Proposal for a COUNCIL IMPLEMENTING DECISION on the transitional rules for the appointment of European Prosecutors for and during the first mandate period, provided for in Article 16(4) of Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor's Office ("the EPPO")
Date: 2019-01-11
Institutions: European Anti-Fraud Office, European Commission
Subjects: EU office or agency, appointment of members, enhanced cooperation, fraud against the EU, public prosecutor's department

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   EUROPEAN COMMISSION  Brussels, 11.1.2019  COM(2019) 2 final  Proposal for a COUNCIL IMPLEMENTING DECISION on the transitional rules for the appointment of European Prosecutors for and during the first mandate period, provided for in Article 16(4) of Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor's Office ("the EPPO")  
 
 
EXPLANATORY MEMORANDUM 

1. 

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CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

(EU)  2017/1939 

the 
Council  Regulation 
establishment  of  the  European  Public  Prosecutor’s  Office  (‘EPPO’)  was  adopted  on  12 
October 2017 and entered into force on 20 November 2017. In accordance with Article 16(3) 
of  Council  Regulation  (EU)  2017/1939,  the  European  Prosecutors  shall  be  appointed  for  a 
non-renewable term of 6 years. This term may be extended by decision of the Council for a 
maximum of three years.  

implementing  enhanced  cooperation  on 

Article 16(4) of Council Regulation (EU) 2017/1939 states that every three years, one third of 
the European Prosecutors shall be partially replaced. The Council, acting by simple majority, 
shall adopt the transitional rules for the appointment of European Prosecutors for and during 
the first mandate period.  

This  proposal  provides for transitional rules for the partial replacement of the first  group of 
appointed  European  Prosecutors.  According  to  the  proposed  rules,  one  third  of  these 
European  Prosecutors  shall  serve  for  a  three-year  mandate,  instead  of  the  usual  six-year 
mandate established by Regulation (EU) 2017/1939, and subsequently be replaced, in order to 
comply with the rule on partial renewal set out in Article 16(4).  

In order to ensure an impartial, transparent and fair system for determining which European 
Prosecutors  will  be  appointed  for  a  shorter  first  mandate  period,  it  is  proposed  to  create  a 
system  based  on  drawing  of  lots.  This  system  will  ensure  that  the  determination  of  the 
European Prosecutors concerned will not be biased, including by reason of their nationality. 
The  geographical  range  of  the  Member  States  in  the  EPPO  College  is  ensured  by  the 
continued presence of one European Prosecutor per participating Member State as part of the 
EPPO College, and by the use of a random system that is neutral in geographic terms. This is 
in keeping with the indication of Recital (42) of Regulation (EU) 2017/1939. 

The creation of a system based on drawing of lots is also consistent with similar mechanisms 
adopted in other comparable EU policy areas1.  

The proposal further contains provisions on the procedure to be followed for the drawing of 
lots, including the indication of the responsible institutions. 

These measures are required by Regulation (EU) 2017/1939 as a condition for the setting-up 
of the College of the EPPO.  

1 

See e.g. Article 46 (2), Act concerning the conditions of accession of the Czech Republic, the Republic 
of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the  Republic of 
Hungary,  the  Republic  of  Malta,  the  Republic  of  Poland,  the  Republic  of  Slovenia  and  the  Slovak 
Republic  and  the  adjustments  to  the  Treaties  on  which  the  European  Union  founded,  OJ  L236,  23.9. 
2003, p.47; Article 21 (2), Regulation (EU, Euratom) No 883/2013 of the European Parliament and of 
the  Council  of  11  September  2013  concerning  investigations  conducted  by  the  European  Anti-Fraud 
Office  (OLAF)  and  repealing  Regulation  (EC)  No  1073/1999  of  the  European  Parliament  and  of  the 
Council and Council Regulation (Euratom) No 1074/1999, OJ L248, 18.9. 2013, p. 16. 

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Consistency with existing policy provisions in the policy area 

This implementing measure is a required step in  the process for setting up the EPPO and is 
therefore  fully  in  line  with  other  existing  provisions  on  this  policy  area.  By  submitting  this 
proposal  for  a  Council  Implementing  Decision,  the  Commission  is  complying  with  its 
obligation  under  Article  16(4)  of  Council  Regulation  (EU)  2017/1939.  This  proposal  will 
allow for the establishment of appropriate transitional rules related to the first mandate of the 
European Prosecutors.  

• 

Consistency with other Union policies 

This initiative is consistent with other Union policies and legislative developments aimed at 
strengthening the protection of the Union’s financial interests.  

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  proposal  is  based  on  Article  291  TFEU  in  conjunction  with  Article  16(4)  of  Council 
Regulation (EU) 2017/1939.  

• 

Subsidiarity (for non-exclusive competence)  

In accordance with Council Regulation (EU) 2017/1939, the Council must adopt transitional 
rules  for  the  appointment  of  European  Prosecutors  for  and  during  the  first  mandate  period. 
Action at Union level is therefore required by that Regulation.  

• 

Proportionality 

This proposal is limited to what is necessary in order to attain the proposed objectives, and is 
therefore  compliant  with  the  principle  of  proportionality.  This  proposal  is  directly  linked  to 
the entry into force of Council Regulation (EU) 2017/1939 and essential in ensuring a swift 
setting up of the EPPO.  

RESULTS  OF  EX-POST  EVALUATIONS,  STAKEHOLDER  CONSULTATIONS 

 3. 
AND IMPACT ASSESSMENTS 

 Given  the  targeted  and  limited  nature  of  this  proposal,  and  the  fact  that  it  implements  the 
obligation  on  the  Commission  according  to  Article  16(4)  of  Council  Regulation  (EU) 
2017/1939, ex-post evaluations, stakeholder consultations and an impact assessment were not 
carried out. 

4. 

BUDGETARY IMPLICATIONS 

There  are  no  direct  budgetary  implications  related  to  this  proposal;  the  EU  budget 
contribution to the running costs of the EPPO will cater for the salaries and allowances of the 
European Prosecutors.  

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Given  the  nature  of  this  measure,  there  is  no  need  for  an  implementation  plan  or 
implementation monitoring rules.  

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• 

Explanatory documents (for directives) 

This proposal does not require Explanatory Documents on the transposition.  

• 

Detailed explanation of the specific provisions of the proposal 

Article 1 set out the objectives of the Council implementing Decision. 

Article 2 provides for a  procedure for a partial replacement  of the  European Prosecutors on 
the basis of drawing of lots. Paragraph 1 outlines the requirement set out in Article 16(4) of 
Regulation (EU) 2017/1939, where a group of European Prosecutors comprising one third of 
the number of the participating Member States at the time of application of these transitional 
rules  shall  be  determined.  Paragraph  2  clarifies  the  procedure  to  be  followed  should  the 
number of participating Member States at the time of application of the transitional rules not 
be divisible by three. In this case, the number of European Prosecutors to be included in each 
group  shall  be  rounded  up  to  the  higher  integer  number.  Paragraph  3  tasks  the  General 
Secretariat of the Council with taking the necessary measures to implement this procedure, in 
cooperation with the Commission. 

Article 3 provides that the non-renewable term of office of the European Prosecutors drawn in 
accordance with the procedure established in Article 2 will be of three years.  

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Proposal for a 

COUNCIL IMPLEMENTING DECISION 

on the transitional rules for the appointment of European Prosecutors for and during 
the first mandate period, provided for in Article 16(4) of Regulation (EU) 2017/1939 
implementing enhanced cooperation on the establishment of the European Public 
Prosecutor's Office ("the EPPO") 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union,  

Having  regard  to  Council  Regulation  (EU)  2017/1939  of  12  October  2017  implementing 
enhanced cooperation on the establishment of the European Public Prosecutor's Office (‘"the 
EPPO’)2, and in particular Article 16(4) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

Pursuant to Article 16(3) of the Regulation (EU) 2017/1939, the European Prosecutors 
should be appointed by the Council for a non-renewable mandate of six years, which 
may be extended for maximum three years, at the end of the six-year period. 

According to Article 16(4), every three years there should be a partial replacement of 
one third of the European Prosecutors. The Council, acting by simple majority, should 
adopt  transitional  rules  for  the  appointment  of  the  European  Prosecutors  during  the 
first mandate period. 

These  transitional  rules  should  ensure  the  proper  application  of  the  principle  of 
periodical replacement to the European Prosecutors appointed for the first time to the 
EPPO,  with  a  view  to  ensuring  continuity  of  the  work  of  the  College  of  European 
Prosecutors. They should at the same time take into consideration the special needs of 
the EPPO in the first years following its establishment and beginning of operations. 

For these purposes, specific rules should be established on the duration of the term of 
office of the European Prosecutors appointed for the first time following the entry into 
force of Regulation (EU) 2017/1939.  

To  ensure  full  transparency  and  impartiality  in  the  determination  of  those  European 
Prosecutors in the first mandate period whose term of office will be three years instead 
of six years, a system based on drawing of lots should be followed. This system will 
also ensure that the selection of the European Prosecutors whose term of office will be 
shorter is neutral in geographic terms, 

HAS ADOPTED THIS DECISION:  

This Decision sets out transitional rules for the appointment of European Prosecutors for and 
during the first mandate period following the entry into force of Regulation (EU) 2017/1939. 

Article 1 

2 

OJ L 283, 31.10.2017, p. 1. 

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Article 2 

1. 

2. 

3. 

Immediately  following  the  appointment  of  European  Prosecutors,  a  group  of 
European  Prosecutors  comprising  one  third  of  the  number  of  the  participating 
Member  States  at  the  time  of  application  of  these  transitional  rules  shall  be 
determined by drawing of lots.  

If  the  number  of  participating  Member  States  at  the  time  of  application  of  these 
transitional rules is not divisible by three, the number of European Prosecutors to be 
included in the group shall be rounded up to the closest higher integer number. 

The  General  Secretariat  of  the  Council  shall  take  the  necessary  measures  to 
implement the procedure of drawing lots, in close cooperation with the Commission. 

The  term  of  office  of  the  European  Prosecutors  included  in  the  group  established  in 
accordance  with  Article  2  shall  be  three  years.  The  appointment  of  these  European 
Prosecutors shall be non-renewable. 

Article 3 

Article 4 

This Decision shall enter into force on the [twentieth…] day following that of its publication 
in the Official Journal of the European Union. 

Done at Brussels, 

For the Council 
The President 

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