Proposal for a COUNCIL IMPLEMENTING DECISION amending Council Implementing Decision (EU) 2018/1696 on the operating rules of the selection panel provided for in Article 14(3) of Council Regulation (EU) 2017/1939
Date: 2020-06-26
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU body, EU office or agency, appointment of members, criminal investigation department, fraud against the EU, public prosecutor's department, rules of procedure

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   EUROPEAN COMMISSION  Brussels, 26.6.2020  COM(2020) 279 final 2020/0133 (NLE)  Proposal for a COUNCIL IMPLEMENTING DECISION amending Council Implementing Decision (EU) 2018/1696 on the operating rules of the selection panel provided for in Article 14(3) of Council Regulation (EU) 2017/1939  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

the 
Council  Regulation 
establishment of the European Public Prosecutor’s Office (EPPO) was adopted by the Council 
on 12 October 2017 and entered into force on 20 November 2017.  

implementing  enhanced  cooperation  on 

(EU)  2017/1939 

In  accordance  with  Article  20  of  Council  Regulation  (EU)  2017/1939,  the  Commission  is 
responsible  for  the  establishment  and  initial  administrative  operation  of  the  EPPO,  until  the 
latter has the capacity to implement its own budget.  

A prerequisite for the setting up of the EPPO is the selection and appointment of its members 
and  staff,  in  particular  of  the  European  Prosecutors,  who,  together  with  the  European  Chief 
Prosecutor,  form  the  EPPO  College.  The  EPPO  College  needs  to  take  a  number  of  key 
decisions  of  a  general  nature  without  which  the  EPPO  cannot  start  its  activities.  These 
include, e.g. adopting the internal rules of procedure of the EPPO as well as the conditions of 
employment of the European Delegated Prosecutors, and appointing the European Delegated 
Prosecutors and the Administrative Director.  

Article  16(1)  of  Council  Regulation  (EU)  2017/1939  requires  each  participating  Member 
State  to  nominate  three  candidates  who  are  (a)  active  members  of  the  public  prosecution 
service or judiciary of the relevant Member State, (b) whose independence is beyond doubt; 
and  (c)  who  possess  the  qualifications  required  for  appointment  to  high  prosecutorial  or 
judicial office in their respective Member States, and who have relevant practical experience 
of national legal systems, of financial investigations and of international judicial cooperation 
in criminal matters. 

Furthermore,  Article  16(2)  of  Council  Regulation  (EU)  2017/1939  states  that  after  having 
received the reasoned opinion of the selection panel provided for in Article 14(3) of Council 
Regulation (EU) 2017/1939, the Council shall select and appoint one of the candidates to be 
the European Prosecutor of the Member State in question. If the selection panel finds that a 
candidate  does  not  fulfil  the  conditions  required  for  the  performance  of  the  duties  of  a 
European Prosecutor, its opinion shall be binding on the Council. 

On 13 July 2018, the Council adopted Council Implementing Decision (EU) 2018/1696 on the 
operating  rules  of  the  selection  panel  provided  for  in  Article  14(3)  of  Council  Regulation 
(EU) 2017/1939.  

Rule VII No. 2 of those operating rules states that the selection panel shall hear the candidates 
nominated by the Member States for the post of European Prosecutor and shall formulate an 
opinion on the candidates’ qualifications to perform the duties of European Prosecutors. The 
panel shall expressly state whether or not a candidate nominated by a Member State fulfils the 
conditions set out in Article 16(1) of Council Regulation (EU) 2017/1939 and, failing which, 
shall,  through  its  secretariat,  request  that  the  Member  State  concerned  nominate  a 
corresponding number of new candidates. The selection panel shall then rank the candidates 
according  to  their  qualifications  and  experience.  The  ranking  shall  indicate  the  selection 
panel's order of preference and shall not be binding on the Council. 

As  a  consequence  of  this  rule,  where  a  Member  State  does  not  provide  three  eligible 
candidates within a reasonable time, the selection panel cannot provide the Council with the 
reasoned  opinion  on  the  candidates  and  the  selection  procedure  cannot  be  completed.  This 

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could prevent the Council from appointing the European Prosecutor for that Member State in 
a  timely  manner  and  consequently  delay  the  establishment  and  entry  into  operation  of  the 
EPPO.  

Experience  from  the  selection  process  for  the  first  European  Prosecutors  revealed  that  a 
Member  State  might  face  significant  difficulties  in  identifying  and  nominating  eligible 
candidates, and in some exceptional cases, it might be objectively impossible to nominate the 
necessary number of eligible candidates within a reasonable time. 

The aim of this proposal is to allow the selection panel to present reasoned its opinion to the 
Council on only two eligible candidates in exceptional and duly justified cases, i.e. where it is 
sufficiently  established  that  it  is  objectively  impossible  for  a  Member  State  to  find  a  third 
eligible candidate within a reasonable time, in spite of having deployed all necessary efforts to 
do  so,  given  the  exceptional  circumstances  encountered  by  that  Member  State.  In  those 
circumstances, the selection panel could send to the Council its reasoned opinion on only two 
eligible candidates, and the Council would be free to proceed on the basis of that opinion.  

• 

Consistency with existing policy provisions in the policy area 

The establishment of the EPPO is foreseen by Article 86 TFEU. The EPPO will be the first 
EU  body  with  criminal  investigation  and  prosecution  powers  into  crimes  affecting  the 
financial interests of the Union and will be a completely new actor in the European judicial 
landscape. The EPPO is expected to lead to a more consistent and effective prosecution policy 
for crimes affecting the EU budget, resulting in a greater number of prosecutions, convictions 
and a higher level of dissuasion and recovery of fraudulently lost Union funds.  

By  submitting  this  proposal  for  an  amendment  of  Council  Implementing  Decision  (EU) 
2018/1696,  the  Commission  is  complying  with  its  obligation  under  Articles  20,  14(3)  and 
16(2) of Council Regulation 2017/1939. This proposal will enable to carry out the necessary 
selection and appointment procedures of the EPPO’s European Prosecutors to  be completed 
and the activities to start in a timely manner. This proposal is therefore fully consistent with 
existing policy provisions in the respective policy area. 

• 

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  14(3)  and  16(2)  of 
Council Regulation (EU) 2017/1939.  

• 

Subsidiarity (for non-exclusive competence)  

The  adoption  and  amendment  of  the  operating  rules  of  the  selection  panel  provided  for  in 
Article  14(3)  of  Council  Regulation  (EU)  2017/1939  can  only  be  done  by  the  Union 
institutions,  pursuant  to  an  implementing  power,  and  is  thus  an  exclusive  competence  by 
nature, not subject to the principle of subsidiarity. 

• 

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 

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the entry into force of Council Regulation (EU) 2017/1939 and essential in ensuring a swift 
setting up and start of activities of the EPPO.  

• 

Choice of the instrument 

Article  14(3)  in  conjunction  with  Article  16(2)  of  Council  Regulation  (EU)  2017/1939 
envisages this legal instrument.  

3. 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Given the targeted and limited nature of this proposal, and the fact that it complies with the 
obligation  put  on  the  Commission  in  Article  14(3)  in  conjunction  with  Article  16(2)  of 
Council Regulation 2017/1939, ex-post evaluations, stakeholder consultations and an impact 
assessment were not carried out.  

4. 

BUDGETARY IMPLICATIONS 

The proposal has no budgetary implications.   

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Given the nature of this measure, there is no need for implementation.  

• 

Explanatory documents (for directives) 

This proposal does not require Explanatory Documents on the transposition.  

• 

Detailed explanation of the specific provisions of the proposal 

The amendment would allow the selection panel to present reasoned its opinion to the Council 
on  only  two  eligible  candidates  in  exceptional  and  duly  justified  cases,  i.e.  where  it  is 
sufficiently  established  that  it  is  objectively  impossible  for  a  Member  State  to  find  a  third 
eligible candidate within a reasonable time, in spite of having deployed all necessary efforts to 
do  so,  given  the  exceptional  circumstances  encountered  by  that  Member  State.  In  those 
circumstances, the selection panel could send to the Council its reasoned opinion on only two 
eligible candidates, and the Council would be free to proceed on the basis of that opinion. 

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2020/0133 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING DECISION 

amending Council Implementing Decision (EU) 2018/1696 on the operating rules of the 
selection panel provided for in Article 14(3) of Council Regulation (EU) 2017/1939 

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’)1, and in particular Articles 14(3), 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

The European Public Prosecutor’s Office was established to investigate, prosecute and 
bring to judgment the perpetrators of, and accomplices to, criminal offences affecting 
the financial interests of the Union.  

Regulation  (EU)  2017/1939  provides  that  the  Council  is  to  appoint  each  European 
Prosecutor from amongst three qualified candidates nominated by each Member State 
after  having  received  a  reasoned  opinion  from  the  selection  panel  provided  for  in 
Article 14(3) of that Regulation. 

The  selection  and  appointment  of  the  European  Prosecutors,  who  together  with  the 
European  Chief  Prosecutor  form  the  College  of  the  EPPO,  is  a  prerequisite  for  the 
establishment of the EPPO. 

On  13  July  2018,  the  Council  adopted  Council  Implementing  Decision  (EU) 
2018/1696 on the operating rules of the selection panel provided for in Article 14(3) of 
Council Regulation (EU) 2017/19392.  

Rule  VII  No.  2  of  those  operating  rules  states  that  the  selection  panel,  based  on  its 
findings during the review and hearing, is to formulate an opinion on the candidates' 
qualifications  to  perform  the  duties  of  European  Prosecutors  and  expressly  state 
whether or not  a candidate fulfils the conditions  in Article 16(1) of Regulation  (EU) 
2017/1939. The selection panel is to provide reasons for its opinion. In the event that 
nominated candidates do not fulfil the conditions set out in Article 16(1) of Regulation 
(EU)  2017/1939,  the  same  rule  provides  that  the  selection  panel  is,  through  its 
secretariat,  to  request  that  the  Member  State  concerned  nominate  a  corresponding 
number of new candidates. 

(6) 

As an exception to that rule, the selection panel should have the possibility to present 
its  reasoned  opinion  to  the  Council  on  only  two  eligible  candidates  where  it  is 
sufficiently  established that it is  objectively impossible for a Member State to  find a 

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2 

OJ L 283, 31.10.2017, p. 1. 
OJ L 282, 12.11.2018, p. 8–12 

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third  eligible  candidate  within  a  reasonable  time,  in  spite  of  having  deployed  all 
necessary efforts to do so, due to exceptional circumstances in that Member State. In 
such a situation, the selection panel should be able to submit to the Council its opinion 
on  two  eligible  nominees,  and  the  Council  may  proceed  to  the  appointment  on  the 
basis of a list with only two eligible candidates. 

(7) 

(8) 

Council Implementing Decision (EU) 2018/1696 should be amended accordingly. 

In  order  to  ensure  the  timely  start  of  the  activities  of  the  EPPO,  this  implementing 
Regulation should enter into force on the day following that of its publication, 

HAS ADOPTED THIS DECISION:  

Article 1 

In  rule  VII  No.  2  of  the  annex  to  Council  Implementing  Decision  (EU)  2018/1696  on  the 
operating  rules  of  the  selection  panel  provided  for  in  Article  14(3)  of  Council  Regulation 
(EU) 2017/1939, the following paragraph is inserted after the second paragraph: 

‘By way of exception, where it is sufficiently established that it is objectively impossible for a 
Member  State  to  find  a third  eligible  candidate  within  a  reasonable  time,  in  spite  of  having 
deployed  all  necessary  efforts  to  do  so,  and  given  the  exceptional  circumstances  in  that 
Member  State,  the  selection  panel  may,  after  consulting  the  Member  State  concerned  and 
giving  sufficient  grounds,  provide  its  reasoned  opinion  to  the  Council  on  only  two  eligible 
candidates.’  

Article 2 

This Decision shall enter into force on the 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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