is a form of fraud linked to the Community's current transitional system of value added tax (VAT) based on the principle of taxation in the country of destination. These fraudulent transactions are based on carrousels of goods and letter-box companies formed for short periods only. Criminal organisations have set up fictitious transactions to enjoy the benefit of the rules allowing VAT exemption for intra-Community deliveries and favourable exemption rules for exports. The idea here was to use false declarations as a means of obtaining refunds of VAT that was never paid in the first place.

The international VAT fraud techniques are well known. But it is very difficult in practice for a single national authority to detect cases as the accounting situation in any one Member State taken in isolation will always appear to be in order. Most Member States acknowledge that international VAT fraud is a major problem, even if national VAT fraud is currently more significant in terms of total revenue lost than international VAT fraud. International fraud particularly affects high value added products that are easy to transport quickly (for example: computer components, mobile telephones, precious metals).

The current difficulties

VAT fraud cases are by no means all identified in time or, therefore, being dealt with properly. OLAF can handle coordination only if the relevant national authorities specifically ask it to on a case-by-case basis. [54] Cases of this type are often dropped because of the transnational investigation and coordination efforts required at European level. Even with Eurojust, coordination may not be enough as Eurojust will not be systematically involved. [55] The comprehensive information available to the European Public Prosecutor and the priority enjoyed by the case before him would enable cases to be handled on a more systematic basis.

[54] COM(1999)590, point 2.3.

[55] See below, Section 7.2.1 (Eurojust).

Here, cooperation between OLAF and the judicial authorities in certain Member States has been stepped up to make it easier to gather the evidence needed to commence court actions. But the European Public Prosecutor would be useful in terms of the link that he could establish between judicial and administrative (in particular tax) authorities. No national judicial authority can work direct with all the Member States' tax authorities as the European Public Prosecutor could.

Thus defined, the financial interests of the Communities require an effective protection mechanism in the criminal law. With the European Prosecutor, the Commission proposes to establish a new instrument in order to permit the Community to assume effectively one of the most demanding of its responsibilities in an area where the scope of its activity is well defined.

3.2. Towards a common investigation and prosecution area

The idea of a European Prosecutor arose from the need to resolve the now unjustifiable contradiction between the fragmentation of Community territory into seventeen different national criminal-law enforcement areas and the serious attacks on shared, specifically Community, interests.

The Commission proposes that the European Prosecution Service exercise the powers that may be conferred on it throughout the entire territory of the Communities as defined in Article 299 of the EC Treaty.

In this territory, the European Public Prosecutor would act in a common investigation and prosecution area, since his acts would have the same value in all the Member States. That is the minimum condition for the European Public Prosecutor to be able to operate. Constituting this common area represents a qualitative leap forward from mere coordination between fragmented national areas.

Looking beyond this vital first step, the substance of the common area could depend on the options presented in this Green Paper. Its content will be determined by the degree of harmonisation of the procedure, in particular as regards investigation measures and the admissibility of evidence.

3.2.1. The powers of the European Public Prosecutor: centralised direction of investigation and enforcement

Specialised in the protection of the Community's financial interests but with jurisdiction for the entire territory of the European Communities, the European Prosecutor should be provided with a coherent set of powers. Before going into detail below on possible procedures, a general outline should be given of the Prosecutor's role. [56] Outline procedures are set out in an annex. [57]

[56] Point 6 looks at these powers from a procedural point of view.

[57] See Annex 2.

What is novel about the proposal is that it would place in the hands of a Community body the centralised management of investigation and prosecution in a common area. At the preparatory and trial stages, acts done by the European Public Prosecutor would be valid throughout that area. But the trial stage would remain entirely in national hands. The establishment of the European Public Prosecutor is without prejudice to deepening general judicial cooperation and to the Community-level prevention of international financial crime.

* The European Public Prosecutor would gather all the evidence for and against the accused, so that proceedings can be commenced where appropriate against the perpetrators of common offences defined in order to protect the Community's financial interests. [58] He should also be responsible for directing and coordinating prosecutions. [59] The European Public Prosecutor would have specialised jurisdiction, prevailing over the jurisdiction of the national enforcement authorities but meshing with them to avoid duplication. [60]

[58] Cf. point 5.1 (substantive law).

[59] This principle is innovatory in the Community context but it is already accepted in the international legal order. The Statute of the International Criminal Tribunal, adopted in Rome on 17.7.1998, provides for an International Prosecutor with investigative powers for the purposes of prosecution in the territory of the Party States. The European Union Member States signed the Convention and the Council states that it wished it to enter into force rapidly (common position of 11.6.2001 concerning the International Criminal Tribunal (OJ L 155, 12.6.2001 p. 19).

[60] Cf. point 6.2.2.2 as regards hybrid cases.

* The European Public Prosecutor would have recourse to existing authorities (police) to actually conduct the investigations but would direct investigation activities in cases concerning him. [61] It would further reinforce the judicial guarantee as regards investigations conducted within the European institutions. [62]

[61] Cf. point 6.2.3.2 (working relations with national investigation services).

[62] Cf. point 7.3 (future role of OLAF) below.

* Action taken under the authority of the European Prosecutor, whenever it could impinge on individual freedoms and basic rights, must be subject to review by the judge performing the office of "judge of freedoms". [63] This review, exercised in a Member State, would be recognised throughout the Community, to allow the execution of authorised acts and the admissibility of evidence gathered in any Member State.

[63] See point 6.4 (guarantee of the involvement of a court).

* The European Prosecutor would have authority, subject to judicial review, to send for trial in the national courts the perpetrators of the offences being prosecuted. [64]

[64] Cf. point 6.3.1 (choice of State of trial).

* When cases come to trial the Prosecutor must prosecute cases in the national courts, in order to defend the financial interests of the Communities. The Commission considers it essential that the trial stage remain in national hands. There is no question of creating a Community court to hear cases on the merits. [65]

[65] Cf. point 6.3.2 (prosecutions).

3.2.2. A harmonious relationship with national systems of criminal law

The national legal systems are the foundation of the structure of criminal law providing protection against cross-border crime, and they will continue to be indispensable. The proposal to establish a European Public Prosecutor aims simply to plug a specific gap. There is no plan to create a full and autonomous Community system of criminal law.

Instead, the proposal seeks to create a supplementary mechanism that would be in a harmonious relationship with national criminal justice systems by appointing Deputy European Public Prosecutors in the Member States (see next Chapter). Its ambition is to put the national courts in a position where they can actually try cases concerning transnational crime in an area where Community integration (common funds, own resources) is making isolated attempts at enforcement more and more futile. The national courts acting as courts of Community law would apply to this category of offences the same rules incorporated into the national legal order as they already apply rules of Community law in all areas where the EC Treaty operates.

But centralising the management of proceedings does not entail major changes to national systems. For several decades now there has been a trend for the various legal traditions on Europe to converge. Investigation and prosecution functions correspond to common needs and exist in all Member States. Their structures vary but have none the less tended to come closer. There are many causes for this, but the convergence is in large measure due to the fact that the Member States have accepted the fair trial provisions of the European Human Rights Convention. This is borne out by the work done by the experts representing the national systems of criminal law, in both the continental and the common law traditions. [66]The proposal aims solely to make national judicial systems more effective in an area that is now of intrinsically common concern. The European Prosecutor, then, would not so much involve a transfer of existing powers as an allocation to a particular body of national powers held in common.

[66] Cf. The implementation of the Corpus juris in the Member States, op. Cit., Vol. 1, p. 42: "The result of this evolution is that, from the legal point of view, the national systems in force in Europe have become more compatible than they were previously. ... This change makes a system based on synthesis possible in the shape of a European Public Prosecutor. The European Public Prosecutor respects the principle of public prosecution (from the inquisitorial tradition) but excludes the juge d'instruction, preferring a "judge of freedoms", to provide judicial guarantees in an impartial and neutral manner ( in the spirit of the accusatorial tradition)."

General Question What do you think of the general outline proposed for the European Public Prosecutor, in particular as regards:

his scope of action (confined to the financial dimension of Community interests)*

his powers*

his relationship with national systems of criminal law*

4. Legal status and internal organisation

The possible status and internal organisation of the European Public Prosecutor are worth outlining here. The expression "European Public Prosecutor" may be used here to refer either to the proposed body or to the person heading it (point 4.1). In the former case, it is synonymous with the European Prosecution Service, including its administrative staff (point 4.3); in the latter case, it includes the Deputy European Public Prosecutors (point 4.2).

4.1. Status of the European Public Prosecutor

The European Public Prosecutor would be a law officer exercising judicial functions, and the rules governing his office, and especially the mechanisms for his appointment and removal from office, should give him full legitimacy to perform these duties.

4.1.1. Principle of independence

The Commission has proposed that a provision inspired by those providing for the independence of the Members of the Court of Justice be inserted into the Treaty, stating that "The European Public Prosecutor shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries." In the performance of his duties, he shall neither seek nor take any instructions." [67]

[67] Paragraph 2 of the draft Article 280a.

This independence is an essential feature of the European Public Prosecutor. It is warranted by the fact that the European Public Prosecutor would be a specialised judicial body. He should be independent both of the parties to any dispute in the context of adversarial proceedings [68] and of the Member States and the Community institutions and bodies.

[68] Cf. point 6.2.1 (general principles of the preparatory stage).

The Prosecutor should possess and should be seen to possess all the powers his office requires. He should perform his duties impartially, being guided only by a concern to see the law applied.

4.1.2. Conditions for appointment and removal from office

The method of appointing the European Public Prosecutor, and if necessary removing him from office, ought to reflect the principles of independence and legitimacy.

4.1.2.1. Appointment of the European Public Prosecutor

The Commission has proposed that the Prosecutor, meaning for present purposes the person heading the European Prosecution Service, should be appointed by the Council acting by qualified majority, on a proposal from the Commission, and with the assent of Parliament. [69] This procedure takes over certain features of the procedure laid down by the Treaty of Nice for the appointment of the Commission (qualified majority in the Council, vote by the European Parliament). It would ensure the total legitimacy of the European Public Prosecutor.

[69] Paragraph 1 of the draft Article 280a.

The role of nominating the European Public Prosecutor given to the Commission would proceed from its special responsibility for protecting Community financial interests.

The Commission is proposing that the Prosecutor's term of office should be six years non-renewable. [70] The Prosecutor's term would thus be a long one, longer than that of a European Parliament or a Commission. The fact that his term could not be renewed would be a very strong safeguard of his independence. [71]

[70] Paragraph 1 of the draft Article 280a.

[71] For the same reasons, the prosecutor at the future International Criminal Court is to have a term of nine years non-renewable (Article 42 of the Statute of the International Criminal Court).

There is also the question whether the European Public Prosecutor should be subject to the Staff Regulations of Officials of the European Communities.

4.1.2.2. Removal from office and other grounds for cessation of functions by the European Public Prosecutor

The Commission proposes that the European Public Prosecutor should answer for his acts in the event of serious misconduct in the exercise of his functions. In the Commission's view the disciplinary mechanism for removing the Prosecutor from office should, however, reflect the principle of his independence. A decision of this kind can be taken only by a Community-level court of law, meaning the Court of Justice of the European Communities.

The draft Article 280a of the EC Treaty provides that "The Court of Justice may, on application by the European Parliament, the Council or the Commission, remove him from office if he no longer fulfils the conditions required for the performance of his duties or if he is guilty of serious misconduct." [72]

[72] Paragraph 2 of the draft Article 280a.

The general rules applying to the European Public Prosecutor should make provision for three other cases in which the European Public Prosecutor ceases to perform his functions: death, resignation and expiry of his term of office.

4.1.3. Hierarchical role of the European Public Prosecutor

The European Public Prosecutor as head of the European Prosecution Service would be responsible for directing and coordinating investigation and prosecution activities for all offences within his jurisdiction throughout the common territory defined for the purpose.

This responsibility should be accompanied by powers over the internal organisation of his service, powers of investigation, powers over the delegated Prosecutors, and power to define guidelines in relation to criminal procedure, within limits set by the Community legislature. [73]

[73] Cf. point 6.2.2.1 (mandatory or discretionary prosecution).

4.2. Decentralised organisation of the European Prosecution Service

The overall architecture of the prosecution service proposed by the Commission is based on a division of tasks between a chief European Public Prosecutor, who would provide the minimum degree of centralisation necessary at Community level, and Deputy Prosecutors, who would be integrated into the national justice systems and who would actually bring offences to trial.

4.2.1. Principle of decentralised Deputy European Public Prosecutors

In the spirit of the subsidiarity principle, the Commission is proposing that the organisation of the European Public Prosecutor should be decentralised to guarantee integration into the national legal systems without upheavals for them. The European Public Prosecutor would rely on Deputy European Public Prosecutors in the Member States, so as to secure the link between the Community mechanism and the national systems of justice. [74]

[74] COM(2000) 608.

4.2.1.1. General rules applying to Deputy European Public Prosecutors

Depending on the volume of cases to be handled and the internal court organisation of the Member States, one or more Deputy European Public Prosecutors could be appointed in each Member State. The Deputy Prosecutors would be appointed by the chief Prosecutor; candidates would be nominated by their Member State of origin, from among national officials who conduct criminal prosecutions in the particular Member State and who can therefore claim relevant experience. Depending on the Member State these might be public prosecutors in the domestic system, who may or may not be qualified judges, or, in countries where an office of this kind is unknown, officials or civil servants who have been performing these duties.

The Commission does not necessarily envisage that the Deputy Prosecutors should have autonomous status. They could retain their national status in all respects regarding recruitment, appointment, advancement, remuneration, social protection, routine management, etc. Their hierarchical and disciplinary status would alone be affected for the duration of their term of office, as set out below. This would be the solution having the least in the way of implications for the law of the Member States. In any event the rules applicable to the Deputy European Public Prosecutors should be reviewed in close cooperation with the Member States, particularly in order to secure a genuine assurance of independence.

Deputy European Public Prosecutors would be designated for a specified period. Unlike the European Public Prosecutor, this term of office could be renewable, to take account of the pool available for recruitment in the Member States. This would also allow appointees to acquire a degree of specialisation in the field of the Community's financial interests while retaining their practical up-to-date familiarity with the national system.

Could this European office be combined with a domestic one* There are several options.

The first is that a Deputy European Public Prosecutor might be excluded from holding any other office. The effect would be to make them into veritable specialists. The object would be to prevent conflicts of interest and priorities in criminal policy, and ensure that the effect of the prosecutors' work was not diluted.

Secondly, the office of Deputy European Public Prosecutor might be simply a specialisation ("two hats"). Deputy Prosecutors would have a duty to prosecute unlawful conduct harmful to the financial interests of the Community, and in the second place would continue their ordinary work, which would include the prosecution of crime. The Community interest should prevail in the event of a conflict of interests. This solution has the advantage of facilitating the processing of hybrid cases in which both Community and national interests are at stake (see below). [75]

[75] Cf. point 6.2.2.2 (hybrid cases).

Third option: leave each Member State free to opt between the first two options.

The disciplinary liability of Deputy European Public Prosecutors in or in connection with the exercise of their European function should be before the Court of Justice, for the sake of symmetry with the rules for the European Public Prosecutor himself. [76] As the Head of the European Prosecution Service, he would have a role to play in the disciplinary procedure. The heaviest disciplinary penalty for a Deputy European Public Prosecutor would be loss of his European function.

[76] Cf. point 4.1.2.2 (removal of European Public Prosecutor from office).

If Deputy European Public Prosecutors were to be able to hold two functions, they would remain liable in disciplinary matters as regards their national function, subject to sound guarantees of their independence. The relationship between the effects of the two disciplinary procedures must therefore be considered. Loss of the European function would have no impact under Community law on the Deputy European Public Prosecutor's national status. But in the event of national disqualification, the Deputy European Public Prosecutor would no longer meet one of the requirements for European office, and would therefore lose it automatically.

4.2.1.2. Role of Deputy European Public Prosecutors

The Deputy Prosecutors would have a vital role to play: anything the chief Prosecutor could do he could delegate to his Deputies. In practice they would be the channel through which he acted, because in most cases it would be a Deputy Prosecutor who would actually handle investigations or prosecutions.

Each Deputy Prosecutor would in the ordinary course of events act within his own Member State. But any Deputy Prosecutor might be authorised by the European Public Prosecutor to take action in any other Member State, in cooperation with the Deputy Prosecutor for that jurisdiction. Deputy Prosecutors would have a duty to assist one another.

Decentralisation of this kind is in line with the thinking that has governed the establishment of judicial networks between the Member States (liaison magistrates, the European judicial network, etc.). [77] No separate Community system would be introduced: the mechanism proposed is based essentially on the capacities of the Member States in the spirit of Community integration.

[77] Cf. point 7.2 (institutional actors in the European Union).

4.2.2. Subordination to the chief European Prosecutor

For obvious reasons of consistency and unity, however, the European Public Prosecutor should be hierarchical. At the top, the European Prosecutor would be responsible for directing and coordinating the work of the Deputy Prosecutors as investigations and prosecutions progressed. The Deputy Prosecutors, for the duration of their term of office, would be subordinate to the European Public Prosecutor on an exclusive or non-exclusive basis, depending on the option selected, and would be bound by his instructions in both general and specific matters. In any event they would be banned from receiving any instructions from their national authorities in any matter concerning the protection of the Community's financial interests.

The Commission takes the view that the European Public Prosecutor should be governed by a principle of indivisibility of the kind that applies to prosecutors inside a single country, meaning that any act done by a Deputy Prosecutor would commit the whole organisation. Every Deputy Prosecutor would have the appropriate powers delegated to him by the chief Prosecutor. Under the supervision of the European Public Prosecutor, therefore, one European Prosecutor should be able to replace any other in law.

Question 1 What are your views on the proposed structure and internal organisation of the European Public Prosecutor* Should the European function conferred on the Deputy European Public Prosecutor be an exclusive function or could it be combined with a national function*

4.3. Means of action of the European Prosecution Service

It would then be for Community secondary legislation to determine the rules governing the European Public Prosecutor, and particularly the more practical aspects (location, budget, staffing and so on); such legislation would be adopted in accordance with Article 251 of the EC Treaty, that is to say by qualified majority in Council and codecision with Parliament.

The European Public Prosecutor being organised on a decentralised basis, the structure of the headquarters of the new body to be set up should be the simplest compatible with sound operation. The European Public Prosecutor's own staff would be small compared to the staffs of the Deputy Prosecutors, which would account for the bulk of the human and material resources needed. Synergy with existing national structures should contribute to the efficiency of the whole.

The European Public Prosecutor would have full authority over the management of human and operational resources at his headquarters. He should be assisted by one or more Deputies for these purposes. [78]

[78] Note for comparison purposes that the staff of the Prosecutor at the International Criminal Court will be recruited, appointed and managed by the Prosecutor, assisted by one or more Deputy Prosecutors (Articles 42 and 44 of the Court's Statute).

The European Public Prosecutor should have his own budget, charged to the general budget of the European Communities. This budget would be managed on a totally independent basis by the European Public Prosecutor in accordance with the rules of the Treaty and the financial legislation implementing them. Each Deputy European Public Prosecutor would remain subject to national rules and be remunerated by the Member State. But if there are extra operational costs for the Member States as a result of the European Prosecution Service, they could be charged to the European Public Prosecutor's budget.

The European Prosecution Service's staff could be recruited, appointed and managed by the chief prosecutor, in the case of headquarters staff, and, in the case of decentralised staff, by the Member State in accordance with its own rules. Th European Public Prosecutor's own powers in staff matters should be exercised in compliance with the relevant Community rules, in particular the Staff Regulations.

The chief prosecutor can be expected to establish his headquarters in accordance with the procedure for Community bodies, but the deputy prosecutors, at the discretion of the Member States, would be based in their respective national or regional capitals, or in any other place that might be better suited to the performance of their duties, taking account of the location of the national courts in which they would have to plead.

5. Substantive criminal law

The Commission has proposed a provision in the EC Treaty that the Council, in codecision with the European Parliament, "shall lay down the general conditions governing the performance of the functions of the European Public Prosecutor and shall adopt, in particular: (a) rules defining the facts constituting criminal offences relating to fraud and any other illegal activity prejudicial to the Community's financial interests and the penalties incurred for each of them;...".

There is a need for specific rules relating to the definition of these offences (point 5.2) and the corresponding penalties (point 5.3). The utility of providing for more general substantive rules to assist the European Public Prosecutor in his function, governing matters such as criminal liability (point 5.4) or limitation periods (point 5.5) will have to be considered in the light of the acquis. The question of the most suitable legislative technique arises for each of these areas (point 5.1).

5.1. Choice of legislative technique: Community unification or harmonisation of national legislation

The Commission is of the opinion that establishing a common investigation and prosecution area relating specifically to the protection of the Community's financial interests does not necessitate the general codification of the Member States' criminal law.

To operate effectively the European Public Prosecutor will need a set of substantive rules like those applied by national enforcement authorities.

In theory, different techniques could be combined to define such rules:

- reference to the Member States' domestic law purely and simply (with no harmonisation);

- harmonisation of part of the national law, to an extent to be determined, with reference for the rest to the national law;

- total harmonisation of certain national provisions, the Community rules then superseding the national rules;

- unification, meaning the creation of a corpus of autonomous Community law, separate from the law of the Member States.

In practice, the acquis regarding criminal protection of the Community's financial interests so far has followed the harmonisation technique, in varying degrees depending on the area. That is the technique underlying both the Convention of 26 July 1995 and its Protocols and the proposal for a Directive of 23 May 2001.

Looking further, the question of the choice of the most suitable method of establishing the common substantive law needed if the European Public Prosecutor is to operate effectively arises repeatedly in this Green Paper.

In general terms there are two distinct approaches that must be reconciled. The first is total harmonisation or unification. The European Public Prosecutor will find it much easier to act if the substantive law is harmonised or unified. Total harmonisation or unification of the law would ensure by definition that equivalence of protection throughout the Community that the EC Treaty demands. Lastly, as far as litigants are concerned, this approach would help to establish greater certainty as to the law and simplify access to the relevant rules. But it is legitimate only if it is in proportion to the specific objective pursued: the criminal protection of the Community's financial interests. It will be all the easier to imagine if it applies in matters within the specific jurisdiction of the European Public Prosecutor, such as the definition of the components of offences or the corresponding limitation periods.

The second approach is the reference wholly or partly to national law. This would seem to be the most suitable method for determining general rules in matters going beyond the protection of the Community's financial interests, despite the diversity that it inevitably preserves in terms of the objective of attaining equivalent protection throughout the Community. The national legal orders will be all the less affected as the European Public Prosecutor will have to take account of each of them, depending on the Member State in which he acts.

The sought-for reconciliation between these two approaches entails finding an answer in every area of the substantive law to two questions: what rules should be unified or harmonised* And, in the latter case, how far should the harmonisation go* These are the questions addressed in the next few sections.

The authors of the Corpus juris proposed a higher level of harmonisation of the general criminal law. But the Commission considers that such harmonisation must be proportionate to the specific objective of the criminal protection of the Community's financial interests and proceed on a variable degree of intensity depending on the areas concerned (see points 5.2 to 5.5).

And it must be borne in mind in all that follows that the European Public Prosecutor must be part of an evolving dynamic. For one thing the Commission in this Green Paper is concerned to launch a debate on the minimum needed for the European Public Prosecutor to be able to operate effectively. Once the Prosecutor has been established on the basis of a sufficient set of common rules and principles, after the time needed to adopt the requisite basis and legal framework, experience will show whether it is necessary to amplify the minimum needed for him to operate.

The diversity of the national systems of criminal law should show a tendency to become less pronounced as progress is made in the broader context of the area of freedom, security and justice, with the spin-off that the European Public Prosecutor's job will become all the easier. The trust placed by the Commission in the harmonisation technique is based on this: the specific harmonisation proposed for the European Public Prosecutor will be amplified by a general evolution of his legal environment, guided by the principle of mutual recognition.

5.2. Common definitions of offences

For the definition of these offences, the Commission could prefer a high degree of harmonisation corresponding to a level of precision no less than that of its proposal for a Directive of 23 May 2001.

The effect of the principle of legality is that the prosecutor can be responsible for proceeding against only certain very clearly defined offences. If there is to be a prosecution service with jurisdiction throughout the Community, a common definition of the offences is therefore clearly an essential condition for its operation.

In accordance with the principle of speciality applied to the European Public Prosecutor, even if other offence could be envisaged (point 5.2.3), these common offences should focus on the protection of the Community's financial interests. There is already an agreement between the Member States on certain offences (point 5.2.1). Others might be envisaged (point 5.1.2), based on, among other things, the Corpus Juris.

5.2.1. Offences for the protection of the Community's financial interests, on which the Member States are already in agreement

There is already substantial agreement among Member States on the content of what may become the nucleus of a special criminal law in this field. The provisions on substantive criminal law of the Brussels Convention of 26 July 1995 on the protection of the financial interests of the European Communities and its additional protocols, [79] which have been wholly incorporated in the proposal for a Directive of 23 May 2001, [80] are an unavoidable point of reference when it comes to defining the offences which might fall within the jurisdiction of the European Prosecutor. They are fraud, corruption and money-laundering in connection with those offences.

[79] OJ C 316, 27.11.95, p. 48; OJ C 313, 23.10.1996, p. 1; OJ C 221, 19.7.1997, p. 11; OJ C 151 20.5.1997, p. 1. See also the explanatory reports on the Convention (OJ C 191, 23.6.1997, p. 1) and the Second Protocol (OJ C 91, 31.3.1999, p. 8).

[80] COM(2001) 272, referred to above.

5.2.1.1. Fraud

Article 3 of the proposal, which reproduces the terms of Article 1 of the Convention of 26 July 1995, defines fraud affecting the Community's financial interests, in respect of expenditure, as "any intentional act or omission relating to the use or presentation of false, incorrect or incomplete statements or documents which has as its effect the misappropriation or wrongful retention of funds from the general budget of the Community or budgets managed by, or on behalf of, the Community, non-disclosure of information in violation of a specific obligation, with the same effect, [or] the misuse of such funds for purposes other than those for which they were originally granted".

The same instruments define fraud affecting the Community's financial interests, in respect of revenue, as "any intentional act or omission relating to the use or presentation of false, incorrect or incomplete statements or documents which has the effect of unlawfully reducing the resources of the general budget of the Community or budgets managed by, or on behalf of, the Community".

Such acts must be punishable either as a principal offence or as participation in, instigation of, or an attempt to commit, fraud.

Beyond this potential acquis, the definition might be unified (expenditure and revenue) and broadened. Along the lines of the Corpus Juris's proposal, a single definition of fraud might be adopted irrespective of the subject-matter, be it Community expenditure or revenue. [81] The effect of the fraud might be extended to include the endangering of the Community's financial interests so as not to make the successful outcome of the fraudulent act a precondition for its prosecution. The element of intention might be supplemented by the taking into account of cases of gross negligence.

[81] Article 1 of the Corpus juris.

5.2.1.2. Corruption

According to Article 4(1) of the proposal for a Directive, which reproduces the terms of Article 2 of the Protocol of 27 September 1996 to the 1995 Convention, [82] passive corruption consists of "the deliberate act on the part of an official, whether directly or through an intermediary, of requesting or receiving advantages of any kind whatsoever, for themselves or for a third party, or accepting a promise of such an advantage, as inducement for them to breach their official obligations and carry out or refrain from carrying out an official duty or an act in the course of their official duties in a way that damages or is likely to damage the Community's financial interests".

[82] The concept of civil servant (official) is defined in Article 2 of the proposal for a Directive, taking over the definition in Article 1 of the 27 September 1996 Protocol to the 1995 Convention.

Active corruption is for its part defined in Article 4(2) of the proposal for a Directive, which reproduces the terms of Article 3 of