Follow-up report on the Green Paper on the criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor
Date: 2003-03-19
Institutions: European Commission
Subjects: EU body, European judicial area, area of freedom, security and justice, criminal law, fight against crime, fraud against the EU, institutional reform

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 19.3.2003
COM(2003) 128 final

FOLLOW-UP REPORT

on the Green Paper
 on the criminal-law protection of the financial interests of the Community and the
establishment of a European Prosecutor

(presented by the Commission)

TABLE OF CONTENTS

1.

INTRODUCTION ............................................................................................................ 3

The aim of the Green Paper ......................................................................................... 3

Method of consultation ................................................................................................ 3

2.

GENERAL EVALUATION ............................................................................................... 4

2.1.

General overview of public consultation on the Green Paper...................................... 4

2.1.1. General overview of the written replies to the Green Paper ........................................ 5

2.1.2. Overview of the opinions expressed at the public hearing .......................................... 5

2.2.

The value added by the European Prosecutor .............................................................. 7

2.2.1. Assessment of an effective criminal-law prosecution of Community fraud................ 7

2.2.2. Criteria for evaluating the added value of a European Prosecutor............................... 9

3.

SUBJECT-BASED EVALUATION................................................................................... 10

3.1.

Institutional affairs ..................................................................................................... 10

3.1.1.

Status and organisation .............................................................................................. 10

3.1.2. Relationship with Europol, Eurojust and OLAF........................................................ 11

3.1.3. Relations with non-member countries ....................................................................... 12

3.2.

Legal questions .......................................................................................................... 12

3.2.1.

Substantive criminal law............................................................................................ 13

4.

4.1.

4.2.

4.3.

FOLLOW-UP ............................................................................................................... 19

Political follow-up to Green Paper............................................................................. 19

Institutional reform .................................................................................................... 20

Detailed examination of questions concerning the implementation of the Prosecutor21

2

1. 

INTRODUCTION

The need to prosecute perpetrators of  crime 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  (the  European  prosecutor)  to  remedy  the
fragmentary nature of the European criminal-law enforcement area.1

The aim of the Green Paper

This project  requires  a  revision  of  the  EC  Treaty.  When  the  Heads  of  State  or  Government
met in Nice in December 2000, they failed to follow up this idea owing to a lack of time and
detailed study. This is why, in line with its Action Plan for 2001-2003 for the protection of the
Community's financial interests,2 the Commission organised a wide-ranging debate in Europe
on this subject throughout 2002.

In  the  Commission’s  view,  the  Green  Paper  on  criminal-law  protection  of  the  financial
interests  of  the  Community  and  the  establishment  of  a  European  Prosecutor,3  which  was
adopted on 11 December 2001, had two objectives: to clarify ideas and throw up options and
preferences regarding ways of implementing the original proposal, and to open the debate to
all circles concerned on the eve of enlargement and in view of the forthcoming constitutional
review of the Treaties.

The Commission’s contribution to the 2000 Intergovernmental Conference already proposed
incorporating  the  essential  characteristics  of  the  European  Prosecutor  (appointment,
resignation,  independence  and  mission).  It  argued  that  the  rules  governing  his  status  and
operation could be left for secondary legislation, which would define offences at Community
level  (fraud,  corruption,  money-laundering,  etc.)  and  the  penalties  for  committing  acts  that
harm  the  Community’s  financial  interest.  It  should  determine  the  relationship  between  the
new Community system and national criminal-law systems, cover the question of referral to
the  European  Prosecutor  and  his  powers  with  regard  to  investigations  and  prosecution  in
relation  to  national  systems  and  make  provision  for  judicial  control  of  the  European
Prosecutor’s actions.

Method of consultation

Public  consultation  on  the  Green  Paper,  which  focused  mainly  on  possible  secondary
legislation, lived up to expectations. A real broad and open debate was launched in Europe. In
terms both of number and quality, the reactions and discussions generated by the Green Paper
are  evidence  of  the  variety  and  liveliness  of  the  consultation.  All  circles  affected  made
contributions. They included national parliaments  and  governments,  Community institutions
and  bodies,  professions  involved  in  criminal  proceedings,  practitioners  and  the  academic
world and non-governmental organisations affected, all of which responded to some or all of
the 19 questions that make up the Green Paper.4

1 COM(2000)34;  additional  Commission  contribution  to  the  Intergovernmental  Conference  on  institutional
reforms  -  The  criminal  protection  of  the  Community’s  financial  interests:  A  European  Prosecutor,
29.09.2000, COM(2000)608.

2 COM(2000)254.
3 COM (2001) 715; http://www.europa.eu.int/anti_fraud/green_paper/index_en.html.
4

In view of the flood of replies received it was decided to extend the deadline for consultation from 1.6.2002
to 1.12.2002. In fact, comments can still be submitted to the following address: olaf-livre-vert@cec.eu.int

3

                                                
Over  12  500  copies  of  the  Green  Paper  were  circulated.  More  than  70  written  replies  were
received, some from individuals but mostly from groups. To maximise the transparency of the
consultation  they  were  made  available  on  the  Internet.5  Coming  from  different  Member
States, candidate countries and professions, these responses made a major contribution to the
debate, in terms of both critical analysis and constructive suggestions. Governments,6 national
parliaments,7 and numerous representatives of judicial authorities8 stated their positions on the
project.  Furthermore,  a  number  of  lawyers’  associations,9  national  governing  bodies  of
lawyers,10  groups  of  European  legal  experts11 and  non-governmental  organisations  active  in
the field of financial crime and the protection of people’s rights12 also expressed their views
on  the  creation  of  a  European  Prosecutor.  The  subject  has  also  been  studied  in  depth  by
universities,  most  notably  at  certain  renowned  Centres  for  Legal  and  Judicial  Research  in
Europe.13

Since  the  Green  Paper  was  adopted,  the  Commission  has  also  taken  part  in  some  twenty
national  seminars  or  international  conferences  on  the  subject  of  the  European  Prosecutor  in
the current and prospective Member States. On 16 and 17 September 2002, it also organised a
public  hearing  with  representatives  of  the  circles  concerned,  which  brought  together  three
hundred  participants  with  a  representative  panel  of  about  a  hundred  speakers.  Their
contributions  were  also  published  on  the  abovementioned  website  in  an  attempt  to  reach  a
wider audience.14

The follow-up report

This process generated hundreds of written and oral responses to the Green Paper. This report
summarises the opinions expressed in them with a view to the  constitutional revision of the
Treaties.  It  consists  of  a  general  evaluation,  followed  by  an  evaluation  of  the  responses
received  by  subject  area.  The  first  part  deals  with  views  on  the  need  to  create  a  European
Prosecutor, reaffirming and detailing the Public Prosecutor’s added value (2). The second half
focuses on institutional and legal questions that will need to be addressed in greater depth to
make it easier to achieve the objective (3).

2. 

GENERAL EVALUATION

2.1. 

General overview of public consultation on the Green Paper

Reactions varied  greatly. While there  was some criticism,  much  of  it  constructive,  all  those
taking part in the debate appreciated the quality of the Green Paper and welcomed the attempt
to conduct a broad-based consultation.

5

http://europa.eu.int/comm/anti_fraud/green_paper/contributions/date.html.  The  complete  list  of  responses
received by 1.12.2002, which were published and evaluated by the Commission, can be found in Annex 1.

6 See written replies 15, 17, 20bis, 30, 43, 45, 61 and 65. The numbers refer to the list in Annex 1.
7 See written replies 5, 38 and 71.
8 See written replies 11, 21, 23, 27, 28, 29, 44, 67, 68, 69 and 72.
9 See written replies 55 and 57.
10 See written replies 19 and 66.
11 See written replies 1bis, 3, 4, 10, 14, 35, 40, 41, 58 and 62.
12 See written replies 2, 34 and 70.
13 See written replies 6, 25, 31, 32 and 33.
14 http://www.europa.eu.int/comm/anti_fraud/green_paper/public_hearing/index_en.html

4

                                                
Most of the reactions were basically in favour of the establishment of a European Prosecutor,
that  practitioners  and
with  government  bodies  more  cautious  about 
representatives from civil society. A minority remains strongly opposed. Reactions regarding
the way the project was to be realised, however, varied quite considerably. A clearer picture
can  be  obtained  by  looking  at  the  separate  sources,  namely  the  contributions  at  the  public
hearing, which provides a comprehensive overview of opinion, and the written replies to the
Green Paper, which are as a rule far more detailed.15

this  question 

2.1.1.  General overview of the written replies to the Green Paper

An analysis of the replies to the questionnaire produced the following general findings.

(cid:1)  There  is  a  clear  majority  in  favour  of  establishing  a  European  Prosecutor.16
However,  this  majority  made  a  series  of  criticisms  and  suggestions  aimed  at
improving the legal framework proposed by the Commission.

(cid:1)  While  not  excluding  the  possibility  of  establishing  a  European  Prosecutor,  a
minority  remained  fairly  sceptical  about  the  advisability  and  feasibility  of  doing
so in the foreseeable future.

(cid:1)  Lastly, a small minority categorically rejected the idea of establishing a European
Prosecutor,  believing  that  the  instruments  for  judicial  cooperation  currently
available  are  capable  of  offering  adequate  solutions  to  the  problems  of  fraud
damaging the Communities’ financial interests.

While  a  considerable  number  of  representatives  of  judicial  authorities,  associations  of  legal
experts  and  academic  circles  insist  that  there  is  an  urgent  need  to  create  a  European
Prosecutor, several Member States have written that they are not convinced that it would be a
good idea to create a Community institution with criminal-law prerogatives and powers solely
in the field of the fight against fraud.17

2.1.2.  Overview of the opinions expressed at the public hearing

Organised  around  a  representative  panel,18  the  hearing  provided  a  relatively  comprehensive
view of the range of opinions expressed by the three categories of speakers, i.e. speakers from
the institutions, frontline operators and civil society.19

15 For the purposes of analysis, the replies received are considered representative of the categories from which

they come.

16 Of the 72 replies analysed, over 50 were in favour and only 15 opposed.
17 See written replies 15, 30, 43, 45 and 65.
18 See Annex 2. The 105 speakers were divided into three categories. The first consisted of representatives of
the  institutions  that  drew  up  the  legal  framework:  the  Council  Presidency,  the  European  Parliament,  the
Court  of  Justice,  the  Court  of  Auditors,  the  European  Anti-Fraud  Office  (OLAF)  Supervisory  Committee,
Member State ministries, the authors of the Corpus Juris, with the Convention on the future of the European
Union  as  an  observer.  The  second  category  grouped  together  the  operational  bodies  involved  in
“investigations,  prosecution  and  trials”:  Europol,  OLAF,  national  police  or  customs  investigation  services,
Eurojust, the European Judicial Network, national public prosecutors, etc. The third group brought together
representatives of civil society: defence lawyers, taxpayers’ associations, NGOs, criminal-law experts from
national  associations  of  legal  experts  on  the  protection  of  the  financial  interests  of  the  Union  (PFI).  The
candidate countries were also invited to attend as observers.
In  certain  cases,  the  report  takes  account  of  written  contributions  received  later  that  demonstrate  a  certain
change in the position adopted by certain Member States in comparison with the opinions they expressed at
the hearing in September 2002.

19

5

                                                
So  while  the  great  majority  of  the  speakers  representing  the  European  institutions,20
representatives from civil society and a majority of the representatives of frontline operators
voiced their support for  the Commission’s proposal, some  of  the Member  States’  ministries
returned  to  the  question  of  whether  the  specific  area  of  the  protection  of  the  Community’s
financial  interests  justified  a  new  Community  institution  such  as  a  European  Public
Prosecutor.

2.1.2.1.  Positions adopted by representatives of the Member States

The  representatives  of  the  Member  States  ministries  concerned  can  be  divided  into  three
categories:  those  who  support  the  principle  of  establishing  a  European  Prosecutor,21  those
who are simply sceptical about the usefulness or feasibility of the idea,22 and those who reject
the project out of hand.23

Most of  those  opposed  to  the  project  from  the  ministries  and  the  frontline  operators  argued
that the Commission had not provided sufficient justification for its proposal or illustrated the
real  problems  faced  by  those  responsible  for  the  fight  against  Community  fraud.24  Many
government  representatives  also  believed  that  it  would  be  a  good  idea  to  first  examine
alternatives to prosecution before creating a Community criminal-law enforcement service.25
Some26  stressed  the  need  to  give  a  chance  to  the  judicial  and  police  cooperation  bodies
already in place.27

A  number  of  ministries  took  the  view  that  there  were  no  insurmountable  problems  of
feasibility  with  regard  to  establishing  a  European  Prosecutor.28  However,  other  ministries
opposed  to  the  idea  of  a  European  Prosecutor  considered  the  principles  of  subsidiarity  and
proportionality to be significant obstacles.29

Several government representatives, including some from among the ranks of those in favour
of establishing  a  European  Prosecutor,  feared  that  a  Prosecutor  along  the  lines  proposed  by
the Commission could find himself in conflict with their national legal principles30 and might
weaken safeguards protecting fundamental rights31 and legal certainty.32 Consequently many
representatives insisted that further work be done on the Commission proposal to ensure that
it satisfied the effectiveness criterion and fully respected fundamental rights. It should also be
pointed out that several governments, some of which were opposed in principle to the idea of
a  European  Prosecutor,  took  the  view  that  if  a  European  Prosecutor  were  established  some

20 Opinions expressed at the public hearing by representatives of the European Parliament, the Court of Justice,

the Court of Auditors of the European Communities and the OLAF Supervisory Committee.

21 The  ministerial  representatives  from  Belgium,  Greece,  Spain,  the  Netherlands,  Portugal  and,  to  a  certain

extent, Italy.

22 The ministerial representatives from Germany, Luxembourg and Sweden.
23 The  opinions  expressed  at  the  public  hearing  by  the  ministerial  representatives  from  Denmark,  France,

Ireland, Austria, Finland and the United Kingdom.
24 Germany, Ireland, Finland and the United Kingdom.
25 Germany, Ireland, Austria, Finland, Sweden and the United Kingdom.
26 Germany, France, Ireland, Luxembourg, Austria and Sweden.
27 Specifically Eurojust, Europol and the 2000 Convention on Mutual Assistance in Criminal Matters between

Member States of the European Union, OJ C 197, 12.7.2000, p.1.

28 Belgium, Greece, Spain, the Netherlands and Portugal.
29 France, Ireland, Austria and Sweden.
30

Italy, Ireland, Austria, Finland and the United Kingdom. Ireland also pointed out that a European Prosecutor
would be incompatible with its constitution.

31 Greece, Luxembourg, the Netherlands, Austria and Finland.
32 Denmark, Finland and Sweden.

6

                                                
time in the future, his powers set out in the Green Paper would need to be extended to cover
other areas of Community interest.33

2.1.2.2.  The position of the other players

The public hearing showed that the majority of frontline operators support a qualitative step
forward.  To  a  lesser  degree  they  appear  to  be  divided  between  those  who  consider  the
establishment of a European Prosecutor a necessary step towards the construction of an area
of freedom, security  and  justice  within the Union  and a  smaller  number  who  are  convinced
that  the  only  way  forward  is  through  continued  horizontal  judicial  cooperation  and  believe
that the time is not yet right for the creation of a Community institution.

It  is  even  clearer  that  a  very  large  majority  of  representatives  from  civil  society  view  the
establishment of a European Prosecutor with responsibility for prosecuting Community fraud
as a must for the Union. While some consider the Commission’s project too modest to cope
with the challenge posed by serious transnational crime, others fear that it is too ambitious to
be  achievable  in  the  short  term.  Generally  speaking,  many  supporters  of  a  European
Prosecutor also insist on guarantees to safeguard fundamental rights.

2.2. 

The value added by the European Prosecutor

While the majority attending the public hearing welcomed the idea of a European Prosecutor,
there  were  those  who  doubted34  or  contested35  the  value  added  by  the  project.  While
recognising  the  importance  of  the  statistical  analysis  requested  of  the  Commission  on  that
occasion, any complementary demonstration of the practical need for a European Prosecutor
must employ other criteria.

2.2.1.  Assessment of an effective criminal-law prosecution of Community fraud

Representatives  from  some  Member  States  asked  for  the  added  value  of  the  European
Prosecutor to be demonstrated by means of statistics on his potential activity.36 Others went as
far as to argue that there was no added value, pointing out that the fraud committed might be
negligible in some Member States and greater in third countries.37

Firstly, the total volume of fraud has at times been considered insufficient to justify the cost
involved in establishing a new body.38 The Commission cannot share this view. The objective
of law enforcement is not primarily pecuniary. Nonetheless, punishing offences that harm the
taxpayers’ interests is profitable because it makes it possible to recover the funds defrauded
and deters people from misappropriating public funds. Moreover, while it is known  that the
amount of fraud is significant, the exact volume remains unknown. Although it is laid down

33 Belgium, Denmark, Spain, Luxembourg, Portugal and, to a lesser degree, Germany.
34 See  written  replies  12,  15,  17,  24,  38,  41,  43,  49,  65,  66  and  the  verbal  opinions  of  the  ministerial

representatives from Denmark, Germany, Austria and Finland at the public hearing (“the opinions”).

35 See written replies 16, 30, 39, 45 and the opinions of Ireland, Finland and the United Kingdom.
36 See written replies 7, 16, 17, 39 and the opinions of Germany, Austria and the United Kingdom.
37 See written reply 30 and the opinion of the United Kingdom.
38 See written replies 20bis, 41, 43, 64 and the opinion of Spain. The Commission has shown, on the basis of
the cases officially detected by the Member States and OLAF, that there were 1487 cases in 1999, involving
an estimated €413 million. Cf. Green Paper § 1.2.1.

7

                                                
as  an  objective  in  Community  legislation  adopted  for  the  purpose,39  at  present  there  are
difficulties in obtaining data on the extent of fraud and prosecution in the Member States. The
data gathered does not provides an overall picture because the powers involved are hopelessly
intertwined, spread  among over 450  bodies,  some  of  which  are  administrative,  while  others
are judicial, depending on the Member State, and also owing to the diversity of national data
protection  rules  that  currently  have  to  be  communicated  to  administrative  bodies  at
Community level, such as OLAF.

Secondly,  according  to  certain  government  sources,  the  number  of  fraud  cases  that  are
transnational  (affecting  several  Member  States)  but  limited  to  the  European  Union  (not
involving  third  countries),  which  would  be  the  main  area  of  interest  to  the  European
Prosecutor, is too small to justify establishing the institution.40 In the light of its experience,
the  Commission  cannot  subscribe  to  this  point  of  view.  Most  cases  of  which  it  is  informed
have a cross-border dimension at first sight. Such divergent assessments are probably due to
variations  in  national  statistics,  which  make  it  difficult  to  make  comparisons  across  the
Community.  The  explanation  for  the  unsatisfactory  results  of  judicial  cooperation  in
connection with fraud offences41 can be found in the continuing difficulties encountered when
implementing  the  provisions  on  mutual  assistance.42  Finally,  the  problems  of  working  with
third  countries  would  be  less  significant  for  a  Union  body,  which  could  make  use  of  a
network of judicial cooperation agreements.

It must also be pointed out that Member States’ notifications do not provide information on
the  criminal  prosecution  of  fraud  damaging  the  Community’s  financial  interests.  It  is
estimated that of every four cases investigated by OLAF that should give rise to prosecution
in  the  Member  States,  only  one  comes  to  trial.  Far  from  playing  down  the  importance  of
fraud, the figures available reveal a lack of an overall and homogeneous vision and the will to
prosecute  unlawful  acts  affecting  the  Community’s  financial  interests.  In  the  absence  of  a
European  Prosecutor  fraud  as  a  crime  will  continue  to  be  underestimated  and  not  always
suitably punished. If the problem appears negligible from a national point of view, this means
that,  on  the  basis  of  the  principle  of  subsidiarity,  it  should  be  a  priority  to  deal  with  it  at
Community level.

It is not enough for the Member States to notify each other, OLAF, Europol and Eurojust on
an  optional  basis,  cooperating  on  certain  carefully  chosen  cases,  even  if,  legally  speaking,
they are required to report the information.43 This is clearly where the European Prosecutor
would have an added value. Establishing a European Prosecutor as a judicial authority that
could  centralise  information  with  a  view  to  enforcing  the  law  and  prosecuting  offences
committed  in  a  consistent  and  constant  fashion  would  considerably  reduce  the  difficulties
currently experienced when attempts are made to achieve the objectives laid down in Article
280 of  the  EC  Treaty  by  simple  administrative  cooperation  or  recourse  to  case-by-case
judicial cooperation.

39 Under provisions contained in Regulations (EC) Nos 1831/94 (Cohesion Funds), 1681/94 (Structural Funds),
595/91 (common agriculture policy), 1150/2000 (own resources) the Member States are required to submit
quarterly reports on cases of irregularities.

40 At the public hearing, the ministerial representative from the United Kingdom pointed out that the cases of
agricultural irregularities in the United Kingdom had fallen from 393 in 2000 to 252 in 2001. She added that
at European level only 30% of fraud cases involved more than one Member State or third countries; in 70%
of the cases, the fraud was being committing in one Member State only. See also written replies 12 and 30.
41 Cf. the Commission’s annual reports on the protection of the Communities financial interests, COM (2002)

348 and COM (2001) 255.

42 Cf. infra § 2.2.2.
43 See written replies 17, 27 and 41.

8

                                                
2.2.2.  Criteria for evaluating the added value of a European Prosecutor

Public  consultation  has  revealed  that  there  is  broad  recognition  of  the  fact  that  the
fragmented  nature  of  the  European  judicial  area  hampers  the  effectiveness  of  criminal
prosecutions, especially in  connection with  the fight against fraud, although  there  are  a  few
exceptions.44 It is important for the less convinced to remember that there are still obstacles to
the effective prosecution of fraud in the field of substantive criminal law: limitation periods
may differ,  for example, and offences in one Member  State may  not correspond  to those in
another.  On  their  own,  national  legal  systems  have  proved  ill-equipped  to  respond  to  the
transnational nature of Community fraud owing to the principle of territoriality of the law
of criminal procedure and the diversity of  rules governing the  production  of  evidence. All
too  often  these  factors  ensure  that  prosecutions  are  not  launched  or  completed,  as  the
problems involved in obtaining evidence deter even the most willing.

Some have expressed support for the idea of maintaining the current system for protecting the
Community’s financial interests.45 Unfortunately, however desirable and successful they may
be,  by  definition  the  improvements  continually  being  made  to  the  system  of  European
cooperation between judicial authorities46 will not remedy damage caused to true Community
interests.47  The  tasks  assigned  to  those  responsible  for  coordination  and  exchanging
information at Union level (OLAF, Eurojust, Europol and  the European Judicial Network)
are  essential  but  serve  other  purposes.  Eurojust,  for  example,  was  not  designed  to  gather
evidence that would be admissible throughout the Community or equipped with the power to
direct prosecutions. In the case of OLAF, the numerous reasons preventing the findings of its
investigations from being used in court cases show that the current administrative instruments
for  combating  fraud  are  not  in  themselves  enough.  This  is  why  there  is  a  need  to  find  a
specific response, while continuing to develop bodies within the European judicial area with
general powers.48

Where the instruments of international judicial cooperation continue to expose positive or
negative power struggles and the difficulties with the need for the ne bis in idem principle or
the  execution  of  international  letters  rogatory,  the  European  Prosecutor  could  provide  the
solution.  He  would  be  equally  capable  of  doing  so  at  the  investigation  stage,  thanks  to  his
delegates, whose work would be based on a minimum of common rules and whose findings
would be mutually admissible, and at the prosecution stage, as cases would be tried in just one
Member State.

When  attempting  to  combat  crime  against  Europe,  conflicts  of  interest  or  crime  policies
between  the  national  and  Community  levels  should  be  avoided  wherever  possible.  The
judicial authorities must continually arbitrate between the numerous and competing national
priorities where resources are scarce. In such circumstances, it is difficult for them to take on
the protection of Community interests. Their chances of success seem to be diminishing in the
face of complex offences, where it is tempting to offload responsibility  onto  the  services of

44 See, in particular, the opinion of the United Kingdom.
45 See written replies 7, 16, 17, 30, 38, 43 and 65.
46 The  1995  Convention  on  the  protection  of  the  European  Communities’  financial  interests,  the  1995
Convention on simplified extradition procedure between the Member States of the European Union, the 1996
Convention  of  extradition  between  Member  States  of  the  European  Union,  the  1990  Convention
implementing  the  Schengen  Agreement,  the  2000  Convention  on  judicial  assistance  in  criminal  matters
between Member States of the European Union, the Council Decision of 28.2.2002 setting up Eurojust and
the Council Framework Decision of 13.6.2002 on the European arrest warrant.

47 See written replies 5, 36, 37, 42, 55, 61 and 71.
48 Cf. infra § 3.1.2 (the relationship of the European Prosecutor with Europol, Eurojust and OLAF).

9

                                                
another Member State.49 The European Prosecutor would be able to conduct criminal actions
in a continuous and consistent manner  anywhere in the enlarged European Union, thanks to
his special Community nature and the means allocated for the purpose.

Although  some  may  disagree,50  the  intrinsically  common  aspect  of  the  public  good  of
protection  -  in  this  case  of  Community  finances  -  calls  for  technical  specialisation  and  a
principle of prosecution independent of particular national considerations, which once again
would be guaranteed by a specialised European Prosecutor.

3. 

SUBJECT-BASED EVALUATION

The detailed evaluation below focuses on the analysis of written answers to the Green Paper,
opinions  expressed  at  the  public  hearing  being  mentioned  only  in  the  event  of  significant
differences.

3.1. 

Institutional affairs

3.1.1. 

Status and organisation

The Commission proposed establishing a European Prosecutor who would be independent
both of the Member States and the Community institutions. Many respondents agree that this
is  an  essential  characteristic  of  the  European  Prosecutor.51  Others  consider  that  a  fully
independent  prosecution  service  is  alien  to  their  legal  traditions,  where  only  the  trial  courts
enjoy  full  independence.  At  any  rate,  the  European  Prosecutor’s  independence  and
impartiality should be guaranteed by transparent procedures, including, for some respondents,
provisions to that effect in the future constitutional Treaty.52

Despite the diversity of the proposals put forward, the majority of respondents53 consider that
the European Prosecutor should be more clearly answerable.54 Several suggestions, to which
the Commission is open, were formulated to underline his responsibility: the Prosecutor could
be required to report each year on his activity; in the event of a serious misdemeanour actions
to have him declared liable could also be brought in the Court of Justice on the initiative of a
quorum of national parliaments. Regarding the European system of disciplinary liability, only
a  few  respondents  propose  that  it  should  be  strengthened  by  extending  the  conditions  for
activating it in cases falling short of serious fault.

The  decentralised  internal  organisation  of  the  European  Prosecutor  as  proposed  in  the
Green  Paper  strikes  most  respondents  as  the  most  appropriate:55  it  would  be  based  on  an

49 The special national units dealing with economic and financial offences (such as the German

Schwerpunktstaatsanwaltschaften, the French Pôles financiers and the British Serious Fraud Office) are but a
very limited response to the problem, bearing in mind their legitimately national remit.

50 See written replies 43 and 49.
51 See written answers 10,11, 14, 22, 23, 28, 33, 41, 44, 45, 47, 53, 55 and 65.
52 See written answers 10 and 23.
53 See written answers 6, 16, 17, 20, 20bis, 23, 37, 39, 45 and 65.
54 According to the terms proposed by the Commission with regard to the liability of the European Prosecutor,
the  Council  would  appoint  him  by  a  qualified  majority,  on  a  proposal  from  the  Commission  and  after
receiving the assent of Parliament, under conditions similar to those for the appointment of members of the
European Court of Justice. The Prosecutor would answer of his measures in the event of serious fault in the
performance of his duties before this same Court of Justice the request of Parliament, of the Council or of the
Commission. Cf. Green Paper § 4.1.2.

55 See written answers 10, 11, 29, 33, 35, 37, 38, 41, 44, 60, 65, 67, 69 and 70.

10

                                                
allocation of functions between a European  Prosecutor,  centralising  the  minimum  needed  at
the  Community  level,  and  Deputy  European  Prosecutors  in  the  national  legal  systems,  who
would investigate and prosecute cases in practice.

The  Commission  did  not  envisage  a  specific  European  status  for  Deputy  Prosecutors.  They
could  preserve  their  national  status  except  as  regards  hierarchical  and  disciplinary  matters.
This  solution,  with  which  many  respondents  agree,56  would  facilitate  the  integration  of  the
European  Prosecutor  in  the  national  legal  systems.  Others,  by  contrast,  recommend  that
Deputy  European  Prosecutors  be  appointed  and,  if  necessary,  dismissed  by  Community
authorities. Some thus wish to see Deputy European Prosecutors enjoy a European status or at
least a specific national status to guarantee their independence.57

A majority, including a majority in judicial and academic circles, leans in favour of the option
of  allocating  an  exclusively  European  mandate  to  Deputy  Prosecutors,  as  a  means  of
securing perfect independence.58 A minority of respondents,  however, preferred  a combined
national  and  European  status  to  assimilate  the  powers  of  Deputy  European  Prosecutors  to
those  of  their  national  colleagues  and  allow  them  to  easily  share  information.59  During  the
consultation process some of the respondents suggested that to maintain such a possibility, it
might be useful to lay down rules defining a rigorous hierarchy of priorities.

3.1.2.  Relationship with Europol, Eurojust and OLAF

The  European  Prosecutor’s  competence  being  confined  to  the  protection  of  specific
Community  interests,  the  Commission  does  not  believe  there  should  be  any  difficulties  in
ensuring  the  interaction  between  his  functions,  both  more  integrated  and  more  specialised,
and  those  of  the  authorities  handling  more  general  cooperation  in  criminal  matters,  in
particular  Europol  and  Eurojust.  But,  “given  current  developments  within  the  third  pillar  of
the European Union,” all the Commission could do on this subject was “to identify possible
food for thought,” to use the words contained in its Green Paper. The debates on the future of
the Union, and in particular the plan to merge the pillars, must now be taken into account and
could ease the relationship between the various actors in the European law-enforcement area.

There was a  general tendency  for respondents to call for greater  precision concerning  the
European Prosecutor’s relations with OLAF, Eurojust and Europol, in order to avoid a
proliferation  and  duplication  of  structures.60  Some  would  prefer  closer  cooperation  between
Eurojust and  Europol or OLAF to the establishment  of  a European  Prosecutor.61  Others,  on
the contrary, would prefer to establish a European Prosecutor with control over Europol and
OLAF,62  and  some  of  these  would  even  like  these  two  bodies  to  be  merged.63  Finally,
although  the  specific  question  was  not  asked,  the  hypothesis  that  OLAF  might  be  given
powers of judicial enquiry under the direction of the European Prosecutor was mentioned by
several respondents.64

56 See written answers 6, 29, 33, 35, 37, 38, 41, 44, 60, 65, 67, 69 and 70.
57 See written answers 1, 12, 20bis, 23, 25, 27, 28, 41, 48, 53, 62 and 68.
58 See written answers 1, 1bis, 4, 5, 10, 12, 20bis, 23, 25, 27, 28, 41, 44, 53, 58, 60, 61 and 62. At the public

hearing, opinions were more divided on this question.
59 See written answers 3, 29, 33, 35, 37, 38, 65, 66, 67 and 69.
60 See written answers 3, 17, 20bis, 27, 28, 32, 37, 40, 41, 60, 62, 66 and 69.
61 See written answers 15, 16, 24, 30, 43, 45 and 65.
62 See written answers 27, 40 and 69.
63 See written answer 71.
64 See written answers 6, 11, 20, 27, 28, 37, 40, 41 and 69.

11

                                                
The Commission believes that Eurojust is an important stage in the establishment of the
European law-enforcement area. It will undeniably act as a catalyst for cooperation between
Member States as regards cross-border crime and organised crime in general, but it does not
constitute  a  sufficiently  dynamic  response  to  crime  that  specifically  targets  Europe.  The
Green  Paper  sets  out  a  scenario  whereby  Eurojust  and  the  European  prosecutor  could  be
separate and complementary bodies. While the former is intended to be given a broad range
of  judicial  cooperation  functions,  the  European  Prosecutor  is  to  be  a  Community  authority
with  his  own  detection  and  prosecution  powers  in  the  specific  field  of  protection  of  the
Community’s  financial  interests.  The  establishment  of  the  European  Prosecutor  would  not
affect  the  powers  of  Eurojust  in  criminal  matters,  provided  the  priority  jurisdiction  of  the
European Prosecutor for the protection of the Community’s financial interests is provided for.
A clear division of  powers should also  be  accompanied by  operational  cooperation  in  cases
involving both bodies.

Following the public consultation, it is now possible to consider other scenarios to combine
the  various  existing  structures.  First  of  all,  institutional  links  could  be  established:  the
European  Prosecutor  could  become  a  member  of  a  strengthened  Eurojust  Unit  to  improve
complementarity and cooperation with it.65

A second alternative could be to establish the European Prosecutor direct in the constitutional
Treaty but incorporate him in Eurojust.66 This total integration scenario would see Eurojust
become a collective prosecution body tasked with conducting and centralising investigations
and prosecutions and launching prosecutions in the national courts to protect the Community
interests  for  which  it  is  responsible  and  with  coordinating  national  operations  in  relation  to
transnational  crime  in  general.  The  European  Prosecutor  having  the  power  to  direct  and
conduct prosecutions in a more restricted field of jurisdiction would be established within this
prosecution  service.  Whatever  solution  is  selected,  the  protection  of  the  Community’s
financial  interests  should  be  among  the  European  Prosecutor’s  prime  functions  from  the
outset.

The  European  Prosecutor  also  complements  Europol.  He  could,  if  necessary,  ensure
permanent control of Europol’s strictly Community (protection of the euro), like the control
that he is to exercise over OLAF.

3.1.3.  Relations with non-member countries

The Green Paper suggests that the European Prosecutor should be the direct contact for the
authorities of non-member countries as regards mutual judicial assistance and that he could
the
issue 
Member States but later the Union also. A majority of respondents supported the Commission
on this proposal.67

in  accordance  with  Conventions  binding 

international 

rogatory 

letters 

3.2. 

Legal questions

Several  replies  from  government  departments  and  from  professional  circles  encourage  the
Commission to continue considering ways of ensuring that the legal framework relating to the
Prosecutor  is  established  in  the  fullest  respect  both  for  the  various  legal  traditions  of  the

65 See in particular the contribution by Ms Schreyer to Working Group X  meeting as part of the Convention,

forwarded by Mr Barnier and Mr Vitorino: “A European Prosecutor”, WD 27, 25.11.2002.

66 The European prosecution service would thus be based on Eurojust.
67 See written answers 3, 17, 20bis, 25, 27, 29, 32, 33, 40, 41, 59, 60 and 61.

12

                                                
Member  States  and  for  the  subsidiarity  and  proportionality  principle.  Many,  however,
supported more thorough approximation of the rules of substantive criminal law and criminal
procedure  to  improve  the  protection  of  fundamental  rights  and  the  smooth  operation  of  the
European Prosecutor.

3.2.1. 

Substantive criminal law

3.2.1.1.  Powers of the European Prosecutor in substantive terms

Since the Convention of 26 July 199568 and its additional protocols can constitute the core of
a  special  criminal  law,  the  Commission  proposed69  that  the  European  Prosecutor’s  powers
should extend at least to offences against the financial interests of the Communities, on which
there  is  already  an  agreement  between  the  Member  States.70  A  vast  majority  of  the
respondents consider nevertheless that if a European Prosecutor is to be  created,  his powers
should necessarily be broader than proposed by the Commission.

Some  consider  that  an  effective  fight  against  fraud  involves  prosecuting  criminal
organisations  indulging  in  it  and  wish  the  Prosecutor’s  criminal  jurisdiction  to  extend  to
offences related to Community fraud, such as money laundering, corruption and conspiracy.71
Others however, and there are more of them, consider that he should also be responsible for
protection  of  the  single  currency72  and  for  the  integrity  of  the  European  Public  Service.73
Many recommend going further still and entrusting to a European Prosecutor the prosecution
of  serious  forms  of  crime74  affecting  important  common  interests75  such  as  consumers,  the
environment or the Community trademark.

But not many people suggest that his powers should extend to the full range of cross-border
crimes as delimited, for example, by the list of offences against the Decision on the European
arrest warrant or the Europol Convention76 (“eurocrimes”). Many ultimately support the idea
that there should be an opening clause77 allowing the Prosecutor’s substantive jurisdiction to
extend to other forms of crime. As  for the  degree of  harmonisation  to be  achieved, the vast
majority support the idea of a sufficiently clear and detailed common definition of offences,
the aim being to ensure certainty as to the law and prevent any risk of conflicts of jurisdiction
between  the  European  Prosecutor  and  national  prosecution  authorities78  and  between  the
authorities of the Member States themselves.

3.2.1.2.  Harmonisation of general rules of criminal law

The Commission’s concern to abide by the principles of subsidiarity and proportionality led it
to  envisage  only  partial  harmonisation,  covering  the  minimum  necessary  for  the  smooth

68 Convention of 26.7.1995 on the protection of the financial interests of the European Communities (OJ C 316,
27.11.95, p.48) 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).

69 Cf. Green Paper, § 5.2.1.
70 See written answers 1, 3, 12, 17, 20bis, 21 and 38.
71 See written answers 1, 22, 31, 32, 42, 62, 66 and 69.
72 See written answers 1bis, 14, 20, 37 and 70.
73 See written answers 1bis, 27, 31, 33, 37, 42, 55, 62 and 70.
74 See written answers 1, 8, 25, 36 and 60.
75 See written answers 8, 10, 11, 23, 25, 28, 36, 41, 44 and 71.
76 See written answers 11 and 25.
77 See written answers 1, 3, 11, 20, 25, 26, 36, 41, 44, 58, 60 and 71.
78 See written answers 1bis, 20bis, 31, 42, 44 and 55.

13

                                                
operation of the European Prosecutor.79 But a significant number of written responses to the
Green  Paper  consider  a  minimum  degree  of  approximation  of  the  general  national  rules  of
criminal law to be essential to achieve this objective.80

Many  people  consider  that  harmonisation  of  both  the  maximum  and  the  minimum  criminal
penalties for offences prosecuted at European level and  of the limitation rules is essential.81
Some stress that the Prosecutor’s operation will be weakened as long as there has not been a
certain  approximation  of  the  basic  rules,82  such  as  those  concerning  individual  criminal
liability  (conditions,  aggravating  and  mitigating  circumstances,  limitation),  mistake,  attempt
etc,  in  order  to  avoid  useless  annulments  of  proceedings.83  But  those  who  regard  the  full
unification of the general part of the national criminal laws as a condition for establishing a
European Prosecutor are few and far between.84

3.2.2.  Law of criminal procedure

Creating  a  common  detection  and  prosecution  area  presupposes  mutual  trust  between  the
Member  States  in  their  national  criminal  systems.  This  trust  is  based  very  much  on  the
convergence of systems for the protection of fundamental rights.

In  this  respect,  the  public  consultation  made  it  clear  to  the  Commission  how  seriously  the
question of the protection of defence rights and consequently the need for closer study of the
question  of  mechanisms  to  safeguard  them  must  be  taken  in  the  context  of  establishing  a
Prosecutor.  The  legal  framework  proposed  by  the  Commission  should  in  the  majority  view
provide for adequate guarantees both in terms of the proper administration of justice and the
fairness of the criminal procedure.

3.2.2.1.  Questions concerning the administration of justice

(cid:1)  Information and referral to the European Prosecutor

Many respondents85agree with the Commission that there should be an obligation for both the
Community  authorities  and  the  relevant  national  authorities86  to  refer  to  the  European
Prosecutor  any  fact  that  might  constitute,  or  generate  suspicion  of,  an  offence  within  his
jurisdiction. Several of them also stress the need to recognise, under certain conditions, a right
of private individuals to inform the prosecutor directly.87 But there is a division of opinions
between those who support the possibility of direct referral to the European Prosecutor88 and
those  who  consider  that  there  should  first  be  a  mandatory  referral  to  the  Deputy  European
Prosecutors.89 On the second view, the Deputy Prosecutors could, after appraisal on a case by
case basis, decide whether or not to refer the case to the European Prosecutor.90 And, as the

79 Cf. Green Paper § 5.3. to 5.5. See written answers 3, 17, 20bis, 38, 43, 45 and 66.
80 See written answers 5, 6, 12, 14, 19, 20, 22, 27, 28, 36, 37, 41, 44, 59, 60, 62, 65 and 68.
81 See written answers 12, 21, 28, 33, 44, 59 and 65.
82 This opinion recurred among operational actors at the public hearing.
83 See written answers 14, 20, 22, 27, 37, 41, 55, 62 and 68.
84 See, for example, written answer 19.
85 See written answers 1, 3, 12, 17, 20bis, 25, 27, 28, 29, 32, 33, 36, 37, 41, 44, 55, 58, 59, 60, 61, 62, 65, 66, 70

and 71. A contrario, see written answers 6 and 41.

86 According  to  the  Green  Paper  such  would  be  the  case  in  particular  of  customs,  tax,  police  and  judicial

officers.

87 See written answers 3, 25, 37, 41, 44, 60, 70 and 71.
88 See written answers 27, 37 and 66.
89 See written answers 12, 14, 17, 20, 61 and 62.
90 See written answers 12 and 14.

14

                                                
Commission  suggested,  some  recommend  the  possibility  of  the  European  Prosecutor  taking
up cases of his own motion.91

(cid:1)  Principle of mandatory prosecution

The  Commission  considered  that  equivalent  proceedings  in  the  European  law-enforcement
area  require  the  implementation  of  the  principle  of  mandatory  prosecution  but  proposed
certain exceptions to moderate it.92 Its opinion is shared by the majority, which considers that
the  European  Prosecutor  should  be  compelled  to  prosecute  only  in  particularly  important
cases.93 Most respondents support a financial threshold or “criteria of gravity” with respect to
the  Community  interests94  below  which  the  European  Prosecutor  could  waive  his  right  to
proceed  in  favour  of  the  national  authorities.  This  would  have  the  advantage  of  not
encumbering  his  office  with  minor  cases,  which  could  be  dealt  with  more  effectively  at
national level. Some stress in this respect the need to introduce precise categories of cases in
which proceedings could definitively be closed or dropped.95

As a corollary of implementing the principle of mandatory prosecution, any negative Decision
emanating  from  the  European  Prosecutor  (classification,  fence,  transaction  with  the  person
accused96) should to be subject to judicial review.97 Certain respondents insist that this review
be  exercised  by  a  European  pre-trial  chamber,98  as  the  only  authority  able  to  ensure
uniformity in the implementation and interpretation of Community law.99

(cid:1)  Allocation of powers and control of hybrid cases

Supporting the Commission proposal on this point, the majority100 considers that because of
the Community nature of the interests to be protected, the principles of mandatory prosecution
and  of  priority  of  the  European  Prosecutor’s  jurisdiction101  should  apply  wherever  there  are
suspicions that a  Community  offence  has  been  committed.  With  regard  to  hybrid  cases,  the
priority  rule  should  in  addition  make  it  possible  to  avoid  conflicts  of  positive  jurisdiction
between  the  Prosecutor  and  the  national  prosecution  services.102  The  European  Prosecutor

91 See written answers 6, 25 and 32.
92 Cf. Green Paper § 6.2.2.
93 See written answers 1bis, 3, 4, 5, 6, 11, 12, 17, 20bis, 25, 27, 30, 33, 35, 37, 38, 40, 41, 44, 58, 61, 65, 70 and
71.  Some  consider  nevertheless  that  the  discretionary  prosecution  principle  should  be  chosen  because  it
would  be  the  only  way  of  guaranteeing  the  independence  of  the  future  European  Prosecutor.  See  written
answers 14, 21, 28, 29, 31, 32, 39 and 66.

94 See written answers 6, 23, 25, 27, 33, 35, 40, 41, 61 and 71.
95 See written answers 14, 20bis, 37, 62 and 65.
96 Certain answers explicitly exclude the European Prosecutor’s power to terminate a case by settlement. They
concern Member States where the system is neither practised nor even allowed. See written answers 30 and
44.

97 See written answers 5, 6, 12, 33, 44, 55 and 71.
98 See, in particular, written answers 5, 6, 25, 55 and 71.
99 Cf, infra § 3.2.2.2.
100 See written answers 17, 27, 29, 32, 37, 41, 44, 59, 61, 68, 69 and 70.
101 This priority or primacy of the European Prosecutor’s action over national proceedings would open the way,
if necessary, to a division of Community cases between the national and European levels, in particular on the
basis of the modest character of a fraud or its purely national impact.

102 Cases where there are both a Community offence and a national offence. At the public hearing, the majority

favoured detailed criteria for the allocation of such cases.

15

                                                
could  thus  decide  in  full  independence  to  carry  out  the  investigation  himself  if  the  offence
mainly affected Community interests103 or to entrust it to the relevant national authorities.104

If there was a conflict of jurisdiction all the same, some respondents propose either that the
competent  authority  for  each  individual  case105  be  designated  via  a  consultation  procedure
between  the  European  Prosecutor  and  the  national  authorities  or  that  a  European  pre-trial
chamber decide where to allocate it.106

3.2.2.2.  Guarantees of fairness in criminal procedure and protection of fundamental rights

Many  regard  the  question  of  strengthening  defence  rights  and  procedural  guarantees  as  the
essential corollary of establishing a European Prosecutor. The majority consider that specific
rules to safeguard fundamental rights and fairness in criminal procedure should be laid down
for the investigation and the judgment on the admissibility of evidence.107

(cid:1)  Measures of investigation by the European Prosecutor

The Commission proposal is that the European Prosecutor should be able to use the full range
of  investigation  measures  that  generally  exist  in  all  Member  States  to  prosecute  similar
financial  offences.  There  should  basically  be  mutual  recognition  of  the  authorisation  by  a
national  judge  of  freedoms  of  such  measures.108  Several  respondents  point  out  that  such  a
legal  framework  has  weaknesses  in  terms  of  protection  of  privacy  and  of  defence  rights
because  of  the  diversity  of  the  current  procedural  rules  in  the  Member  States.109  Some  also
consider  that  the  principle  of  certainty  as  to  the  law  would  be  weakened  if  the  European
Prosecutor were able to choose the judge of freedoms to be approached for authorisation of
measures  of  investigation.110  According  to  this  argument,  this  situation  could  also  generate
risks of forum-shopping right from the investigation phase.

The  Commission  acknowledges  that  this  point  needs  more  detailed  study.  An  alternative
proposed by some111 would consist of producing a joint list of investigation measures that can
be  ordered  direct  by  the  European  Prosecutor  and  of  measures  for  which  he  would  have  to

103 Some  answers  claim,  however,  that  in  the  presence  of  clear  criteria  for  allocating  cases,  the  Prosecutor’s
jurisdiction should be exclusive in relation to that of the national authorities. See written answers 1bis, 4, 10,
12, 20bis, 27 and 60.

104 See  written  answers  28,  29,  32  and  70.  Some  people  criticise  this  solution  as  allowing  the  European
Prosecutor’s  jurisdiction  to  extend  to  the  prosecution  of  national  offences  where  there  is  a  link  with  a
Community offence. See written answer 62.

105 In addition, it is proposed to establish criteria for distinguishing the “Community” part of an offence (which
could  be  defined  as  an  offence  against  the  Community’s  financial  interests)  and  the  purely  national  part,
which should remain the exclusive responsibility of the national authorities. See written answers 20bis, 30,
33 and 61.

106 See written answers 17, 25, 38, 44 and 70.
107 The Green Paper states the need “to think in greater depth than hitherto about the ... relevant level – national

or Community – at which such measures should be managed and controlled.”

108 With regard to national investigation measures to which the European Prosecutor would have recourse, this
principle  means  that  in  the  event  of  implementation  in  a  Member  State  of  an  investigation  measure
authorised  by  a  court  in  another  Member  State,  the  European  Prosecutor  would  not  have  to  seek  a  fresh
authorisation.

109 See written answers 6, 17, 28, 40, 60, 70 and 71.
110 See written answers 1, 5, 6, 25, 28, 40 and 60.
111 Certain  answers  also  recommend  detailed  mandatory  rules  of  jurisdiction  to  avoid  forum-shopping  at  the

preparatory stage. See in particular written answer 6.

16

                                                
seek authorisation from the judge of freedoms.112 As long as redress procedures are available
if fundamental rights are not respected, it should be possible for European Prosecutor to order
non-coercive measures.113 Coercive investigation measures should be ordered only by a judge
of  freedoms,  and  the  European  Prosecutor  should  preferably  be  required  to  approach  the
courts  in  the  state  where  they  are  to  be  executed.114  Lastly,  some  suggest  that  a  European
pre-trial  chamber  should  authorise  and  supervise  the  implementation  of  all  coercive
investigation measures requested by the European Prosecutor.115

(cid:1)  The choice of the state of judgment (choice of forum)

In  cases  that  are  often  complex  and  involve  several  Member  States,  the  Commission
proposes, as one of the options, that the European Prosecutor enjoy some room for manoeuvre
in choosing the state where the case that he has investigated will be tries as to the merits.116
But as the Commission stresses, such a choice is not neutral, insofar as it determines not only
the practical conditions for the trial and the relevant court but also the applicable national law.

The  Commission  has  heard  the  wide-ranging  objections  to  this  solution,  based  on  the  view
that it gives the European Prosecutor a discretionary power which, in the absence of suitable
control,  would  generate  a  real  risk  of  forum-shopping.  Many  respondents  proposed  that
stricter  Community  choice-of-court  rules  be  laid  down117  to  make  it  possible  to  fulfil  the
foreseeability  and  legality  requirements  while  taking  into  account  the  specific  character  of
cross-border fraud. For a number of respondents, criteria based on relevant international rules
and  ranked  hierarchically  should  determine  in  a  sufficiently  foreseeable  way  the  state  in
which the case will be tried.118 For others, these criteria should be alternative and not ranked
hierarchically  as  proposed  by  the  Commission,  to  leave  the  European  Prosecutor  the
possibility of referring the case for trial on the merits to the most appropriate national court.119

With regard to the  review of this choice, the vast majority consider that judicial review is a
substantial  guarantee  for  individual  rights.  But  opinions  are  divided  between  those  who
consider that it must be practised by the national court of  freedoms or the trial judge120 and
those  who  argue  that  it  should  be  entrusted  to  a  European  pre-trial  chamber.121  Such  a
chamber  would  also  be  responsible  for  solving  negative  conflicts  of  jurisdiction  between
States, rather like the role that the Commission proposes entrusting to the Court of Justice.122

112 See  written answers 1bis, 3, 5, 17, 28, 32, 40, 58, 60 and 62. Others agree  with  the  Commission’s  idea  of
creating a European record of questioning or hearing to serve as a model for the European Prosecutor. See
written answers 1 and 41.

113 This  action  could  logically  be  brought  in  the  national  court  of  freedoms  with  jurisdiction  over  similar
investigation measures provided for by national legislation. See written answers 1, 6, 32 and 62. See, on the
contrary, written answer 29.

114 Which would also facilitate the review of the legality of their implementation. See written answers 6, 30, 31,

32, 33, 40 and 58.

115 See written answers 1, 5, 25, 37 and 71.
116 Cf. Green Paper § 6.3.1. This option would also make it possible to avoid, in the interest of all the parties,

positive conflicts of jurisdiction between Member States.

117 See written answers 6, 12, 20, 20bis, 25, 26, 27, 31, 33, 40, 44, 60, 61, 62, 68 and 70.
118 See written answers 12, 20, 44, 58, 61, 62, 66 and 68.
119 See written answers 20bis and 44.
120 See written answers 12, 17, 27, 58, 65, 68 and 70.
121 See written answers 1, 5, 25, 27, 32, 37, 42, 44, 53, 55 and 61.
122 See written answers 5, 17, 27, 53 and 69.

17

                                                
(cid:1)  Mutual admissibility of evidence

To  remedy  the  current  fragmentation  of  the  European  law-enforcement  area  and  facilitate
judicial  follow-up  to  Community  anti-fraud  investigations,  the  Commission  proposes  a
principle of mutual admissibility of evidence.123 Any national court hearing a criminal case on
the merits where interests protected by the Prosecutor are at stake would be obliged to admit
evidence legally obtained in accordance with the national law of another Member State. But
many respondents consider that such a system raises serious problems both for defence rights
and for certainty as to the law.124

According to some respondents, the reference to the national law of the Member States would
not be an appropriate solution  in view of  the  differences  between  national  criminal  systems
and alleged inequalities in the protection of fundamental rights.125 As some see it, applying a
mutual  admissibility  rule  without  imposing  more  detailed  common  minimum  rules  than
currently  exist  could  have  the  effect  of  reducing  defence  rights  at  Union  level,  or  even  of
the  European  Prosecutor’s
“levelling  down”  the  procedural  guarantees  attached 
investigations.126

to 

Many of the respondents are of the opinion that the mutual admissibility principle proposed
by  the  Commission  should  therefore  be  adopted  only  if  appropriate  mechanisms  are
established to secure legal guarantees and the effective protection of fundamental rights. The
Commission is willing to explore possibilities here. In some people’s view, these mechanisms
could  provide,  for  example,  for  the  establishment  of  a  joint  list  of  investigation  measures
recognised  by  all  the  Member  States  or  common  criteria  for  determining  the  validity  or
legality of such measures.127 Some people more generally recommend harmonisation either of
the  rules  of  criminal  procedure  on  the  collection  and  transfer  of  evidence128  or  of  the  rules
concerning  their  appraisal.129  For  others,  the  adoption  of  common  rules  establishing
guarantees  for  the  safeguard  of  fundamental  rights  throughout  the  Union  would  be  a
necessary preliminary for the acceptance of the mutual admissibility principle.130

(cid:1)  Review of the European Prosecutor’s measures and the protection of fundamental

rights

The procedural guarantees relating to the European Prosecutor’s investigation and prosecution
activities are probably one of the points most frequently  raised  by  respondents  to  the Green
Paper.  The  establishment  of  common  mechanisms  or  minimum  rules  for  the  protection  of
fundamental rights appears to many to be an essential counterpart to conferring enforcement
powers on a Community body.131

Several  respondents  point  out  that  the  reference  to  the  Council  of  Europe’s  European
Convention on Human Rights and the Charter of Fundamental Rights of the Union would not

123 Cf. Green Paper § 6.3.4.1.
124 See written answers 1bis, 5, 6, 17, 20bis, 24, 25, 26, 36, 39, 40, 58, 62 and 65.
125 Major problems would arise if an investigation measure was not regulated in the same way in all the Member

States. See written answers, 6, 17 and 70.

126 See written answers 1bis, 6, 24, 25, 26, 33, 36, 40, 59, 62 and 65.
127 See written answers 1, 14, 20bis, 25, 27, 28, 31, 36, 37, 40, 41, 50, 55, 60 and 62.
128 See written answers 5, 25, 31, 32, 60 and 70.
129 See written answers 1, 4, 6, 14, 20bis, 37, 41 and 70.
130 See written answers 1bis, 6, 17, 24, 25, 27, 33 and 58.
131 See written answers 2, 5, 6, 11, 12, 20bis, 21, 25, 32, 33, 37, 66 and 70.

18

                                                
suffice to establish a procedural guarantee scheme in a common investigation and prosecution
area.132  Many  consider  that  if  investigation  measures  are  to  be  carried  out  throughout  the
Community and the principle of mutual admissibility of evidence is to be accepted, there must
be  equivalent  protection  of  defence  rights  throughout  the  Union.  They  accordingly
recommend  that  they  be  codified  or  harmonised  or,  at  least,  that  a  catalogue  of  procedural
rights that must be protected everywhere in the Union be produced at the Community level.133

Judicial  review  being  an  essential  guarantee,  the  majority  consider  that  all  investigation
the  European
measures,  negative  Decisions  (termination,  closure)  or  decisions  by 
Prosecutor’s to send cases for trial should, in theory, be reviewed by the national court on the
basis of the lex fori.134 Some stress, however, that only a European pre-trial chamber would be
able  to  solve  the  problems  of  reviewing  the  European  Prosecutor’s  measures.135  For  the
moment the Commission is not ruling out any solutions that could be employed to safeguard
the equivalent  guarantee of fundamental rights at  Union level.  In  this  context  it  stresses  the
significance of its recent Green Paper on procedural safeguards for suspects and defendants in
criminal proceedings throughout the European Union.136

4. 

FOLLOW-UP

If the general evaluation of the outcome of the public hearing points to the need for a Treaty
amendment  to  allow  the  establishment  of  a  European  Prosecutor,  more  detailed  evaluation
points to the need for further consideration of certain topics of vital importance for secondary
legislation.

4.1. 

Political follow-up to Green Paper

The  subject  of  the  European  Prosecutor  is  now  on  the  Union’s  political  agenda.  When  the
Heads of State or Government met in Laeken they urged the Council “swiftly to examine the
Commission Green Paper on a European Prosecutor, taking account of the diversity of legal
systems and traditions.”

While initially the Green Paper appeared to be given only a cautious welcome by the Council,
the  question  of  the  establishment  of  a  European  Prosecutor  was  debated  at  length  in  the
European Parliament137 and by the Working Group on Freedom, Security and Justice set  up
within the European Convention.138 The more general reflections on strengthening the Union
with regard to justice and home affairs has finally made it possible to find a majority in favour
of stepping up the work of establishing a European Public Prosecutor.139 There now seems to
be a majority in favour of establishing a European Public Prosecutor in the new constitutional

132 To  be  effective,  such  a  reference  should  at  least  guarantee  that  the  European  Prosecutor  is  bound  by  the
Strasbourg  Court’s interpretation of the European Human Rights  Convention. See  written answers 2, 6, 25
and 58.

133 See  written answers 2, 5, 6, 21, 42, 58 and 66. Certain  respondents  draw  up  a  list  of  fundamental  defence
rights, such as the rights to be represented by a lawyer, to be informed of the facts complained of, to a free
defence etc.

134 See written answers 3, 11, 12, 17, 20bis, 23, 28, 33, 40, 60, 61, 65, 66 and 70.
135 See written answers 5, 6, 8, 25, 27, 32, 37, 42, 44 and 61.
136 COM(2003)75.
137 The  public  hearing  with  national  parliaments  held  by  the  European  Parliament  on  5  November  2002

evidenced the European Parliament’s interest in the subject.

138 Final report by the Working Party X, European Convention, CONV 426/02, 2.12.2002.
139 In his conclusions regarding the plenary session of 6.12.2002 the President of the Convention emphasised the

need to step up work in this field.

19

                                                
Treaty or at least of eventually turning  Eurojust  into  a  European  Public  Prosecutor's Office.
The Member States do not have fixed opinions and some are now far more open to the idea
than was  originally  the  case.140 However,  a  minority  are  still  firmly  opposed.  Lastly,  as  the
prospective  Member  States  will  participate  as  active  observers  in  the  Council’s  Working
Groups  after  the  signing  of  the  accession  treaty,  which  is  planned  for  16 April  2003,  their
individual opinions will help to move the debate on.

Even if at present it is impossible to see how the discussions will turn out, it seems clear that
the Green Paper has achieved its aim of launching a general debate that has also involved the
relevant Union institutions. The proposal to establish a European Public Prosecutor has led to
consultations  at ministerial  and  parliamentary level in  the  Member States.  On  the  eve  of  an
enlargement  that  will  give  the  Union  ten  new  Member  States,  the  idea  was  assessed  with  a
view to strengthening European policy in the field of justice and home affairs, focusing on the
objective of protecting the Community’s financial interests while taking a broader view and
looking to create a Community body that would complete the operational powers that could
be devolved to Europol at a later date.

The debate has developed a real momentum and there seems to be a growing awareness of the
need for a European Prosecutor and the added value such an institution would provide in the
fight  against  crime  against  Communities’  financial  interests.  Some  voices  in  favour  of  the
project  even  defend  the  idea  of  making  the  control  of  the  measures  taken  by  a  European
Prosecutor a matter for the Community, which would help to establish a real common area of
freedom, security and justice.

4.2. 

Institutional reform

The  amendment  of  the  Treaties  establishing  the  European  Communities  remains  an
indispensable  condition:  it  alone  can  confer  political  legitimacy  on  the  proposal.  The
European  Convention  provides  the  appropriate  political  and  institutional  framework  for
discussions.  It  is  working  on  a  root  and  branch  reform  of  the  existing  Treaties.  If  the
Convention  were  to  confine  itself  to  give  the  Council  the  power  to  create  a  European
Prosecutor  at  an  unspecified  later  stage  by  unanimity,  this  would  be  to  make  an  empty
promise, as the principle would need to be ratified for a second time at Union level. Instead, it
is necessary to develop solutions that are comprehensible to the general public and effective
methods of pursuing the Union’s objectives, in this case the protection of financial interests
while upholding people’s fundamental rights.

Regarding the contents of the revision, in the light of the public consultation, the Commission
stands by the substance of its Nice proposal.141 It mainly adds two new elements.142

On  the  one  hand,  the  constitutional  Treaty,  which  should  directly  establish  the  function  of
European Prosecutor, should also ensure that its derived legislation specifies the relationship
with  Eurojust.  Several  scenarios  have  been  outlined  above  (cooperation  between  separate
and complementary bodies; institutional links; partial integration; total integration).

140 Germany and France, for example, have suggested creating a European Public Prosecutor that some time in
the  future  would  acquire  powers  to  conduct  investigations  and  prosecute  cases  at  Union  level.  Joint
Franco-German proposals for the European Convention in the field of justice and home affairs presented on
27.11.2002, Document 32 of the abovementioned Working Group.

141 Draft article 280a EC.
142 Ms Schreyer’s contribution to the Convention, 25.11.2002.

20

                                                
It should also define the Prosecutor’s material jurisdiction, in a manner that is precise from
the outset but open enough to allow further development. Under the constitutional Treaty, the
European  Prosecutor  would  initially  be  responsible  for  detecting,  prosecuting  and  remitting
for  trial  to  the  national  courts  in  the  Member  States,  the  authors  of  offences  against  the
financial  interests  of  the  Community.  The  Council,  acting  unanimously  or  by  enhanced
qualified majority  on  a  proposal  from  the  Commission  with  the  assent  of  Parliament,  could
thereafter decide whether to extend the European Prosecutor’s jurisdiction to offences against
other Union interests.

In  response  to certain more specific  objections,  the  Commission  considers  that  its  proposed
procedure  for  appointing  the  European  Prosecutor  preserves  a  balance  between  the
Community institutions and  that  the  fact  that  his  appointment  is  non-renewable  shields  him
from the risks of negative external influence.143 The procedure should accordingly be in the
Treaty. Regarding the Commission proposal, it could take the form of a list drawn up on the
basis of an open selection, as suggested at the time of the public hearing.

4.3. 

Detailed  examination  of  questions  concerning  the  implementation  of  the
Prosecutor

The  establishment  of  a  legal  basis  in  the  Treaty  is  essential  to  any  preparatory  legislative
work.  Without  amendment  of  the  Treaty,  the  Commission  has  no  power  to  make  specific
proposals  for  secondary  legislation  going  beyond  the  preferences  that  it  expressed  in  the
Green  Paper.  But  the  outcome  of  the  public  hearing  enables  the  Commission  to  identify  a
series  of  topics  below  where  it  acknowledges  that  they  require  further  study  on  account  of
their sensitivity in the debate. This closer study could take the form of complementary studies
or consultation both of the experts and of national political authorities.

Strand  1:  Relationship  between  the  European  Prosecutor  and  existing  European
authorities

Firstly, the question of the role of the Court of Justice in settling both vertical and horizontal
conflicts of jurisdiction needs specific analysis. Objective criteria must govern the  choice of
the  Member  State  of  trial;  their  definition  should  underlie  the  Commission’s  next  work  on
preventing conflicts of jurisdiction between Member States.144

Institutionally  speaking,  it  is  particularly  important  to  study  the  various  ways  in  which  the
European Prosecutor  and Eurojust  could be combined.  Lastly,  a  fresh  look  will  have  to  be
taken at the future of OLAF if the European Prosecutor is established.145

Strand 2: Defence rights and the administration of evidence in the context of establishing a
European Prosecutor

In  procedural  terms,  two  essential  topics  emerge  from  the  hearing.  Firstly,  equivalent
protection of defence rights is recognised as one of the main concerns expressed with regard
to  the  establishment  of  a  European  Prosecutor.  It  will  therefore  be  important  to  incorporate
the  results  of  the  consultation  launched  by  the  Commission  this  year  by  means  of  a  Green
Paper on the procedural guarantees for persons challenged in criminal proceedings to find out

143 The Council, acting by a qualified majority on a proposal from the Commission after receiving the assent of

Parliament, would appoint the European Prosecutor for a non-renewable six-year term.

144 Commission Green Paper currently under preparation.
145 Commission Report on the Activities of the European Anti-Fraud Office, in the process of adoption.

21

                                                
whether it will be advisable to go beyond the standards already shared by the Member States
when establishing a European Prosecutor.146

Secondly, the value in  a  Member State  of  evidence  gathered  by  the  European  Prosecutor  in
another  Member  State  supposes  an  approximation  of  national  legislation,  confined  to  the
minimum  needed  to  implement  the  mutual  admissibility  principle.  The  degree  of
harmonisation of the law of evidence felt to be desirable should be studied in more detail in
this context, in conjunction with the Commission’s work programme for judicial cooperation
in criminal matters.

Strand 3: The European Prosecutor’s connection with the national criminal systems

Lastly,  the  Commission  plans  to  show,  by  means  of  national  variations,  the  procedures  in
accordance  with  which  a  European  Prosecutor  with  guarantees  of  independence  could
integrate  into  the  criminal  systems  of  the  Member  States  without  affecting  their  internal
organisation. (E.g. neutrality in relation to the prerogatives of the “examining magistrate” or
to  the  plurality  of  “law  enforcement  agencies”).  These  variations  could  clarify  how,  in  the
specific  national  context,  hybrid  cases  could  be  handled  (withdrawal  of  the  European
Prosecutor or the national law enforcement authorities in favour of the other; joint action by
the two, etc.).

***

By way of conclusion, only the establishment of the  function of the European Prosecutor in
the  constitutional  Treaty,  accompanied  by  a  legal  basis  for  the  development  of  secondary
legislation to ensure his connection with national legal systems, is likely to answer the current
difficulties.  It  is  a  signal  that  public  opinion  expects  from  the  next  Treaty  if  European
integration is to be given credibility for the general public and the taxpayer.

146 Green Paper on the procedural guarantees for suspects and advocates in criminal proceedings in the European

Union, 19.2.2003. Op. cit.

22

                                                
Annex 1

LIST OF WRITTEN CONTRIBUTIONS ANALYSED147

RESPONSE WRITTEN BY

1

OLAF Supervisory Committee

1bis Association  portugaise  de  juristes  pour  la  protection  des  intérêts  financiers

2
3
4

5
6
7
8

10
11

12
14
15

16

17

communautaires (P)
Fair Trials Aboard (UK)
György Gátos (H)
Czech  Association  for  the  Protection  of  the  financial  interest  of  the  EC  (PFI)
(CZ).
P. Fauchon, Senator (F)
Max Planck Institut (D)
Prof. Kaiafa-Gbandi (EL)
R. Van Camp, Procureur général (B)

Centro di Diritto Penale Europeo (I)
Association européenne des Magistrats /European Association of Judges

T. Wolf , judge at the regional court of Marburg (D)
Dutch Association for the PFI (NL)
Department of Justice (IRL)

Permanente  commissie  van  deskundigen  in  internationaal  vreemdelingen-,
vluchtelingen- en strafrecht (NL)
Bundesministerium  der  Justiz  und  den  Justizministerien  der  Länder  der
Bundesrepublik Deutschland (D)

18 Ms F. Page (UK)
19
20

Deutscher Anwaltverein (D)
P. Amaral (P)

20bis Ministerie van Justitie (NL)

21 Magistrats européens pour la démocratie et les libertés

Prof. L. Picotti (I)

22
23 Magistratura democratica (I)

24
25
26
27

28

29

30

Deutscher Strafrechtslehrer (D)
L. Fayolle, A. Reiter Korkmaz et al., Institut universitaire européen (I)
D.M. Amann, Institut universitaire européen (I)
Deutscher Richterbund (D)

J. de Maillard, Juge au Tribunal de Grande Instance de Blois (F)

B. Bertossa, Procureur général de Genève (CH)

Regeringskansliet Justitiedepartementet (S)

C. Abt, L. De Muyter et al, Collège d'Europe de Bruges (B)
31
32
A. Ardelean, B. Carl et al., Collège d'Europe de Bruges (B)
33 M. Guglielmetti, L. Mascia et al., Collège d'Europe de Bruges (B)
34
35

Transparency International
Lithuania Association for the PFI (LT)

STATUS

European institution
PFI expert/association

Expert/NGO
Institution/individual
PFI expert/association

government

Member of Parliament
Expert/university
Expert/university
Judicial practitioner/
authority
PFI expert/association
Judicial practitioners/
authorities
Expert/judicial authority
PFI expert/association
Institution/ government
body
Institution/ 
body
Institution/ government
body
Expert/lawyer
Experts/lawyers
Expert/individual
Institution/ government
body
Judicial practitioners/
authorities/
Expert/university
Judicial practitioners/
authorities
Experts/universities
Experts/universities
Expert/university
Judicial practitioners/
authorities
Judicial practitioner/
authority
Judicial practitioner/
authority
Institution/ government
body
Experts/universities
Experts/universities
Experts /universities
Expert/NGO
PFI expert/association

147 In chronological order of receipt of contribution.

23

                                                
36
37
38
39
40
41
42
43

44

45

46
47
48
49
50
51
52
53
54
55

56
57
58
59
60

61

62
63
64
65

66
67

68

69

70
71
72

Expert/university
Expert/university
Institution/parliament
Expert/university
PFI expert/association
PFI expert/association
Expert / association
Institution/ government
body
Judicial practitioner/
authority
Institution/ government
body

Expert/lawyer
Expert/lawyer
Expert/lawyer
Expert/lawyer
Expert/lawyer
Expert/lawyer
Expert/lawyer
Expert/lawyer
Expert/lawyer
PFI expert/association

C. Ducouloux-Favard (F)
Prof. J.A.E. Vervaele (NL)
Beschluss des Bundesrates (D)
C. Fijnaut, M.S. Groenhuijsen (NL)
Centro di Diritto Penale Europeo - 2 (I)
Austrian Association for European Criminal Law (A)
B. Favreau - Institut des Droits de l'Homme et des Avocats européens
Oikeusministeriö (FIN)

Fiscalía General del Estado (E)

United Kingdom and Scotland (UK)

Avv. G. A. Conte (I)
Avv. Della Valle (I)
Dott. Galoppi (I)
Dott. B. Giordano (I)
Prof. G. Frigo (I)
Prof. Lanzi (I)
Dott. De Vincenzi (I)
A. P. Casati, B. Coluccia et al. (I)
D. Alessio, L. Cirillo et al. (I)
Institut  des  Droits  de  l'Homme  et  des  Avocats  européens  /Union  des  Avocats
européens
E. Mezzetti (I)
Union des avocats européens /Commissione di diritto penale comunitario
Croatian Association for the PFI (HR)
K. Schöfferle (D)
Camera Penale di Como e Lecco (I)

Romanian Association of Community Law Research (RO)
Seminar of Rome (I)
F.S. Spruijt (NL)
Bundesministeriums für Justiz der Republik Österreich (A)

Expert/university
Experts / association
PFI expert/association
Expert/individual
Judicial practitioner/
authority
Institution/ government
body
PFI expert/association
PFI expert/association
Expert/university
Institution/ government
body
Expert/lawyers
Judicial practitioner/
authority
Judicial practitioner/
authority
Judicial practitioner/
authority
Expert/NGO
Taxpayers Association of Europe
R. André et J.Floch, députés, assemblée nationale française, (F)
Institution/parliament
Armando D'Alterio, Sostituto Procuratore della Repubblica Tribunale Napoli (I) Judicial practitioner/

Criminal Bar Association (UK)
Procuratore della Repubblica di Palermo (I)

J-F. Kriegk, Président du Tribunal de Grande Instance de Nîmes (F)

Procuratore della Repubblica di Roma (I)

Latvian Ministry of Finance (LV)

authority

24

Annex 2

LLIISSTT  OOFF  SSPPEEAAKKEERRSS  AATT  TTHHEE  PPUUBBLLIICC  HHEEAARRIINNGG

114488

NNAAMMEE  OOFF  SSPPEEAAKKEERR  --  CCOOUUNNTTRRYY

RREEPPRREESSEENNTTIINNGG::

1 Ms Toftergaard Nielsen, Ministry of Justice - DK
2 M. José Narciso Cunha Rodriguez, judge
3 M. Juan Manuel Fabra-Valles, President
4 M. Raymond Kendall, Chair
5 M. Edmondo Bruti-Liberati, Committee Member
6 Mme Mireille Delmas-Marty, Committee Member
7 M. Daniel Flore, Conseiller général - B
8 M. Alfons Van den Abbeele, Auditeur général - B
9 Ms Birgitte Juul, Chief Adviser -DK
10 Mr Andreas Birkmann, Justizminister - D
11 Mr Alfred Dittrich, Referatsleiter - D
12 Mr Nikólaos Lívos, Léktoras Pinikón Dikéon - EL
13 Mr Fernando Irurzun Montoro, Consejero de Justicia - E Consejo General Poder Judicial
14 Mme Isabelle Toulemonde, Secrétaire générale adjointe -

Presidency of the European Council
Court of Justice of the European Communities
European Court of Auditors
OLAF Supervisory Committee
OLAF Supervisory Committee
OLAF Supervisory Committee
Ministère de la Justice
Ministère des Finances
Justisministeriet
Thüringer Justizministerium
Bundesministerium der Justiz
Ipourgio Dikeossinis

F

15 Mr Anthony McDermottroe, Head of division - IRL
16 Mr Richard Ryan, Head of division - IRL
17 Ms Augusta Iannini, Direttore generale - I
18 Mr Amedeo Speranza, Avvocato generale - I
19 Mr Roland Genson, Conseiller - L

20 Ms Marjorie Bonn, Raadsadviseur - NL
21 Mr Paul Van Voorst, senior beleidsaviseur - NL
22 Mr Christian Pilnacek, Oberstaatsanwalt - A
23 Mr Fritz Zeder, stellvertretender Abteilungsleiter - A
24 Ms Teresa Alves Martins, Directora adjunta - P

les  questions  de

interministériel  pour 

Comité 
coopération économique européenne
Department of Justice Equality and Law Reform
Department of Justice Equality and Law Reform
Ministero della Giustizia
Ministero dell’Economia e delle Finanze
Ministère  de  la  Justice  –  Représentation  permanente
auprès de l’UE
Ministerie van Justitie
Ministerie van Justitie
Bundesministerium für Justiz
Bundesministerium für Justiz
Gabinete  para  as  Relações  Internacionais,  Europeias  e
de Cooperação – Ministerio da Justiça

25 Mr José Antonio Viegas Ribeiro, Subinspector general - P Inspect. General - Ministerio das Finanças
26 Ms Seija Kivinen, neuvotteleva virkamies - FIN
27 Mr Asko Valimaa, Lainsäädäntöneuvos - FIN
28 Mr Mikael Tollerz, Director - S
29 Ms  Lorna  Harris,  Head  of  United  Kingdom  Central

Valtionvarainministeriö
Oikeusministeriö / Lainvalmistelnosasto
Ministry of Justice
Home Office, Judicial Cooperation Unit

Authority - UK

30 Mr Enrique Bacigalupo
31 Mr John Spencer
32 Ms Catherine Guy-Quint, Member
33 Mme Diemut Theato, Chair
34 M Dimitrakopoulos, Vice-President of the EP
35 Mr Jürgen Storbeck, Director
36 Mme Ute Stiegel, Magistrate
37 M. Johan Denolf, Directeur - B

38 Mr Ralf Moβmann, Regierungsdirektor - D
39 Mr  Javier  Albadalejo  Campos,  Vocal  Asesor  de  la

Secreteria General Tecnica - E

40 M. Didier Duval, Chef de Division - F

Tribunal Supremo – “Corpus Juris”
University of Cambridge – “Corpus Juris”
Committee on Budgets – EP
Committee on Budgetary Control – EP
Committee on Constitutional Affairs - EP
Europol
DG OLAF - EC
Police  Fédérale  –  Direction  de 
criminalité économique financière
Bundesministerium des Inneres
Ministerio del Interior – Secreteria General Tecnica

lutte  contre 

la

Ministère de l’Intérieur – Direction centrale de la Police
judiciaire

148 In the order of speaking at the public hearing held in Brussels on 17 September 2002.

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41 Mr James Hamilton - IRL
42 Mr Edoardo Esposito, Comandante Centro Investigazioni

Office of Director Public Prosecutions
Guardia di Finanza

Economiche Finanziarie - I

43 Mr Wim Verheggen, Lead management team FIOD - NL Fiscal  Information  and  Investigative  Authorities  –

44 Mr Carlos Farinha, Subdirector nacional adjunto - P
45 Ms Minna Ketola, Rikostarkastaja - FIN
46 Ms Sheila Edwards - UK
47 Mr Michael Kennedy, President
48 Mr Detlev Mehlis, Contact point - D
49 Mr Eugenio Selvaggi, Contact point - I
50 M. Serge Brammertz, Procureur fédéral - B
51 M. Guy Rapaille, Avocat général - B
52 Mr Jesper Hjortenberg, Deputy Public Prosecutor - DK
53 Ms Sonja Ponikowski, Deputy Public Prosecutor - DK
54 Mr Thomas Janovsky, Leiter der Wirtschatsabteilung - D Staatsanwaltschaft Hof
55 Ms Ursula Reichling, Generalstaatsanwaltin - D
56 Mr Sotirios Bagias, Proïstamenos - EL
57 Mr Ilias Zagoreos, Audiissangeleas - EL
58 Mr Jaime Moreno Berdejo, Fiscal - E
59 Mme  Dominique  Planquelle,  Chef  de  Division

Fiscal Inlichtingen en Opsporings Dienst (FIOD)
Policia judiciaria
Keskusrikospoliisi
Department for Environment, Food and Rural Affairs
Eurojust
European Judicial Network (EJN)
European Judicial Network (EJN),
Parquet fédéral
Parquet de la Cour d’Appel de Liège
Director of Public Prosecutions
Public Prosecutor for Serious Economic Crime

Generalstaatsanwaltschaft
Issangelia Protodikon Athinon
Protodikio Athinon
Secreteria Tecnica de la Fiscalia General del Estado
Parquet du Tribunal de Grande instance de Paris

économique et financière - F

60 Mme Augustine Pascal, Adjointe au Chef du Bureau - F
61 Mr Finbarr O’Malley, Head of Unit - IRL
62 Mr Pietro Grasso, Pubblico ministero - I
63 Mr Italo Ormanni, Pubblico ministero - I
64 M. Jeannot Nies, Avocat général - L
65 Mr Anne Zwaneveld, Officier van Justitie - NL
66 Ms Teresa Almeida, Procuradora da Republica- P
67 Mr João Paulo Rodrigues, Procurador da Republica - P
68 Mr Matti Nissinen, Valtionsyyttäjä - FIN
69 Ms  Lena  Moore,  Överäklagare,  Chef  of  Internationella

Bureau “lutte contre la fraude” – Ministère des finances
Office of the Attorney General
Procura della Republica di Parlermo
Procura della Republica di Roma
Parquet général
Openbar Ministerie / arrondissementsparket Rotterdam
Procuradoria General da Republica
Procuradoria General da Republica
Valtakunnansyyttäjän virasto
Rikesäklagaren Internationella Avdelingen

Avdelingen - S

70 Mr Aberg Kazimir, Director - S
71 Ms Helen Garlick, Senior Legal Adviser - UK
72 Mr Tony Walker – UK
73 Mr Günter Woratsch, Judge
74 Mr Vito Monetti, Judge

75 Ms  Elisabeth  Doleisch  von  Dolsperg,  Vorsitzende

Richterin am Oberlandsgericht - D
76 Mr Andreas Potamianos, Próedros - EL
77 Mr  Fernando  Roman  Garcia,  Director  del  Gabinete

Tecnico - E

78 M. Luc-Michel Nivose, Conseiller - F
79 Mr Patrick McCarthy, Barrister - IRL
80 Mr Luciano De Riu, Consigliere - I
81 Mr Henk de Graaf, Rechter - NL
82 Mr Franz Furtner, Richter - A
83 Ms Alistair Brown - UK
84 Mr John Fish, President

85 Mr Peter Baauw
86 M. Giovanni Bana, Président

87 Mme Francesca Ruggieri, Membre
88 M. Bertrand Favreau, Président
89 Mr Michael Jäger, Secretary General
90 Mr Michael Boeckhaus, Member

Swedish National Economic Crimes Bureau
Serious Fraud Office
Customs and Excise
European Association of Judges
MEDEL  (Magistrats  européens  pour  la  démocratie  et
les libertés)
Oberlandesgericht Köln

Próedros Protodikón Athinón
Consejo General Poder Judicial

Cour d’Appel de Paris
Law Library
Corte di Cassazione
Rechtbank Haarlem
Landesgericht Korneuburg
Crown Office Scotland
CCBE  (  Council  of  the  Bars  and  Law  Societies  of  the
EU)
Criminal Law Committee - CCBE
Commission  droit  pénal  communautaire  –  Union
avocats européens (UAE)
UAE
Institut des droits de l’homme - UAE
Taxpayers Association of Europe
Deutschland « NordRhein-Westfalen »

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91 Mme Benoîte Taffin, Président
92 Mr Stephen Jakobi, Director
93 Mr Rüdiger Bandilla, Legal Adviser of the Board
94 Mr Dionysios Spinellis - EL
95 Mr Paul Carney, Judge - IRL
96 Mr Massimo Capirossi - I
97 Mrs Rosaria Sicurella - I
98 Mr Friedrich Hauptmann - A
99 Mr Raimo Lahti - FIN
100 Mr Jaroslav Fenyk - CZ
101 Mr Jaan Ginter - EE
102 Mr Akos Farkas - HU
103 Ms Angela Nicolae - RO
104 Ms Anna Ondrejova - SK
105 M. Durmus Tezcan - TR

Contribuables Associés
Fair Trials Abroad
Transparency International
University of Athens
The High Court Ireland
Centro di Diritto Penale -Tributario-Torino
Centro di Diritto Penale Europeo - Catania
General Prokuratur beim Obersten Gerichtshof
University of Helsinki
Supreme Public Prosecutor’s Office
University of Tartu
University of Miskolc
General Prosecutor’s Office
General Prosecutor’s Office
Université Dokuz Eylul d’Izmir

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